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All Reporters → us-dist-lexis → Volume 1990

Opinions in us-dist-lexis Volume 1990

OPINION AND ORDER Plaintiff Riccardo Burgos is a New York State prisoner serving a sentence for robbery, of which he was convicted on his plea of guilty, and awaiting trial on three additional indictments in New York State Supreme Court, Bronx County, for murder, attempted murder and robbery. On July 10, 1989, he sued simultaneously here and in Supreme Court, Bronx County claiming that his life...
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*992 OPINION AND ORDER This pro se civil rights action is presently before the Court on the motion of defendant YMCA of Greater New York — Prospect Park Branch (“YMCA”) to dismiss the amended complaint as against it for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), Fed.R. Civ.P. For the following reasons, YMCA’s motion is granted....
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MEMORANDUM The plaintiff, David Magerer, filed this action in the Superior Court of Massachusetts in Middlesex County on March 8, 1989. In the complaint, Magerer alleged that he was wrongfully terminated from his job by his employer, John Sexton & Co. (“Sexton”), and his supervisor, Robert Valley, the two defendants in this action. The complaint stated four separate state law claims: brea...
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MEMORANDUM This ease is currently before the Court on defendant’s motion to dismiss or alternatively to stay proceedings and alternatively to transfer to the United States District Court, Eastern District, Northern Division. For the reasons set forth below, the Court grants defendant’s motion to dismiss. On May 28, 1986 Taylor sustained personal injuries when a Burlington Northern train struck his...
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MEMORANDUM-DECISION & ORDER The law firm Platzer, Fineberg & Swer-gold (“PF & S”), pro se, appeals from a May 8, 1989, decision of Bankruptcy Judge Marvin A. Holland, and an order dated June 12, 1989, by Bankruptcy Judge Jerome Feller acting for Judge Holland under Local Bankr.R. 3, E.D.N.Y., awarding in part and denying in part attorney fee applications of PF & S under 11 U.S....
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MEMORANDUM-DECISION & ORDER The United States has moved to withdraw a portion of the indictment charging defendant with violating 18 U.S.C. § 1030(a)(5). Specifically, the United States seeks to withdraw from the indictment any reference to “Air Force Logistics Command, Wright Patterson Air Force Base in Dayton, Ohio.” The government seeks this withdrawal because it no longer intends to o...
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728 F. Supp. 504 (1990) Tanya LIBBY, by her father and next friend, Charles F. LIBBY, Plaintiff, v. The SOUTH INTER-CONFERENCE ASSOCIATION, The Illinois High School Association, Valley View School District No. 365U, David Carlson as Principal of Romeoville High School, and Ernie Cimo, as Athletic Director of Romeoville High School, Defendants. No. 87 C 7499. United States District Court, N.D. Ill...
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ORDER AND REASONS Before the Court is the motion of the defendant, Barry L. Theriot, to dismiss the complaint for declaratory judgment. Timely memoranda were filed by counsel for both the plaintiff and defendant and the Court heard oral argument on the motion on December 6, 1989. After listening to the arguments of counsel as well as thoroughly reviewing the memoranda, record, facts, and ...
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MEMORANDUM OPINION AND ORDER Petitioner Vernon Snype brings this petition for Habeas Corpus pursuant to 28 *208U.S.C. § 2254 (1982). The matter was originally referred to United States Magistrate Kathleen A. Roberts for Report and Recommendation pursuant to 28 U.S.C. § 636(b) (1982). The Magistrate agreed with respondent’s argument that the petition contained a mixture of exhausted and unexhauste...
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727 F. Supp. 472 (1990) WASHINGTON NATIONAL INSURANCE COMPANY, Plaintiff, v. BLUE CROSS AND BLUE SHIELD UNITED OF WISCONSIN, Defendant. No. 89 C 0056. United States District Court, N.D. Illinois, E.D. January 3, 1990. *473 Irwin C. Alter, Alter and Weiss, Chicago, Ill., Geri Gaughan, Washington Nat. Ins. Co. Evanston, Ill., for plaintiff. Laurel Barnes, Blue Cross and Blue Shield United of Wiscon...
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DECISION AND ORDER Pursuant to 42 U.S.C. § 1983, pro se plaintiff Joseph Scott originally brought *807this action for declaratory, injunctive and compensatory relief, alleging that the defendants improperly confined him to “detention admission” and “keeploek” in violation of his right to due process. By Decision and Order of March 8, 1989, I dismissed plaintiffs complaint without prejudice pursua...
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DECISION AND ORDER Plaintiff United States commenced this action for civil forfeiture against the premises and real property at 297 Hawley Street under 21 U.S.C. § 881. The Government now moves for a stay of this forfeiture action pursuant to 21 U.S.C. § 881(i) until the disposition of related criminal matters pending against claimant Roberta Sturgis, or for a protective order pursuant to...
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MEMORANDUM This case is now before the court on the defendant Texaco Incorporated’s (“Texaco”) motion for summary judgment. The plaintiffs in this action, Robert McConnell (“McConnell”), J. Neil Hermann (“Hermann”), and Irwin D. Neiderman (“Neiderman”), are three former employees of defendant Texaco. Plaintiffs initially brought this action in the Superior Court for Norfolk County of the ...
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*599MEMORANDUM OPINION AND ORDER The Special Master appointed by the Court filed her Report with respect to the Joint Petition of Plaintiffs’ Counsel for Attorneys’ Fees and Reimbursement (“the Report”)1 on November 13, 1989. The Report recommended a fee award of $917,-970.63 for class counsel Pomerantz Levy Haudek Block & Grossman (“Pomerantz Levy”) and a fee award of $141,185.63 for Harvey Gree...
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ORDER Plaintiffs Daniel and Gloria Carter filed the instant action in the Circuit Court of Cook County complaining that the defendants, all of whom are Chicago police officers, used excessive force during an arrest of Daniel Carter on December 25, 1987. Counts I and II of the Carters’ four-count amended complaint set forth a claim based on 42 U.S.C. § 1983 and state law claims of assault ...
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727 F. Supp. 1023 (1990) UNITED STATES, Plaintiff, v. Readie Van SMITH, Defendant. Crim. A. No. 89-00139-R/C. United States District Court, W.D. Virginia, Charlottesville Division. January 4, 1990. Frederick T. Heblich, Jr., Charlottesville, Va., for defendant. Ray Fitzgerald, Asst. U.S. Atty., Roanoke, Va., for plaintiff. MEMORANDUM OPINION MICHAEL, District Judge. This case is currently before...
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DECISION and ORDER As anyone who watches television these days knows, the search of a home by police officers looking for drugs is not an activity for wimps. The police usually arrive with things like sledgehammers, bullhorns, tear gas, shotguns, and drawn 357 magnums. Usually the officers figuratively tiptoe up to the door of the house, say to themselves “Ready, set, go,” and then knock loudly on...
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MEMORANDUM AND ORDER Plaintiff brought this action in the Supreme Court, Queens County, for payment allegedly due under his health insurance policy with defendant. Defendant removed the action, pursuant to 28 U.S.C. § 1441, alleging diversity between the parties and an amount in controversy in excess of $50,-000. Plaintiff moves to remand on the grounds that under 28 U.S.C. § 1332(c) this court...
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727 F. Supp. 367 (1990) NORFOLK AND WESTERN RAILWAY COMPANY, Plaintiff, v. The PUBLIC UTILITIES COMMISSION OF OHIO, et al., Defendants. No. C2-87-766. United States District Court, S.D. Ohio, E.D. January 2, 1990. Daniel A. Brown, Diane C. Reichwein, Porter, Wright, Morris & Arthur, Columbus, Ohio, for plaintiff. Robert S. Tongren, James B. Gainer, William L. Wright, Asst. Atty. Gen., Public ...
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MEMORANDUM OPINION AND ORDER Before the Court is defendant’s motion for summary judgment. For the reasons discussed below, defendant’s motion must be granted. The School District of Kansas City, Missouri, defendant, ran a newspaper advertisement soliciting applicants for the position of Manager of Procurement, or Con *1319 tracts Manager, for Minority Business Enterprise...
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728 F. Supp. 477 (1990) John MEYERS, Plaintiff, v. CITY OF CINCINNATI, et al., Defendants. Civ. No. C-1-88-466. United States District Court, S.D. Ohio, W.D. January 4, 1990. *478 *479 William Wyler, Cincinnati, Ohio, for plaintiff. James McCarthy, Cincinnati, Ohio, for defendants. ORDER CARL B. RUBIN, Chief Judge. This matter is before the Court on cross-motions for summary judgment (Doc. Nos. ...
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OPINION AND ORDER The defendants have been indicted for possession of cocaine, conspiracy to distrib *213 ute cocaine and conspiracy to export cocaine. They now move to suppress evidence recovered following their arrests, including fourteen kilograms of cocaine recovered from a minivan in which several of the defendants had been riding, on the ground that their arrests were not based on proba...
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MEMORANDUM AND ORDER Plaintiff Uniformed Benefit Services Association (USBA) filed suit against the defendant United States of America (Government), seeking a refund of $712,155.61 in taxes and interest. The parties have submitted the case to the court on stipulated facts. The following statement of facts is drawn from that stipulation. The plaintiff seeks a refund of taxes paid for the 1978 and ...
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AMENDED MEMORANDUM AND ORDER This case involves allegations of fraud in the solicitation of investors in a real estate partnership. Plaintiff Todd Ruff charges the defendants, Genesis Holding Corporation (“Genesis”), Leo Blank, and Joseph R. Cordaro, 1 with violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, Section 20(c) of...
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MEMORANDUM AND ORDER On December 14, 1987, the Grand Jury for the Northern District of Indiana returned an indictment in nine counts against the defendant, Phillip DeGeratto. Count 1 charges DeGeratto with conspiracy relating to the interstate transportation and receipt of truckloads of stolen meat products in violation of 18 U.S.C. § 371. Counts 2, 5 and 8 charge DeGeratto with the interstate tra...
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MEMORANDUM DECISION Defendants/third-party plaintiffs Arthur Andersen & Co. (USA) (“AA-US”), Arthur Andersen & Company (Republic of Ireland) (“AA-Ireland”), and Arthur Andersen & Co. (United Kingdom) (“AA-UK”) (hereinafter collectively “AA”), impleaded third-party defendants Alex H. Fetherstone, C. Shaun Harte, Ronald J. Henderson, Anthony S. Hopkins, and James Sim, members at various tim...
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728 F. Supp. 340 (1990) UNITED STATES of America v. Rodney K. BEVANS. Crim. No. 89-00340-01. United States District Court, E.D. Pennsylvania. January 4, 1990. *341 *342 Maureen Barden, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff. James A. Lammendola, Philadelphia, Pa., for defendant. MEMORANDUM RAYMOND J. BRODERICK, District Judge. Defendant Rodney Bevans was convicted of conspiracy to se...
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This is a Freedom of Information Act (“FOIA”) suit seeking the release of names of Federal Bureau of Investigation (“FBI”) and local law enforcement personnel that the defendants redacted when they disclosed FBI records to the plaintiffs on Senator Robert F. Kennedy’s assassination. Relying upon the FOIA’s personal privacy exemption, 5 U.S.C. § 552(b)(7)(C) (“Exemp *663 tion 7(C)”)...
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MEMORANDUM OPINION AND ORDER I. James L. McCall, Jr., criminal defendant in the above cause, moves this court to suppress evidence obtained by the United States (the Internal Revenue Service) through the issuance of administrative (I.R.S. Form 2039) summonses. McCall alleges the I.R.S. Special Agent who issued the summonses was not so empowered, and, accordingly, the evidence acquire...
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ORDER This matter is before the Court on plaintiffs and defendant’s cross motions for summary judgment (doc. nos. 24 and 25) and their respective reply memoranda (doc. nos. 27 and 28). The summary judgment procedure under Federal Rule of Civil Procedure 56 is designed to secure a just, speedy, and inexpensive determination of any action. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548...
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OPINION This is an action based on Section 1 of the Sherman Act, 15 U.S.C. § 1, and certain related state law theories. The claim is that defendant Macy conspired with manufacturers of children’s swimwear to have these manufacturers cut off certain sales to a chain of discount children’s clothing stores known as Kids “R” Us, a division of plaintiff Toys “R” Us. Macy moves for summary judgment...
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RULING ON MOTION TO DISMISS Plaintiff seeks indemnity or, alternatively, contribution from defendants Yale New Haven Hospital (“YNH”) and Ohmeda Chemical (“Ohmeda”) for the sum recovered by the Estate of Sandra Cardillo. Complaint, MI 18, 21, 28, 37. Plaintiff alleges that on December 6, 1976, Sandra Cardillo received Swine Flu vaccine pursuant to the National Swine Flu Immunization ...
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OPINION and ORDER Jose Guzman, a state prisoner, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 8, 1986 in the Supreme Court of Bronx County petitioner was convicted, after a jury trial, of murder in the second degree. N.Y.Penal Law § 125.25 (McKinney 1984). He was sentenced to an indeterminate prison term of twenty-five years to life. Petitioner raises three grou...
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OPINION and ORDER Petitioner by letter to the court dated January 5, 1990 complains of delays in the processing of his habeas corpus petition and requests an order directing respondents to answer the petition by February 21, 1990. Respondents have applied for, and received, two extensions of time to respond to the petition. *853 Petitioner’s letter has prompted a review of t...
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MEMORANDUM AND ORDER The plaintiff’s motion for a preliminary injunction is denied. Fed.R.Civ.P. 65(a). BACKGROUND Plaintiff, Alan Rosenfeld, brings this action in his capacity as the trustee of the John Marquis Converse Testamentary Trusts for the Benefit of Veronica Converse and Sheila Converse [the “Trusts”]. The Trusts are the testamentary heirs of the intangible personal pr...
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This suit arises out of the arrest of plaintiff, a former Sergeant with the Metropolitan Police Department, by officers of the United States Park Police and the Metropolitan Police Department near the Sousa Bridge in Washington, D.C. on June 22, 1984. At this stage in this case’s long history, the only claims that remain for resolution are those against Officer David H. Stover, in his individual ...
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MEMORANDUM AND ORDER Plaintiff Dawn Veatch (Veatch) filed this action against defendant Northwestern Memorial Hospital (the hospital) alleging that on November 8, 1987, after sixteen years of employment by defendant, she was summarily fired by her supervisor, Katherine Vestal. In counts I and II of her first amended complaint Veatch alleges that her firing violated Title VII of the Civil ...
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MEMORANDUM OPINION AND ORDER This matter is before me on the United States of America’s (government) motion for default judgment against defendant $182,980.00 U.S. currency (cash) and for summary judgment against defendant 1988 Ford F-250 4X4 Super Pickup, VIN 1FTHX25GOJKA89686, Colorado Temporary License 0683OP (truck) (collectively the “property”). The government contends that because claiman...
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*528MEMORANDUM OPINION This action was transferred from the United States Bankruptcy Court on January 6, 1987. It is only one of a continuing series of legal proceedings relating to the development of a commercial property located at 1250 24th Street, N.W., Washington, D.C. by J.W. Kaempfer and affiliated groups.1 Plaintiffs seek declaratory and injunctive relief that their purchase of a 37.5% in...
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MEMORANDUM OPINION AND ORDER Herman Kornatz, a former employee of plaintiff Barrett Industrial Trucks, Inc. (“Barrett”) is a key fact witness in this insurance dispute. After this suit was filed, however, Barrett1 hired Mr. Kornatz as a consultant for this litigation. At issue is whether the substance of conversations between Mr. Kornatz and Barrett’s attorneys are protected by the attorney-clien...
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728 F. Supp. 35 (1990) Paul WYLAND, et al., Plaintiffs, v. DISTRICT OF COLUMBIA GOVERNMENT, Defendant. Civ. A. No. 88-2051. United States District Court, District of Columbia. January 10, 1990. Carlos M. Recio, Deso, Greenberg & Thomas, Washington, D.C., for plaintiffs. Eugene A. Adams, Office of the Corp. Counsel, Washington, D.C., for defendant. MEMORANDUM ORDER JOHN H. PRATT, District Jud...
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ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS Petitioner filed a petition for a writ of habeas corpus with this Court on April 11, 1989, pursuant to 28 U.S.C. § 2254, alleging that the assistance rendered him by his trial counsel violated his constitutional right to effective counsel. 1 Essentially, Petitioner’s basis for this claim is that his counsel failed to move to dismiss his Mai...
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MEMORANDUM Plaintiff Donald Krank filed this diversity action to recover as the assignee of James L. Smith, the original insured under an errors and omission policy which plaintiff alleges defendant wrongfully “voided.” Plaintiffs cause of action accrued some time in either 1982 or 1983. 1 On March 26, 1986, plaintiff filed a voluntary petition for bankruptcy. Plaintiffs discharge took place ...
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728 F.Supp. 679 (1990) Ella Mae THORNTON, etc., et al., Plaintiffs, v. Mac S. BUTLER, etc., et al., Defendants. Civ. A. No. 84-T-848-N. United States District Court, M.D. Alabama, N.D. January 2, 1990. *680 Robert J. Varley and Patricia E. Ivie, Legal Services Corp., Montgomery, Ala., for plaintiffs. Thomas T. Gallion, III, Haskell, Slaughter & Young, Montgomery, Ala., for defendants. Julian ...
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ORDER On March 22, 1981 the petitioner, presently a death row inmate at the Arkansas penitentiary, shot and killed Arthur Criswell and wounded two others at a Conway, Arkansas restaurant. For two days the police searched for Ricky Ray Rector since he was known to be the assailant. A uniformed Conway police officer, Bob Martin, on March 24, 1981 went to the home of Rector’s mother. As set forth ...
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728 F.Supp. 642 (1990) Vanessa LEWIS-DeBOER, individually and as personal representative of the Estate of James W. DeBoer, and for and on behalf of Justin Michael and Whitney Ryan DeBoer, the surviving minor children of James W. DeBoer, Plaintiffs, v. MOONEY AIRCRAFT CORPORATION, a New Jersey Corporation, Defendant. Civ. A. No. 87-B-1139. United States District Court, D. Colorado. January 9, 1990...
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OPINION AND ORDER This is a diversity action by a woman against her former husband for negligent or intentional infliction of a sexually transmitted disease. On October 4, 1989, the court conditionally granted defendant’s motion for summary judgment on the ground that the release contained in the parties’ separation agreement bars plaintiff’s tort claim. Plaintiff was granted additio...
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728 F. Supp. 12 (1990) WILLIAMS ENTERPRISES, INC., Plaintiff and Cross-Defendant, v. STRAIT MANUFACTURING & WELDING, INC., Defendants. STRAIT MANUFACTURING & WELDING, INC., Third Party Plaintiff and Cross-Defendant, v. The SHERMAN R. SMOOT CO., Third Party Defendant and Cross-Plaintiff. Civ. A. No. 86-1226. United States District Court, District of Columbia. January 4, 1990. *13 Judd L. K...
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*57MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS On October 27, 1989, the Honorable David M. Cohen, United States Magistrate, filed with the Court his Recommended Decision on Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment (Docket No. 9). Plaintiff filed his objections thereto on November 3, 1989 (Docket No. 10). The Court has reviewed and consider...
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MEMORANDUM OPINION This is a forfeiture proceeding instituted by the United States pursuant to 21 U.S.C. § 881(a)(7) against sixty (60) acres owned by claimant, Evelyn Charlene Ellis. Initially, the parties demanded a trial by jury, but before a jury could be selected they both waived their right to jury trial, and the court proceeded to hear testimony and to receive written evidence at a...
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OPINION This cause is now before the Court for final determination after trial and filing of post-trial briefs and amendments to said briefs by all parties. This case involves the constitutionality of CODE OF ALABAMA [1975], § 22-11A-17, which requires testing of inmates for AIDS upon admission and within 30 days of release, construction of § 504 of the Rehabilitation Act of 1973, 29...
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MEMORANDUM ORDER (Denying Motion to Vacate Arbitration Award) A. This matter is presently before the Court on Plaintiff’s Motion to Vacate Arbitration Award. 9 U.S.C. § 6. This matter was previously dismissed upon stipulation by the parties in favor of arbitration proceedings before the National Association of Securities Dealers (“NASD”). Alvin Gandal v. Daley Securities, Inc. and Wedbush Securit...
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MEMORANDUM OPINION AND ORDER Samar Chatterjee (“Chatterjee”) has tried once again to file a petition under 28 U.S.C. § 2241 (“Section 2241”) against the United States Parole Commission (“Commission”) and Warden Art Beeler (“Beeler”) of the federal Metropolitan Correctional Center here in Chicago (“MCC”).1 This time Chatterjee asserts:2 Ground one: Respondants are holding Petitioner unlawfully afte...
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OPINION On July 17, 1985 plaintiff Richard Willis slipped and fell on a stairwell while working on a fixed oil drilling platform owned by defendant Cabinda Gulf Oil Company (hereinafter “Cabgoc”). The platform was located off the coast of Angola, Africa. Willis brought suit in this court seeking damages from Cabgoc for injuries he sustained from the July 17,1985 fall.1 Cabgoc has moved for summar...
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MEMORANDUM This case arises out of a motor vehicle accident involving a Southeastern Pennsylvania Transportation Authority (SEPTA) bus and a United States Postal Service (USPS) truck. Plaintiff commenced the action in the Philadelphia Court of Common Pleas. Defendant SEPTA then filed a third-party complaint against defendants Clayton and the USPS. These third-party defendants then removed...
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727 F. Supp. 1450 (1990) HORTON HOMES, INC., etc., Plaintiffs, v. UNITED STATES of America, Defendant. Civ. A. Nos. 88-279-3-MAC (WDO), 88-280-1-MAC (WDO) and 88-281-2-MAC (WDO). United States District Court, M.D. Georgia, Macon Division. January 5, 1990. David D. Aughtry, Richard N. Hubert, Atlanta, Ga., John James, Macon, Ga., for plaintiffs. Curtis Bowman, Tax Div., Dept. of Justice, Washingto...
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MEMORANDUM AND ORDER Plaintiffs John and Jenney Cherpak commenced this personal injury lawsuit seeking recovery for injuries allegedly sustained when John Cherpak suffered an on the job injury. Named as defendants are Newell Manufacturing Corp. (“Newell”), Texas Shredder Parts (“TSP”), and Van Gorp Corporation (“Van Gorp”). Newell, the manufacturer of the machine that allegedly injured plaintiff,...
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MEMORANDUM OPINION AND ORDER This is an action for forfeiture of a 1968 Cadillac Coupe DeVille (the “Automobile”) under 21 U.S.C. § 881(a)(4) 1 because it was used to transport controlled substances in violation of the federal narcotics laws. Claimant Eric Runowski (“Runowski,” the Automobile’s owner) and the United States developed the factual and legal issues in a bench trial before this Co...
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728 F. Supp. 430 (1990) MINTURN ADVERTISING, INC., Plaintiff, v. HERMSEN DESIGN ASSOCIATES, INC., Defendant. Civ. A. No. CA3-87-2606-D. United States District Court, N.D. Texas, Dallas Division. January 5, 1990. *431 David Judson of Hughes & Luce, Dallas, Tex., for plaintiff. Richard L. Schwartz of Glaser, Griggs & Schwartz, Dallas, Tex., for defendant. MEMORANDUM OPINION FITZWATER, Dist...
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MEMORANDUM AND ORDER Defendants’ motions to dismiss are granted. Fed.R.Civ.P. 12(b)(6). BACKGROUND Plaintiff, an attorney appearing pro se, brings the instant action pursuant to 42 U.S.C. § 1983, seeking damages and various forms of declaratory and injunctive relief for alleged violations of his constitutional rights. In addition, plaintiff seeks damages and injunctive relief for various state com...
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728 F.Supp. 409 (1990) Patricia JORDON, Plaintiff, v. BOWMAN APPLE PRODUCTS CO., INC., et al., Defendants. Civ. A. No. 89-0021-C. United States District Court, W.D. Virginia, Charlottesville Division. January 10, 1990. *410 Stephen A. Northup, Donald R. Lee, Mays & Valentine, Richmond, Va., for plaintiff. Ronald M. Ayers, John D. Eure, Johnson, Ayers & Matthers, Roanoke, Va., for Bowman A...
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MEMORANDUM OPINION This matter is before the court on defendant Donald P. Percival’s (“Percival”) Motion to Set Aside the Verdict and Enter Judgment of Acquittal. 1 On September 5, 1989 the Grand Jury returned an indictment against Percival charging him in the following counts: Count 1, conspiracy to violate the firearms laws of the United States, in violation of 18 U.S.C. § 371; Counts 2-1...
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MEMORANDUM DECISION Defendant, the E.F. Hutton Group, Inc. (“Hutton”), has moved to dismiss the amended complaints against it in the above-captioned cases pursuant to Rules 9(b) and 12(b)(6), Fed.R.Civ.P. 1 Plaintiffs in the Eickhorst action have moved to further amend the complaint to add an additional plaintiff. For the reasons that follow, the motion to dismiss th...
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727 F. Supp. 1052 (1990) Jim CURRY, Plaintiff, v. SILE DISTRIBUTORS and Investarm, S.P.A., Defendants. No. WC88-93-B-G. United States District Court, N.D. Mississippi, W.D. January 5, 1990. *1053 Michael P. Mills, Aberdeen, Miss., for plaintiff. S.T. Rayburn, H. Scot Spragins, Oxford, Miss., Robert J. Arnold, III, Forrest W. Stringfellow, Jackson, Miss., for defendants. MEMORANDUM OPINION BIGGER...
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ORDER AND REASONS The Court addresses herein the issue of whether to apply judicial estoppel to prevent plaintiff, Zapata Gulf Marine Corporation (Zapata), from asserting a position in this proceeding that is contrary to a position previously taken by American Caribe Lines, Inc. (AmCar) in proceedings before the Interstate Commerce Commission (ICC) on challenges by the Puerto Rico Maritime Ship...
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727 F. Supp. 999 (1990) WAUSAU UNDERWRITERS INSURANCE COMPANY, Plaintiff, v. Nancy Reece HOWSER, Defendant. Civ. A. No. 88-2942. United States District Court, D. South Carolina, Columbia Division. January 8, 1990. *1000 Hoover Blanton, Columbia, S.C., for plaintiff. Charles Hill, Columbia, S.C., for defendant. ORDER HENDERSON, District Judge. This matter is before the Court on the parties' cross...
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MEMORANDUM AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT In this pro se civil rights action brought under 42 U.S.C. § 1983, Plaintiff alleges that he injured his back while incarcerated at the Bangor Pre-Release Center, and that upon his return to the Charleston Correctional Facility, he was not provided adequate medical attention and was forced to work at a job which exacerbated his ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case involves a claim for damages arising from the apparent contact between M/V GREEN CANYON EXPRESS and a pipeline owned by United Gas Pipeline Company on March 24, 1986 in an area where the pipeline crossed under the Houma Navigation Canal. It was tried before the Court commencing on September 28, 1989, for a determination of liability and da...
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727 F. Supp. 917 (1990) IMPERIAL CASUALTY & INDEMNITY COMPANY, Plaintiff, v. The HOME INSURANCE CO. OF MANCHESTER, NEW HAMPSHIRE, et al., Defendants, v. NATIONAL CASUALTY COMPANY, Additional Defendant. Civ. A. No. 88-0932. United States District Court, M.D. Pennsylvania. January 8, 1990. Francis E. Marshall, Jr., Law Offices of Francis E. Marshall, Jr., Harrisburg, Pa., for Imperial Cas. and ...
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OPINION AND ORDER This case arises from a search by the New York Drug Enforcement Task Force, made up of officers from the Drug Enforcement Administration, the New York State Police, and the New York City Police Department, pursuant to a warrant, of three apartments at 143 Bruce Avenue in Yonkers on January 8, 1987. The Task Force suspected that these apartments were being used as a cocai...
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OPINION AND ORDER Plaintiff brings the present action under 42 U.S.C. § 1983 and under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Defendants are First Hospital Corporation, which operates Portsmouth Psychiatric Hospital, and employees of First Hospital and/or the Police Department of the City of Portsmouth, Virginia. Plaintiff alleges that defendants deprive...
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MEMORANDUM OPINION Presently before the Court is the Government’s Motion to Enforce Grand Jury Subpoena. For the reasons that follow, we will deny the motion. I. BACKGROUND A federal grand jury sitting in Pittsburgh, Pennsylvania is investigating a heroin and cocaine distribution ring. In addition to considering violations of the drug laws, the grand jury is also investigating for possible violat...
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728 F.Supp. 632 (1990) UNITED STATES of America, Plaintiff, v. John BOSHELL, Defendant. Nos. CR-88-361-S, CR-88-430-S. United States District Court, E.D. Washington. January 11, 1990. *633 Earl Hicks, Asst. U.S. Atty., Spokane, Wash., for plaintiff. Aaron L. Lowe, Spokane, Wash., for defendant. MEMORANDUM ROBERT S. McNICHOLS, Chief Judge. After a jury trial, Mr. Boshell was convicted of a single...
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OPINION AND ORDER This is a civil rights action under § 1983 alleging excessive use of force during an encounter between law enforcement officers and co-plaintiff Reymundo Pedrero Olivo. Jurisdiction is premised on the determination of plaintiffs’ federal constitutional rights underlying the claim, 28 U.S.C. §§ 1331 and 1343, and the doctrine of pendent jurisdiction. Venue is proper under 28 U....
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ORDER At the Court’s request, the parties have briefed the issue of whether this case presents a substantial federal question that invokes the jurisdiction of the Court. See Order dated August 1,1989. Plaintiff Metric Constructors, Inc. (“Metric”) was the lowest bidder on a public works project sought by defendant Gwinnett County, Georgia (“the County”). As a result, Metric con...
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MEMORANDUM AND ORDER On November 27, 1985, plaintiff filed a Freedom of Information Act (“FOIA”) request with defendant, seeking copies of all financial disclosure statements submitted from January 1, 1981 through November 27, 1985 by members of defendant’s Science Advisory Board and Scientific Advisory Panel. Defendant denied the request, and plaintiff appealed, narrowing his request to informat...
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OPINION AND ORDER The Court has before it co-defendant Mann Holly Sales and Service’s Motion to Dismiss the complaint as to Jesús M. Pérez Bonilla based upon prematurity of the action. Plaintiff Jesús Pérez and his parents Carmen Alicia Bonilla Sánchez and Eladio Pérez Martinez and his seven brothers and sisters filed this action against Mann Holly Sales and Service Inc., Hollymatic Corp., and ...
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727 F. Supp. 1300 (1990) FIRST COMMERCIAL BANK, N.A., LITTLE ROCK, ARKANSAS, Administrator of the Estate of Kelvin Thompson, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. FIRSTSOUTH, F.A., Administrator of the Estate of John Thomas Curb, II, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. FIRST NATIONAL BANK OF CAMDEN, ARKANSAS, Special Administrator of the Estate of A...
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MEMORANDUM OF DECISION AND ORDER ON RECONSIDERATION OF DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND PRIOR ACTIONS OF THE COURT THEREON I. Introduction This matter is before the Court pursuant to certain actions taken by the Court in its Memorandum and Order entered on July 13, 1989 (Docket No. 167) (per Cyr, C.J.), directing further briefing of certain issues left unresolved ...
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OPINION In the matter before the court, defendants, A.G. Edwards & Sons, Inc. (A.G. Edwards) and John L. Collins, move (# 5) to dismiss and, in the alternative, to stay this action pending arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 3. Plaintiff, Charles E. Compton, who is a former customer of A.G. Edwards, a Delaware corporation, and its broker, John Collins, alleges violatio...
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728 F.Supp. 1341 (1989) Kenneth STONE and Delores J. Stone, Plaintiffs and Counter-Defendants, v. Frank W. MEHLBERG and Mary E. Mehlberg, Defendants, Counter-Plaintiffs and Third-Party Plaintiffs, v. MICHIGAN ATTORNEY GENERAL'S OFFICE, Attorney General Frank Kelley, Michigan Corporation and Securities Bureau, Department of Licensing and Regulation, E.C. Mackey, Jaffe, Snider, Raitt & Heuer, P...
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OPINION The matters before the court are the claimants, Hoa Thi Van, Tan Vominh, and Thanh Hai Vominh’s, motions for stays of proceedings (# 24, # 33 and # 88) in these three consolidated forfeiture cases. BACKGROUND Plaintiff, United States of America, has filed three forfeiture actions which have been consolidated for the purpose of ruling *1373on motions for summary judgment: in United States v...
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728 F.Supp. 1528 (1990) Brenda A. COLEMAN, Plaintiff, v. DOMINO'S PIZZA, INC., Defendant. Civ. A. No. 89-0073-BH. United States District Court, S.D. Alabama, S.D. January 9, 1990. *1529 Henry Brewster, Mobile, Ala., for plaintiff. G. Sage Lyons, Charles L. Miller, Jr., Mobile, Ala., for defendant. MEMORANDUM OPINION AND ORDER HAND, Senior District Judge. This cause comes before the Court on defe...
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OPINION The two cases before the Court present ramifications of this Court’s earlier decision in United States v. Roberts, 726 F.Supp. 1359 (D.D.C.1989), which held unconstitutional on due process grounds, particularly as applied in this District, the new federal sentencing statute, 1 and the guidelines issued pursuant thereto by the Sentencing Commission. I On November 16, 1989, in a c...
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728 F. Supp. 607 (1990) Curtis SNEEDE, by his guardian ad litem Georgia THOMPSON; Justin Thompson, by his guardian ad litem Georgia Thompson; Georgia Thompson, on her own behalf and as representative of her sons Curtis Sneede and Justin Thompson, Plaintiffs, v. Kenneth KIZER, Director, California Department of Health Services; California Dep't of Health Services; Jesse R. Huff, Director, Californ...
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728 F.Supp. 384 (1990) William YOUNGWORTH, Petitioner, v. UNITED STATES PAROLE COMMISSION, Julius Lloyd, Warden of the Mecklenburg County Jail, and the United States Marshal's Service, Respondents. No. C-C-89-0421-P. United States District Court, W.D. North Carolina, Charlotte Division. January 11, 1990. *385 James F. Wyatt, III, Charlotte, N.C., for petitioner. Sara L. Pressly, Associate County ...
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728 F.Supp. 1429 (1990) KARSTEN MANUFACTURING CORPORATION, An Arizona corporation, Plaintiff, v. UNITED STATES GOLF ASSOCIATION, A Delaware corporation, et al., Defendants. No. CIV 89-1333 PHX PGR. United States District Court, D. Arizona. January 11, 1990. *1430 Leonard Decof, Decof & Grimm, Providence, R.I., Daniel Cracchiolo, Burch & Cracchiolo, P.A., Harry J. Cavanagh, O'Connor, Cavan...
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MEMORANDUM OPINION This case presents plaintiff’s claim that defendant infringed plaintiff’s trademark rights and unfairly competed with plaintiff by holding herself out as having the right to use the plaintiff’s trademark. The matter is now before the Court on plaintiff’s motion for summary judgment. In June 1989, following an evidentiary hearing in which plaintiff and defendant fully participate...
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MEMORANDUM OPINION The United States has filed a verified complaint for forfeiture. A warrant of arrest in rem was issued, as well as a seizure warrant/writ of entry, and the property was seized by the United States Marshal on April 27, 1989. Gladist Wimberly (claimant) then filed her claim of ownership pursuant to Rule C(6) of the Supplemental Rules of Admiralty and Maritime Claims and answe...
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OPINION AND ORDER Plaintiff Equal Employment Opportunity Commission (EEOC) has filed this complaint on behalf of Luz Rivera pursuant to the Age Discrimination in Employment Act, Title 29 U.S.C. Section 621 et seq. (ADEA) and Section 3 of the Age Discrimination Claims Assistance Act of 1988, Pub.L. 100-283, 102 Stat. 78 (ADCAA). The complaint alleges that Ms. Rivera’s contract w...
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OPINION The court finds that it is necessary to further consider defendant Charles Frank’s motion to dismiss the indictment. Frank urges the court dismiss the indictment on the grounds that the element of mens rea is not adequately charged. The indictment charges: That on or about September 2, 1989, at the Warm Springs Indian Reservation, within the Indian Country, in the District of Oregon and wi...
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728 F.Supp. 68 (1990) Daniel WEISMAN, personally and as next friend of Deborah Weisman v. Robert E. LEE, individually and as principal of the Nathan Bishop Middle School; Thomas Mezzanotte, individually and as principal of Classical High School; Joseph Almagno, individually and as Superintendent of the Providence School Department; Vincent McWilliams; Robert DeRobbio; Mary Batastini; Albert Lepor...
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MEMORANDUM This is a case involving the alleged wrongful firing of the plaintiff, James J. Kelly, by defendants, National Railroad Passenger Corporation (“Amtrak”), on the basis that Amtrak discriminated against the plaintiff because of his alleged disability or handicap, an “acute stress disorder, major depression and attendant alcohol and drug dependencies.” Before me now is defendants’ Motion ...
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MEMORANDUM This is an action for declaratory judgment brought by State Farm Mutual Automobile Insurance Company (“State Farm”) for the purpose of determining the amount of underinsured motorist coverage available to the defendants under two policies of automobile insurance issued by State Farm. Each of these policies contains an arbitration clause. Defendants have moved to dismiss plaintiffs comp...
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MEMORANDUM AND ORDER Plaintiff Robert S. Mozur is a World War II veteran who received Veterans Administration (“VA”) disability compensation benefits from 1944 to 1957 for a nervous disorder which the VA determined was “service incurred.” In 1957 these benefits were terminated after the VA reexamined Mr. Mozur’s case and concluded that his nervous disorder was not service-incurred but, rather, pre...
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The Harvey Group, Inc. (“HGI”) and Components Plus, Inc. (“CPI”) (collectively “Harvey”) move for summary judgment against Plaintiffs Arnold D. Goodridge and his wholly-owned company New Wave, Inc. (“New Wave”) and Third-Party Defendant Frank Fernandez. Fernandez and Goo-dridge cross-move for summary judgment against each other. The grounds for these motions are set forth following a brief summ...
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728 F.Supp. 352 (1990) Delores SIMMONS, Administratrix of the Estate of Daniel La Friscoe Simmons, Deceased v. The CITY OF PHILADELPHIA and Officer Albert Panati. Civ. A. No. 87-3258. United States District Court, E.D. Pennsylvania. January 10, 1990. *353 Mark Frost, Philadelphia, Pa., for plaintiff. Miriam B. Brenaman, Chief Asst. City Sol., Law Dept., Philadelphia, Pa., for defendants. OPINION...
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728 F. Supp. 1158 (1990) A1 FERRO COMMODITIES CORP., S.A., Plaintiff, v. TUBE CITY IRON AND METAL COMPANY, Defendant. Civ. A. No. 88-7290. United States District Court, E.D. Pennsylvania. January 10, 1990. *1159 Stephen W. Miller, and James B. Burns, Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., for plaintiff. Daniel J. Dugan, Spector, Cohen, Gadon & Rosen, Philadelphia, Pa., for...
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This is an action alleging fraud, breach of fiduciary duty, and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. (hereinafter “RICO”). Plaintiffs have come before the Court seeking provisional relief in the form of, first, a preliminary injunction preventing defendants from transferring any assets of Rose Hill Property Associates Inc. (“...
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ORDER On January 3, 1990, this Court heard plaintiff’s motion to remand this action to state court. William Quackenbush appeared for plaintiff. Michael W. Foster appeared for defendants. For all the following reasons, plaintiff’s motion is GRANTED. *1344 I. This is an action for wrongful termination and employment discrimination. Plaintiff Richard Horn filed suit in San...
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OPINION The issues before the court are defendants’ motion for dismissal on numerous grounds and plaintiff’s motion for class certification. Plaintiff Lester Brickman brought this action against defendants Tyco Toys, Inc. (“Tyco”), Tyco’s former officers and inside directors, and several other individual and corporate defendants 1 alleging violations of federal securities laws,...
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728 F.Supp. 298 (1990) ARGONAUT INSURANCE COMPANY, INC., Plaintiff, v. U.S. FIRE INSURANCE COMPANY, Defendant. No. 86 Civ. 0357 (RWS). United States District Court, S.D. New York. January 16, 1990. Garcia, Stallone, Gass & Caliendo, Melville, N.Y. (Joseph F. Garcia, Richard T. Lau, of counsel), for plaintiff. Anthony J. McNulty, New York City, for defendant. *299 OPINION SWEET, District Jud...
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Defendants, William Belzberg, Hyman Belzberg, Samuel Belzberg, Marc Belzberg, First City Financial Corporation Ltd., First City Trust Company, Roxboro Investments 91976) Ltd., Bel-Fran Investments Ltd., Bel-Cal Holdings Ltd. and Bel-Alta Holdings Ltd. (collectively “First City”) have moved pursuant to Federal Rule 56(c) for summary judgment, and Federal Rules 9(b) and 12(b)(6) for dismissal (th...
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OPINION This action already possesses a well-worn procedural history. Suffice it to say that four defendants remain named in a single thirty-six count indictment, with various other previously named defendants having already pled or agreed to plead guilty. Presently before this court are motions to sever brought by each of the remaining defendants. Additionally, Anthony Carroz-za has move...
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728 F. Supp. 24 (1990) CLIFTON TERRACE ASSOCIATES, LTD., Plaintiff, v. UNITED TECHNOLOGIES CORP. and Otis Elevator Co., Defendants. Civ. A. No. 89-1030-OG. United States District Court, District of Columbia. January 10, 1990. *25 Christopher Hornig, Patricia Mullahy Fugere, Reno, Cavanaugh & Hornig, Washington, D.C., Kerry Alan Scanlon, Washington Lawyers' Committee for Civil Rights Under Law...
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MEMORANDUM-DECISION AND ORDER Introduction Plaintiff Marion Lee Lawrence, appearing pro se, brings this employment discrimination action apparently under Title VII of the Civil Rights Act (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. Defendants move for an order pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure dismissing the complaint for lack of su...
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728 F. Supp. 1210 (1990) Leonard VOGEL, et al., Plaintiffs, v. INDEPENDENCE FEDERAL SAVINGS BANK, et al., Defendants. Civ. A. No. R-87-1207. United States District Court, D. Maryland. January 3, 1990. *1211 *1212 *1213 *1214 Thomas Hoxie and Francis J. Gorman, Semmes, Bowen & Semmes, Baltimore, Md., for plaintiffs. Michael McGowan, McCarthy, Bacon, Costello & Stephens, Landover, Md., for ...
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MEMORANDUM OPINION Pro se petitioner Christopher Dennis (“Dennis”) has petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Dennis contends his federal sentence was unlawfully imposed because he was tried without first having his mental competency tested and, further, that he was denied effective assistance of counsel at trial because his lawyer failed to request th...
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Plaintiff Mildred W. Williams (“Williams”) moves to file a second amended complaint (“Second Amended Complaint”) pursuant to Rule 15(a), Fed.R. Civ.P. Defendant Chase Manhattan Bank (“Chase”) moves to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. For the reasons set forth below, Williams’ motion to amend her complaint for a second time is granted, and defendant’s motion to dismi...
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OPINION Defendant Postmaster General Anthony Frank has moved pursuant to Rule 12(b)(1) *281 and (6), Fed.R.Civ.P., for an order dismissing the Title VII action brought by plaintiff Kathryn D. Babcock (“Babcock”) or, alternatively, for an order under Rule 56 granting defendant summary judgment. For the reasons set forth below, the motions for dismissal and summary judgment are...
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OPINION Appellants, David H. Miller (“Miller”) and William W. Shaffer (“Shaffer”) (collectively “Miller & Shaffer”), appeal from two orders. The first order involves the District Court for the Southern District of New York’s refusal to withdraw the reference under the mandatory withdrawal provision of 28 U.S.C. § 157(d). 1 The second order is one for an issuance of injunction a...
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OPINION AND ORDER This case presents the question whether New York State’s refusal to consider judges over age seventy-six for service as “certificated” judges constitutes age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), as amended, 29 U.S.C. § 621, et seq. Plaintiff moved for a preliminary injunction enjoining the defendants from refusing to consider a sevent...
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Third-party defendant Petróleos Mexica-nos (“Pemex”), brings this action to dismiss the Third-Party Complaint of defendant and third-party plaintiff, I.T.I. Shipping, S.A. (“I.T.I.”) for lack of jurisdiction to adjudicate 1 and personal jurisdiction over Pemex under the Foreign Sovereign Immunities Act of 1976 (“FSIA”). 28 U.S.C. § 1602 et seq. For the reasons set forth be...
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OPINION This action challenges the procedures by which an individual may be involuntarily committed to a psychiatric hospital in Dutchess County. The plaintiff alleges that the current practices of the Dutchess County Supreme Court violate the Due Process Clause of the Fourteenth Amendment by denying the involuntary committee access to psychiatric or other expert assistance at civil commi...
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*206 MEMORANDUM AND ORDER Plaintiffs Neil Welliver and Arlene Gos-tin bring this diversity action against defendant Federal Express Corporation (“Federal Express”) for failure to deliver and loss of a package containing two original watercolor paintings. Federal Express moves pursuant to Fed.R.Civ.P. 56 for summary judgment dismissing certain causes of action and adjudging that t...
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MEMORANDUM-DECISION AND ORDER I. Introduction The plaintiff is moving for summary judgment on its claims that portions of New York’s Standardized Testing Act, N.Y.Educ.Law §§ 340-348, (generally known as the “Truth-in-Testing” Act), are (1) invalid due to preemption by federal copyright law and regulations, (2) infringe upon plaintiff’s ownership rights under federal copyright la...
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MEMORANDUM-DECISION AND ORDER The present action sounds in libel. Plaintiff worked for the United States Army as a civilian management analyst at Fort Drum. He brought an action in small claims court alleging that his supervisor, *891 Martha S. Needling, had libelled him in five memoranda. For damages he sought $2,000. Subsequent to the institution of the lawsuit, the action ...
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728 F. Supp. 1142 (1990) JOHNSTON DEVELOPMENT GROUP, INC., et al., Plaintiffs, v. CARPENTERS LOCAL UNION NO. 1578, et al., Defendants. Civ. A. No. 89-566 (SSB). United States District Court, D. New Jersey. January 11, 1990. *1143 Blank, Rome, Comisky & McCauley by Jerald R. Cureton, Cherry Hill, N.J., for plaintiffs. Williams & Connolly by Aubrey M. Daniel, III, Washington, D.C., and Moss...
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728 F. Supp. 857 (1990) Edward McALEER, Administrator of the Estate of James F. McAleer, Hardy Lebel and Joan Lebel, Administrators of the Estate of Thomas Lebel, Plaintiffs, v. Travers C. SMITH, Administrator of the Estate of Stuart A. Finley, Mark Shirley Portal Litchfield and Robin Patrick Cecil-Wright d/b/a the China Clipper Society, Goods Export Ltd. d/b/a the China Clipper Society, Berry Br...
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*33MEMORANDUM OPINION Presently before this Court is Defendants Odette V. Callender, M.D. (“Dr. Cal-lender”), and Michael Brown’s (“Brown”) joint Motion to Dismiss or Transfer the complaint of Plaintiff Kenneth R. Pox, M.D. (“Dr. Fox”), to the United States District Court for the District of Virginia. The issues have been fully briefed. No hearing is deemed necessary. Local Rule 105, subd. 6. I In...
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ORDER SCHEDULING EVIDENTIARY HEARING ON PLAINTIFFS MOTION FOR STAY OF CIVIL FORFEITURE PROCEEDINGS Plaintiff United States of America moves the court for a stay of the above-styled civil forfeiture action pursuant to 21 U.S.C. section 881(i). Title 21 U.S.C. § 881(i) provides that [t]he filing of an indictment or information alleging a violation of this subchapter or subchapter II of...
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OPINION AND ORDER This diversity action is presently before the Court on defendants’ motion for summary judgment pursuant to Fed.R.Civ.P. 56(c) and defendants’ motion to dismiss the claim against Axa Finance S.A. (“Axa Finance”) pursuant to Fed.R.Civ.P. 12(b)(5) for improper service of process. For the reasons stated below, defendants’ motion for summary judgment is granted in part and de...
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OPINION & ORDER This opinion emanates from the voluntary settlement in the action commenced by the United States of America (the “Government”) against the defendants Internation *1036 al Brotherhood of Teamsters (the “IBT”) and the IBT’s General Executive Board (the “GEB”) embodied in a consent order entered March 14, 1989 (the “Consent Decree”). The remedial provisions in th...
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728 F. Supp. 1321 (1990) Rickey L. HUDGENS, Plaintiff, v. HARPER-GRACE HOSPITALS, Brian Say, Al Jarvis, Nancy Ripari, Frank Jarvis Associates, Inc., Defendants. No. 88-CV-73471-DT. United States District Court, E.D. Michigan, S.D. January 16, 1990. Strauss & Longo, P.C. by Joseph T. Longo, Detroit, Mich., for plaintiff. Dykema Gossett by Martin Jay Galvin, Nancy L. Niemela, Detroit, Mich., fo...
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728 F. Supp. 1326 (1990) UNITED STATES of America, Plaintiff, v. CERTAIN REAL PROPERTY LOCATED AT 2323 CHARMS ROAD, MILFORD TOWNSHIP; One 1977 Twin Engine Beech Aircraft, Registration Number N58EM; Miscellaneous Items of Personal Property Seized Pursuant to Search Warrant; Miscellaneous Items of Personal Property Located at 2323 Charms Road; and $517.00 United States Currency, Defendants. No. 89-...
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ORDER THIS MATTER is before the Court on Plaintiff’s New Arguments and Exhibits, filed December 11, 1989, and other related matters. The issues now before the Court concern the equitable relief that the Court will award Plaintiff because of Defendants’ discrimination against him on account of his age. The parties have been very diligent, almost to the point of exhaustion, in submitting documents ...
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MEMORANDUM AND ORDER I. INTRODUCTION Before the Court are plaintiff’s motion for partial summary judgment and defendants’ motion to dismiss. In essence, plaintiff contends that certain regulations promulgated by the Secretary of Health and Human Services (“Secretary”) are invalid, and that plaintiff is entitled to judgment as a matter of law. Defendants, however, aver that the Secretary acted bey...
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728 F. Supp. 1305 (1990) Vickie Michelle COLE, Plaintiff, v. GREAT ATLANTIC & PACIFIC TEA CO. d/b/a A & P, Middlesboro, Kentucky, Defendant. Civ. A. No. 89-221. United States District Court, E.D. Kentucky, London. January 17, 1990. *1306 Michael A. Taylor, Middlesboro, Ky., for plaintiff. Robert M. Connolly, Ashley W. Ward, Lexington, Ky., for defendant. MEMORANDUM SILER, Chief Judge. Th...
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MEMORANDUM OPINION AND ORDER Petitioners move for reargument of the Court’s November 16, 1988 opinion and order enforcing the subpoena duces tecum under letters rogatory issued by a Brazilian Court at the initial request of a Brazilian prosecutor, and then processed pursuant to 28 U.S.C. § 1782. 700 F.Supp. 723. The Commissioners appointed under § 1782 move for reconsideration of that portion of t...
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ORDER I. INTRODUCTION THIS MATTER is before the Court on Defendants’ William A. White (hereinafter “White”) and Trade Street Research, Inc. (hereinafter “Trade Street”) Motion, filed September 19, 1989, to add third-party defendants and to permit additional cross-claims. The Motion is brought pursuant to Rules 13(e) and 13(h) of the Federal Rules of Civil Procedure. Rule 13(h) provides that: Pers...
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728 F. Supp. 1524 (1990) Richard W. LISTER, Plaintiff, v. MARANGONI MECCANICA S.p.A., Defendant. Civ. No. 88-C-0973A. United States District Court, D. Utah, C.D. January 2, 1990. Colin P. King of Giauque, Williams, Wilcox & Bendinger, Salt Lake City, Utah, for plaintiff. H. Wayne Wadsworth of Watkiss & Campbell, Salt Lake City, Utah, and Rudolph V. Pino, Jr. and George N. Tompkins, III of...
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MEMORANDUM OPINION Plaintiff Ramon Jackman has brought this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. 405(g). He seeks review of the final decision of the defendant Secretary of Health and Human Services denying his claim for disability insurance benefits. Presently before the Court are the parties’ cross motions for summary judgment. For the reasons stated below, we...
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ORDER Before the court is plaintiffs’ motion for disqualification brought pursuant to 28 U.S.C. § 455(a). Plaintiffs request that the court disqualify itself from presiding further over the instant Cheeves and Gibson cases. Plaintiffs base their motion on allegations concerning Stephanie Parker, the court’s former law clerk and presently an associate with counsel for the defense, and allega...
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728 F. Supp. 1186 (1990) Arleen A. Thompson McWILLIAMS, Plaintiff, v. AT & T INFORMATION SYSTEMS, INC., Defendant. Civ. A. No. 89-747. United States District Court, W.D. Pennsylvania. January 16, 1990. *1187 Thomas P. Peterson, Springer, Bush & Perry, Pittsburgh, Pa., for plaintiff. *1188 Alan S. Grodnitzky, Dilworth, Paxson & Kalish, Jon Hogue, Mansmann, Cinderich & Titus, Pittsb...
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ORDER Before the court is the defendants’ motion to dismiss the plaintiff’s complaint. For the following reasons, the court grants the defendants’ motion. Plaintiff has filed this complaint pro se. A pro se plaintiffs complaint must be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652, reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972). On ...
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MEMORANDUM OPINION AND ORDER Plaintiff Valve & Primer Corporation (“V & P”) and defendant Val-Matic Valve and Manufacturing Corporation (“Val-Matic”) are Illinois corporations, each with its principal place of business in Illinois. The two companies manufacture valves, primers and similar equipment. V & P’s complaint alleges that it “secured the exclusive rights and privileges in and to t...
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MEMORANDUM OPINION AND ORDER Defendant, Pan American World Airways, Inc. (“Pan Am”), has moved pursuant to Federal Rule of Civil Procedure 56 for partial summary judgment dismissing all claims seeking the imposition of punitive damages. 1 Pan Am claims that because Article 17 of the Warsaw Convention as supplemented by the Montreal Agreement 2 (collectively referred ...
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OPINION This Court issued on November 17, 1989 its Order to Show Cause why the respondent, David S. Mann, should not be held in contempt of Court, pursuant to Fed.R. Crim.P. 17(g), for failure to appear before this Court on November 16, 1989, pursuant to a subpoena issued by the Clerk of this Court on October 27, 1989, and reflecting, by way of return of service, service of the subpoena upon th...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is an antitrust action brought by Imperial Construction Management Corporation (“Imperial”), Imperial’s sole owner Guy Cleveland, and D.J. Electric against Laborers International Union of North America, Local 96 (“Laborers Local 96”), International Union of Operating Engineers, Local 150 (“Engineers Local 150”), International Brotherh...
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110 B.R. 20 (1990) In re KAISER STEEL CORP., et al., Debtors. KAISER STEEL CORP., et al., Plaintiffs, v. Joseph A. FRATES, et al., Defendants. KAISER STEEL CORP., et al., Plaintiffs, v. Monty RIAL, et al., Defendants. Civ. A. Nos. 89-K-635, 89-K-837, Bankruptcy No. 87 B 1552 E. United States District Court, D. Colorado. January 16, 1990. *21 H. Thomas Coghill, David J. Richman, Coghill & Good...
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OPINION AND ORDER BACKGROUND. Plaintiff USA Network (“USA”) commenced this action against Jones Intercable, Inc. (“Jones”) on September 29, 1988, by filing a contemporaneous motion for an order temporarily restraining and ultimately enjoining Jones from terminating its contract, the “Affiliation Agreement,” 1 with USA pending the outcome of the action. We denied USA’s requ...
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The matter before the court is the motion (# 40) of defendant Executone Information Systems, Inc. (Executone) to dismiss the first and third counterclaims of plaintiff/counterclaimant Ameritel Corporation (Ameritel). BACKGROUND Defendant Executone is a Delaware corporation which is the successor-in-interest to defendants Isoetec Communications, Inc. (Isoetec), a Virginia corporation, ...
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MEMORANDUM AND ORDER The case comes before the court on the motion of defendant, Honeywell Bull, Inc. (Honeywell), for partial summary judgment. Alleging the defendant made material misrepresentations and omissions of fact which induced it to purchase a Honeywell DPS6/40 mainframe computer, plaintiff, Ritchie Enterprises (Ritchie), brings this action to recover for damages sustained from ...
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Plaintiff Board of Education of the Seneca Falls Central School District (“Seneca Falls”) brought this action under the Education of All Handicapped Children Act, 20 U.S.C. §§ 1400 et seq. (the “EHA”), to enjoin the Board of Education of the Liverpool Central School District (“Liverpool”) from unilaterally removing ten-year old Joseph Thomas (“Joseph”), a handicapped child, from one of its special...
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MEMORANDUM OPINION AND ORDER Jay and Margaret Magnuson have filed this § 1983 claim against the City of Hickory Hills and certain municipal employees (“City"). 1 In addition to seeking individual damages, the Magnusons attempt to certify a class of similarly situated plaintiffs. Currently pending are the Magnusons’ motion for class certification and cross motions for summary ju...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This case is an employment discrimination dispute between plaintiff Reuben Poindexter and defendant Northrop Corporation. In Count I, Poindexter seeks relief from Northrop’s alleged violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (“ADEA”). In Count II, Poindexter alleges race discrimination in violatio...
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728 F. Supp. 1172 (1990) MONONGAHELA VALLEY HOSPITAL, INC. v. Otis R. BOWEN, Secretary of the Department of Health and Human Services. Civ. A. No. 87-1697. United States District Court, W.D. Pennsylvania. January 16, 1990. *1173 Mary Drake Korsmeyer, Peacock, Keller, Yohe, Day & Ecker, Washington, Pa., for plaintiff. U.S. Atty., Pittsburgh, Pa. and Javier A. Arrastia, Office of Gen. Counsel, ...
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ORDER GRANTING DEFENDANTS’ MOTION TO AMEND AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT In this pro se action brought under 42 U.S.C. § 1983, Plaintiff alleges that he suffered severe physical and emotional distress as a result of his suicide attempt at the Kennebec County Jail in October 1987. Plaintiff asserts that Defendants are liable under § 1983 for his alleged injuries because they knew...
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Plaintiff applies pursuant to 42 U.S.C. § 1988 for $99,075.00 in attorneys’ fees and for $5,381.75 in costs, based on his having received a jury award of damages of $100,-000 which was subsequently reduced to $10,000 by remittitur, to which plaintiff consented. *1069 On December 3, 1981, plaintiff filed this Section 1983 action pro se while he was a pretrial detainee at the Rikers...
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OPINION These are three related actions in which inmates of New York State correctional facilities challenge the constitutionality of the rules about providing postage for the mailing of legal materials. Defendants move for summary judgment in all three cases. The motions are granted. *642The result in this case is dictated by the decision in Gittens v. Sullivan, 848 F.2d 389 (2d Cir.1988), affir...
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ORDER This matter is before the court on the cross-motions for summary judgment of plaintiff Equitec Institutional Real Estate Fund III (“Equitec”) and defendants PLP Associates (“PLP”), Bruce Hoyt, Steven Hoyt, and Bradley Hoyt. FACTS The dispute underlying these motions for summary judgment arose in conjunction with the sale of an office/warehouse building known as Palmer Lake Plaza. Defendant P...
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MEMORANDUM OPINION This case is currently before the court on appeal from a decision by the United States Bankruptcy Court for the Western District of Virginia, Krumm J., dated March 30, 1989. The court below awarded the defendants attorney’s fees pursuant to 11 U.S.C. § 523(d) after the plaintiff moved to dismiss its complaint under 11 U.S.C. § 523(a)(2)(B) for a determination of the discharge...
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ORDER The Court has before it a motion by Berkshire pursuant to Rule 59 of the Federal Rules of Civil Procedure to amend the Judgment herein, 725 F.Supp. 790, dated November 29, 1989, and a motion by Sara Lee for attorney’s fees pursuant to Section 35 of the Lanham Act; and under New York General Business Law. In affirming the Trademark Trial and Appeal Board in finding a likelihood ...
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The extensive litigation in this case arose out of a dispute over two joint bank accounts that decedents Mr. and Mrs. King had with one of the defendants American Security Bank (“ASB”), which resulted in ASB’s refusing to honor one check in the amount of $20. By prior Order filed August 19, 1988, the Court granted summary judgment for ASB, then the only remaining defendant, and on appeal the Unite...
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MEMORANDUM OPINION AND ORDER The instant motion to dismiss presents the question whether ERISA plaintiffs are entitled to recover exemplary damages in an action brought pursuant to ERISA § 502(a), 29 U.S.C. § 1132(a). I John D. Harris (“John”) and Viola B. “Susie” Harris (“Susie”) sue to recover benefits under a group health insurance policy issued by Blue Cross and Blue Shield ...
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OPINION The matter before the court is the motion of defendant, American Insurance Company (American), for complete or partial summary judgment against the claims of plaintiffs, R.A. Hatch Co. (Hatch Co.) and Robert A. Hatch1 (# 7). UNDISPUTED RELEVANT FACTS American is a subsidiary of Fireman’s Fund Insurance Company (Fireman’s). In 1983, American issued a performance and payment construction bo...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter was tried de novo by the Court on May 8, 9 and 10, 1989, as required by Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). The Court, having considered the testimony of the witnesses, all exhibits admitted in evidence, the proposed findings of the parties, and the applicable law, makes the fo...
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729 F.Supp. 71 (1990) TOM PAPPAS TOYOTA, INC., Plaintiff, v. TOYOTA MOTOR DISTRIBUTORS, INC., et al., Defendants. No. 86-2507C(6). United States District Court, E.D. Missouri, E.D. January 18, 1990. Vernon Singer and James Brandenburg, St. Louis, Mo., for plaintiff. Jonathan Ries, Shepherd, Sandberg & Phoenix, St. Louis, Mo., for defendants. Alvin D. Shapiro, Kansas City, Mo. MEMORANDUM GUNN...
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728 F.Supp. 1358 (1990) UNITED STATES of America, Plaintiff, v. Javier SANTILLANES, Alfredo Torres, and Linda Briseno, Defendants. No. 89 CR 1015. United States District Court, N.D. Illinois, E.D. January 16, 1990. Ira H. Raphaelson, U.S. Atty. by Jacqueline O. Stern and James P. Fleissner, Asst. U.S. Attys., Chicago, Ill., for plaintiff. Daniel E. Radakovich, Chicago, Ill., for defendant Santill...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION In this lawsuit, plaintiff Wayne Ratajack, a part-time police officer for the defendant Calumet City, challenges his removal from an eligibility list for employment as a full-time police officer. The complaint is *605 brought pursuant to 42 U.S.C. § 1983, and it alleges that plaintiffs removal from the eligibility list constit...
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MEMORANDUM AND ORDER Pending before the Court is the pro se motion of Leonard Epps, a prisoner at the Lewisburg Federal Prison, Lewisburg, Pennsylvania, seeking a new trial or in the alternative a post-trial hearing on prosecu-torial misconduct. Leonard Epps was convicted on September 26, 1986, on charges of conspiracy to violate civil rights and related charges arising out of the September 2, 198...
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728 F.Supp. 1506 (1990) WESTERN HELICOPTER SERVICES, INC., an Oregon corporation; and Edwina Marie Cruse, as Personal Representative of the Estate of Russell Leroy Cruse, Deceased, Plaintiffs, v. ROGERSON AIRCRAFT CORPORATION, a California corporation; Rogerson-Hiller Corporation, a Washington corporation; Omneco, Inc., a Nevada corporation; Embee Ep Plating, a California corporation; Arden Engin...
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728 F.Supp. 845 (1990) YOU VANG YANG, Ia Kue Yang v. William Q. STURNER, Individually and in his capacity as Chief Medical Examiner for the State of Rhode Island. Civ. A. No. 88-0242. United States District Court, D. Rhode Island. January 12, 1990. *846 Amato DeLuca, Providence, R.I., for plaintiff. Barbara E. Grady, Sp. Asst. Atty. Gen. State of R.I., Providence, R.I., for defendant. OPINION PE...
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MEMORANDUM The plaintiff, Walter L. Fletcher, Jr., has filed an application for attorney’s fees and costs. Fletcher sued Officer Anthony O’Donnell and the City of Allentown under 42 U.S.C. § 1983, claiming violations of his civil rights due to the allegedly excessive force used by Officer O’Donnell in his arrest and the absence of probable cause for that arrest. The case was tried before ...
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728 F.Supp. 828 (1990) RHODE ISLAND COGENERATION ASSOCIATES, A Delaware Limited Partnership; Newbay Corporation and Oeig Limited Partnership, General Partners; and Newbay Corporation v. The CITY OF EAST PROVIDENCE; The City Council of the City of East Providence; Leo C. Sullivan, Gerald R. Lynch, Paul J. Tavares, Joseph A. Botelho, Jr., and John J. Hurley, in their official capacities; and Alice ...
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728 F.Supp. 1269 (1990) In re GRAND JURY 89-2. UNITED STATES of America v. John DOE NO. A89-090. United States District Court, E.D. Virginia, Alexandria Division. January 17, 1990. *1270 Lawrence J. Leiser, Asst. U.S. Atty., Alexandria, Va., for plaintiff. David Rosenfeld, Alexandria, Va., for defendant. MEMORANDUM OPINION ELLIS, District Judge. This matter came before the Court on the motion of...
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DECISION AND ENTRY GRANTING DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT (Doc. #5), CONSIDERED AS A MOTION FOR SUMMARY JUDGMENT; JUDGMENT TO BE ENTERED FOR DEFENDANTS AND AGAINST THE PLAINTIFF; TERMINATION ENTRY This case is before the Court on Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. # 5). Since matters outside of the ...
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OPINION AND ORDER BACKGROUND The central facts of this case are set forth in Clemente Global Growth Fund, Inc. v. Pickens, 705 F.Supp. 958 (S.D.N.Y. 1989), familiarity with which is assumed. There, this Court ruled that plaintiff, a closed-end management investment company (the “Fund”), had standing to sue to enforce § 12(d)(1) of the Investment Company Act of 1940 (the “1...
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OPINION Defendants’ motions to dismiss, pursuant to Rule 9(b), 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, are denied. The complaint contains allegations that material misstatements of the value of accounts receivables, net property, equipment, and investments in affiliates were contained in the financial statements which were part of the Form 10Q and 10K filings ...
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728 F. Supp. 1099 (1990) Gloria HELMAN, individually and, as a representative of the estate of Sandra Mendelson, Plaintiff, v. MURRY'S STEAKS, INC., Murry Mendelson, Ira Mendelson and the Rymer Company, Defendants. Civ. A. No. 86-469 LON. United States District Court, D. Delaware. January 17, 1990. *1100 Wayne J. Carey, James L. Holzman, Michael Hanrahan, Philip B. Obbard of Prickett, Jones, Elli...
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MEMORANDUM OPINION AND ORDER Christopher LaSalle and Company, Inc. (“Christopher”) has sued Heller Financial, Inc. (“Heller”) in a nine-count First Amended Verified Complaint (“Complaint”), alleging several federal constitutional and statutory violations as well as a number of pendent state law claims:1 1. Violation of the Supremacy Clause. 2. Violation of the Due Process Clause. 3. Violation of ...
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728 F. Supp. 1105 (1990) Jeff FEINMAN and Consuela Feinman, Plaintiffs, v. BANK OF DELAWARE, Defendant. Civ. A. No. 88-617 LON. United States District Court, D. Delaware. January 17, 1990. *1106 Douglas A. Shachtman, Wilmington, Del., for plaintiffs. Jeffrey S. Welch, of Ashby, McKelvie & Geddes, Wilmington, Del., and Frank N. Broujos, Jr., Bank of Delaware, Wilmington, Del., for defendant. ...
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MEMORANDUM Petitioner Leonard Epps, an inmate at the Lewisburg Federal Prison, Lewisburg, Pennsylvania, has filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. In his motion, Epps raises five grounds for relief: (1) denial of his right to the lawyer of his choice; (2) improper conduct of jury voir dire; (3) the knowing use of false evidence by the governme...
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728 F.Supp. 1116 (1990) UNITED STATES of America, on Behalf of its Agency, The SMALL BUSINESS ADMINISTRATION, Plaintiff, v. Christine A. LaFRANCE, Defendant. Civ. A. 86-553-CMW. United States District Court, D. Delaware. January 18, 1990. *1117 William C. Carpenter, Jr., U.S. Atty., and Carolyn T. Greene, Asst. U.S. Atty., Wilmington, Del., for plaintiff. John M. Bloxom, IV, of Bayard, Handelman ...
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OPINION Plaintiff Hoffmann-LaRoche brought this action against defendants Panalpina, Ltd. and Panalpina A.G. (collectively “Pan-alpina”) 1 seeking damages for, inter alia, the loss of a shipment of pharmaceuticals during a voyage of the S/S TFL Jefferson from Bremerhaven, Switzerland to New York in December of 1985. Panalpina contracted with plaintiff to ship plainti...
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Fourth-party defendants Daniel Fettroll and Hadley Cannon (International) Limited 1 (“Hadley”) (together, the “defendants”) 2 move to dismiss the complaint of fourth-party plaintiffs Zimmerman, Green Incorporated, George G. Zimmerman & Co., Inc. and George G. Zimmerman (together, the “plaintiffs”) for lack of personal jurisdiction. 3 The plaintiffs have invoked ...
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728 F. Supp. 1083 (1990) SOUTH CENTRAL TERMINAL CO., INC., Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, et al., Defendants. Civ. A. No. 88-49 LON. United States District Court, D. Delaware. January 17, 1990. *1084 Richard H. Morse, Young, Conaway, Stargatt & Taylor, Wilmington, Del. (David G. Wilson, of Andrews & Kurth, Washington, D.C., of counsel), for plaintiff. Kent Jordan, U.S. ...
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Plaintiffs and defendants move for an order pursuant to Federal Rule of Civil Procedure 23(e) approving a proposed partial settlement, presented to the Court on October 27, 1989 and entitled “ORDER ON CONSENT.” Background On July 26, 1985, plaintiffs commenced this class action challenge to the marijuana testing procedures of the New York City Transit Authority (TA). See Burka v. New York City Tra...
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MEMORANDUM OPINION AND ORDER Plaintiffs, Paul L. Glover, John R. Johnson, John Broderick and William Carpenter, are Trustees of the Chicago Truck Drivers, (hereinafter “Pension Fund”). Defendant, Wolf, Webb, Burk & Campbell, Inc., entered into an agreement (hereinafter “Agreement”) with the Pension Fund pursuant to which defendant was appointed as investment manager under ERISA. 29 U.S.C....
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I. FACTS The plaintiff in this action, Wonder Labs, Inc., is a New York corporation that from approximately 1970 through 1987 manufactured, sold and distributed a toothbrush called “Dentist’s Choice.” 1 On November 14, 1972, Wonder Labs obtained a registration for the trademark “DENTISTS CHOICE” for use on toothbrushes. 2 Since approximately July 1986, the defendant, ...
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728 F. Supp. 784 (1990) UNITED STATES of America v. Dennis S. LEWIS, Defendant. Crim. No. 89-437. United States District Court, District of Columbia. January 17, 1990. John P. Gidez, Asst. U.S. Atty., Washington, D.C., for plaintiff. Thomas Abbenante, Washington, D.C., for defendant. Memorandum Opinion SPORKIN, District Judge. This case is before the Court on defendant Dennis Lewis' motion to su...
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728 F. Supp. 460 (1990) Karen KNICKERBOCKER, as Administrator of the Estate of Brad Knickerbocker, Deceased, Plaintiffs, v. CHRYSLER CORPORATION and Jonick & Co., Inc., Defendants. No. 89-CV-73601-DT. United States District Court, E.D. Michigan, S.D. January 16, 1990. *461 Richard M. Goodman, Detroit, Mich., for plaintiffs. Craig L. John, Bloomfield Hills, Mich., for Chrysler Corp. Michael J....
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MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION FOR LEAVE TO FURTHER AMEND COMPLAINT (# 64) The defendant Quarzite Carrara appeared in this action shortly after the action was filed in 1985;' it was defaulted in 1989 when it failed to appear for a duly-scheduled conference. Thereupon, the plaintiff moved for the entry of a default judgment. A hearing was held on July 18, 1989 for the purpose of assessm...
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Before the Court is the appeal of French Market Homestead FSA (“French Market”) from the bankruptcy court’s order requiring it to pay approximately $800,000.00 in administrative expenses incurred by the debtor P.C. Ltd. (“PC”) after confirmation of a reorganization plan in the Chapter 11 proceeding in this case. The Court now affirms the bankruptcy court’s ruling. Background PC is...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on remand from the Fourth Circuit Court of Appeals. Pursuant to the directive of the Supreme Court, Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Fourth Circuit vacated that part of this Court’s judgment of November 20, 1985, in favor of defendant on plaintiff’s claim that she was denied ...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on the Motion of the Defendant Gould, Inc. (“Gould”), successor in interest to the nominal defendant ITE Imperial Corporation (“ITE”), for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Tenn. Code Ann. § 29-28-103, the Tennessee statute of repose applicable to products liability suits. The Plaintiffs...
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OPINION AND ORDER I. BACKGROUND Plaintiffs, seventy in all, have brought this action against the twenty-nine named defendants, claiming that their investment in defendant Arizona World Nurseries Limited Partnership (“AWNLP”) was induced by the assertedly misleading Private Placement Memorandum (the “Memorandum” or “Offering Memorandum”), appended to which were the allegedly misleadin...
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728 F. Supp. 366 (1990) Louis J. SPERA v. James LEE, Jr., Individually and as a Police Officer of Norristown Borough Police Department, Montgomery County, Pennsylvania and Kevin McKeon, Individually and as a Police Officer of Norristown Borough Police Department, Montgomery County, Pennsylvania and William Bambi, Individually and as Chief of Police of Norristown Police Department, Montgomery Coun...
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728 F. Supp. 489 (1990) TENNESSEAN TRUCKSTOP, INC. v. MAPCO PETROLEUM, INC. No. 1:89-0016. United States District Court, M.D. Tennessee, Columbia Division. January 22, 1990. Walter W. Bussart, Bussart & Doughty, Lewisburg, Tenn., C. Dale Allen, Bussart & Doughty, Nashville, Tenn., for plaintiff. Frank C. Gorrell, Bennett L. Ross, Richard Lodge, Bass, Berry & Sims, Nashville, Tenn., fo...
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MEMORANDUM OPINION AND ORDER This is an appeal from the bankruptcy court’s September 25, 1989, ruling denying the motion of Charles Schwab & Co., Inc. for summary judgment in the Jacobs 1 action. There were no disputed issues of fact. Schwab argued that it was entitled to summary judgment because it was a mere conduit in the stock redemption transactions which occurred as part ...
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MEMORANDUM OPINION The above-entitled case arose out of a nighttime chase and warrantless search by law enforcement personnel from several police jurisdictions in northwest Alabama. It started when two sons of J.T. Carr were observed in the City of Florence in a situation which gave the appearance of being a drug purchase. This led to a high-speed chase, during which the boys abandoned th...
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MEMORANDUM OPINION AND ORDER Plaintiff Colonial Penn Insurance Company filed a complaint for declaratory judgment against Defendant Sonya Laraye Owens to determine whether it is liable to defend and cover Defendant for a death claim arising out of an automobile accident which occurred in the Third Street Tunnel in the District of Columbia at 5:30 on the morning of July 23, 1988. This matter is be...
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728 F. Supp. 1415 (1990) Harlan L. JACOBSEN d/b/a Solo RFD and Single Scene, Plaintiffs, v. Grace PETERSEN, Mayor of the City of Pierre, South Dakota in that Capacity and as an individual, and The City of Pierre, South Dakota, A Municipality, Defendants. Civ. No. 86-3030. United States District Court, D. South Dakota, C.D. January 19, 1990. *1416 Harlan L. Jacobsen, Sioux Falls, S.D., pro se. Cha...
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*1337MEMORANDUM OPINION AND ORDER This matter is currently before the Court on a motion for summary judgment filed by defendants John Van Bolt and Susan Linde-man and a motion for summary judgment filed by defendant Michael Schwartz. FACTS Plaintiff is a lawyer, currently suspended, who was previously a practicing attorney in the State of Michigan. Defendant John Van Bolt was the Executive Direct...
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728 F.Supp. 1544 (1990) UNITED STATES of America, Plaintiff, v. Marshall G. SOLOMON, Jr. and Deborah J. Carter, Defendants. No. 89-8028-CR-JAG. United States District Court, S.D. Florida, Fort Lauderdale Division. January 18, 1990. *1545 Marc Fagelson, Asst. U.S. Atty., Office of U.S. Atty., Fort Lauderdale, Fla., for plaintiff. Jeffrey Kay, Fort Lauderdale, Fla., for Deborah J. Carter. Paul Laza...
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OPINION AND ORDER National Union Fire Insurance Company of Pittsburgh (“National Union”), an issuer of financial guarantee bonds, sues to enforce an indemnity agreement between itself and limited partners in a tax shelter limited partnership, and to enforce its rights as subrogee on the limited partners’ promissory notes which it honored on their behalf. National Union issued a bond which...
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ORDER This action, tried before the court without a jury on October 12, 13, and 16, 1989, involves a shipment of frozen orange juice concentrate that was damaged en route to Port Canaveral, Florida. Coca-Cola Company (Coca-Cola) purchased the frozen orange juice concentrate from Sucocitrico Cutrale, S.A., (Cutrale), a Brazilian orange juice processing company. The M/V Frio Brazil, a defen...
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MEMORANDUM OPINION These related cases are before the Court on defendants’ motions to dismiss punitive damages and plaintiff’s motions to amend the complaints. These matters have been fully briefed, and no oral argument appears necessary. Defendants’ motions to dismiss punitive damages and plaintiff’s motions are closely related, in that they both turn on the extent to which this Miller Act case ...
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OPINION AND ORDER Plaintiff brings this civil rights action alleging that her constitutional rights were violated by the defendants when they failed to provide the necessary procedures to terminate her unwanted pregnancy. Defendants now move for summary judgment pursuant to Rule 56, Fed.R.Civ.P. For the reasons discussed below, defendants’ motion is granted. FACTS On July 31, 19...
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OPINION This matter is before the Court on the federal defendants’ motion to dismiss, plaintiffs Keystone Shipping Company’s and Marine Transport Line, Inc.’s (hereinafter referred to jointly as Keystone Shipping) opposition, defendant-intervenors Seabulk America Partnership Ltd.’s and Seabulk Transmarine Partnership, Ltd.’s (hereinafter referred to jointly as Seabulk) opposition, and defendants’ ...
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728 F. Supp. 1263 (1990) ALLSTATE INSURANCE COMPANY, Plaintiff, v. Martha G. BEST, Burrell G. Best, a minor over the age of fourteen (14) years, Ronald W. Falkosky, Mary F. Falkosky, Scott Falkosky, a minor over the age of fourteen (14) years, and Grace Retail Corporation, Defendants. Civ. A. No. 3:89-1986-15. United States District Court, D. South Carolina, Columbia Division. January 19, 1990. *...
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728 F. Supp. 791 (1990) KICKAPOO TRIBE OF OKLAHOMA, on behalf of themselves and as parens patriae, Traditional Council of the Texas Band of Kickapoo, on behalf of themselves and as parens patriae, Isidro Salazar, Debra Garcia, and Irene Garza Spoon, Plaintiffs, v. Manuel LUJAN, Secretary of the Interior, and William Ragsdale, Assistant Secretary of the Interior-Indian Affairs, Defendants. Civ. A....
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MEMORANDUM OPINION The issue before the court appears to be one of first impression: who should pay, and when, for the expenses associated with the appointment of a monitor to oversee defendants’ assets and business interests pending a criminal RICO trial. On June 14, 1989 an order was issued by Judge Shirley Wohl Kram (the “Order”) pursuant to 18 U.S.C. Section 1963(d), restraining the individua...
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ORDER The plaintiff Advance-United Expressways, Inc. (Advance-United) commenced this action in September 1989 seeking $5,525 in alleged undercharges, based on transportation services that it rendered to the defendant Beeler Distributing Company (Beeler) allegedly in its capacity as a motor common carrier. Presently, Advance-United moves the Court for summary judgement under the so-called filed ra...
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MEMORANDUM OPINION AND ORDER This matter is currently before the Court on two motions for summary judgment filed by defendants City of Mount Clemens and Florence Cement Company. FACTS On January 5, 1985, plaintiff Frank McKelvie was involved in an accident at the intersection of New Street and Pine Street in the City of Mount Clemens, Michigan. Plaintiff’s car was struck on its right side by anoth...
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MEMORANDUM OPINION AND ORDER Before the Court is plaintiff’s application for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Plaintiff has requested attorney fees at the rate of $92.00 per hour for 39.75 hours of work, plus $776.40 for expenses. The Secretary opposes the request for attorney fees; in the alternative, should the Court determine that an award of at...
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MEMORANDUM Petitioner Maurice C. Proctor, Sr., an inmate at the Lewisburg federal prison, Lewisburg, Pennsylvania, has filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Three grounds for relief are raised in the Motion: (1) the government’s failure to establish subject matter jurisdiction and to prove the offense as charged; (2) improper jury instructions...
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728 F. Supp. 1471 (1990) UNITED STATES of America, Plaintiff, v. Lia MAIVIA, Ati So'o, Larry Heiniemi, Defendants. Crim. No. 88-01607 ACK. United States District Court, D. Hawaii. January 18, 1990. *1472 Daniel A. Bent, Michael Burke, Leslie E. Osborne, U.S. Attys. Office, Honolulu, Hawaii, for plaintiff. William Brady, Honolulu, Hawaii, for Lia Maivia. Brook Hart, Honolulu, Hawaii, for Ati So'o....
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*552 MEMORANDUM OPINION AND ORDER Defendant, an asbestos manufacturer, moves to dismiss for lack of subject matter jurisdiction plaintiff’s tort claims for damages allegedly caused by her late husband’s exposure to asbestos while serving as an engineer aboard vessels at sea. Defendant’s motion raises the question whether such claims fall within the admiralty jurisdiction of the f...
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MEMORANDUM AND ORDER ON THE DEFENDANTS’ MOTIONS FOR REDUCTION OF SENTENCE I. Gerald W. Clemente Gerald W. Clemente (“Clemente”) comes before the Court seeking, pursuant to Fed. R.Crim.P. 35(b), a reduction in the sentence of 15 years imposed on him for violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. sec. 1962(c) (1982), which sentence he is to s...
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MEMORANDUM CAFFREY, Senior District Judge. Plaintiff, Elizabeth Dole, Secretary of Labor, United States Department of Labor, is charged with the responsibility of protecting the interests of participants in and beneficiaries of employee benefit plans, pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”). On October 29, 1987, in the United States District Court of the Dist...
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ORDER This matter is before the Court pursuant to objections made to a Report and Recommendation and an accompanying Pretrial Order each issued on September 30, 1989, by the Honorable Janice M. Symchych, United States Magistrate. Magistrate Symchych’s recommendations and order are appended hereto. Also before the Court are defendants’ objections to a Report and Recommendation issued by th...
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728 F. Supp. 1368 (1990) VIJUK EQUIPMENT INC., an Illinois corporation, Plaintiff, v. OTTO HOHNER KG, a German corporation, and Hohner Stitching Products, Inc., a Missouri corporation, Defendants. No. 89 C 5769. United States District Court, N.D. Illinois, E.D. January 22, 1990. *1369 John F. Flannery and James J. Hamill, Fitch, Even, Tabin & Flannery, Chicago, Ill., for plaintiff. Dennis A. ...
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728 F.Supp. 1479 (1990) UNITED STATES of America, Plaintiff, v. Louisa AMEPEROSA, Defendant. Cr. No. 89-00589-01 ACK. United States District Court, D. Hawaii. January 18, 1990. Daniel A. Bent, Elliot Enoki, U.S. Attys. Office, Honolulu, Hawaii, for plaintiff. Hayden Aluli, Federal Public Defenders Office, Honolulu, Hawaii, for defendant. ORDER GRANTING DEFENDANT'S MOTION FOR PRODUCTION OF GOVERN...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion for summary judgment. Plaintiffs have moved for partial summary judgment on the issue of defendant’s liability. Defendant has also moved for leave to file certain original depositions and exhibits thereto with the court. Upon examination of defendant’s motion for leave to file these depositions, the court finds tha...
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ORDER ON PENDING MOTIONS At the final pretrial conference on this case, the parties argued Plaintiff’s Motions to Amend the Complaint and for Default. Since the conference Defendant has filed a Motion for Leave to File a Motion for Partial Summary Judgment and the Motion for Partial Summary Judgment. With the exception of the Motion for Partial Summary Judgment, these motions have all been fully b...
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109 B.R. 998 (1990) In re Cheryl Ann STEWART, Debtor. No. 89-4131-S. United States District Court, D. Kansas. January 22, 1990. *999 N. Larry Bork, Goodell, Stratton, Edmonds & Palmer, Topeka, Kan., for HEAF. Jill A. Michaux, Topeka, Kan., for debtor. Lloyd C. Swartz, Topeka, Kan., trustee. Michael P. Mergen, Overland Park, Kan., for Pennsylvania Higher Educ. Ass'n. MEMORANDUM AND ORDER SAFF...
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MEMORANDUM OPINION THIS MATTER comes before the court for final resolution after trial in this declaratory judgment action. Having heard testimony, observed the witnesses and assessed their credibility, and having reviewed the trial briefs and closing memoranda, the court finds and rules as follows: I. FACTUAL BACKGROUND This is a declaratory judgment action initiated by plainti...
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ORDER I. FINDINGS OF FACT 1. On November 26, 1986, Elmer G. Black, a letter sorting machine (LSM) distribution clerk at the Mobile, Alabama Post Office was terminated on charges that he *1089 was physically unable to perform the duties of his position. 2. Black appealed his discharge to the Merit Systems Protection Board (hereinafter MSPB) whose Administrative ...
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MEMORANDUM-DECISION AND ORDER Introduction This is an action to foreclose on a mortgage pursuant to N.Y. Real Property Actions and Proceedings Law § 1301 et seq. The subject of this litigation is a premises known as the SA & K building in Syracuse, New York. When first instituted, this matter was an ordinary foreclosure action pursuant to state law, institut...
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MEMORANDUM AND ORDER Plaintiff brought suit in the Supreme Court of the State of New York claiming that he had been discriminated against by his employer Dynair Service Co., Inc. (Dy-nair) in violation of New York Human Rights Law, Executive Law § 296. Dynair removed the case to this court. Plaintiff moves to remand, arguing that the court lacks jurisdiction and, in the alternative, moves for prel...
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MEMORANDUM-DECISION AND ORDER BACKGROUND This court issued an order to show cause on January 22,1990, directing the Syracuse Veterans Administration Medical Center (“VA”) to show cause why an order should not be made directing the VA to remove Mr. Doyle Deel from a mechanical respirator. 1 The parties appeared before this court on January 23, 1990, and the court received testimony on this i...
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MEMORANDUM AND ORDER In this lawsuit, plaintiffs Elizabeth and Vincent Buffolino (“plaintiffs”) allege that defendant Sachem Central School District (“defendant”) failed to provide their daughter Georgianna with a free and appropriate education as provided by section 504 of the Rehabilitation Act of 1973 (“section 504”), as amended, 29 U.S.C. § 794 et seq., and the Education of All Handicappe...
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ORDER DENYING MOTION TO QUASH AND GRANTING PROTECTIVE ORDER I. FACTS On September 5, 1989, the United States, at the request of the Administrator for the *627United States Environmental Protection Agency (EPA), applied for an ex parte Administrative Warrant for Entry and Inspection. The warrant as drafted and ultimately entered, authorized the EPA or its authorized representative to enter and ins...
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MEMORANDUM ORDER This matter is before the Court on plaintiff’s Motion For Leave To File Second Amended Complaint. Plaintiff seeks a second amended complaint to add twelve causes of action.1 Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given when justice so requires.” However, the Court recognizes that when the motion to amend is filed late in the litigation,...
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OPINION AND ORDER The issue before the Court is whether certain entries in former President Ronald Reagan’s diaries are relevant and material to the issues involved in the instant criminal prosecution and should be ordered produced to defendant pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure. After a careful review of the entries, the Court has concluded that the vast majority...
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OPINION AND ORDER The Court has before it defendant H.B. Fuller Company of Puerto Rico’s unopposed Motion to Dismiss for lack of diversity jurisdiction. This case arises from an automobile accident that occurred on November 23, 1987 in Isabela, Puerto Rico. The plaintiffs, Eloy Román, his wife, and his four children, allege that plaintiff Eloy Román Ramos was driving toward San Juan, head...
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728 F. Supp. 1383 (1990) Christine LEIDOLF, by her guardian ad litem Ted M. WARSHAFSKY, Thomas Leidolf and Deadre Leidolf, Plaintiffs, v. ELI LILLY AND COMPANY, INC., a foreign corporation, Defendant. No. 88-C-1235. United States District Court, E.D. Wisconsin. January 4, 1990. *1384 Victor C. Harding, Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, S.C., Milwaukee, Wis., for plaintif...
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OPINION & ORDER Plaintiff Theodore Weg (“Weg”) had brought this action, pursuant to 42 U.S.C. §§ 1983 and 1985, alleging that defendants 1 have deprived him of his civil rights. Specifically, Weg alleges that defendants, under color of state law, individually and through a conspiracy, falsely ar *330 rested him, maliciously prosecuted him, denied him advancement op...
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OPINION AND ORDER INTRODUCTION In this diversity matter I have before me a number of motions: the Revised Motion for Summary Judgment of Defendant BBC Brown Boveri, Inc. (“Defendant Brown Boveri”); the Cross-Motion for Partial Summary Judgment of Defendants Bechtel Corporation, Bechtel Western Power Corporation and Bechtel, Inc., (collectively referred to as “Defendant Bechtel”); the...
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MEMORANDUM OPINION AND ORDER1 Willie Williams (“Williams”) filed this 42 U.S.C. § 1983 (“Section 1983”) class action some nine years ago against a number of Illinois prison administrators, charging them with constitutional violations arising out of living conditions and institutional programs provided to inmates in protective custody at Stateville Correctional Center (“Stateville”). This Court’s ...
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MEMORANDUM AND ORDER DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT This action arises out of Georgia-Pacific’s attempt to take over the Great Northern Nekoosa Corporation by a cash tender offer commenced on October 31, 1989. In its complaint Georgia-Pacific seeks declaratory and injunctive relief against certain impediments to Georgia-Pacific’s offer, which has been twice reject...
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MEMORANDUM ORDER AND DECISION (In Lieu of Findings of Fact and Conclusions of Law — Fed.R.Civ.P. 52(a)) INTRODUCTION The plaintiff, Clyde C. Gomm (the plaintiff or “Gomm”), an inmate at the Utah State Prison (“USP”), filed this § 1983 action against various employees of the Utah State Department of Corrections and the USP alleging that the defendants subjected him to cruel and unusua...
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*97 MEMORANDUM ORDER * : This matter is before the Court on the Motion of Dart Drug Stores, Inc. for a Stay of Proceedings. For the reasons that follow, the Court denies the motion. This is an action brought by the Secretary of Labor (“Secretary”) pursuant to her authority under § 502(a)(2) & (5) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1...
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728 F. Supp. 862 (1990) RYAN, KLIMEK, RYAN PARTNERSHIP, Maury A. Ryan, James Hillary Ryan and Stanley Klimek, Plaintiffs, v. ROYAL INSURANCE COMPANY OF AMERICA, a/k/a Royal Globe Insurance Company, Safeguard Insurance Company, Defendant. Civ. A. No. 88-0255 L. United States District Court, D. Rhode Island. January 24, 1990. *863 Maury A. Ryan, Providence, R.I., Hugh N. Fryer, Fryer, Ross & Go...
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728 F. Supp. 818 (1990) SHIPLEY COMPANY, INC., Plaintiff, v. Andrew CLARK and Stanley Nolan, Defendants. Civ. A. No. 89-2609-T. United States District Court, D. Massachusetts. January 16, 1990. *819 Paul W. Johnson, Smith, Duggan & Johnson, Boston, Mass., for plaintiff. Edward Barshak, Sugarman, Rogers, Barshak & Cohen, Boston, Mass., for defendants. MEMORANDUM TAURO, District Judge. Pla...
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728 F. Supp. 1551 (1990) Thomas TEW, as Trustee for the Estate of E.S.M. Government Securities, Inc., Plaintiff, v. The CHASE MANHATTAN BANK, N.A., Defendant. No. 88-6728-CIV-JAG. United States District Court, S.D. Florida, Fort Lauderdale Division. January 22, 1990. *1552 *1553 *1554 Jose Garcia-Pedrosa and Kathy Gibbs, Tew Jorden and Schulte, Miami, Fla., for trustee. Russell Brooks, Milbank, T...
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In July of 1987, two investigators working for plaintiff Anheuser-Busch, Inc., discovered a number of counterfeit and infringing products of various copyrights and trademarks at a company known as Col-our-Tex, Inc. This suit was instituted and a temporary restraining order and an ex parte seizure order pertaining to Colour-Tex were issued on August 11, 1987. The restraining order and seizure or...
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MEMORANDUM OPINION AND ORDER Before the Court is plaintiff’s Motion for Partial Summary Judgment. Plaintiffs motion is hereby GRANTED. This lawsuit arises out of a fire loss occurring at 3918 Old Homestead, Howell, *61 Michigan in November of 1987. The property was owned by plaintiff Mary Ponder and her then-husband, now third party defendant/third party counter-plaintif...
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728 F. Supp. 1396 (1990) FAMILYSTYLE OF ST. PAUL, INC., a Minnesota corporation, Plaintiff, v. CITY OF ST. PAUL, MINNESOTA, a municipal corporation; St. Paul City Council; Individual City Council Members; James Scheibel; Robert Long; Kiki Sonnen; Janice Rettman; Roger Goswitz; Tom Dimond; State of *1397 Minnesota Office of the Attorney General; and Hubert H. Humphrey III, Attorney General, Defend...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION This is a Title VII civil rights action brought under 42 U.S.C. § 2000e, et seq., by Dr. Satya Jindal against his employers, which was tried on five days in October and November 1989. The following constitutes the Court’s findings of fact and conclusions of law. I. FACTS Dr. Satya Jindal, an organic chemist employed as a Research Scientis...
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OPINION AND ORDER Defendant Dr. Margaret R. Cvar1 has moved pursuant to Fed.R.Civ.P. 60(b)(4) to be relieved from a default judgment entered against her on January 13, 1989. She claims the Court lacked personal jurisdiction over her because she was not properly served with process, and that the judgment therefore is void. For the reasons set forth below, the motion is denied. I The underlying disp...
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MEMORANDUM AND ORDER I. INTRODUCTION Before the Court is defendant Shell Oil Company’s (“Shell”) motion that this Court certify an interlocutory appeal to the First Circuit Court of Appeals on Shell’s argument that plaintiff Cruz Pedraza’s (“Pedraza”) claim is barred by the statute of limitations. Pedraza has filed an opposition to Shell’s motion. Also before the Court is Shell’s motion to ...
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RULING ON MOTIONS This matter is before the court on the defendant’s second motion requesting that the court decline to exercise pendent jurisdiction and on defendant’s motion for partial summary judgment. Plaintiff opposes both motions. There is no need for oral argument. Jurisdiction is apparently based upon 28 U.S.C. §§ 1331 and 1343. In this case, plaintiff alleges that her emplo...
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MEMORANDUM AND ORDER Before me are cross-motions for summary judgment. In this action, union trust funds seek to collect unpaid fringe benefit contributions from an employer. Plaintiffs allege the contributions became due when the defendant paid a number of laid-off employees to compensate them for earned but unused vacation time. After reviewing the collective bargaining agreements at issue, I c...
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728 F. Supp. 1513 (1990) SIERRA CLUB and Colorado Environmental Coalition, Plaintiffs, v. Manuel LUJAN, Secretary of the Interior; the United States Department of the Interior; C. Dale Duvall, Commissioner of Reclamation; and the United States Bureau of Reclamation, Defendants. Civ. A. No. 89-B-76. United States District Court, D. Colorado. January 19, 1990. Adam Babich, Cornwell & Blakey, De...
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OPINION AND ORDER In its previous Status Conference Order dated December 26, 1989, the Court stated it would take into consideration Universal Insurance Company’s motion regarding the insurance coverage and insurance contracts. Upon a thorough consideration of the pending motions and legal memoranda previously filed, the Court concludes that on December 21, 1987, Avis was the owner of the car driv...
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OPINION AND ORDER Defendant Welch Foods, Inc. (“Welch”) has filed several motions requesting dismissal with prejudice pursuant to Rules 37(b)(2) and 41(b) of the Federal Rules of Civil Procedure. Plaintiffs have filed oppositions to some of defendant’s requests. Let us examine the record in this case to determine whether such dismissal is warranted. I. FACTUAL BACKGROUND This case was removed fro...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS THIS MATTER comes before the court on defendants’ motion to dismiss and the parties’ cross-motions for summary judgment. Having reviewed the motions, together with all documents filed in support and in opposition, having heard oral argument, and being fully advised, the court finds and rules as follows: I. FACTUAL BACKGROUND The plaintiffs in this case ...
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OPINION AND ORDER This is a civil rights action brought pursuant to Title VII of the Civil Rights Act of 1964, specifically 42 U.S.C. § 2000e-16(a). 1 *194 Plaintiff Milagros Cardona (“Cardona”) is a black Puerto Rican female citizen of the United States, who alleges that she was demoted in her employment with the Federal Aviation Administration (FAA). According to plaintiff, her demotion w...
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ORDER THIS MATTER is before the Court on Defendant’s Motion, filed January 2, 1990, to Correct an Illegal Sentence Pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure. Presently, there are two Rule 35s applicable to reduction of sentences. The current Rule 35 applies to offenses that occurred after November 1, 1987, while the former Rule 35 applies to those offenses that occurre...
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OPINION AND ORDER This case is before the Court on plaintiffs’ Motion Requesting a Temporary Restraining Order (TRO). Pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, plaintiffs request this Court to enjoin defendants from prosecuting the plaintiff as an adult in the Puerto Rico Superior Court on January 16, 1990. They allege that proceeding with plaintiff Victor Robles’ trial wi...
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MEMORANDUM DECISION AND ORDER Petitioner’s motion for return of property pursuant to Federal Rule of Criminal Procedure 41(e) came on for hearing at 9:00 a.m. on December 18, 1989 before the Honorable Gordon Thompson, Jr., United *716States District Judge. Paul A. DiPaolo, Esq. appeared on behalf of the petitioner. Special Assistant United States Attorney Kimberly Brown appeared on behalf of the r...
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MEMORANDUM OPINION AND ORDER This is a patent infringement action. On December 22, 1989, defendant moved for dismissal or transfer, arguing that venue was improper and that, even if venue is proper, transfer is warranted for the convenience of witnesses and the interests of justice. On January 5, 1990, plaintiff submitted a “preliminary response,” arguing that defendant’s motion was premised on i...
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MEMORANDUM OPINION Wilkes Barre Associates has petitioned this court to remove a portion of the captioned proceedings from the Bankruptcy Court. This “motion to withdraw reference” is made pursuant to 28 U.S.C. § 157(d). Because § 157(d) requires that the motion be timely, and this motion is not, it is denied. FACTS 1 Emil Stavriotis was a general partner in Wilkes Barre...
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728 F. Supp. 1293 (1990) Duke E. TILLEY v. Anthony M. FRANK, Postmaster General, United States Postal Service. Civ. A. No. 89-212-A. United States District Court, M.D. Louisiana. January 24, 1990. *1294 Dan M. Scheuermann, 405 St. Ferdinand St., Baton Rouge, La., for plaintiff. John J. Gaupp, Asst. U.S. Atty., M.D.La., Baton Rouge, La., John C. Oldenburg, Sr. Atty., Office of Field Legal Services...
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MEMORANDUM OPINION AND ORDER First Trust National Association (First Trust) filed a petition in Minnesota state court requesting instructions regarding management of a trust created for the benefit of Maud Schroll. Schroll removed the petition to this court pursuant to 28 U.S.C. § 1441(a) alleging diversity jurisdiction. Now before the court is First Trust’s motion to remand this proceeding to Ra...
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MEMORANDUM OPINION AND ORDER Before me is defendants’ motion to compel plaintiff to elect its remedies on claims arising from a partnership agreement and defendants’ motion to limit jury demand on those claims. I grant the motion to compel election and partially grant the motion to limit jury demand. The present controversy arises out of a dispute concerning the construction and oper...
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ORDER In this action, plaintiffs seek declaratory and injunctive relief in equity, but not damages. Five motions are pending: 1. Plaintiffs filed a motion on January 31, 1989, seeking an order determining that this matter should be maintained as a class action. Defendants Mike Fish *1003 er and Housing Authority of Kansas City filed a memorandum in opposition on April 17...
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MEMORANDUM AND ORDER Defendants move pursuant to: (i) Fed.R. Civ.P. 12(b)(6) to dismiss RICO claims under Count One for failure to state an actionable claim; (ii) Fed.R.Civ.P. 12(b)(1) to dismiss common law fraud claims under Count Two for lack of subject matter jurisdiction; (iii) Fed.R.Civ.P. 9(b) to dismiss the Complaint for failure to plead fraud with sufficient particularity; (iv) Fe...
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ORDER & OPINION On December 14, 1989, the Grand Jury returned the sixth superseding indictment (hereinafter, the “indictment,” the “pending indictment,” or the “1989 indictment”) against the defendants in this case. 1 The evidence presented to the Grand Jury was the result of a long-term investigation by the federal government into an international organization known...
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728 F. Supp. 1373 (1990) PARENTS FOR QUALITY EDUCATION WITH INTEGRATION, INC.; Brown, Brandy, Mylan and Demaraus by their mother and next friend, Alisha Brown; Brownlee, Scepter by his mother and next friend, Ora Brownlee; Cook, Torrey and Tereseca by their parents and next friends, Regina and Richard Cook; Phillip Harris by his mother and next friend Diane Harris; Jason and Shawn Hutchens by the...
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On October 25, 1986, the S/S OMI YUKON commenced a voyage from Barber’s Point, Hawaii en route to Pusan, Korea. On October 28, 1986, explosions and fires on the vessel killed four crew members and injured others. After being towed to Japan, the vessel was declared a constructive total loss. The vessel was owned by the Connecticut National Bank (“CNB”) as trustee for General Electric Credit Corp. (...
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OPINION AND ORDER Plaintiff L. Daniel Caldwell, a former inmate incarcerated in the United States Penitentiary in Marion, Illinois, 1 brings this pro se civil rights complaint against the Director of Federal Bureau of Prisons (“Director”). In his complaint, plaintiff, a nonsmoker, claims that his frequent exposure to passive tobacco smoke violates his Eighth Amendmen...
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MEMORANDUM OPINION AND ORDER In this Title VII action the court on December 14, 1988, entered Findings of Fact and Conclusions of Law that defendant, 0 & G Spring and Wire Forms Specialty Company (“0 & G”), “(1) be found liable for discriminating against blacks as a class on account of their race in both recruitment and hiring for certain entry level factory jobs which amounted to a patte...
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MEMORANDUM AND ORDER Plaintiff is a Pennsylvania non-profit corporation which operates Temple University Hospital. It has brought this action against various officials of the Commonwealth of Pennsylvania, invoking 42 U.S.C. § 1983, asserting that the defendants have deprived Temple of rights secured by Title XIX of the Social Security Act, 42 U.S.C. § 1396a et seq. in their adm...
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MEMORANDUM Plaintiff, Irving T. Schwartz, pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure, seeks to vacate the Order of Court dated March 26, 1984 and seeks return of property that has been forfeited to the United States of America pursuant to a final judgment in the criminal prosecution entitled United States v. Marvin Mandel, Criminal No. Y-75-0822 (October 7, 1977) af...
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OPINION Defendant R.C.S. Rizzoli Periodici, S.p.A. (“Rizzoli”) moves this Court pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim. We deny Rizzoli’s motion. *975 Facts Plaintiff Globe Communications Gorp. (“Globe”) publishes the weekly magazine Globe, which is sold throughout the United States and Canada. In May 1984,...
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ORDER This action is before the court on plaintiff’s motion for summary judgment. Defendant has not opposed plaintiff’s motion. I. Statement of Facts In this case, plaintiff, the United States of America (United States), seeks to reduce to judgment a tax assessment against de*564fendant, Estel Spurlin. The tax assessment arose out of the failure of Spurlin Carpentry, Inc., (Spurlin Carpentry) to ...
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MEMORANDUM ORDER This matter is before the Court on the plaintiff’s Motion for Partial Summary Judgment and defendant’s Cross Motion for Summary Judgment. The Court heard argument on these motions on November 7, 1989. After careful consideration of the motions, the oppositions, and the entire record herein, the Court concludes that plaintiff’s motion for partial summary judgment must be denied ...
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MEMORANDUM ORDER This case arises out of an agreement between plaintiff, National Geographic Society (the “National Geographic”), and defendant, International Media Associates Inc. (“IMA”). Beginning in April 1984, the National Geographic designated IMA as its exclusive representative for distribution of certain of the National Geographic’s films in foreign and domestic markets. On or about Oct...
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Pending before the Court is a petition for writ of habeas corpus filed by Fanie Phily Mateo Angeles pursuant to 8 U.S.C. § 1105a(b), seeking judicial review of a decision by the Board of Immigration Appeals affirming a final order of exclusion by an Immigration Judge in Seattle, Washington. The basic facts of the case are not disputed. Petitioner recounted these facts at her exclusion hear...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This matter is presently before the court on cross motions for summary judgment. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that...
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OPINION This matter is before the Court on defendants’ motion to dismiss Counts II, III, and IV of plaintiff’s amended complaint, and on defendant IBEW’s motion to strike the class action allegations of Count V of the amended complaint. For the reasons set forth below, defendants’ motions are granted and Counts II, III, IV, and V are dismissed. Background In October 1974, de...
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ORDER Plaintiffs bring this suit seeking to be released from a Guaranty and Deed to Secure Debt which they executed on behalf of their employer, Bishop Tile Company, Inc., in favor of The Trust Company Bank of Augusta f/k/a The First National Bank of Thomson (“lender”). On November 3, 1983, lender with the participation of defendant U.S. Small Business Administration (“SBA”) made SBA loan No. GP-...
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MEMORANDUM OPINION We denied Mr. Rand’s motion for class certification on March 23, 1989 because of Mr. Rand’s unwillingness to pay costs, and his two motions for reconsideration on May 5, 1989 and on January 4, 1990. After our denial of class certification, we allowed Mr. Rand’s attorneys to publish a notice in order to find an adequate class representative, but no one came forward. Determined to...
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OPINION AND ORDER Plaintiff New Era Publications International (“New Era”) moves pursuant to Fed. R.Civ.P. 65 to enjoin defendants Carol Publishing Group (“Carol”) and Jonathan Caven-Atack 1 from publishing an unauthorized biography of the late L. Ron Hubbard. BACKGROUND New Era is the exclusive licensee of the works of Mr. Hubbard, a prolific and controversial author...
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MEMORANDUM OPINION THIS CAUSE comes before the Court upon Plaintiffs’ counsel’s, Norman Funt, 1 Motion for Re-consideration of Sanctions Imposed Under Rule 11 or In the Alternative A Motion for Relief of Order Pursuant to Rule 60 of the Federal Rules of Civil Procedure, and Request for a hearing on the same. Defendants, the City of Hialeah, Hialeah Mayor Raul Martinez, Hialeah Police Chief C....
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OPINION Six plaintiffs allege seven causes of action for copyright infringement based on defendant’s public performances of copy *370 righted musical compositions. 1 Defendant demanded a jury trial and plaintiffs have moved to strike the demand (Dkt. 22) contending defendant has no right to a jury trial where the request for monetary relief is confined to statutory...
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Memorandum and order This action comes to the Court on appeal from the Bankruptcy Court of this District, Judge Blackshear presiding. The City of *126 New York (hereinafter “City”) seeks relief from the Bankruptcy Court’s ruling that Debtor Baldwin League of Independent Schools (hereinafter “Debtor” or “Baldwin”) is exempt from a mortgage recording tax pursuant to § 1146(c) o...
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MEMORANDUM AND ORDER On September 8, 1987, Christopher C. Trundy (“Trundy”), acting pro se on his own behalf and, pursuant to Fed.R.Civ.P. 23.1, as a shareholder derivative action on behalf of National Equity Corporation (“National”), commenced this action against Richard Strumsky, Joanne Strum-sky (together “the Strumskys”), Edward McCormick, Debra McCormick (together “the McCormicks”), ...
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ORDER This case is before the court on plaintiff’s motion for summary judgment. Plaintiff 1 provides cable services nationwide and brought this action against its subscriber, defendant City of Stevens Point, Wisconsin, seeking injunctive and declaratory relief under the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521-559, and the First Amendment to the United States C...
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729 F.Supp. 1250 (1990) UNITED STATES of America, Plaintiff, v. MEXICO FEED AND SEED COMPANY, INC., et al., Defendants. No. N 87-0030 C. United States District Court, E.D. Missouri, N.D. January 29, 1990. *1251 Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., Robert Foster, Atty., Environmental Enforcement Section, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., Gerh...
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MEMORANDUM OPINION During the last four decades the United States has had to reevaluate its attitude toward conservation of its natural resources and protection of the environment. As public awareness has increased, numerous laws to protect the health and welfare of the people and to protect the environment have been enacted. In the early 1950’s the Public Health Service Act, 42 U.S.C. § ...
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OPINION We deal here with a seemingly inexhaustible filing of paltry and trifling pro se claims. This case illustrates the problem confronting a district court when a prisoner has too much free time and chooses to fill that time by inundating the Court with frivolous pro se pleadings and motions. Eldon L. Yocum is currently imprisoned at the Federal Correct...
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OPINION This case is brought pursuant to the Jones Act, 46 U.S.C. § 688 (1982), and the general maritime law of the United States. Defendants John Latsis (“John Latsis”) and Hermes Shipping & Trading Corp., S.A. Panama (“Hermes”), have moved to dismiss for lack of personal jurisdiction and forum non conveniens. John Latsis and John S. Latsis (USA), Inc. (“Lat-sis (USA)”), have also moved ...
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ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF The Court heard cross motions for summary judgment on January 17, 1990. Appearing for plaintiff was Steven E. McDonald of Kincaid, Gianunzio, Caudle & Hubert. Appearing for defendants William Engstrom and Linda Engstrom was Richard E. Brown of Belli, Belli, Brown, Monzione, Fabbro & Zakaria. Appearing for *1266 defendant L. Arthur...
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MEMORANDUM OPINION AND ORDER Before the Court is Defendant Wood’s Motion to Dismiss Indictment or To Suppress Statements of Defendant, filed December 15, 1989; and the Government’s Response, filed January 2, 1990. Defendant Wood moves the Court to dismiss the indictment against him or in the alternative to exclude from evidence (1) certain statements made by him to law enforcement authorities a...
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OPINION AND ORDER The Equal Employment Opportunity Commission (EEOC) seeks liquidated damages and equitable relief from defendant Chrysler Corporation (Chrysler) in this action arising out of an alleged violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. due to denial of severance pay. This is a motion to dismiss, pursuant to Federal Rules of C...
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On October 24,1989, in Ferguson v. FBI, 722 F.Supp. 1137, 1145 (S.D.N.Y.1989), the Court ordered that: (1) the Defendant’s motion to extend the time required to respond to Plaintiff’s requests under the Freedom of Information Act [(FOIA)] is GRANTED IN PART AND DENIED IN PART; (2) the Plaintiff’s motion for a preliminary injunction is GRANTED IN PART AND DENIED IN PART; (3) the Defendant, within 8...
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MEMORANDUM Plaintiff was hired as a mail carrier by the United States Postal Service in July of 1987. Her appointment was subject to a probationary period of 90 days. On September 9, 1987, her supervisor issued a notice of separation based upon what he considered to be an unsatisfactory performance. Plaintiff met with a Postal Service EEO Counselor, and thereafter, filed a formal complaint of disc...
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MEMORANDUM AND ORDER Before me is a motion for judgment on the pleadings by the insurer of a bankrupt. Because the injured plaintiff can neither maintain the statutory direct action against the insurer provided by New York law nor establish that it is a third-party beneficiary of the bankrupt's policy, the motion will be granted and judgment will be entered on behalf of the defendant. 1 Fact...
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Defendants Elizabeth Lieberman and Harold Lieberman move for an order quashing deposition subpoenas duces tecum served by plaintiff on 12 nonparty institutions, primarily banks, for records relating to defendants or members of their family, or in the alternative, limiting the scope of the subpoenas, on the grounds that the records sought are (a) not relevant to the pending action, and (b) threaten...
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ORDER GRANTING MOTION TO SUPPRESS EVIDENCE Defendant Louis Laymon, Jr. has filed a motion to suppress evidence obtained by the government during a March 8, 1989 search of his automobile after a traffic stop on Interstate 70 in Eagle County, Colorado. Laymon is charged with violating Title 21 U.S.C. § 841(a)(1) and (b) (possession with intent to distribute cocaine) and Title 21 U.S.C. § 846 and ...
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ORDER ON DEFENDANTS’ MOTION TO SUBSTITUTE THE UNITED STATES OF AMERICA AS THE SOLE DEFENDANT The defendants in this prisoner tort action filed a motion to substitute the United States of America as the sole defendant in this cause, in place of various prison employees originally named as defendants. This motion was made following the November 18,1988, amendment to the Federal Tort Claims Act, (“F...
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ORDER JOYCE HENS GREEN, District Judge. In a Memorandum Opinion (Opinion) filed July 26, 1989, 722 F.Supp. 771, this Court concluded that plaintiff Joan Jones had proved by a preponderance of the evidence at a trial on the merits that the District of Columbia and David Rivers, then Director of the District’s Department of Human Services (DHS) had discriminated against her on the basis...
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OPINION Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed suit against the District of Columbia, Department of Human Services, under the Age Discrimination in Employment Act of 1967 as amended (“ADEA”), 29 U.S.C. § 621 et seq. Plaintiff contends that the defendant has violated and continues to violate the ADEA by failing or refusing to hire Dr. Raymond B. Kielich...
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On November 21, 1989, during the sentencing phase of the captioned case, counsel for the United States argued that under 21 U.S.C. § 845a(a) the court was required to “double” the mandatory minimum sentence otherwise prescribed by 21 U.S.C. § 841(b)(1)(A). After careful consideration, the court rejected counsel’s argument and found that such a requirement is not mandated by the language of section...
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MEMORANDUM OPINION AND ORDER Brabender Technologie KG (“Braben-der”) has moved for dismissal from this patent infringement action brought by Aerison, Inc. (“Aerison”) against Braben-der, its licensee Control and Metering Limited (“CML”) and CML’s subsidiary Control and Metering, Inc. (“CMI”). Of the three defendants, only CMI has an Illinois place of business, so that Brabender’s amenabil...
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MEMORANDUM OPINION General Development Corporation and Gina Battaglia have moved for summary judgment on Demona Ross’s claims against them under 42 U.S.C. § 1981 (1982). 1 Ross is a black female; she seeks to recover under § 1981 for (1) the defendants’ constructive discharge of her, (2) their retaliation against her for complaining about their racial discrimination, (3) their policy of not r...
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MEMORANDUM OPINION AND ORDER Plaintiff Jesse D. Mayfield instituted this action pursuant to 42 U.S.C. § 1383(c)(3) for review of the final decision of the Secretary of the Department of Health and Human Services (the “Secretary”) denying plaintiff’s application for social security disability insurance benefits. The parties have filed cross-motions for summary judgment. For the reasons stated, the ...
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Presently before the court are the motions of defendants Lorenzo Gonzalez, Modesto Anthony Caba, and Raphael Vasquez for judgments of acquittal pursuant to Fed. R.Crim.P. 29(c). The government opposes these motions. FACTS AND PROCEDURE On December 8, 1988, a grand jury indicted defendants for conspiracy to possess cocaine with intent to deliver, 21 U.S.C. § 846 (Count One), possession...
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ORDER OF DISMISSAL WITH PREJUDICE THIS MATTER comes before the court on recommendation of United States Magistrate to dismiss. Plaintiff brings this class action pursuant to 42 U.S.C. § 1983 for alleged violations of civil rights. Plaintiff was allowed to amend his complaint and seeks declaratory and injunctive relief. Jurisdiction is based on 28 U.S.C. § 1331. Plaintiff alleges that procedur...
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ORDER Before the court for ruling is defendant’s resisted motion for summary judgment. The court heard arguments on November 2, 1989, then gave the parties additional time in which to supplement their arguments. The matter is now deemed submitted for ruling. Summary judgment is properly granted when there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett,...
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*580 ORDER Plaintiffs have filed a complaint for declaratory and injunctive relief under 42 U.S.C. Secs. 1983, 1985, and 1988 seeking to redress alleged violations of their First, Fourth, and Fourteenth Amendment rights. The matter is before the Court following a hearing on the Court’s order to show cause why the Court should not abstain from adjudicating this controversy. For the reasons set...
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MEMORANDUM AND ORDER The plaintiff, Marcus Food Company, has brought the present action for sums due under an open account for the sale of beef to defendants Family Foods of Tallahassee, Inc., VRD of Columbus, Inc., YRD of Ft. *755 Lauderdale, Inc., and VRD of Cincinnati, Inc. In addition, Marcus Food makes a claim against defendant Vincent Doria, president of the defendant c...
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MEMORANDUM OPINION AND ORDER Before the Court is Metropolitan Life Insurance Company’s Motion For Summary Judgment and Dorothy Pressley’s Motion For Summary Judgment. For the reasons which follow and those stated in the movants’ briefs, both motions are GRANTED. This is an action brought by the five adult children and ex-wife of decedent Leroy Pressley (“decedent”) for the life insur...
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MEMORANDUM AND ORDER Planned Parenthood of Kansas, Inc., and its Executive Director, Sharilyn Young, have brought the present action seeking *1284 declaratory and injunctive relief against the defendants, the City of Wichita, Kansas, and the Board of County Commissioners of Sedgwick County, Kansas. Also named as defendants are the individual members of the Wichita City Counci...
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Petitioner moves pursuant to 28 U.S.C. § 2255 for a reversal of conviction. For the reasons set forth below, the motion is denied. FACTS Petitioner was convicted on February 27, 1987, following a jury trial, of one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). On May 1, 1987, petitioner was sentenced to a six-year term of imprisonment, a te...
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MEMORANDUM OPINION This ease is before the court on the defendant’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Because the facts alleged by the plaintiff do not support a cause of action against this defendant, Continental Baking is entitled to judgment as a matter of law, and its motion is granted. I. The factual history of this cas...
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OPINION Plaintiff Myron P. Nobler (“Nobler”) moves to preclude defendant Beth Israel Medical Center (“BIMC”) from calling two doctors, James Cox and Larry Davis, as witnesses. BIMC cross-moves for an order precluding the proposed testimony of another doctor, Arnold Melman. For the reasons stated below, both motions are denied. The Facts This action under the Age Discrimination in Employment Act of...
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ORDER This matter is before the court on plaintiff’s motion for summary judgment on Count II of her complaint and defendants’ motion for summary judgment on all counts of plaintiff’s complaint. The issues have been fully briefed by the parties and oral arguments were heard on December 18, 1989. For the following reasons, plain *627 tiff’s motion will be granted and defendants...
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SENTENCING MEMORANDUM RE APPLICABLE GUIDELINE RANGE Defendant Michael Healy was convicted of one count of unlawful distribution of LSD for selling 5000 “hits” of LSD impregnated in blotter paper to an undercover police officer. His sentencing has raised two issues involving interpretation of the Federal Sentencing Guidelines. The first concerns the LSD weight to be used in fixing the Guid...
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OPINION This matter arises under the Employment Retirement Income Security Act (“ERISA” or “the Act”), 29 U.S.C. § 1001, et seq. and requires the Court to probe the definitional boundaries of that shadowy figure, the “fiduciary.” Plaintiff Francis P. Brown, as trustee and beneficiary on behalf of Alpha Profit Sharing Trust (“the Trust”) has filed suit against Lawrence Roth, a c...
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MEMORANDUM OPINION Introduction In these three related civil actions, four black, present or former employees of the Federal Express Corporation (“Federal Express”) allege disparate treatment and racial harassment claims in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“§ 1981”), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (“Title VII”). Addi...
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MEMORANDUM OPINION On October 1, 1989, police boarded an Amtrak passenger train while it was stopped at Union Station in Washington, D.C. Two officers went to passenger Mark Levetan’s room, spoke with him, and without a warrant searched his luggage. The police arrested Levetan after finding illegal heroin in his luggage. Arguing that the search was unlawful, Levetan now moves the court for an o...
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ORDER AND REASONS Plaintiff Lisa Jackson brings this suit against defendants Lynley Designs, Inc. and its owners, Bruce and Joslyn Jackson, under the Lanham Act, 15 U.S.C. § 1120, alleging that they fraudulently secured trademark registration of the “lisa jack-son” name for their line of children’s clothing. Defendants now move for summary judgment. I. Lynley Designs manufactures children’s...
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The instant motion to withdraw guilty plea presents fundamental questions concerning the conduct a judge may consider when imposing a sentence governed by the Sentencing Reform Act of 1984 and whether a defendant may withdraw his guilty plea when the defendant’s relevant conduct exposes the defendant to a more severe guideline sentence than he contemplated at the time of his plea. I D...
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MEMORANDUM OPINION AND ORDER There is pending before the court a motion in limine of defendant Thrasher Trucking Company seeking a determination as to the law applicable to the issues involved in this case. It is defendant’s position that the substantive law of Louisiana should be held to govern all issues or at the very least issues relating to the recoverability of punitive damages. Plainti...
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*696ORDER Plaintiff Lee Dosier commenced this action in California Superior Court charging sex discrimination and breach of the covenant of good faith and fair dealing. The first cause of action of her complaint alleges that in July 1986 defendants subjected her to sexual harassment in violation of Cal.Govt.Code § 12940 et seq.; the second cause of action alleges that in September 1986 defendants...
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Presently before the court is the motion of plaintiffs Jane Doe and her children 1 for partial summary judgment against defendants Borough of Runnemede (“Runnemede”) and Officer Smith. These defendants have cross-moved for summary judgment. This case presents novel issues concerning the privacy rights of individuals who have contracted Acquired Immune Deficiency Syndrome (“AIDS”) and...
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FACTS This case comes before this court by way of a long and protracted procedural history. This case first began back in November of 1984 when Parr Elevator, Inc. (Parr) filed a Chapter 11 bankruptcy. Adversary Proceeding Number 85-4035 was filed by Parr and Hancock in June of 1985 so that the property of Parr could be sold free and clear of liens. Hancock is an appellee is this proceedi...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of defendants, Porcelain Products Company (Inc.), Knox Porcelain Corporation and Ideal Basic Industries, for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs have responded to the motion, and the court has considered the memoranda of authorities together with attachmen...
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MEMORANDUM OPINION Plaintiff Bank of Crete moves for an order directing that certain funds transferred to defendants’ law firm to pay litigation expenses are subject to the preliminary injunction issued by this Court. See Bank of Crete v. Koskotas, No. 88 Civ. 8412, 1988 WL 140877 (S.D.N.Y. Dec. 19, 1988) (order granting preliminary injunction). That injunction barred defendant...
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MEMORANDUM In this dispute over an insurance contract, the plaintiff, Mark Akins, and the defendants, Washington Metropolitan Area Transit Authority (“WMATA”) and Mutual Benefit Life Insurance Company (“Mutual”), have all moved for summary judgment. The motions have been briefed and orally argued. Plaintiff worked for WMATA from 1967 to 1984. Pursuant to his employment, he was eligib...
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Defendant’s objections to his presentence report present two questions that are basic to proper application of the Sentencing Guidelines. The first is whether the sentencing judge is bound by facts to which the government and defendant have agreed when the facts conflict with the presen-tence report. The second is whether the court may accept a plea agreement that is predicated on facts that do no...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff, John Hubert Braud, brought this action pursuant to 42 U.S.C. § 1983, alleging deprivation of constitutionally protected rights by officials acting under color of state law. Pendent state law claims are also alleged. Named as defendants are the City of Gonzales, Police Chief Barney Ar-ceneaux, and Officers Charles Painter, Sam Pasqua, Bill...
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OPINION The United States Trustee appeals the bankruptcy court’s denial of his motion to dismiss the case of Gary Lee and Margar-ette Braley for substantial abuse pursuant to 11 U.S.C. § 707(b). On February 10, 1989, the Braleys filed a petition for relief under Chapter 7 of the Bankruptcy Code in the Eastern District of Virginia, Norfolk Division. On April 21, 1989, the Trustee filed a Motion ...
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OPINION AND ORDER Rochester Convertible Growth Fund, Rochester Growth Fund, Inc., Werner Zimmerman and Mirjam Zimmerman (referred to hereinafter collectively as the “Intervenors”), on behalf of themselves and on behalf of the putative classes they represent, have moved to intervene under Rule 24, Fed.R.Civ.P., in the above-captioned proceedings. Home Shopping Network, Inc. (“HSN”), plaintiff in a...
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OPINION AND ORDER This matter comes before the Court to consider the motion of the defendant, Harnischfeger Industries, Inc. (Harnischfeger”), for summary judgment. The plaintiff, Faye L. Miller, seeks damages from defendants Harnischfeger and Dynascan Corporation (“Dynascan”) as a result of a fatal accident befalling her husband, Eugene F. Miller, on July 24, 1982. The decedent worked fo...
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MEMORANDUM-DECISION AND ORDER The defendants, Luis Edwardo Gonzalez Athehorta (“Gonzalez”) and Hugo Valencia (“Valencia”), move to suppress all statements made to government agents at a motor vehicle stop and all physical evidence seized on April 11, 1989. Specifically, the defendants move to suppress (a) books and records, cocaine and U.S. currency seized following a third party consent ...
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MEMORANDUM OPINION AND ORDER The Court has pending before it a Motion to Dismiss Plaintiff’s Complaint pursuant to Rule 12(b), Fed.R.Civ.P., and a Motion for Stay of Discovery filed by defendants Duane Benton, Missouri Director of Revenue; the Missouri Department of Revenue; and the State of Missouri. The facts of the case are as follows. Olin Corporation (“Olin”), a private, for-profit gover...
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Plaintiff Century Time Inc. (“Century”) is a Swiss manufacturer of watches marketed under the trademark Century®. Century manufactures watches with synthetic sapphire crystals and cases, which it calls its “Century Sapphire Collection.” Plaintiff H. Stern Jewelers (“Stern”) is a chain of retail jewelry stores. Stern is an exclusive licensee of certain of the watches in Century’s Sapphire Collec...
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*154 MEMORANDUM This case compels the Court to examine the latest technique in the “war on drugs” as it is waged at the local bus and train stations. The question presented is whether a young traveller passing through D.C., cornered by police on an interstate bus at the Greyhound station, and faced with a request to search her bag has been seized within the meaning of the Fourth Amendment and...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW I. Findings of Fact. 1. Plaintiff, Common Cause, is a nonprofit membership corporation whose activities include efforts to reform campaign finance practices. 2. Defendant, the Federal Election Commission (“FEC” or “Commission”), is an independent agency of the United States Government charged with enforcing the federal election laws. 3. The National...
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OPINION In this appeal First Brandon National Bank contends that the bankruptcy court erred in confirming the debtor’s Chapter 12 reorganization plan. The court agrees. For the forthcoming reasons the bankruptcy court’s order confirming the plan is reversed and the case is remanded to the bankruptcy court to allow the debtor to prepare a new plan consistent with this opinion. I. BACK...
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MEMORANDUM OPINION Presently before the Court is defendant’s motion to dismiss the indictment. 1 The issues have been fully briefed and were argued before the Court on January 22,1990. In accordance with the Court’s oral ruling from the bench, and for the reasons set forth below, the Court shall grant the motion. I. BACKGROUND Defendant Michael K. Smith (a/k/a “Smitty...
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MEMORANDUM AND ORDER This case concerns the proposed building of “Columbus Center,” a mixed-use redevelopment project involving retail, office, cinema and residential space in Manhattan. The seller of the site is the defendant Triborough Bridge and Tunnel Authority (“TBTA”), and the developer is Boston Properties, acting through defendant Coliseum Associates. The plaintiffs are a number o...
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OPINION Plaintiff Brian Maher brings this action under Title VII of the Civil Rights Act of 1964, alleging sexual discrimination by his former employer, the United States Postal Service. Defendants in this action are the Postal Service, the United States Postmaster General and Maher’s former supervisor, Aileen Wynne. Defendants move under Fed.R.Civ.P. 12(b)(1) and (6) to dismiss for lack ...
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*159 MEMORANDUM OPINION AND ORDER In this case, Dr. Lenora B. Fulani claims that the Commission on Presidential Debates’ failure to invite her to participate in the 1988 presidential debates was partisan and therefore invalidates its status as a tax-exempt organization under § 501(c)(3) of the Internal Revenue Code. This matter is now before the Court pursuant to Defendants’ Motion to Dismiss...
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729 F. Supp. 609 (1990) John SCHULTZ and Joann Schultz, Plaintiffs, v. KEENE CORPORATION, et al., Defendants. No. 86 C 5431. United States District Court, N.D. Illinois, E.D. January 29, 1990. *610 Terrence M. Johnson, Chicago, Ill., for John Schultz and Joann Schultz. Daniel J. Cheely, Paul B. O'Flaherty, Jr., John A. Krivicich and Andrew J. Boling, Baker & McKenzie, Chicago, Ill., for ACand...
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MEMORANDUM AND ORDER Defendant, John Patrick Ross, was convicted by a jury of a three count indictment. The counts in summary are: count I intent to distribute cocaine, and count II and count III carrying or using a firearm in relation to drug trafficking. Defendant has motioned the court to grant bail pending the imposition of sentence. The court, at the time' of the guilty findings, remande...
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MEMORANDUM AND ORDER The case comes before the court on the defendant’s motion for summary judgment on all of plaintiff’s claims. Plaintiff, Johnny B. Hermes, brought this action to recover on two crop insurance policies issued by defendant, Federal Crop Insurance Corporation (FCIC), in the years of 1984 and 1985. These policies covered wheat and grain sorghum crops planted in Harvey and Reno Cou...
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ORDER About twenty-nine months after the Complaint in the above-captioned case was filed, the defendant Roy Littlejohn has moved for leave to file an amended answer and for leave to amend his pleadings to include a counterclaim. Upon consideration of the defendant’s motions, the plaintiff’s oppositions, and the entire record herein, the Court will deny both motions. 1) The Amended Answer The de...
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MEMORANDUM OPINION This Court heard testimony in the above captioned matter on March 20 and 21 of 1989 regarding plaintiffs motion for preliminary injunction. On March 22, 1989, this Court issued a preliminary injunction against the Department of Housing and Urban Development (“HUD”) requiring the agency to reinstate the plaintiff on a leave-without-pay basis while she sought treatment for her ...
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MEMORANDUM ORDER This matter is before the Court on plaintiff/counter-defendant’s, the Timberland Company, (“Timberland”) Motion For Preliminary Injunction. Timberland moves for the entry of a preliminary injunction, enjoining the defendants/counter-plaintiffs Nelson Sanchez (“Sanchez”), Tippy’s Shoes, Co. (“Tippys”) and/or Export International *383Cx.A (“Export”)1 from proceeding with two certain...
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MEMORANDUM OPINION The defendant Robert M. Hardy, along with twenty-eight other defendants, is charged with participating in a conspiracy to distribute and to possess with the intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846. Pursuant to Rule 12.2(b) of the Federal Rules of Criminal Procedure, defendant filed a motion on January 30, 1990 requesting leave to late-fil...
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MEMORANDUM OPINION Plaintiffs ABG Financial Services, Inc. (“ABG”) and Centennial Mortgage, Inc., (“Centennial”), two active mortgage bankers approved by the United States Department of Housing and Urban Development (“HUD”) to be Federal Housing Administration (“FHA”) coinsuring lenders with authority to provide financing and issue mortgage insurance for qualified multifamily housing proj...
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MEMORANDUM OPINION AND ORDER As a result of a general election held on November 8, 1988, Article XXVIII, entitled “English as the Official Language”, was added to the Arizona Constitution. In an action brought pursuant to 42 U.S.C. § 1983, the plaintiffs seek to have Article XXVIII declared unconstitutional and its enforcement enjoined, claiming that the Article violates the First and Fourteent...
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ORDER This order concerns plaintiffs’ motion for summary judgment. For the reasons stated herein, plaintiffs’ motion is granted. FACTS1 Plaintiffs First National Bank of Chicago and Florence Kaufmann are trustees of the Alfred Kaufmann Trust (“the Trust”). The Trust owns real property located at 5405-09 Hohman Avenue in Hammond, Indiana. Some time ago, a theatre building named the “Paramount” was...
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ORDER OF COURT This interpleader matter is pending before the court on cross-motions for summary judgment. The court’s findings of fact *651and conclusions of law follow pursuant to F.R.Civ.P. 56. BACKGROUND Plaintiff, Melvin Caldwell, Jr., holds excess proceeds in the amount of $9,935.38 from the foreclosure sale of improved real property belonging to New Builders, Inc. The United States claims ...
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MEMORANDUM AND ORDER The case comes before the court on the plaintiffs motion for summary judgment on the defendant's counterclaims. Plaintiff, Unified School District No. 457 (District), brings this action against defendant, Jimmy 0. Phifer, a former superintendent of schools for the District, seeking damages on claims of wrongful conversion and breach of contract. Defendant counterclaims...
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*909 AMENDED ORDER The Court hereby denies Mr. Nordbrock’s motion under Rule 59 to alter/amend judgment or, in the alternative, for a new trial and hereby amends its Order of January 1, 1990. The Order, in its entirety, is as follows: This case involves the government’s demand for information pursuant to § 6107(b), Internal Revenue Code. That Section requires income tax return preparers to ...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs’ motion for an extension of time in which to file a notice of appeal in the above-captioned case. Plaintiffs seek to appeal from this court’s memorandum and order and judgments entered in defendants’ favor on defendants’ motion for summary judgment, filed by the Clerk on November 20, 1989. 726 F.Supp. 1231. Plaintiffs should have f...
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OPINION The Defendants move this Court for an order dismissing the Amended Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) and for failure to plead fraud with particularity pursuant to Fed.R.Civ.P. 9(b). Counts VIII and IX of the Amended Complaint allege violations of the Racketeer Influenced and Corrupt Organizations Act of 1970 (“RICO”), 18 U.S.C. §§ 1961 ...
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MEMORANDUM Defendant Josefina Melendez Liranzo was arrested in the Port Authority bus terminal in possession of approximately a kilogram of cocaine. The bus terminal is within 1,000 feet of the Holy Cross School, a private elementary school. She was charged with possessing cocaine with intent to distribute it, within 1,000 feet of a school, in violation of 21 U.S.C. § 845a(a) (the “school...
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DECISION Defendant, The Goodyear Tire & Rubber Company (Goodyear), has moved to quash *469plaintiffs’ notices of deposition of Gerhard Gerbeth and Robert Hutchinson, both former employees of Goodyear, to preserve their testimony for use at trial. Plaintiffs’ notices of deposition request the right to videotape said depositions. With respect to the prospective witness, Robert Hutchinson, the motio...
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MEMORANDUM OPINION This appeal 1 stems from the Bureau of Land Management’s (BLM) decision to issue a right-of-way to Exxon Corporation for a carbon dioxide pipeline pursuant to section 28 of the Mineral Leasing Act of 1920 (MLA), as amended, 30 U.S.C. § 185, rather than Title V of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1761 et seq. ...
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This case involves the interplay between the federal doctrine of abstention from enjoining pending state criminal proceedings and the First Amendment’s prohibition against mass seizures of potentially protected material without a prior adversary hearing. Plaintiff Chesapeake B & M, Inc., t/a Highway Craft, Gift & Book Store (“Highway Craft”), is a shop selling sexually related materials in Aberdee...
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BACKGROUND This is an action initiated by plaintiffs, residents and citizens of the State of Mississippi, against the Federal Land Bank of Jackson (“FLB”), its parent association, the Federal Land Bank Association of Jackson (“FLBA”), the Farm Credit System Capitol Corporation (“Capitol Corporation”), a company created to advise and assist the local institutions and the Farm Credit System ...
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OPINION AND ORDER BACKGROUND Plaintiff in this wrongful death and loss of services, society and consortium action alleges that plaintiff’s decedent’s death was caused by exposure to friable asbestos while decedent was a student at Walt Whitman Junior High School in Yonkers (the “school”) between 1967 and 1970. This ease differs from the typical asbestos-related lawsuit in that plaint...
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MEMORANDUM OPINION AND ORDER Plaintiff has obtained an ex parte order of attachment against defendant Advanced Business Computers (“ABC”) subject to N.Y. C.P.L.R. § 6201(3) (McKinney’s 1988), and has moved for confirmation under N.Y. C.P.L.R. § 6211(b) (McKinney’s 1988). This Court previously confirmed orders of attachment against the other defendants in this case, but reserved judgment regar...
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MEMORANDUM OPINION (Awarding Payment of Judgment) BARRINGTON D. PARKER, Senior District Judge: BACKGROUND On February 17, 1989, this Court, in accordance with a jury award of damages, *1392 entered judgment in favor of the plaintiff Vernon E. Martens, M.D. and against defendant Hadley Memorial Hospital (“Hadley” or “Hospital”) in the amount of $609,-906. Hadley ...
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OPINION AND ORDER Sachiko Tasaka, a sixty-seven year old Associate Program Executive, alleges that she was laid off by defendant DDB Worldwide, Inc. in 1988 solely and discriminatorily on account of her age. In her complaint she asserts two causes of action flowing from this alleged wrongful discharge. The first cause of action is based on the federal Age Discrimination in Employment Act,...
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MEMORANDUM This case involves an attempt by the trustee in bankruptcy to recover preferences allegedly created when the debtor paid certain fuel bills within 90 days of filing its bankruptcy petition. For the reasons stated below, the Court finds that the trustee may not recover the payments at issue from the defendant-appellants. Ac *829 cordingly, the February 17, 1987 ruli...
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OPINION The Court is called upon to decide whether, under the Constitution and laws, former President Ronald Reagan may be subpoenaed to testify as a witness for the defense in the criminal trial of his erstwhile National Security Advisor John Poindexter. Related to that issue is the question whether a sufficient factual showing has been made by the defendant to cause the Court to order t...
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MEMORANDUM OPINION AND ORDER As described in this Court’s “Opinion” (723 F.Supp. 1258 (N.D.I11.1989)),1 Illinois Attorney General Neil Hartigan initially filed a two-count Complaint in the Circuit Court of Cook County on behalf of the People of the State of Illinois against Commonwealth Mortgage Corporation of America (“Commonwealth”) — a wholly-owned subsidiary of Commonwealth Savings Associatio...
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MEMORANDUM OPINION AND ORDER This contract action arises from a sale of a business gone awry. Wisconsin corporation CNC Service Center, Inc. (“CNC-Wisconsin”) has sued Illinois corporation CNC Service Center, Inc. (“CNC-Illinois”), CNC-Ulinois’ sole shareholder Ben Evenson (“Evenson”) and Bank of Elmhurst (“Bank”), holder of a security interest in personal property once belonging to CNC- ...
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MEMORANDUM OPINION AND ORDER Harrington was the president of AetnaBearing Company, a maker and supplier of ball bearings which was wholly owned by Katy Industries. His employment with Aetna began in 1954 and ended thirty-five years later on February 7, 1989. Harrington had a written employment contract with the company, dated October 1, 1971. The contract set forth compensation and provided for t...
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MEMORANDUM AND ORDER Plaintiff Joslyn Manufacturing Co. (Joslyn), owner of U.S. Patent 4,161,012 (’012), High Voltage Protection Apparatus, brought suit on July 27, 1989, against defendant Amerace Corporation (Amerace) claiming that Amerace infringed the ’012 patent by manufacturing and selling certain surge arresters (ESA arresters). Amerace now moves to dismiss this complaint under Rule...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendant Thomson McKinnon Securities, Inc. (“Thomson McKinnon”) to dismiss plaintiffs’ petition or, in the alternative, to stay all proceedings pending arbitration pursuant to an arbitration agreement between plaintiffs and defendant Thomson McKinnon. Because the court finds that Thomson McKinnon’s motion is in the nature of a...
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MEMORANDUM OPINION This matter came before the court on the parties’ cross-motions for summary judgment. 1 Plaintiffs, First South Production Credit Association (“First South PCA”), Federal Intermediate Credit Bank of Jack-son (“Jackson FICB”), and Farm Credit Bank of Wichita (“Wichita FCB”), bring this action for declaratory and injunctive relief challenging the Farm Credit Ad...
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MEMORANDUM AND ORDER This matter was tried to the court on September 11 and 12, 1989. In this case, certain present and former inmates of the United States Disciplinary Barracks (USDB) at Leavenworth, Kansas, challenge the constitutionality of a regulation, USDB Reg. No. 28-1, which denies them the right to receive certain literature through incom *363 ing mail. Also, plaintiffs challenge the...
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MEMORANDUM AND ORDER This matter is before the court on parties’ cross-motions for summary judgment. This consolidated suit involves a dispute over proceeds of a life insurance policy belonging to decedent, Martin Willoughby. Because the court finds that oral argument would not be of material assistance in its determination of this matter, Felton Wil-loughby’s request for oral argument is...
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OPINION AND ORDER Defendant Citicorp moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b), asserting that a forum-selection clause in the parties’ contract requires that plaintiff Medoil Corporation bring this action in Zurich, Switzerland. 1 BACKGROUND Medoil is a Liberian corporation engaged in the shipping business. Its sole place of business is Medoil (USA) ...
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ORDER THIS CAUSE has come before the court upon the order and opinion of the Eleventh Circuit Court of Appeals decided on September 28, 1989. Therein, the Court of Appeals vacated this court’s judgment of conviction and remanded the case “for further proceedings consistent with this opinion”. See United States v. Piccinonna, 885 F.2d 1529, 1537, (11th Cir.1989), (hereinafter, “the opinion”). ...
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MEMORANDUM OPINION AND ORDER The subjects of this Opinion and Order are defendants’ Motion for Judgment on the Pleadings brought pursuant to Federal Rule of Civil Procedure 12(c) and plaintiff’s Motion to Disqualify Defendant’s Counsel. On February 7, 1989, I entered an Order stating that I would treat defendant’s motion for judgment on the pleadings as one for summary judgment under Fede...
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*164 MEMORANDUM AND ORDER On February 7, 1990, in response to the Court’s Order of the same date, counsel for President Reagan answered in the affirmative the Court’s question whether the former President’s filing of February 5, 1990 was “intended to constitute a formal claim by the President of executive privilege .... ” That answer lays to rest the question whether the former President has ...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion to remand this action to state court and on defendant’s motion for a stay or transfer of venue. This action was originally filed in the District Court of Shawnee County, Kansas by the Attorney General of the State of Kansas, Robert T. Stephan (hereafter, “Stephan”). In his complaint, filed April 3, 1989, Stephan alleges tha...
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ORDER Plaintiffs, as relators, David Navarette Sr. and Taxpayers Against Fraud (“TAF”), a non-profit corporation, have commenced this suit under the qui tam provisions of the False Claims Act, 31 U.S.C. § 3730(b) et seq., which, under appropriate circumstances permit private citizens to prosecute civil actions in the name of the United States. Plaintiffs seek damages and civil penalties ari...
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MEMORANDUM OPINION AND ORDER The defendant, Jose Abreu (Abreu), filed a motion to suppress evidence seized at the Loma, Colorado port of entry, statements made over the telephone just prior to his arrest and thereafter, and the fruits of his arrest and search of his New York apartment. Abreu also seeks return of an automobile seized by DEA agents on his arrest. For the reasons stated here...
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OPINION This Court held a bench trial of this cause on January 10, 1990, in Jacksonville, Florida. Both sides were represented by counsel. The following memorandum opinion shall constitute the findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a). Introduction TERRY A. PAPCZYNSKI filed this lawsuit seeking benefits allegedly due him as ...
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OPINION Plaintiffs Scripps Clinic and Research Foundation and Rorer Group, Inc. (hereinafter collectively referred to as “Scripps”) filed this patent infringement suit in 1987 against defendants Baxter Travenol Laboratories, Inc. and Travenol Laboratories, Inc. (hereinafter referred to as “Baxter”). Baxter has asserted as defenses the patent’s invalidity and unenforceability, and has also...
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OPINION In 1985, the United States of America brought this action under sections 104(a) and (b) and 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9604(a) and (b) and 9607(a), for reimbursement of costs incurred in response to the alleged release of hazardous substances from the Sealand, Ltd. site in Mount Pleasant, Delaware (“...
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OPINION We have at last reached the final chapter of this gothic tale, having found Respondent John Betts guilty of criminal contempt of this Court and sentenced him for that infraction. This opinion, which shall serve as epilogue to this story, will reaffirm our earlier rulings in this case, as well as summarize the events leading to the denouement of this drama. Betts, the main player of ...
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OPINION This is defendants’ motion for summary judgment. On December 7, 1987 plaintiff Ben Carr filed a complaint against defendants Town of Dewey Beach (“Dewey Beach” or “the Town”) and its Building Inspector Samuel Fader in his official and individual capacities based upon what plain *594 tiff characterizes as “a series of events surrounding defendants’ bad faith efforts to...
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MEMORANDUM AND ORDER The Metropolitan Sanitary District of Greater Chicago (MSD) brought this action against the United States alleging that it has failed to comply with the terms of an agreement permitting the Glenview Naval Air Station to discharge sewage into MSD’s system. The complaint seeks mandamus, an injunction, and civil penalties. In our order of September 29, 1989, we denied the gove...
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APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORDER ON APPEAL This cause is before the Court on appeal from the Order on Motion for Relief from Stay or Alternatively for Adequate Protection or Alternatively Motion to Compel Assumption or Rejection of Executory Contract and Motion to Prohibit the Use of Cash Collateral entered on March 7, 1989, 98 B...
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MEMORANDUM OPINION AND ORDER In this action, brought pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, plaintiff claims that defendant forced him into early retirement because of his advanced age. Before the court is defendant’s motion for summary judgment. For the following reasons, defendant’s motion is granted. I. BACKGROUND The following ar...
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MEMORANDUM OPINION AND ORDER Raymond Lione Morter is a professor of veterinary science at Purdue University. Morter has served the university as a faculty member for thirty of his 69 years. He faces mandatory retirement when he turns 70 this fall. Though approaching his “golden years” both professionally and chronologically, Morter recently filed a petition for relief under Chapter 7 of t...
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MEMORANDUM Plaintiff seeks redress for alleged discrimination in violation of federal and local laws. Specifically, the plaintiff brings this action pursuant to 42 U.S.C. § 1981, and *1398for breach of contract, infliction of emotional distress, and discharge in violation of public policy.1 Defendants contend that this case should be dismissed because the cause of actions are barred by the applica...
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OPINION AND ORDER This case presents the question whether the “slayer’s rule” prevents a beneficiary *1525 of a life insurance policy from recovering the proceeds of the policy when the beneficiary has killed the insured. The defendant William Andrew Hebb, Jr. killed his wife, Sonya E. Hebb, on March 18, 1988. At the time of her death, Sonya Hebb was an employee of the f...
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ORDER ON APPEAL This cause is before the court on appeal from the Order on Objection to Claim in Case No. 80-79, entered October 11, 1985, by Chief Bankruptcy Judge Alexander L. Paskay. ISSUES: I. Whether or not the trial court correctly ruled that Appellant, as president of Florida Airlines, Inc., the debtor-in-possession, was a “professional person” under 11 U.S.C. Section 327(a) whose co...
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ORDER The above-styled cause is before the Court on Plaintiff IMCO’s Motion for Remand and for Attorney’s Fees, filed herein on December 19, 1989. Defendant TITLE INSURANCE COMPANY OF MINNESOTA (TICM) responded to said motion on December 21, 1989. After due consideration of said motion and response thereto, the Court will remand this action to the Circuit Court of Duval County for the rea...
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OPINION AND ORDER The plaintiffs, 78 firefighter employees of Howard County, Maryland, have sued Howard County contending that the method by which Howard County paid overtime wages to them during the period August 17, 1986, through July 9, 1988, violated the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201-219 (1982). The employees were paid under a plan that averaged payments of str...
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MEMORANDUM OPINION AND ORDER The plaintiffs in these consolidated cases are excess insurance carriers who are suing, inter alia, a primary carrier alleging that it breached certain duties owed to them as excess carriers. These cases are now before the court on the motions of defendant American Home Assurance Company (“American Home”) to dismiss count two of each complaint for f...
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ORDER THIS CAUSE is before this court upon receipt of the report and recommendation of Magistrate Elizabeth A. Jenkins recommending that Defendants’ motion for summary judgment in the above styled petition be GRANTED with respect to the claim for injunctive relief sought and DENIED with respect to the claim for compensatory damages. All parties have previously been furnished copies of the...
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The second trial in the above-captioned drug conspiracy case is set to begin on February 26, 1990. The jurors in the recently completed trial of the “Group I” defendants were anonymous and sequestered. Their identities were concealed from the government, the defendants, counsel for both the prosecution and the defense, the Court, and even one another. The government has filed a motion requestin...
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MEMORANDUM OPINION AND ORDER Before the Court is Plaintiff’s Motion for Remand, filed October 3, 1989; Defen *1135 dant’s Response, filed October 26, 1989; Plaintiffs Reply, filed December 18, 1989; Defendant’s letter dated December 22, 1989; and Plaintiff’s letter dated January 3, 1990. I. INTRODUCTION Plaintiff filed this action for breach of contract in the 193rd...
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MEMORANDUM OPINION I. In 1989, plaintiff, a member of the Arkansas Bar, was suspended from the Bar for one year by defendant, a committee appointed by the Arkansas Supreme Court to regulate legal ethics. Defendant suspended plaintiff on the basis that his 1983 business transactions with one of his clients violated Disciplinary Rule 5-104 (“DR 5-104”), one of the state Bar’s conflict of intere...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT This cause is before the Court on the motion of defendant, GREYHOUND RE *416 TIREMENT AND DISABILITY TRUST (Plan or Trust) 1 , for summary judgment. The plaintiff, RICHARD EMORY GRAY, has responded opposing the motion. After consideration of the entire record, the Court concludes that summary judgment is appropriate and sh...
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728 F. Supp. 1259 (1990) Richard GREGORY, individually and on behalf of all others similarly situated, Plaintiff, v. HARRIS-TEETER SUPERMARKETS, INC., Defendant. No. C-C-87-0461-P. United States District Court, W.D. North Carolina, Charlotte Division. January 22, 1990. Michael A. Sheely, Russell & Sheely, Charlotte, N.C., for plaintiff. John O. Pollard, Blakeney Alexander & Machen, Charlo...
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ORDER The plaintiff Jimmy McClelland commenced this action in April 1989 against Henry W. Buschman and the corporate defendants, Watling Ladder Company (Watling) and Westlake Hardware, Inc. (West-lake), pursuant to 28 U.S.C. § 1332. Grounding his action on theories of negligence, manufacturers’ products liability, and breach of warranty, the plaintiff seeks to recover damages for personal...
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*1100 FINAL JUDGMENT FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER came before the Court for judicial review of jeopardy assessments made by the Internal Revenue Service against the Plaintiff, Jerry Lee Harvey for the tax years 1978 through 1983. The Court held an evidentiary hearing in this matter at which time evidence was received and testimony adduced, including the tes...
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MEMORANDUM AND ORDER This matter comes before the court on the cross motions of plaintiff and defendant for summary judgment. Jackie Ross (“Ross”) has brought suit against Wal-Mart Stores, Inc. (“Wal-mart”) for false arrest, false imprisonment, and slander. Wal-Mart contends plaintiff’s lawsuit is barred by a release signed by Ross. Ross claims the release is invalid because it was signed...
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*675 OPINION AND ORDER Plaintiffs Robert Weiner and his family obtained a judgment in the amount of $6.9 million against Blue Cross and Blue Shield of Maryland and related companies (Blue Cross) in the state courts of Florida. The judgment arose out of Blue Cross’ failure to pay timely under a health care policy. The judgment, which was entered in September 1986, has been accruin...
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OPINION BACKGROUND Following a three week jury trial, in this tort of conversion and breach of contract *1491 action, the following verdicts were returned: $1,370,386.85 for compensatory damages in favor of the plaintiff, Associated Business Telephone Systems Corporation (“Associated or ABTS”) against the defendant, Greater Capital Corporation (“Greater Capital”); $...
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MEMORANDUM OF OPINION AND ORDER Plaintiff Jackson Leeds here challenges the Patent and Trademark Office’s (“PTO”) decision requiring plaintiff to take and pass an examination as a condition to being registered to practice before the PTO in patent cases. At bar are Defendants Honorable Robert A. Mosbacher, Honorable Donald Quigg, Cameron Weiffenbach, and the United States’s motion to affirm the ...
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MEMORANDUM OPINION AND ORDER The World Savings and Loan Association appeals the bankruptcy court’s decision disallowing its claim against the estate of the debtors, George and Betty Lenz (collectively, Lenz). World Savings argues that the bankruptcy court improperly disallowed its claim because (1) Lenz put on no evidence to contest the validity of World’s claim, (2) the amount of World’s claim...
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MEMORANDUM The plaintiff filed this action on October 17, 1989, in which it asked for a temporary restraining order, preliminary injunction, permanent injunction, declaratory judgment and other relief. Plaintiff asserted that it filed the action pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 702-706, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. Plaintiff is a disap...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION The plaintiffs in Kuhn v. City of Rolling Meadows and the plaintiffs in Harris v. *1243 City of Zion bring actions under 42 U.S.C. sec. 1983, seeking declaratory and injunctive relief. The plaintiffs in Kuhn have moved for summary judgment pursuant to Fed.R.Civ.P. 56. The plaintiffs and the defendants in Hams have both moved for summary...
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MEMORANDUM OPINION This ease is before the Court on defendant Orthnell D. Williams’ motion to suppress evidence seized from his person and his property on October 3 and October 4, *4561989. Defendant contends that the actions of the United States Park Police and the Richmond City, Virginia Police violated his constitutional rights. The Government opposes defendant’s motion maintaining that neither...
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OPINION AND ORDER These are actions by petitioners to enjoin permanently New York State officials from disclosing certain information without a hearing. The documents at issue pertain to and are derived from the State’s examination of the insurance operations of Physicians Reciprocal Insurers (PRI), a medical malpractice insurer for whom Administrators for the Professions, Inc. (AFP) is attorney-...
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MEMORANDUM ORDER THIS MATTER comes before the Court upon the Defendant, Peter Blucher’s, Motion For New Trial Under Rule 33 (DE 783). This Memorandum Order addresses the issue of whether evidence of threats made against the Defendant which the Defendant asserts prevented him from testifying at his trial constitutes “newly discovered” evidence under the Federal Rules of Criminal Procedure where ...
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OPINION AND ORDER Plaintiff Dei Dogi Calzature S.P.A., an Italian importer, brings this suit to recover the losses it has suffered due to the receipt of a container holding 8,086 kilograms of water instead of the expected $433,607 worth of leather jackets and shoes. Defendant Cast (1983) Ltd. (Cast) is the owner and operator of the ship which transported the container containing the water...
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OPINION This matter comes before the court upon the plaintiff’s motion for a preliminary injunction in the captioned action. A hearing without a jury was held before the court in Easton, Pennsylvania, on February 1, 1990. After consideration of the testimony taken and the documentary evidence received, the court makes the following findings of fact and states conclusions of law, pursuant to Fed.R...
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FINDINGS OP FACT, DISCUSSION, CONCLUSIONS OF LAW, AND ORDER Plaintiff International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW” or “the Union”) brought this equitable action under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The Union seeks a permanent injunction to prevent defendant Mack Trucks, Inc. (“Mack” or “the Company”) fr...
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MEMORANDUM OPINION This matter comes before the court upon the Motion for Summary Judgment filed by Miree Construction Corporation (“Miree”) on July 27, 1989, and the cross Motion for Summary Judgment filed by the Secretary of the Department of Labor (the “Secretary”), on October 11, 1989. Miree was the contractor on three construction projects 1 which were subject to wage...
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OPINION AND ORDER This matter comes before the court upon the defendant’s motion to dismiss for lack of jurisdiction. Specifically, the defendant argues that the plaintiffs have failed to allege the proper jurisdictional amount, pursuant to 28 U.S.C. § 1332(a), and that no personal jurisdiction can be exercised over the defendant. For the reasons given below, we shall deny the defendant’s motion ...
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MEMORANDUM AND ORDER Defendants’ motion. for summary judgment is granted. Fed.R.Civ.P. 56. Plaintiff’s motion for leave to file a sur-reply memorandum in further opposition to defendants’ motion for summary judgment is denied. Defendants’ cross-motion to strike plaintiff’s sur-reply memorandum as improperly submitted is granted. Defendants’ request for costs and attorneys’ fees in connect...
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OPINION This dispute over Medicaid funding and reimbursement arises from amendments to the Medicaid Act in the early 1980’s which significantly reduced federal contributions to state administered programs. The Commonwealth challenged those reductions and also attempted to offset the loss of funds by implementing new fraud recovery programs to increase the reimbursement. After an unfavorable decis...
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OPINION This breach of contract case comes before the court on a motion for a stay by defendant, City Federal Savings Bank, against plaintiffs, Tuxedo Beach Club Corporation and Edmund C. Wideman, III. Defendant is a financial institution subject to the provisions in the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA). P.L. No. 101-73, 1989 U.S.Code Cong....
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ORDER-MEMORANDUM AND NOW, this 13th day of February, 1990 the order of the bankruptcy court entered July 21,1989 is affirmed. 102 B.R. 431. Jurisdiction is 28 U.S.C. § 158(a). Review of legal conclusions is plenary. The clearly erroneous standard applies to findings of fact. In re Abbotts Dairies of Pennsylvania, Inc., 788 F.2d 143 (3d Cir.1986). On September 27, 1988 an involuntary bankr...
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ORDER Plaintiffs, the present owners of 346 acres of land in New Hanover County, North Carolina, filed this action asserting various claims arising out of the sale of that land by defendant to plaintiffs’ agent in 1986. The complaint alleges that at the time of conveyance, the property was contaminated by certain chemical substances in violation of state and federal laws, thus violating c...
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MEMORANDUM AND ORDER Plaintiff alleges that Mobil Oil Corporation (“Mobil”) and its subsidiary Mobil Europe, Inc. (“MEI”) discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. and New York Executive Law § 296 (McKinney 1988). Defendants move for summary judgment, pursuant to Fed.R.Civ.P. 56. ...
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ORDER & REASONS Plaintiff Charles Safford was employed by defendant PaineWebber as an investment executive and stock broker from March, 1982 through March 25, 1985. After his termination from employment, plaintiff was investigated by the Chicago Board of Options Exchange. The investigation was allegedly prompted by defendant’s statements on the “U-5 form” that it sent to the National Asso...
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MEMORANDUM Appeal is taken by the Carey Canada, Inc. and Celotex Corp. (Appellants) from a final order of the bankruptcy court administering a Chapter 11 proceeding. Jurisdiction is founded upon 28 U.S.C. § 158. The sole question presented is one of law. Therefore, the district court’s review is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-03 (3...
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OPINION AND ORDER The Court of Appeals reversed this court’s decision granting Timothy Reddy’s *558 petition for the writ of habeas corpus on the ground that the evidence was insufficient to support his state court conviction for felony murder. Reddy v. Coombe, 846 F.2d 866 (2d Cir.1988). In its opinion, familiarity with which is assumed, the court remanded “for co...
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MEMORANDUM AND ORDER Seven news organizations have applied for access to the videotaped deposition of President Reagan, to be held February 16, 1990 at the United States Courthouse in Los Angeles. 1 The request implicates in varying degrees rights of the news organizations, the former President, the defendant, the prosecution, and the public. The Court has carefully considered ...
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*1575 MEMORANDUM OPINION AND ORDER This case is currently before the court on a motion to dismiss, pursuant to Rule 12(b)(1) and Rule 12(h)(3), Fed.R.Civ.P., for lack of subject matter jurisdiction, which has been filed by the United States Attorney on behalf of the defendant. The plaintiff has moved that the motion be denied or that the plaintiff be granted an extension of time ...
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ORDER This cause is before the Court pursuant to the Order of the Court entered December 21, 1989, in which the Court imposed sanctions on the Plaintiff’s attorney W. Joseph Kerley pursuant to Rule 11 of the Federal Rules of Civil Procedure. Sanctions were imposed on Mr. Kerley because he signed a pleading in this cause attempting to add Employers National Insurance Company (“Employers”), the D...
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OPINION AND ORDER This case arises out of plaintiffs investment in two limited partnership tax shelters — New Castle and Decker Malls — on the advice of his accountant, who allegedly misrepresented material facts about the partnerships and conspired with the insiders of the New Castle partnership to defraud plaintiff and other investors through a complex scheme involving forged promissory...
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110 B.R. 408 (1990) In re Thomas Edward GRAHAM, Debtor. Wayne J. LENNINGTON, Trustee, Appellant, v. Douglas GRAHAM and Barbara C. Walters, Appellees. Bankruptcy No. IP 84-3846J, Adv. No. IP 87-326, No. IP 88-386-C. United States District Court, S.D. Indiana, Indianapolis Division. February 1, 1990. K.C. Cohen, Cohen & Malad, Indianapolis, Ind., for appellant. William Catlin Whitehead, Whitehe...
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MEMORANDUM OPINION AND ORDER Frank Schweihs was charged on October 12, 1988 in a fifteen-count indictment: in count 1, conspiracy to commit extortion in violation of 18 U.S.C. § 1951(a) and (b)(2); in counts 2 through 14, attempted extortion in violation of 18 U.S.C. § 1951(a) and (b)(2); and in count 15, solicitation to commit a crime of violence in violation of 18 U.S.C. § 373(a). On Septembe...
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For many sports fans, simply watching or listening to a ball game is sufficient to quench their enthusiasm. The true devotee demands more, however, and poring over daily, weekly, and yearly “stat sheets” becomes an obsession. Each year, it seems, commentators and analysts devise more numerous criteria for measuring the performance of one player against another and one generation against another. T...
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BACKGROUND On June 26, 1989, the defendants removed this case from New York State Supreme Court, Erie County, to this court pursuant to 28 U.S.C. § 1441. See Item 1. Accompanying the removal petition was a letter from the defendants’ attorney, Arnold Weiss, Esq., to the Clerk of the Court requesting that the case be assigned to a judge other than me. After the case was assigned...
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ORDER THIS MATTER is before the Court on Defendant Colonial Financial Services Inc.’s (hereafter “Defendant Colonial”) Motion for Order of Withdrawal, filed October 13, 1989. On November 22, 1989, Plaintiff Monterey Mushrooms, Inc. (hereafter “Plaintiff Monterey”) filed a Brief in Opposition to the Motion for Order of Withdrawal. I. BACKGROUND FACTS AND PROCEDURE The identity of three parti...
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MEMORANDUM OPINION AND ORDER Appellant, William E. Brayshaw (Bray-shaw or debtor), appeals the Bankruptcy Court’s October 5, 1989 order granting Trustee a 60 day extension of time to object to the debtor’s exemptions. I reverse. On May 10, 1989, Brayshaw filed his Chapter 7 petition in bankruptcy. In his petition, he claimed as exempt property his homestead interest in his residence, a profit...
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MEMORANDUM AND ORDER This case arises out of the sale in October, 1986 by Uniroyal, Inc. (“Uniroyal”) of its wholly owned subsidiary Uniroyal Plastics Company, Inc. (“Plastics”) to Polycast Technology Corporation (“Polycast”). Polycast commenced this litigation charging that it entered into the transaction in reliance on misleading financial information about Plastics supplied by Uniroyal. Uniroy...
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ORDER The above-styled action is before the court on the United State government’s motion to quash subpoena or, in the alternative, for a protective order, and plaintiffs’ motion for oral arguments on the government’s motion. For the reasons stated below, the government’s motion is GRANTED and the plaintiffs’ motion is DENIED. FACTS Plaintiffs are hemophiliacs infected with the HIV virus and have...
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MEMORANDUM OPINION AND ORDER Before me is defendant Peggy Jessel’s (Jessel) motion to dismiss the legal malpractice claim filed against her by plaintiffs and defendant Short’s (Short) motion to dismiss the child abuse claim filed against him. The motions have been fully briefed and oral argument will not assist me in their resolution. The claim against Jessel arises from Jes-sel’s co...
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MEMORANDUM OPINION This case is before the court on the defendant’s motion for judgment of acquittal after the discharge of the jury. FACTS On December 22, 1989, the defendant Harold Wayne Stapleton was found guilty by a jury of conspiring with Glenna Sue Stapleton to destroy a Jeep belonging to Glenna Sue’s husband, Greg Stapleton, and of possessing an unregistered explosive device. Glenna...
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MEMORANDUM AND ORDER This matter is before the Court on the appeal of First National Bank of Anoka from a June 2, 1989 order and judgment of the United States Bankruptcy Court. The *415 judgment will be affirmed in part and reversed in part and remanded. INTRODUCTION On January 6, 1984, First National Bank of Anoka (Bank) and Minnesota Utility Contracting, Inc. (Con...
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ORDER ON BENCH TRIAL This cause comes before the Court after a two day bench trial on the merits on December 18-19, 1989. The plaintiff’s complaint seeks recovery of consequential damages for breach of warranty under the Uniform Commercial Code. After hearing the evidence and reviewing the law, the Court now makes the following findings of fact and conclusions of law. I. Findin...
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MEMORANDUM AND ORDER This matter is before the Court on the motion of defendants State of Minnesota, Minnesota and Manitoba Railroad Co., First National Bank of Baudette, City of Bau-dette and Independent School District No. 386 to dismiss for failure to join an indispensable party. The State of Minnesota also moves for dismissal based upon the sovereign immunity. The motions will be deni...
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On March 17, 1988, this court granted defendants’ motion for summary judgment and dismissed plaintiffs’ fourth complaint (Items 132, 133). That decision was affirmed on January 18, 1989, Greater Buffalo Press, Inc. v. Federal Reserve Bank of New York, 866 F.2d 38 (2d Cir.), cert. denied, — U.S.-, 109 S.Ct. 3159, 104 L.Ed.2d 1022 (1989). There still remains for decision a determination of the monet...
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OPINION The Moffatt brothers — Eugene, Raymond, Robert and Sidney — and their corporation, Moffatt Enterprises, Inc., bring this action alleging, inter alia, that Defendant Borden, Inc. fraudulently induced them to enter into a distributorship agreement whereby they would distribute “Insul-spray,” a foam insulation manufactured by Borden. In addition to six counts asserting state common l...
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MEMORANDUM OF DECISION At issue in this adversary proceeding is the interplay of Bankruptcy Code Chapter 13 with post-assignment relief under the Department of Housing and Urban Development’s (HUD’s) Mortgage Assignment Program. Before the court are defendant HUD’s motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, 12(b)(2) fo...
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This appeal from a discovery order entered by the U.S. Magistrate presents the underlying substantive question whether the Federal Savings and Loan Insurance Corporation (“FSLIC”), in its capacity as receiver, is entitled to status as a holder in due course when it acquires an asset of a failed institution and engages in a purchase and assumption transaction. I The Federal Deposit Ins...
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OPINION AND ORDER This is an action for damages arising out of an alleged conspiracy to violate federal securities laws by failing to disclose legally-required, material information relating to a proposed proxy contest for control of a corporation. 1 Plaintiffs allege that defendants have violated Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated t...
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MEMORANDUM OPINION AND ORDER This is an appeal from two orders of the bankruptcy court. In the first order, entered on January 18, 1989, the bankruptcy court approved a stipulated settlement agreement between the debtor, Willis J. Wetzler, a creditor, the Denver Public School Employees’ Pension and Benefit Association (the Association), and a lessee of the debtor’s property, Gholamreza Rahma-ni-Az...
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MEMORANDUM Presently before the court are two motions to dismiss Count X of the plaintiffs’ third amended complaint. The first motion was filed by defendants Alan Cherenson (Cherenson), Stanley Siegel (Siegel), Alan Shulman (Shulman) and the Valmont Group (Valmont). See document 100 of record. The second motion and supporting memorandum were filed by defendants Chroma-tex, Inc....
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MEMORANDUM Plaintiff, a state prisoner, instituted this suit under 42 U.S.C. § 1983. His action revolved around a due process claim that his rights were abridged when the defendants refused his request to call the examining nurse as a witness at his disciplinary hearing. He relied on three contentions: (1) Administrative Directive 801(II)(D)(3) afforded plaintiff the right “to confront and cross ...
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MEMORANDUM A. Background Plaintiff, an inmate at USP-Lompoc, California, filed the above-captioned Bivens 1 action pursuant to 28 U.S.C. § 1331. Plaintiff alleged that he was assaulted at U.S. P.-Lewisburg by fellow inmates after making repeated requests of correctional officers to protect him from such an assault by at least being transferred to another unit. ...
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MEMORANDUM OPINION AND ORDER The plaintiffs, members of Our Lady of the Rosary Chapel (Rosary Chapel) and citizens of the Commonwealth of Virginia, brought this action on September 11, 1989 and filed an amended complaint on November 15, 1989. The defendants constitute the entire board of directors of Our Lady of the Rosary, Inc. (Rosary Corporation), a Virginia corporation, and are three of the p...
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OPINION This is our third exploration into this terrain. We once again return to the uncommon facts surrounding the unauthorized disclosure of tax return information by an agent of the Internal Revenue Service to the Director of the Illinois Department of Revenue. In a prior opinion we granted summary judgment for the Plaintiff on the issue of liability. Smith v. United States,...
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MEMORANDUM Presently before the court in this action under 17 U.S.C. §§ 502(a), 504(c) and 505, charging defendant with copyright infringement, are the motions of the plaintiffs for default judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure (Rule 55) and defendant’s motion to set aside entry of default. See documents 9 and 10 of record. For the reasons that follow, the court ...
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MEMORANDUM OPINION The City of Virginia Beach, Virginia, is seeking permission from the United States Corps of Engineers (the Corps) to construct a sixty-inch pipeline some 84.5 miles across southern Virginia and withdraw up to 60 million gallons of water per day (mgd) from Lake Gaston for the purpose of meeting its municipal water supply needs. After the Corps made a decision to issue th...
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MEMORANDUM Counsel for the plaintiffs in this class action challenging actions of the Secretary of Health and Human Services have applied to this court for an award of attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. Sec. 2412. In pertinent part, that statute provides that a court shall award to a prevailing party ... fees and other expenses ... incurred by that party in a...
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RULING ON DEFENDANT’S MOTIONS TO DISMISS AND TO TRANSFER Premier Bank, National Association has sued J.B. Ward to recover the balance due on a promissory note. Louisiana National Bank (LNB) loaned certain proceeds to Louisiana Urethane Company (LUC) which executed a promissory note. J.B. Ward was an endorser on this note. Thus, Ward is sued in his capacity as an endorser. Ward has filed a motion ...
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OPINION This matter is before the Court on a petition filed by the Regional Director of Region 22 of the National Labor Relations Board (the “NLRB” or the “Board”), pursuant to § 10(j) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(j) (“the NLRA”), for a temporary injunction pending the final disposition of this action. The filing of this petition follows the issuance of...
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RULING ON PLAINTIFF’S MOTION TO ASSESS COST OF SERVICE Premier Bank, National Association (“Premier”) filed this suit to recover on a promissory note against J.B. Ward. On April 17, 1989, Premier attempted service of the summons and complaint by certified mail to Ward’s address in Alabama. The certified mail package was refused by the defendant and returned to counsel for Premier on April 24, 198...
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OPINION In this suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, plaintiff Allied Corporation (“Allied”) moves for partial summary judgment on the amended counterclaim asserted by defendants James Frola and Albert Von Dohln. In addition, third-party defendants BASF Corporation (“BASF”), Becker Paribas Inc., Exxon Compan...
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ORDER ON PENDING MOTIONS This matter comes before the Court on defendant’s motions to dismiss, to strike jury demand, to strike plaintiffs on-the-job injury claims, to strike plaintiffs demand for general damages, and to dismiss plaintiffs derogatory remarks claim. The Court, having considered the motions and pleadings, having heard the arguments of counsel, and being fully advised in the...
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MEMORANDUM AND ORDER Having considered all the various motions filed in this matter and the oral argument presented to this Court on October 6, 1989, the Court concludes as follows: BACKGROUND Lorraine Begay is a twenty-three year old Navajo woman suffering from severe arthritis. The increasing severity of her disease confined her to a wheelchair at the age of thirteen. Upon suc...
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MEMORANDUM OPINION This cause is now before the court on a noteworthy redistricting plan submitted by an Alabama town subsequent to its admission that the present at-large system used to elect its council members violates § 2 of the Voting Rights Act of 1965, as amended. 1 The proposed plan provides for five single-member districts, of which two *1547 are predomina...
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RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT Metropolitan Property and Liability Insurance Company filed this suit for declaratory judgment seeking to determine if there is coverage afforded by a homeowners policy it issued to Milburn Landry. The facts leading up to this suit are not in dispute. On June 1, 1987, Brandi Lumpkin, Blake Morar, Jeff Landry and others participated in a la...
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DECISION AND ORDER Bay Shipbuilding Corp. and the Manitowoc Company, Inc., two non-parties to the above-entitled action which is pending in the Northern District of Ohio, have filed motions to quash subpoenas for production of documents served upon them by plaintiffs (hereinafter referred to as “Litton”). Since the motions to quash are identical and since there is a unity of interest between the t...
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OPINION I. FACTS On November 18, 1988, plaintiff William D. Brown (“Brown”), a prisoner at Delaware Correctional Center (“DCC”), filed suit under 42 U.S.C. § 1983 alleging that he was “intentionally deprived ... of the rights, privileges and immunities secured to plaintiff by the Fourteenth Amendment of the Constitution of the United States_” Complaint ill (Docket Item 2). The violation of Br...
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MEMORANDUM Currently before the court are the cross-motions of the parties for summary judgment. See documents 9 and 10 of record. For the reasons that follow, the court will deny the summary judgment motion of the plaintiff and will grant summary judgment in favor of the defendant. I. Background A. Factual History On or about November 9, 1984, the defend...
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OPINION This case is before the Court on two motions. First, defendants John Senger and the Leelanau Probate Court filed a motion to dismiss on February 15, 1989. The Honorable John Senger is the Chief Judge of the Probate Court of Leelanau County. Second, the remaining defendants — Leelanau County, the Leelanau County Board of Commissioners, and the individual commissioners — filed a March 27, 1...
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RULING ON PLAINTIFFS’ MOTION TO REMAND Rebecca L. Harger and Earline Jennings Smith filed this suit in the Nineteenth Judicial District Court for East Baton Rouge Parish, Louisiana against Burger King Corporation (“Burger King”) seeking to recover monies allegedly owed to them pursuant to a brokerage agreement. The defendant timely removed this suit to this Court. Plaintiff has now filed a moti...
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MEMORANDUM AND ORDER TABLE OF CONTENTS I. INTRODUCTION II. FACTS A. Fracas with Police B. Immediate Aftermath C. State Prosecutions D. Post-Trial Trustworthiness Hearing III. STATE INVESTIGATION COMMISSION REPORT IV. RELEVANCE (RULES 401-402) V. HEARSAY (RULE 803(8)) A. Public Reports Generally B. Assumption of Reliability C. Criteria of Trustworthiness 1. Timeliness 2. Special Skill or Expertise...
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The court is asked to decide whether an indigent prisoner proceeding in forma pauperis in a civil action that does not seek federal habeas relief is entitled to obtain issuance of a subpoena without paying the witness fees required by 28 U.S.C. § 1821. Concluding that no such right arises by statute or pursuant to the constitutional right of access to the courts, the court affirms an...
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ORDER This Fair Housing case was filed on November 25, 1987. On February 13, 1989, following unsuccessful settlement discussions, the parties moved to invoke an experimental settlement procedure, a “summary jury trial in accordance with the procedure established by Judge Lambros of this court.” Joint Motion at 1. The Motion must be denied. In discussing the foundation for Summary Jury Trials, Jud...
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16 Clinton Street is a five-story brick building with eight apartments and two stores located on the Lower East Side of Manhattan. In 1988 and 1989, the New York City Police Department conducted an undercover investigation of narcotics activity at the building’s two stores, the Brunilda Luna Fabric Store and the TTT Grocery and Candy Store. During that investigation, undercover officers purchas...
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MEMORANDUM OPINION Presently before the Court is an appeal from the United States Bankruptcy Court for the Western District of Pennsylvania of an action to determine the priority of the parties to the remainder of the Debtor’s estate. We have jurisdiction pursuant to 28 U.S.C. § 158 and Bankruptcy Rule 8001. ISSUES The parties have presented the following issues: 1) Whether the ...
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ORDER THIS MATTER is before the Court on Defendants’ Motions, filed February 6, 1990, to Dismiss the Indictment on the Basis of vagueness and a fatal defect. The Government filed a response on February 9, 1990. Defendants are charged in a multi-count indictment which alleges conspiracy to violate tax laws. The indictment also alleges Defendants conspired to tamper with Grand Jury witnesses. T...
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This case is before the court on plaintiffs’ motion for a preliminary injunction restraining the defendants from imposing a federal lien on the plaintiffs’ property pursuant to section 107(i) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), as amended, 42 U.S.C. § 9607(1). The plaintiffs, Paul and John Reardon (the “Rear-dons”), filed this action against t...
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This action arises out of a complex securities transaction and subsequent tender offer. Plaintiff has pleaded violations under section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b), rule 10b-5, violations of civil RICO. 18 U.S.C. § 1961 et seq. and several state law claims. Plaintiff recently amended its complaint and defendants have filed recent motions to dis...
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We have before us several in limine motions asking that we rule on the admissibility of certain documents that the plaintiff has unearthed either from the two moving defendants’ files or in other circumstances which might reasonably lead one to believe that at some point they came to a particular defendant’s attention. These documents are all offered to show that such defendant failed to heed w...
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ORDER THIS MATTER is before the Court on Defendant’s Motion, filed January 18, 1990, for continued release on bail pending appeal. Defendant relies on 18 U.S.C. § 3143(b) and Rule 9 of the Federal Rules of Criminal Procedure [sic]. It appears to the Court that Defendant intended to cite Rule 9 of the Federal Rules of Appellate Procedure. The Government filed a response on January 29, 1990 obj...
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ORDER This action for collection of freight charges under 49 U.S.C. § 10761 is before the court on Plaintiff’s motion to strike Defendant’s affirmative defenses and counterclaims. This case arises from shipping transactions engaged in between Plaintiff and Defendant. Plaintiff and Defendant negotiated certain rates for which Plaintiff would ship Defendants’ goods to various locations...
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*495MEMORANDUM OPINION F&M Distributors (“F & M”), a Michigan corporation with its principal place of business in Warren, Michigan, instituted this lawsuit against American Hardware Supply Company (“American”), a Pennsylvania Corporation with its principal place of business in East Butler, Pennsylvania to recover damages for an alleged breach of contract. The plaintiff invoked subject matter juri...
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MEMORANDUM AND ORDER This matter was tried to the court from October 10-18, 1989. This consolidated action, filed August 19, 1986, involves counts for alleged infringement of two patents, namely, United States Letters Patent No. 4,386,493, issued June 7, 1983, entitled, APPARATUS FOR MAKING LARGE ROUND CROP BALES (the 493 patent), and No. 4,224,867, issued September 30, 1980, entitled, CROP LOADI...
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MEMORANDUM AND ORDER ON CROSS CLAIMANTS’ REQUEST FOR PRELIMINARY INJUNCTION This complaint in interpleader was filed by the State Street Bank and Trust Company on December 14, 1989. It alleged that the United States (“IRS”) and the Trustees (cross claimants) both claim to be entitled to property held by it as custodian. It asks in part that the court determine the entitlement to the property as be...
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MEMORANDUM AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Plaintiff Vincent F. Zarrilli is the creator of the “Boston Bypass”, otherwise known as the “B.B.”. The Boston Bypass is Mr. Zarrilli’s alternative to the current plan for the depression of the Central Artery. This case originally was filed in Suffolk Superior Court. The long list of defendants included Governor Michael Dukakis, Mayor Ray...
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OPINION The matters before the court are: 1) the Rule 12 motions of plaintiff and counterclaim defendant, Richmark Corporation (Richmark) (# 164); and 2) the Rule 12 motions of counterclaim defendants Eugene Wang, James Yang, and Francis Tong (# 166). BACKGROUND The court has considered numerous motions in this lawsuit. Therefore, to avoid duplication, this opinion wil...
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MEMORANDUM-DECISION & ORDER Plaintiff commenced this action on July 18, 1989 contending that he was unlawfully discharged by St. Joseph’s Hospital and Health Center (St. Joseph’s) in violation of the first and fourteenth amendments to the U.S. Constitution, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Section 296 of the New York Executive Law. Defendants h...
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ORDER This matter is before the Court on defendant’s pro se Motion to Credit Time in Custody, pursuant to 18 U.S.C. § 3568.1 Finding that the controlling statute does not entitle defendant to a credit for time during which he was free on bond, the Court will deny defendant’s motion. The statute regarding credit for time in custody provides, in part, as follows: The sentence of imprisonment of any ...
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OPINION The matters before the court are: 1) the motion for summary judgment and to dismiss of defendants, Linn County, Linn County Sheriffs Office, and Sheriff Art Martinak (# 13); and 2) the motion for partial summary judgment of plaintiffs, Robert Haphey and Carl J. Bondietti (# 23). Haphey and Bondietti are former deputy sheriffs of Linn County, Oregon. Haphey and Bondietti allege tha...
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*1534 ORDER This matter is before the Court on motion of defendant Orkin Exterminating Company, Inc. (“Orkin”) for summary judgment. For the reasons set forth below, the motion is granted. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any...
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MEMORANDUM RULING This action is before the court on the objection of plaintiff United States of America for the use of L.K.L. Associates (LKL) to the magistrate’s R & R denying L.K.L.’s motion for summary judgment on the attorneys’ fees issue and granting the motion of defendants Crockett & Wells Construction, et al. (Crockett & Wells), for summary judgment on the same issue. ...
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This memorandum and order resolves motions for summary judgment and attorney’s fees made by defendant Prudential-Bache Securities, Inc. (“Pru-Bache”) and Southeast Bank, N.A. of Miami, Florida (“Southeast Bank”). Plaintiff Pension Fund 1 filed this action on October 19,1984, alleging that it was the victim of a conspiracy to misdirect and misappropriate over $20 million of its funds....
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MEMORANDUM-DECISION AND ORDER By this motion, the plaintiff Cayuga Indian Nation and the plaintiff-intervenor Seneca-Cayuga Tribe of Oklahoma (collectively referred to as “the plaintiffs” or “the Cayugas”) seek a declaration that two conveyances of land, one occurring in 1795, and the other occurring in 1807, are invalid under the Nonintercourse Act (or “Act”), 25 U.S.C. § 177. The defendants o...
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*1417 RULING ON MOTION FOR ATTORNEYS’ FEES This action was brought in 1980 against officials of the Connecticut State Police Department and a local police department, challenging defendants’ practice of searches of those attending Ku Klux Klan rallies. On June 30, 1986, this court held that weapons searches at such rallies violated Klan members’ Fourth Amendment rights, and the court enjoined...
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MEMORANDUM This matter is before the Court for a decision on the merits after trial to the Court. The parties have filed post-trial briefs and responses thereto. The Court adopts this memorandum opinion as its findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52. The plaintiff, Hanover Insurance Company (“Hanover”), brought suit against the Cameron Country Mutual Insurance Company ...
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AMENDED MEMORANDUM DECISION DISMISSING COUNT II OF THE INFORMATION BASED ON UNCONSTITUTIONALITY OF FLAG PROTECTION ACT THIS MATTER comes before the court on a joint motion by defendants Mark Hag-gerty, Jennifer Campbell, Darius Strong and Carlos Garza to dismiss Count II of the information against them. Having reviewed the motion together with all documents filed in support and in opposition, a...
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ORDER Plaintiff Ferdinand Adrian commenced this civil action in state court, asserting claims based on false arrest and false imprisonment. Pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, § 501(Z), 103 Stat. 183, 389-90 (1989), defendants removed the case to federal court. Defendants James Haughey, Phillip Nelson, J.P. Neumann, and the Ci...
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*56 MEMORANDUM AND ORDER The Court on January 31, 1990 conducted a hearing on the issue of whether the defendant should be granted bond pending his appeal to the Sixth Circuit Court of Appeals. The defendant was allowed the opportunity to call witnesses on his behalf and did so. Each witness testified regarding the defendant’s peaceable nature. For purposes of this hearing the United States a...
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MEMORANDUM This is an appeal from the bankruptcy court order entered August 17, 1989, 104 B.R. 688, setting aside the foreclosure sale of debtor Thomas Barrett’s residence as a fraudulent transfer under § 548 of the bankruptcy code. 11 U.S.C. § 548(a)(2). According to appellant Robert J. Gunn, the purchaser of the property, the bankruptcy judge erred in determining that the foreclosure sa...
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MEMORANDUM In this action, plaintiff Charles Jacquin Et Cie (“Jacquin”) alleged that defendants, Destilería Serralles, Inc. (“DSI”) and Crown Marketing International (“Crown”), infringed on its products’ trade dress in *663 violation of section 43 of the Lanham Act, 15 U.S.C. § 1125(a), and state common law. A. Background Since 1884, Jacquin has been engaged in the ...
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MEMORANDUM AND ORDER The case comes before this court on appeal of the bankruptcy court’s memorandum of decision and judgment of decision which were filed on May 3, 1989, in an adversary proceeding. The bankruptcy court therein held that the tax assessed on the plaintiff’s 1983 income, the related penalties, and the associated interest are dis-chargeable under the provisions of 11 U.S.C. ...
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MEMORANDUM OPINION AND ORDER The named plaintiff, Beverly Otto, brings this class action against Variable Annuity Life Insurance Company and other affiliated companies (collectively referred to as “VALIC”). Otto seeks to recover for alleged violations of § 10(b) of the Securities Exchange Act of 1934 (“Act”), as well as pendent state law claims. There are several pending motions. Otto and...
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MEMORANDUM AND ORDER I. INTRODUCTION This is an action for copyright infringement, brought under federal law. The plaintiff, Flag Fables, Inc. (“Flag Fables”), alleges that the defendants, Jean Ann’s Country Flags and Crafts, Inc. (“Country Flags”), and Jean Ann and Michael Fede (“the Fedes”), violated the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. This Court has juri...
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Defendant James W. Smedley seeks an extension of time to appeal the Court’s Order of February 22, 1989, which denied his motion to reconsider the Court’s prior Orders denying him relief under 28 U.S.C. § 2255 and Fed.R.Crim.P. 35.1 In his motion the defendant alleged that he did not receive the Court’s Order until August 15, 1989.2 The defendant filed his motion for an extension of time to appeal ...
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MEMORANDUM DECISION Plaintiff Citizens and Southern Securities Corporation (“C & S Securities”) brought suit alleging causes of action against defendants Milton Braten and the Estate of Bernard Braten (the “Estate”) arising from circumstances surrounding a discount brokerage account opened by the Estate with the Citizens and Southern National Bank of South Carolina (“C & S South Carolina”...
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MEMORANDUM OPINION Plaintiff, a member of the Kiowa Tribe, filed this action pro se against various federal and tribal officials, alleging violations of her constitutional rights by the Court of Indian Offenses, established by the Ana-darko Area Office, Bureau of Indian Affairs, pursuant to 25 C.F.R. Part 11. She further claims that certain officers of the Kiowa Tribe have been effectively re...
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MEMORANDUM AND ORDER INTRODUCTION On September 9, 1986 Marie Anderson, her mother Claudette Schott and Anderson’s son, Casey Anderson, initiated a claim against the United States, the defendant in this case. Anderson claims damages for medical malpractice which allegedly occurred in a medical facility run by the United States on the Standing Rock Indian Reservation in North Dakota. A...
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MEMORANDUM The United States, invoking Section 7 of the Clayton Act, 15 U.S.C. § 18, seeks by its complaint to enjoin a proposed acquisition on the ground that it may substantially lessen competition in hardrock hydraulic underground drilling rigs. The proposed acquisition has been postponed pending this decision on the merits, which is now before the Court after two days of hearings and ...
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MEMORANDUM-DECISION-ORDER Facts Sometime prior to March, 1989, the Department of Correctional Services undertook an investigation of alleged “padding” of expense vouchers by employees of the Department, which disclosed that at least twenty employees of the Auburn and Cayuga Correctional Facilities had allegedly been involved in such acts. The plaintiffs allege that subsequent to ...
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ORDER ON MERITS OF APPEAL This bankruptcy appeal comes before the Court for a decision on the merits. The issues raised were fully briefed as of October 20, 1988. On December 4, 1989, this Court denied the debtor’s motion to dismiss the government’s appeal. Oral argument on the merits of the appeal was then heard on December 19, 1989. The Court, having reviewed the entire record and the r...
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MEMORANDUM AND ORDER Third-party defendants Frederic Goodman and Financial Diversified Services, Inc., have filed a Motion to Compel Discovery. The third-party defendants seek to compel Bruce McClelland, expert witness for plaintiff William Penn Life Assurance Company, to respond to questions regarding the nature and content of the expert’s conversations with plaintiff or plaintiff’s counsel conce...
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MEMORANDUM Defendant Adelbert Bryan has filed a motion to dismiss the information against him on the ground that this Court lacks jurisdiction. Defendant Bryan’s claim rests on three premises. He argues first that the two offenses which he is accused of committing — grand larceny and possession of stolen property — carry a maximum ten years’ prison term each. Second, the defendant asserts...
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OPINION AND ORDER This matter is before the court on Drislor Associates’ motion for a stay pending appeal of a bankruptcy court order. The order granted a secured creditor, Metro North State Bank (the “Bank”), relief from the automatic stay imposed by 11 U.S.C.A. § 362(a) (West Supp.1989) and thus permitted the Bank to foreclose on real property which constitutes the principal income-prod...
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MEMORANDUM AND ORDER This case is presently before the Court on the motion of respondent represented by the Rhode Island Attorney General (who is the real party in interest) to vacate the reference of the above entitled matter to Magistrate Jacob Hagopian. The matter was referred to the Magistrate with the consent of the parties pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. The Atto...
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MEMORANDUM AND ORDER On February 15, 1990, the Court stated that following the conclusion of the videotaped deposition of former President Reagan, it would grant access to the tape to the representatives of the news media. The deposition was held on February 16 and 17, 1990; the tape has now been processed and transported from Los Angeles to Washington, D.C.; and the security agencies have revi...
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MEMORANDUM OPINION THIS MATTER is before the Court on the defendant’s Motion for Summary Judgment, filed June 30, 1989. Having conducted a hearing on the motion on December 15, 1989, and having reviewed the memo-randa of the parties and the applicable law, the Court has found that the motion is not well-taken and entered its Order so stating on Friday, January 5, 1990. This Memorandum Opi...
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OPINION On January 17, 1990, Plaintiff Donaldson came to this Court seeking a preliminary injunction. Dr. Donaldson sought to have this Court order the Defendants to place his name on the ballot as a candidate in the Democratic primary election for the office of Superintendent of Educational Service Region of Cook County, Illinois. There was some urgency in Plaintiff’s request as the last day for...
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ORDER AND REASONS Before the Court is the bankruptcy appeal of Linda Calgagno and her husband, Claude Ocmond, who appeal the dismissal of their adversary complaint against John W. Ezell, III and Aimee Ezell. The appellants claim that the debt owed to them by Ezell is nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(4). The complaint was dismissed by the bankruptcy judge on July 10,...
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ORDER ON MOTIONS The cause is before the Court on Plaintiffs’ renewed motion for summary judgment, filed December 29, 1989; Plaintiffs’ motion for Rule 11 sanctions, filed January 3, 1990; Defendants’ response to renewed motion for summary judgment, filed January 11, 1990; Defendants’ response to motion for Rule 11 sanctions; Defendants’ motion for stay pending appeal, filed January 23, 1990; P...
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MEMORANDUM AND ORDER Defendant has petitioned for leave to serve subpoenas duces tecum on four congressional committees and five United States Senators. The government has filed a response indicating that it objects to only a few paragraphs in the proposed subpoenas. Since the Court considers that the government’s objections are well taken, it quashes the paragraphs in question, but authorizes ser...
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MEMORANDUM DECISION Plaintiff, proceeding pro se, alleges violations of 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988 & 1989 (1982), the first, fifth, thirteenth and fourteenth amendments of the Constitution, and state common law claims, arising out of his detention pending deportation. His complaint sought both damages and injunctive relief.1 While this *589action was pending, plaintiff was, at his ...
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ORDER AND REASONS This matter is before the Court on plaintiffs’ motion for new trial. Determining in its discretion that oral argument and opposition are unnecessary, 1 the Court CANCELS the hearing on the motion, previously set for March 14, 1990, and now DENIES the motion. I. In 1963, The Pine Terrace Apartments were constructed in Slidell, Louisiana. The owner was...
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ORDER AND REASONS Before the Court is the motion of plaintiff and defendant in counterclaim, State Bank & Trust Company of Golden Meadow (“State Bank”), to dismiss, or alternatively to grant summary judgment dismissing, all of the counterclaims asserted against it by or on behalf of Derris Griffin Boat Operators, Inc. (“Boat Operators”). The Court, after reviewing the motion, memoranda of...
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MEMORANDUM AND ORDER Plaintiff, a former employee of the United States Postal Service, (“USPS”) filed this complaint alleging that USPS had wrongfully suspended him from employment from April 1, 1983 to February 23, 1985 in violation of its national collective bargaining agreement with the National Association of Letter Carriers (“NALC”), of which Caputo was a member, and that NALC and it...
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MEMORANDUM AND ORDER ON THE MOTION OF DEFENDANT AMERICAN TOBACCO CO. FOR SUMMARY JUDGMENT In this action the plaintiff seeks to recover damages for the death of her husband from lung cancer, allegedly caused by his smoking of cigarettes manufactured by the defendants. In prior proceedings I have disposed of a number of the claims asserted in the Amended Complaint. On May 25, 1988, I dismi...
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ORDER AND REASONS Before the court is a motion for partial summary judgment filed on behalf of the plaintiff, United States of America, against “defendants Clinical Leasing Service, Inc., Delta Women’s Clinic, Kiat Varnishung, Roy Claude Wood, Jr., and Richardson B. Glidden,” and a motion for summary judgment filed on behalf of “defendants, Clinical Leasing Service, Inc., d/b/a Delta Wome...
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ORDER Pending before this Court is a motion to dismiss or, in the alternative, to transfer venue (Document # 5) filed by defendant Durant Bank & Trust Co. (“Durant”). After having considered the motion, the submissions of the parties, and the applicable law, this Court determines that it should abstain from hearing this action. Plaintiff Douglas C. Goerner (“Goerner”) filed the instant suit in th...
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This is a securities fraud action arising out of defendants’ allegedly improper trading in plaintiffs account. Plaintiff alleges that as a result of defendants’ improper activities, particularly during the stock market crash of October 1987, she lost her entire investment and accumulated substantial trading deficits. Defendant Financial Clearing and Services Corporation has come to the Court on...
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MEMORANDUM-DECISION AND ORDER Upon reconsideration of that portion of this court’s July 10, 1989 order denying defendants’ motion for summary judgment dismissing plaintiff Jennifer Rogowski’s claim alleging a denial of a property interest without due process of law, this court grants the motion of the remaining defendant New Hartford Central School District and dismisses this claim, thereby dis...
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OPINION AND ORDER This case is before us on defendants’ motion for summary judgment requesting the dismissal of a cargo claim arising as a result of the transportation of goods in commerce from Elizabeth, New Jersey, to San Juan, Puerto Rico, on board the M/V SAN JUAN. Jurisdiction has been invoked pursuant to 28 U.S.C. Section 1333. Delivery of the goods or the date on which the goods sh...
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ORDER DENYING MOTION TO DISMISS This cause is before the Court on defendant’s Motion to Dismiss for Improper Venue, filed herein on December 6, 1989. Plaintiffs responded with a memorandum in opposition to the motion, filed herein on December 18, 1989. The Court will deny the motion. Defendant complains that he is not a resident of the Middle District and that the claim did not arise...
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MEMORANDUM — DECISION—ORDER Facts The defendant, M. Merrill Miller moves pursuant to Rule 9(b), Federal Rules of Appellate Procedure and Rule 46(c), Federal Rules of Criminal Procedure, for an order releasing the defendant pending appeal from the judgment entered in the above-captioned case on January 25, 1990 pursuant to 18 U.S.C. §§ 3146 and 3148. The defendant had filed a notice of appeal fr...
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*433ORDER Presently before this court is an application to proceed in forma pauperis by the above captioned plaintiff who resides at 61 Susquehanna Street, Binghamton, New York. Plaintiff alleges a series of conspiracies between the defendants in connection with numerous constitutional violations. This court has reviewed the documents submitted by the plaintiff, and for the reasons stated below, t...
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This matter is before the Court on appellant Mary Leasure Unroe’s (“Debtor”) appeal from the order of the United States Bankruptcy Court for the Southern District of Indiana which held as timely filed the Internal Revenue Service’s (“IRS”) amended proof of claim for individual federal income taxes for the year 1983. 104 B.R. 77. On July 18, 1986, the debtor petitioned for bankruptcy under Chapter ...
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MEMORANDUM AND ORDER This matter is before the Court on the motion of Lifetime Medical Nursing Services, Inc. (Lifetime Med) to remand this case to the Fifth Division District Court of the State of Rhode Island. Plaintiff is a Rhode Island corporation which provides in-home health care services. New England Health Care Employees Welfare Fund (New England Health) is an employee benefit pla...
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ORDER ON MOTIONS This cause is before the Court on the following motions and responses: 1) the Hospital District of Hardee County, Florida, d/b/a Hardee Memorial Hospital (the Hospital’s motion to dismiss, filed October 11, 1989; 2) Plaintiffs’ response to the Hospital’s motion to dismiss, filed October 25, 1989; 3) Defendant Florida Patient’s Compensation Fund (the Fund)’s motion to dismiss an...
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OPINION One might have thought, considering the volume of litigation concerning the subject, that all issues had been resolved relating to the question whether the $500 package limitation on liability arising under bills of lading and the Carriage of Goods by Sea Act (“COGSA”) applies to a single container or to the units of goods shipped in that container. As Judge Haight observed in ...
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In this action for damages, Showky Kaldawy (“Showky”) moves to be substituted for the deceased plaintiff, Samir Kaldawy (“Samir”). Defendants Federal Insurance Company, A-l Connecticut Moving & Storage, Inc., Aero Mayflower Transit Co., Inc., and Bruce J. Gold (“defendants”) cross-move for dismissal of the action on two grounds: 1) pursuant to Rule 41(b), for want of prosecution, and 2) pursuant t...
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MEMORANDUM AND ORDER This matter is presently before the Court on the motion of defendant, LBC, Inc., for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The instant action arises as a result of a motor vehicle accident which occurred on August 31, 1987 that claimed the life of the minor child, David C. Sabourin, Jr. At all times material to this action, David Sa...
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MEMORANDUM AND ORDER This matter is before the Court on appeal from the July 27, 1989 Order of the bankruptcy court. That order held that the automatic stay provisions of the Bankruptcy Code were violated by Honeywell Inc.’s initiation of a proceeding before the Interstate Commerce Commission (ICC) for a declaratory order barring “undercharge” claims asserted by debtor, Transportation Sys...
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OPINION AND ORDER Defendants have moved under 28 U.S.C. § 1404(a) to transfer these two related cases to the Western District of Pennsylvania on the ground that that is a more convenient forum. All parties agree that these two cases should be prepared and tried in the same forum. Discovery has been coordinated, and justice and judicial economy require that the two cases either remain toge...
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OPINION AND ORDER Defendant Bordelon Brothers Towing Company (“BORDELON”) asks this court to dismiss the action filed by plaintiff Island Stevedoring, Inc. (“ISLAND”) pursuant to Rule 41 of the Federal Rules of Civil Procedure. Specifically, BORDELON invokes the “two dismissal” rule contained in Fed.R.Civ.P. 41(a)(1).1 We find the grounds asserted by BORDELON without merit and consequently, deny ...
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ORDER ON DEFENDANTS’ MOTION TO DISMISS AND MOTION TO STRIKE This cause is before the Court on Defendants’ motion to dismiss and motion to strike filed May 3, 1989. Responses thereto were filed May 24, 1989. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. ...
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*1273 OPINION AND ORDER This case arises out of a serious disturbance that occurred on October 4, 1989 at an Immigration and Naturalization Service (“INS”) facility. As more fully described below, the disturbance began as an assault on an INS officer and escalated into a near-riot, causing loss of control of the facility for nearly four hours. Defendants Richard Hamilton, Ivan Rutiba and Ever...
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OPINION AND ORDER United Artist Records, Inc. (“UAR”) moves for taxation of the cost of a letter of credit obtained to secure a supersedeas bond. The district court judgment clerk denied such taxation on January 26, 1990 after the Second Circuit Court vacated this Court’s previous judgment and remanded for proceedings not inconsistent with its opinion. See Record Club of America, Inc. v. Unite...
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*1259 MEMORANDUM DECISION Plaintiff Princeton Graphics Operating, L.P. (“Princeton”) brought this action against defendant NEC Home Electronics (U.S.A.), Inc. (“NECHE”), alleging false advertising claims in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 1 By Stipulated Order dated May 24, 1988, the action was bifurcated between liability and relief ...
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ORDER In this lawsuit plaintiffs seek a declaratory judgment to determine defendants’ liability for costs related to hazardous waste treatment and disposal under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq. Plaintiffs also want to recover those costs. Various motions 1 are pending: 1.Plainti...
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MEMORANDUM AND ORDER This matter is presently before the Court on the motion of all defendants for summary judgment on various Counts of the First Amended Complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. The instant action arises as a result of a motor vehicle accident which occurred on August 31, 1987 and resulted in injury to the minor child, Derek Sabourin. At all times m...
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ORDER GRANTING MOTION TO SUPPLEMENT RECORD ON APPEAL ORDER DENYING WITHOUT PREJUDICE MOTION TO DISMISS APPEAL AS MOOT ORDER GRANTING MOTION TO STRIKE BRIEF OF APPELLANT AND TO EXTEND THE TIME FOR APPELLEE’S BRIEF These motions arise out of an action by the bankruptcy court confirming the Unsecured Creditors Committee's Chapter 11 plan, and appellant Durant Enterprises, Inc.’s appeal therefr...
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MEMORANDUM OPINION AND ORDER This is a prisoner’s petition under 28 U.S.C. § 2255 claiming a right to be released because his sentence was imposed in violation of the Constitution and laws of the United States. The petition was filed pro se. After deferring submission pending the Ninth Circuit’s ruling on the “waiver” issue, the Federal Public Defender (who was petitioner’s trial counsel) was...
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OPINION INTRODUCTION No doubt motivated at least in part by the serious nature of plaintiffs injuries, this court has accorded him the benefit of every call along the way, most particularly with reference to a serious statute of limitations problem. The problem is this: although plaintiff was shot on January 8, 1978, he did not file this civil rights action until December 21, 1984, a...
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OPINION Plaintiffs, aggrieved investors or representatives of aggrieved investors, are suing a number of individuals and companies alleged to have played some role in a scheme to manipulate the prices of certain securities. Presently before the Court are motions of various defendants: for summary judgment on claims of control person liability; to dismiss claims of both aiding and abetting...
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OPINION AND ORDER The plaintiffs in this case, Lucila Bigay (“Mrs. Bigay”) and Sucesión Pedro A. Bi-gay, Inc. (“Sucesión”), are owners and operators of various “Taco Maker” fast-food restaurants in Puerto Rico. Since 1978 they have participated in a business franchising relationship with eodefendants The Taco Maker, Inc. (“Taco Maker”), and Taco Maker’s president, Gil L. Craig. 1 ...
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MEMORANDUM ENTRY REGARDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW This case comes before the court on plaintiff State Farm’s motion for summary judgment. For the reasons stated below, the court GRANTS plaintiffs motion. Statement of the Case In the early morning hours of December 29, 1985, William E. Miles hit Dennis P. Summ...
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ENTRY GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS This cause comes before the court on the defendants’ Motion to Dismiss based on lack of subject matter jurisdiction as to some claims pursuant to Fed.R.Civ.P. 12(b)(1) and on failure to state a claim as to the remaining claims pursuant to Fed.R. Civ.P. 12(b)(6). I. Background, According to the compl...
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AMENDED MEMORANDUM OPINION AND ORDER This bankruptcy appeal seeks resolution of the question of whether priority status granted under 11 U.S.C. § 507(a)(7)(C) survives a serial Chapter 11 (11 U.S.C. § 1101 et seq.) filing where the initial Chapter 11 proceeding ended in a confirmed plan that included the priority debt. The Appellant (“the Committee”) contends that it does not and the Appellee (“I...
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MEMORANDUM AND ORDER In March 1987 Baker’s Aid, a division of M. Raubvogel Co., Inc. (“Baker’s Aid”), moved in the New York State Supreme Court, Nassau County, for a preliminary injunction barring defendants Hussmann Corporation (“Hussmann”) and Hussmann Foodservice Company (“HFC”) from selling their ovens in competition with Baker’s Aid *1211 and preventing defendants from m...
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MEMORANDUM-DECISION AND ORDER Introduction The defendant, Arthur Montour, has been indicted on charges of conspiracy, in violation of 18 U.S.C. § 371; use of a deadly weapon while aiding and abetting the forcible resistance to persons authorized to execute search warrants in violation of 18 U.S.C. § 2231(a) and (b) and 18 U.S.C. § 2; and using or carrying a firearm during and in ...
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Defendant Julio Perez-Cestero moves pursuant to Fed.R.Crim.P. 12 and 48(b) to dismiss the indictment on ground that further prosecution would violate Perez-Cestero’s speedy trial rights under the Sixth Amendment, or, in the alternative, granting a hearing on the motion. FACTS Except where noted, the uncontested facts are as follows. 1 *754 A. Perez’ Years A...
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MEMORANDUM ORDER This is an action arising under 42 U.S.C. § 1983, and containing numerous other claims, The case was originally brought in the United States District Court for the District of New Jersey and was assigned to the Hon. H. Lee Sarokin, United States District Judge for that Court. Pursuant to a motion by defendants, the action was transferred to this Court pursuant to 28 U.S.C. § 1391(...
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MEMORANDUM ORDER This case is before the court on the application of the United States Postal Service (“USPS”) for preliminary injunctive relief. *739 For the reasons stated here, preliminary relief is granted. 1 I. Factual Background Defendant Allied Treatment, Inc. (“Allied”) is a Texas corporation which was incorporated on October 9, 1989, and which has its principal place of busin...
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ORDER AWARDING ATTORNEY’S FEES AND COSTS In August of 1987, the Plaintiff commenced this action seeking declaratory and injunctive relief against state officials who were in charge of enforcing Florida Statute section 370.151(2). This Florida Statute seeks to regulate shrimping in the area of the Lower Florida Keys and Dry Tortugas. On July 11, 1989, this court entered a Final Summary Judgment. Ba...
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ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIMS; ORDER DENYING PLAINTIFF’S MOTION FOR RULE 11 SANCTIONS Plaintiff LanChile Airlines has moved to dismiss defendants Rodriguez’ and Molina’s counterclaims and for sanctions in connection with the filing of those counterclaims. Defendants Rodriguez and Molina filed counterclaims against plaintiff in which they alleged that plain...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING DEFENDANTS’ MOTION TO TRANSFER This cause comes before the court on defendants Vitek Manufacturing Company, Inc. and Novamed, Inc.’s motion to dismiss the complaint for want of personal jurisdiction. In addition, defendants have moved *1574 to transfer this cause to a district where proper venue lies. I. MOTION TO DISMISS FOR WAN...
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ORDER Karl and Cathleen Czechowski bring this action to recover accrued vacation benefits on behalf of themselves and a class consisting of former employees of Radio Shack in California terminated since July 1, 1982. The complaint was filed in California Superior Court and removed by defendant Tan-dy Corporation, parent of Radio Shack, on the bases of federal question jurisdiction, 28 U.S...
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DECISION AND ORDER Before the Court is the defendants’ motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29(c), and an issue of law raised at a Fed.R.Crim.P. 32 hearing. I. BACKGROUND On March 7, 1989, a federal grand jury returned an indictment against defendants Joseph A. and Norah S. Bertucci and Charles Lawrence, Jr. The indictment contained 25 counts, alleging that the defendants con...
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MEMORANDUM Joseph K. Jupitz filed this civil suit against National Shipping Company of Saudi Arabia (NSCSA) alleging negligence under § 5(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. (1982). Mr. Jupitz seeks damages for an injury to his wrist which occurred while he was working cargo on defendant’s vessel, M/V SAUDI TA-BUK. Now ...
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PROCEDURES FOR JURY SELECTION Upon examination of the pleadings and the record herein and after a series of hearings with counsel for the defendants and the government, the Court finds that the procedures for selecting a jury in the above-captioned case shall be as follows: 1. The jury staff of the Clerk’s Office shall mail 2,000 copies of the pre-screening questionnaire (Exhibit A) to the next a...
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MEMORANDUM DECISION AND ORDER This matter is before the court on cross-motions by plaintiff Imperial Savings Association (“Imperial”) and defendant Stewart Title Company (“Stewart”) for partial summary judgment on the issue of whether there is a binding arbitration agreement between Imperial and Stewart. At a hearing on January 11, 1990 to consider Imperial’s motion for appointment of a r...
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ORDER ON APPEAL Defendant, Jaime Contreras, pursuant to 18 U.S.C. § 3145(b) has appealed the Honorable Linnea Johnson, U.S. Magistrate, pretrial detention ruling on grounds that his pretrial detention hearing was untimely- On Thursday, November 16th, 1989, defendant made his initial appearance before Magistrate Johnson. The government requested pretrial detention of the defendant, and a three-day ...
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MEMORANDUM OPINION Plaintiff, Doris M. Shepeard (“She-peard”), contracted with defendant, Quality Siding & Window Factory, Inc. (“Quality Siding”), for siding and other home improvement work. Shepeard claims that Quality Siding and co-defendant Union Mortgage Company, Inc. (“Union Mortgage”), to which Shepeard’s mortgage was later assigned, failed to comply with the disclosure requirement...
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FINAL ORDER GRANTING MOTION FOR ATTORNEY’S FEES This cause comes before the court upon a motion opening the last chapter in the suit arising from the transportation of aliens into the United States during the Cuban Refugee Freedom Flotilla in 1980. After over six years of litigation before this court, the Eleventh Circuit, and the Immigration and Naturalization Service, the plaintiff time...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Mary Rivera brought this action as personal representative of the Estate of Joseph Rivera, based on the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671 et seq. After a full nonjury trial on the merits, this court now enters its findings of fact and conclusions of law, pursuant to Federal Rule of Civil Procedure 52. Joseph Rivera was admitte...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT This cause was tried from November 28, 1989, through December 1, 1989, before this court sitting without a jury. The court has heard and considered the testimony of the witnesses and considered the exhibits and the arguments of counsel. In accordance with Rule 52(a), Federal Rules of Civil Procedure, this court now makes the followi...
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DECISION AND ORDER FACTS On August 23, 1989, the plaintiffs commenced wrongful termination of employment and misrepresentation claims against the defendants in the Circuit Court for Milwaukee County, Wisconsin. On September 22, 1989, defendants filed a petition to remove plaintiffs’ complaint to this court. Defendants claim that removal is proper pursuant to Title 28 U.S.C. § 1441(b)...
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MEMORANDUM OPINION AND ORDER Under Fed.R.Crim.P. Rule 44(c), the court is required to inquire into the propriety of counsel’s joint representation of two or more defendants joined for trial. “Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel...
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MEMORANDUM OPINION In December 1988, Martin and Donna Szekely voluntarily petitioned for bankruptcy. No one made the Szekelys file for bankruptcy; they did it themselves. Why? Probably for the same reason most people do: to gain respite from the financial pres *682 sures of their creditors. See Benjamin Weintraub and Alan N. Resnick, Bankruptcy Law Manual 119.01 (Warren, Gorh...
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MEMORANDUM AND ORDER Defendant Roger Geissler (“Geissler”) moves to dismiss Count One of a two-count indictment 1 on the grounds that it fails to charge a viable offense and/or that the offense charged is unconstitutionally vague as applied. For the reasons stated below, the defendant’s motion is denied in all respects. THE INDICTMENT In the indictment Geissler is cha...
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OPINION AND ORDER This is an action for foreclosure of a mortgage on the Herald Center building. The mortgagee, Security Pacific Mortgage and Realty Estate Services, Inc., (hereinafter “SPMRES” or the “Bank”) moves to amend the Final Judgment of Foreclosure and Sale (“Final Judgment”) nunc pro tunc under Fed.R.Civ.Pro. 54(b) or under Rule 60(b) to include language to permit the...
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DECISION AND ORDER The captioned matter is a civil action for forfeiture of property brought by the government, pursuant to 21 U.S.C. § 881(a)(4), § 881(a)(6), and § 881(a)(7) and 28 U.S.C. § 2461. The property consists of two houses and an automobile which the government maintains were used to facilitate drug sales and were also purchased with income from drug sales. This matter was trie...
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MEMORANDUM AND ORDER On December 1, 1988, defendant Louis Sullivan (“Secretary”) denied the application of plaintiff Raymond Vogel (“Vogel”) for old-age insurance benefits. Vogel now seeks review of this decision, arguing that the Secretary’s conclusion that Vogel did not qualify for benefits on the basis of insufficient quarterly earnings is not supported by substantial evidence. Before ...
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*956 MEMORANDUM AND ORDER This is a copyright infringement case filed by plaintiffs on August 25, 1989. Defendant was served with a copy of the summons and complaint three days later, see Exhibit A to Plaintiffs’ Motion for Default Judgment, but he has failed to answer or otherwise respond to plaintiffs’ complaint as required by the Federal Rules of Civil Procedure. F....
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MEMORANDUM AND ORDER Plaintiffs, residents of Pennsylvania, have filed this action to recover for injuries sustained as a result of the negligence of the defendants, residents of New Jersey licensed to practice dentistry within the State of New Jersey. Plaintiffs allege that the defendants were negligent in their care of Maria Bakaj causing her to suffer injuries including a tooth extraction and p...
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MEMORANDUM OPINION AND ORDER OF THE COURT This is an appeal from a decision of the Honorable David E. Nims, Jr., Bankruptcy Judge in the Western District of Michigan. In his October 30, 1989 decision, Judge Nims denied appellants’ motion to reopen the bankruptcy case entitled In re Urban Systems Streetscape, Inc., Bankruptcy Court File No. NG 86-654, which had been closed on June 12, 1989. Ap...
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Plaintiffs moved by order to show cause to hold certain defendants and other individuals and organizations acting in concert *393with those defendants (collectively “respondents”) in civil contempt of court for violating the temporary restraining order, the preliminary injunction and/or the permanent injunction in this action. These orders prohibited blocking access to medical facilities which per...
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MEMORANDUM On February 8, 1990 plaintiff Keystone Insurance Company filed this action in an attempt to preserve the economic benefit of the motor vehicle insurance rate increases it had received just three days earlier from Pennsylvania’s Insurance Commissioner, defendant Constance B. Foster. 1 The complaint asks the court to enjoin the nullification of that rate increase — tog...
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MEMORANDUM Lynn L. Rannels, a citizen of Pennsylvania, has filed a pro se complaint against Sarah W. Hargrove, the Pennsylvania Secretary of Banking, alleging that the “Club 50” program of Meridian Bancorp (hereinafter “Meridian”) violates Pennsylvania Code § 38.1; the Age Discrimination Act, 42 U.S.C. §§ 6101 et seq. (hereinafter “ADA”); and the Equal Protection Cla...
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Before the Court is the motion of defendant and counter-plaintiff Krueger, Inc. (“Krueger”) for an Order vacating an Order dated April 13, 1987 in which the Court granted the motion to dismiss of third-party defendants Tom John and Alan Morse for lack of personal jurisdiction. Fed.R. Civ.P. 60. Also before the Court is a motion for partial summary judgment by Fa-cit, Inc. (“Facit”), Human Facto...
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This is a securities fraud action under Section 12 of the Securities Act of 1933, 15 U.S.C. § 771. Defendants Rajan K. Pillai and Pillai, Brick & Roseman have moved for summary judgment on all claims against them in this action. BACKGROUND This case arises out of a stock offering by defendant Rx Plus, Inc. (“Rx Plus”), a subsidiary of defendant Medi-Rx America, Inc. (“Medi-...
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MEMORANDUM OPINION AND ORDER On December 20, 1985 WSI Acquisition Corporation (“WSI” 1 ) acquired Wieboldt Stores, Inc. (“Wieboldt”) in a so-called leveraged buyout (“LBO”). On September 24, 1986 Wieboldt filed for relief under Chapter 11 of the Bankruptcy Code. A year later Wieboldt’s Chapter 11 trustee (“Trustee”) filed this action against various defendants involved in the W...
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MEMORANDUM OPINION Luc and Shirley Matilla have appealed a final order of the bankruptcy court dismissing their claims in an adversary action against debtor Radco Merchandising Services, Inc.; Marine Midland Business Credit Corporation; Brandess Bros. Sales Company, Inc.; and Allied Movers. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158(a) (1982). The Matill...
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MEMORANDUM OPINION AND ORDER Plaintiff Arthur Miller, a black man, brings this action pursuant to 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq. (Title VII). Plaintiff alleges that he was discriminated against on the basis of race while he worked at the defendant SwissRe Holding (North American) Inc. (“SwissRe”), namely *130 that he was harassed and that they faile...
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*922 MEMORANDUM ORDER No. 994 CMC Real Estate Corporation (“CMC”) has petitioned this Court to enjoin a third party action brought by Phyllis and Ivan Young against Chicago, Milwaukee, St. Paul & Pacific Railroad Company (“Milwaukee Road”). CMC is the entity that assumed all of Milwaukee Road’s liabilities after the railroad's reorganization under 11 U.S.C. § 205 (1976...
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OPINION AND ORDER This is a breach of contract action with extensive counterclaims alleging self-dealing on the part of plaintiff Charles Falk. Plaintiffs now come before the Court seeking dismissal of defendant’s counterclaims. 1 Defendant has cross-moved for summary judgment on plaintiffs’ claims arising under New York State Labor Law § 198. BACKGROUND Plaintiff Cha...
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MEMORANDUM Pursuant to Fed.R.Civ.P. 12(b)(6), defendants, Community General Osteopathic Hospital (CGOH) and Bert McBrayer, have filed a “motion for partial dismissal,” seeking to dismiss count II of plaintiffs complaint. 1 Plaintiff’s two count complaint alleges he was discriminatorily discharged from employment with CGOH because of race. Count I is based upon Title VII of the ...
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MEMORANDUM OPINION AND ORDER The plaintiff, Jay Bush, alleges that Commonwealth Edison (“Edison”) discriminated against him because of his race and physical handicap. He seeks recovery under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Rehabilitation Act, 29 U.S.C. § 794; and Illinois statutory and com...
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MEMORANDUM OPINION AND ORDER This twelve-count action was brought under 42 U.S.C. § 1983 (“Section 1983”) by a group of individual livery and taxicab operators and three corporate livery services against the City of Chicago, and against the Superintendent of the Chicago Police Department and the Commander of Police for the 16th Police District in their official capacities. (Defendants col...
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MEMORANDUM ORDER The plaintiff, Ace-Federal Reporters, Inc. (Ace-Federal), filed this action for declaratory and injunctive relief to enjoin the Federal Energy Regulatory Commission (FERC) from awarding a contract for stenographic services to any entity other than the plaintiff, and if a contract has already been awarded, to enjoin FERC from implementing the performance of that contract b...
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ORDER & OPINION Defendant Vessel Charters, Inc. (“VCI”), owner of the SS SANTA ADELA, claims that it is not a proper party to this lawsuit brought by its employee, seaman Gumer-sindo Padro. VCI supports its claim by citing the Suits in Admiralty Act (“SIAA” or the “Act”) 1 which, under certain circumstances, holds the United States exclusively liable for admiralty claims arisin...
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MEMORANDUM AND ORDER Rifts among directors of a corporation are not infrequent. Nor is it uncommon for such disputes to lead to protracted, often vitriolic, legal proceedings. As such, this action, which arises out of a written “Settlement Agreement” purporting to resolve differences between bickering directors of the plaintiff Health-Chem Corporation (“Health-Chem”), is not unusual. What...
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■ MEMORANDUM OPINION AND ORDER The issue in this appeal is whether the profits derived from the motel business are “rents,” and therefore an interest in real property, or “accounts,” and therefore an interest in personalty. Super 8 Motels, Inc. appeals the bankruptcy court’s determination that motel profits are rents and that Super 8 did not properly perfect its security interest in such ...
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Plaintiffs have moved this Court, pursuant to Rule 59 or, in the alternative, Rule 60(b) of the Federal Rules of Civil Procedure, for a rehearing and reconsideration of this Court’s Opinion and Order of September 22, 1989 (“September 22 Opinion”), denying plaintiffs’ motion for partial summary judgment as to defendants’ duty to defend plaintiffs under their respective insurance policies and granti...
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ORDER ADOPTING REPORT AND RECOMMENDATION; DENYING MOTION TO QUASH AND GRANTING PROTECTIVE ORDER The Honorable Ted E. Bandstra, United States Magistrate, has recommended that this court enter an order in the above-styled action which denies deponent Bruno Giordano’s motion to quash subpoena but simultaneously grants his motion for protective order. After careful consideration, the court adopts M...
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MEMORANDUM AND ORDER By Memorandum and Order dated January 24, 1990, 729 F.Supp. 1093,1 ruled that Pennsylvania’s plan for funding hospitals’ Medicaid costs did not comply with the requirements of the federal statute, and would have to be revised. I left open for further proceedings the question of what, if any, interim relief should be provided plaintiff Temple University, pending final adopti...
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MEMORANDUM AND ORDER This opinion emanates from the voluntary settlement in the action commenced by the plaintiffs United States of America (the “Government”) against the defendants International Brotherhood of Teamsters (the “IBT”) and the IBT’s General Executive Board (the “GEB”) embodied in the voluntary consent order entered March 14, 1989 (the “Consent Decree”). The remedial provisions in the...
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DECISION and ORDER The defendant, Anderson Die Castings, Inc., has filed a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure, requesting relief from the default judgment entered in favor of the plaintiff, Zuelzke Tool & Engineering Company, on July 5, 1989. For the reasons stated below, the motion will be denied. A motion to vacate a default judgment pursuant to Rule 60(b) may be gr...
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ORDER On a prior date the court had and considered the motion of defendant, Ricky Vaughn (Vaughn), to dismiss for lack of subject matter jurisdiction, which the court ruled upon on December 19, 1989. This matter is presently before the court on the plaintiff’s motion, to reconsider the ruling on the motion to dismiss. The purpose of *504this order is to discuss the original ruling and the motion f...
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ORDER ON APPEAL This cause is before the court on appeal from Final Judgment on Case No. 80-79, entered March 14,1989, by Chief Bankruptcy Judge Alexander L. Paskay. 98 B.R. 62. ISSUES: I. Whether the Bankruptcy Court was correct in ruling that the debt, claimed by the appellees, was nondischargeable. II. Whether the Bankruptcy Court was correct as a matter of law in granting su...
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RULING ON MOTION TO REMAND This matter is before the court on plaintiff’s motion to remand. Defendant, Shell Oil Company, has filed an opposition. Oral argument on this motion was held on January 5, 1990, and the parties were given additional time to file supplemental briefs, which the parties have done. Plaintiff filed this action on April 17, 1989 in the Twenty-third Judicial Distr...
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ORDER The City of Forsyth, Georgia, in Monroe County, owns a sanitary landfill which is situated within Monroe County, but outside of the city limits of Forsyth. Until the end of 1989, the landfill was used to receive garbage generated from within the City of Forsyth and Monroe County, with the City and County governments sharing the costs of operation. In 1989, unhappy with the cost of operati...
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MEMORANDUM The plaintiffs, Rosann and Kenneth Scheetz, have sued The Morning Call, Inc. (hereinafter “Morning Call”), Terry L. Mutchler, and at least one fictitious defendant for violations of 42 U.S.C. § 1983 and the Pennsylvania Constitution and for the common-law tort of invasion of privacy. Defendants Morning Call and Mutchler have moved to dismiss the fictitious defendants) and to dismiss th...
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MEMORANDUM AND ORDER This action arises out of an error made by the plaintiff, the Shawmut Worcester County Bank (“Shawmut” or “transferor”). As is often the case with bank errors concerning money, restoring the status quo ante is somewhat more complicated than the slip that created the problem. In the instant case, Shawmut mistakenly transferred $10,000 from the account of Ame...
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MEMORANDUM-DECISION AND ORDER Introduction The plaintiff, Bruce Taylor, brought suit pursuant to 42 U.S.C. § 1983, 1 against the County of Ulster, New York; the Ulster County District Attorney’s Office; the New York State Police; Francis Vogt, the county district attorney; two assistant district attorneys; and Jon Hansen and Carl Van Wagenen, who are members of the New...
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These are cross-motions for summary judgment to vacate and to confirm an arbitrator’s award directing a hospital to reinstate without back pay an employee discharged for alleged abuse of a patient. The hospital seeks vacatur on both statutory and public policy grounds. BACKGROUND In February 1984 Innis Achong was hired as a nursing attendant at the Cabrini Medical Center (hereinafter ...
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MEMORANDUM This case is before the Court on defendants’ motion to dismiss or alternatively for summary judgment, which plaintiffs ■have opposed. The motion has been fully briefed and argued. Plaintiffs are CATA, a farmworker group, and two farmworkers. They filed this action against the Secretary of Labor complaining that the Department published a new definition of “prevailing pract...
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MEMORANDUM AND ORDERS DIRECTING FURTHER PROCEEDINGS I Although this case presently pends on defendants’ February 5, 1990 motion for an extension of time to respond, it must be recognized that the extension of time is sought in regard to plaintiffs’ January 22, 1990 motion that seeks, among other things, an order holding defendants in contempt of the consent decrees entered by this Court. It i...
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ORDER These cases are before the court on: (1) J.A. Jones Construction Company’s (“Jones’ ”) Motion to Confirm Arbitration Award; (2) Brennan Company, Inc.’s (“Brennan’s”) Motion to Confirm Arbitration Award; (3) Flakt, Inc.’s (“Flakt’s”) Motion to Vacate Arbitration Award; (4) Flakt’s Request for Oral Argument; (5) Flakt’s Motion for Leave to Submit Reply Brief; (6) Brennan’s Motion for ...
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MEMORANDUM OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT THIS MATTER comes before the court on cross-motions for summary judgment filed by plaintiff Sierra Club and federal defendants (the “Forest Service”). Plaintiff brings this action seeking declaratory and injunctive relief for alleged violations of the National Forest Management Act, 16 U.S.C. § 1600 et seq...
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MEMORANDUM OPINION AND ORDER Plaintiffs filed this complaint on May 20, 1988, alleging that exposure to defendants’ products caused Harold Thomson’s asbestosis. Thomson claimed he was exposed to defendants’ products from 1967 through 1981, when he worked as a janitor and production operator for Dow Chemical Company in Midland, Michigan. I have jurisdiction based on 28 U.S.C. § 1332, diversity of c...
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ORDER This matter comes before the court on appeal from the bankruptcy court. The issue on appeal is whether the financing statement filed by Habersham Bank is sufficient to protect its interest in certain collateral (the “disputed cars”) under Georgia law. The bankruptcy court held that the bank’s financing statement was sufficient even though it was filed under the debtor’s trade name, “Corne...
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MEMORANDUM OPINION AND ORDER Plaintiff brings this action under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). The parties are Van Aire Skyport (Van Aire) and the Federal Aviation Administration (FAA). Plaintiff moves this court for a preliminary and permanent injunction that would prohibit defendant from withholding requested records, and would direct defendant to permit inspection and c...
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MEMORANDUM OPINION Northlake Federal Savings & Loan Association (“Northlake”) filed this suit on April 28, 1986 in the 24th Judicial District Court for the Parish of Jefferson against real estate appraiser Max Derbes, Jr. (“Derbes”) his appraisal firm, Max Derbes, Inc. and an employee, appraiser Michael Truax (“Truax”), to recover the balance of a loan made to build a parking garage/retai...
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MEMORANDUM OPINION AND ORDER The plaintiffs in this case are the trustees of three pension funds of the Hotel Employees and Restaurant Employees International Union (“HERIU”). The defendant, Amivest Corporation, is the former investment manager of these funds. The Trustees claim that Amivest violated the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1100 et ...
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ENTRY DENYING DEFENDANT’S MOTION TO SUPPRESS This is a story of remarkable self control. The origins of the legal dispute addressed in this entry may be somewhat scatological in nature but some genuinely interesting points of law are presented here. *1364 The matter comes before the court on a motion to suppress filed on behalf of the defendant. He is seeking to have the court prohibit the ...
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ORDER This matter is before the Court on a motion to dismiss (Doc. No. 2) filed by defendant The Cincinnati Enquirer, Inc. (“Enquirer”). Defendant seeks dismissal of this action pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff Housing Opportunities Made Equal, Inc. (“HOME”) filed an opposing memorandum (Doc. No. 3) and defendant su...
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MEMORANDUM OPINION AND ORDER 1 Chicago Metropolitan Correctional Center (“MCC”) Warden Mark Henry and the United States Parole Commission (“Commission”) have submitted the Response of the United States (the “Response”) to the 28 U.S.C. § 2241 (“Section 2241”) habeas corpus petition (the “Petition”) filed pro se by Samar Chatterjee (“Chatterjee”). Chat-terjee has in turn retorted with a self-p...
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SENTENCING MEMORANDUM William Bogas is here for sentencing on a criminal conviction based on his guilty plea involving the failure to report the disposal of hazardous wastes at the Cleveland Hopkins Airport. The government urges the Court to apply the stiffest possible penalties — to make an example of the “nation’s first hazardous waste violation under the new sentencing guidelines.” This Cour...
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MEMORANDUM OPINION On May 25, 1988, Officer David Vandiver of the Alcohol Beverage Control Division of the Mississippi State Tax Commission stopped and searched a car owned and operated by the plaintiff, Emma Jane Howard, in Monroe County, Mississippi. Monroe County remains “dry” while the counties surrounding it have voted “wet.” 1 The defendant stopped Ms. Howard to conduct a search of her ...
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Petitioner moves pursuant to 28 U.S.C. § 2255 for a new trial. For reasons discussed below, the motion is denied. FACTS Following a jury trial, petitioner was convicted on May 1, 1987 on one count of conspiracy to steal goods which were part of an interstate freight shipment, one count of stealing goods which were part of an interstate freight shipment, and one count of kidnapping a person wi...
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MEMORANDUM OPINION AND ORDER Defendant Ira Silverman was sentenced by this court on August 23, 1988 following his plea of guilty to one count of possession with intent to distribute cocaine, a violation of 21 U.S.C. § 841(a)(1), pursuant to a plea agreement entered into by defendant and the government on April 25, 1988. Defendant plead guilty to an offense which occurred on February 15, 1988, a...
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OPINION The Plaintiff Brambles USA, Inc. (“Brambles”) commenced this derivative action on behalf of Environmental Systems Company (“Ensco”) against the Ensco directors and the shareholders of Exceltech, Inc. (“Exceltech”) for violations of Section 12(2) of the Securities Act of 1933, 15 U.S.C. § 77l (2), Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b...
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*232 MEMORANDUM OPINION The cause comes before the court on defendant BLM Company’s (“BLM’s”) motion for summary judgment. Plaintiffs, black nursing aides and a black therapist employed by BLM, allege that they were discriminated against by the conditions of their employment at BLM, that they were denied opportunities to apply for better positions that became available at BLM, an...
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ORDER This matter is before the Court on Plaintiff’s Motion to Review and Reverse Administrative Decision pursuant to the Education of the Handicapped Act (EHA), 20 U.S.C. § 1400 et seq. (Doc. No. 8), Defendant’s reply contra (Doc. No. 10) and Plaintiff’s reply in support (Doc. No. 11). Upon agreement of the parties to waive any evi-dentiary hearing (Doc. Nos. 12 & 13) and allow the Court...
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ORDER The Plaintiffs filed their complaint on May 23, 1989, against the Secretary of Energy, the Secretary of the Interior and the Secretary of Agriculture, seeking this Court “to declare unlawful and enjoin certain actions of the defendants ... in authorizing, carrying out, approving, funding, or participating in programs that contribute to the ‘greenhouse effect’ without discussing and ...
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ORDER The sole issue in this bankruptcy appeal is whether it is necessary to serve notice of objections to claims to the local United States Attorney and the Attorney General of the United States when the claimant is the Internal Revenue Service. In this case, appellee delivered its objection and hearing notice to the Internal Revenue Service (“IRS”) alone. The bankruptcy court held that the se...
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ORDER On September 16, 1985, the Defendant, Harry W. Musolino, and Plaintiff, Virginia E. Edens, were involved in an automobile accident. Defendant Musolino was operating a 1985 Chrysler LaBaron owned by the Defendant Heritage Chrysler Plymouth Sales, Inc. Defendant Heritage contends that Defendant Musolino was operating the vehicle without its permission and accordingly it has no liability in ...
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ORDER On November 10, 1988, Plaintiff Paul E. Rowe filed the complaint in this action alleging, inter alia, that Defendants, Congressional Quarterly, Inc. and James Kidd, violated the Civil Rights Act of 1866, 42 U.S.C. § 1981, by disciplining him and terminating his employment. After Plaintiff obtained leave from this Court to amend his complaint several times, and after Defen...
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OPINION On February 26, 1990, only ten minutes before the Court was to take the bench and begin jury selection in this second trial of a multi-defendant conspiracy case, the Public Defender Service (“PDS”) filed a motion on behalf of its client H.S., Jr. for the disqualification of Mark Rochon, who entered his appearance as one of Constance Perry’s attorneys on February 23, 1990. Sometime in the ...
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MEMORANDUM OPINION ORDER DENYING RELIEF ON APPEAL THIS CAUSE comes before the Court on the appeal of Appellant STATE OF FLORIDA DEPARTMENT OF INSURANCE AND THE DIVISION OF REHABILITATION AND LIQUIDATION as Receiver for the estate of INTERNATIONAL MEDICAL CENTERS (IMC) from the Bankruptcy court’s ruling in favor of the trustee for the MIAMI GENERAL HOSPITAL, INC. (MGH) on the receiver’s cl...
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OPINION AND ORDER The plaintiff, CPC International, Inc. (“CPC”), has brought this motion for a preliminary injunction seeking to enjoin the defendant, Caribe Food Distributors (“Car-ibe”), from alleged trademark infringement and unfair competition under the common law and sections 32(1) and 43(a) Lanham Act, as amended 15 U.S.C. §§ 1114(1) & 1125(a). The complaint, filed 27 De...
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MEMORANDUM OPINION AND ORDER Trial in this tax evasion case is scheduled to begin on April 23, 1990. Defendants now move for various pre-trial relief. Background The indictment in the captioned case charges the defendants with various offenses arising out of certain financial transactions entered into by the Cralin partnerships. 1 The government alleges that the...
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MEMORANDUM OPINION AND ORDER Noah Robinson and 37 members of the El Rukn street gang are the subjects of a 174-count criminal indictment. The specific charges against Robinson are two counts of racketeering (Counts 1 and 2), conspiracy to violate various narcotics laws (Count 3), three counts of witness intimidation (Counts 10, 14 and 16), retaliation against a witness (Count 13) and obstruction o...
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MEMORANDUM AND ORDER DENYING DEFENDANTS’ APPLICATION FOR A PRELIMINARY INJUNCTION This action arises out of Georgia-Pacific’s attempt to take over Great Northern Nekoosa Corporation by a cash tender offer commenced on October 31, 1989. In its complaint Georgia-Pacific seeks declaratory and injunctive relief against certain impediments to Georgia-Pacific’s offer, which has been twice rejected by...
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MEMORANDUM AND ORDER The plaintiffs challenge the Village of Bolingbrook’s ordinance that requires landlords and property managers to consent to and pay for an inspection whenever they rent to new residential tenants and, further, that prospective tenants procure a “Rent/Lease Permit” before they may occupy a dwelling. We- have before us Bolingbrook’s motion to dismiss. For the following ...
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MEMORANDUM OF OPINION AND ORDER This is an action for declaratory relief as to plaintiff Nautilus Insurance Company’s (“Nautilus”) obligations, if any, to its insured, Dolphin Pools Corporation (“Dolphin Pools”) in two different lawsuits, Casebeer v. The Block Corporation, et al.,1 and Spergel v. Econo Lodges of America, Inc., et al.2 At bar are the cross-motions for summary judgment of all partie...
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Defendant Republic of the Sudan moves this Court to dismiss the complaint for failure to state a claim or for summary judgment. It claims that the new Republic of the Sudan, as successor state, is not liable for the alleged breach of a five-year exclusive agency contract entered into by the prior sovereign state of Sudan. 1 Defendant further asserts that a fundamental change in circu...
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MEMORANDUM & ORDER On October 23, 1984, defendant Lawrence Landau testified before a federal grand jury investigating extortion by the International Brotherhood of Electrical Workers, Local 3 (“Local 3”). On October 19, 1989, Landau was indicted for perjury in violation of 18 U.S.C. § 1623(a) for allegedly having made a false material declaration before that grand jury. 1 In es...
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MEMORANDUM OPINION I. INTRODUCTION This is a breach of contract action involving a collective bargaining agreement between the plaintiff, the International Union of Operating Engineers Local 571 (“Union”), and the Heavy Contractors Association (“HCA”), a multiemployer bargaining unit to which the two defendants, Hawkins and Kiewit Western, belonged at the time the agreement was first put into eff...
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MEMORANDUM OPINION AND ORDER In part this Court’s December 4, 1989 memorandum opinion and order, 726 F.Supp. 1118 (“Opinion II”) directed the litigants to readdress this Court’s January 5, 1988 dismissal of a number of the constitutional claims then advanced on behalf of Maceo Willis, Jr. (“Willis”) by his appointed counsel (Opinion II at 1119 n. 6). That directive stemmed from our Court of Appeal...
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ORDER This matter is before the Court on a motion for summary judgment pursuant to Fed.R.Civ.P. 56 filed by defendant Merrell Dow Pharmaceuticals, Inc. (Merrell Dow). 1 Plaintiffs have filed an opposing memorandum and the defendant has subsequently replied. Plaintiffs filed these products liability cases, now consolidated for trial before this Court, seeking damages for bi...
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OPINION INTRODUCTION Plaintiff Teresa Martinez (hereinafter “Mrs. Martinez” or “Grandmother”), guardian of minor Luis Antonio Mendez (hereinafter “Tony”), brings this action on behalf of her grandson under the Federal Tort Claims Act (hereinafter “F.T.C.A.”), 28 U.S.C. §§ 1346(b), 2671 et seq. (1988) alleging that he suffered and will continue to suffer mental and physical...
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*756 FINDINGS OF FACT AND CONCLUSIONS OF LAW This is a wrongful levy action brought pursuant to 26 U.S.C. § 7426. The plaintiffs assert that the Internal Revenue Service (IRS), in attempting satisfaction of income tax deficiencies owed by William L. and Myra Comer, levied against property owned by the plaintiffs. The government, conversely, contends that the plaintiffs are merely...
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MEMORANDUM AND ORDER ON PENDING MOTIONS In this action brought under the Magnu-son Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq., Plaintiff challenges two sections of Defendant’s final rule implementing the Fishery Management Plan for the Northeast Multispeeies Fisheries. 1 The challenged regulations prohibit the importation of undersized groundfish, and the possession ...
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MEMORANDUM OPINION AND ORDER Plaintiff, Victor Glenn Clark, filed this pro se civil rights suit after certain hair samples were taken from him by a female police officer pursuant to an April 1987 state court order. At the time, the plaintiff had been arrested on first degree sexual assault charges and was a pretrial jail detainee in the City and County of Denver, Colorado. Name...
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OPINION AND ORDER This matter comes before the Court on plaintiff Andrew J. Kyreakakis’ motion for attorneys’ fees and costs pursuant to the Civil Rights Attorneys’ Fees Awards Act of 1976, codified at 42 U.S.C. § 1988. 1 This section allows the Court, in its discretion, to award fees to the prevailing party in an action brought to enforce one of the listed Federal Civil Rights...
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MEMORANDUM AND ORDER This cause comes before the court on plaintiff Cornelius Wilson’s motion to vacate this court's order of December 9, 1988 staying further proceedings pending arbitration of the claims raised in the plaintiff’s complaint. Mr. Wilson first asked the court to reconsider the December 9 order because the factual record on that date was incomplete. At the time of the court’...
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OPINION AND ORDER Defendant Herman Soifer moves pursuant to Local Civil Rule 3(j) for reargument of those portions of this Court’s December 6, 1989 Opinion which 1) collaterally es-topped Soifer from contesting the bankruptcy court’s determination of bankruptcy fraud and 2) treated depositions taken in an earlier action against Braten Apparel Corporation (“BAC”) and Daniel Rhoades as if originally...
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ORDER Defendant Steven Alexander Harris was charged in a criminal complaint filed January 30, 1990 with a violation of 18 U.S.C. § 2113(a) (bank robbery). At the arraignment that day, Harris was remanded to custody pending a pre-trial detention hearing pursuant to 18 U.S.C. § 3142(a), which was held before a magistrate of this court on February 2, 1990. The magistrate reviewed the entire ...
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OPINION Debtor commenced bankruptcy proceedings under chapter 13 of the Bankruptcy Code on September 1, 1988. On May 30, 1989, the United States filed a Motion to Dismiss (# 13), asserting that the Debtor is not eligible to be a petitioner in a chapter 13 case because she does not meet the debt restrictions set forth under 11 U.S.C. § 109(e). That section provides in pertinent part: ...
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MEMORANDUM AND ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT This action arises out of Georgia-Pacific’s attempt to take over Great Northern Nekoosa Corporation by a cash tender offer commenced on October 31,1989. In its complaint Georgia-Pacific seeks declaratory and injunctive relief against certain impediments to Georgia-Pacific’s offer, which has been twice rejected by Grea...
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ORDER When defendant Illinois Benedictine College (“Illinois Benedictine”) denied plaintiff Charlotte Puppel’s request for tenure, Pup-pel filed this lawsuit pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634. Arguing that Pup-pel has failed to establish a prima facie case of age discrimination, Illinois Benedictine now moves for summary judgment. For the reasons...
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ORDER Plaintiff, Mike Ousley, initially filed his complaint in this case on November 18, 1987, against the counterclaimant, Ric Hogan, along with Dave Hogan, WJBF-TV and Art Cabot, an agent for WJBF-TV. Plaintiff was the producer of a teen dance program and negotiated with Art Cabot on behalf of WJBF-TV for the broadcast of his teen dance program in Augusta, Georgia. Plaintiff claimed that he had ...
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ORDER This matter is an appeal from the bankruptcy court, where appellant (hereafter, “debtor”) was denied discharge of debt. Debtor filed his brief November 30, 1989. The appellee (“creditor”) filed its brief December 15, 1989. Debtor did not file a reply brief. For the reasons set forth below, the judgment of the bankruptcy court will be affirmed. I. Statement of the Case ...
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MEMORANDUM INTRODUCTION This case involves the validity of the confidentiality agreement forms that many of the Executive Branch employees are required to sign. The case was remanded to this Court by the Supreme Court. The case has been greatly simplified since it was last before this Court. Now — at least at this point — only one of the former plaintiffs is proceeding on one specific legal t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This is a proceeding under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500-706 (1988), in which plaintiff Federal Farm Credit Banks Funding Corporation (“Funding Corporation”) challenges certain actions of defendant Farm Credit Administration (“FCA”), an agency of the federal government. The Funding Corporation contends that the FCA a...
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ORDER DENYING GOVERNMENT’S MOTION FOR RECONSIDERATION THE ABOVE CAPTIONED MATTER came before the court on December 27, 1989, for hearing on the government’s motion for reconsideration of this court’s November 15, 1989, memorandum opinion and order granting the defendant’s May 10, 1989, motion to suppress evidence. The defendant, Alejandro Garcia Ibarra, is charged in a one count indictment with...
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The Court is faced with a confrontation between the likenesses of two teddy bears. I. Background Plaintiffs Recycled Paper Products and Sandra Boynton, (“Recycled Paper”) first moved this Court for a temporary restraining order, order of expedited discovery, and an order to show cause for a temporary injunction against defendants Pat Fashions, Starlight Trading, and Evian, (collec...
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ORDER Pending before this Court is defendant’s August 8th motion for summary judgment supported by brief, exhibits and a separate statement of undisputed material facts. Plaintiffs responded on August 22nd with brief, exhibits and a statement of facts which they contend are in dispute. Defendant filed a reply with additional exhibits on October 6th. Summary judgment can properly be e...
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MEMORANDUM OPINION This is an appeal from a petty offense conviction entered by United States Magistrate Laws of this Court, after a bench trial, on a charge of violation of 50 C.F.R. § 27.83 (1988), which makes punishable as a federal offense the commission, within national wildlife refuges, of “any act of indecency or disorderly conduct as defined by State or local laws.... ” The appell...
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MEMORANDUM OPINION AND ORDER This is an insider trading action brought by the Securities and Exchange Commission (“SEC”) for alleged violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. This Court granted a temporary restraining order and expedited discovery. Presently before this Court is the motion of the Securities and Exchange Commission for a preliminary...
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MEMORANDUM OPINION There are pending in this cause defendants’ motions to dismiss or in the alternative for summary judgment. Numerous arguments, briefs, and memoranda have been presented by all parties. On October 29, 1989, the court held a hearing on the pending motions and heard oral arguments. On October 30, 1989, the defendants resubmitted their motions for summary judgment. Numerous subsequ...
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MEMORANDUM OPINION AND ORDER The subject of this Memorandum Opinion and Order is an appeal from two orders of the United States Bankruptcy Court filed on March 1, 1989. The first order granted a motion brought by William Barnhill (ap-pellee) to dismiss Johnson’s First Amended Complaint. The second order denied a motion brought by Elliott Johnson (appellant/trustee) to file a Sécond Amende...
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ORDER This matter is before the Court on the Motion to Quash the Deposition of Plaintiff filed by the plaintiff, Johnnie Jones, on October 18, 1989. For the reasons set forth below, the Motion is DENIED. On April 24, 1988, a fire occurred at the plaintiff’s residence causing damage to both the building and its contents. At the time of the fire, the defendant, State Farm Fire & Casualty Company, h...
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MEMORANDUM OPINION AND ORDER This is an action brought by two New York City police officers pursuant to 42 U.S.C. § 1983. Plaintiffs seek injunctive relief from the City Medical Examiner and the City of New York directing them to disclose to plaintiffs the results of “HIV” tests performed on a deceased individual. Plaintiffs also seek a judgement declaring sections of New York State Public Heal...
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ORDER Based on an alleged violation of the Railway Labor Act, 45 U.S.C. § 151 et seq., plaintiff United Transportation Union (“UTU”) requests declaratory and injunc-tive relief. Specifically, UTU seeks to compel defendant Illinois Central Railroad Company (“Illinois Central”) to engage in national collective bargaining. Illinois Central has filed a counterclaim, arguing that UT...
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MEMORANDUM OPINION Plaintiff applied to the city of Fort Smith (“City”) for permission to build a convenience store to be associated with a gasoline station that plaintiff is already operating on Phoenix Avenue in the City. City officials responded that under the ordinances of the City they could give no such permission unless plaintiff granted the City an expanded right-of-way along the releva...
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OPINION Plaintiff John Kluge brings this diversity action to recover on a $100,000 loan made to defendant William D. Fugazy, Sr. Fu-gazy counterclaims that Kluge is indebted to Fugazy in the amount of $157,000 arising out of the lease-purchase of two buses. The bench trial of this matter was held on February 28, 1990 and March 1, 1990. The following constitutes my findings of fact and conclusions...
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*922MEMORANDUM This matter is before the Court on defendants’ motion for summary judgment. Plaintiff Mitchell Moore, a prisoner at Farmington Correctional Center (FCC), brings this action pursuant to 42 U.S.C. § 1983 against Denis Dowd, Superintendent of FCC, Daniel Henry, Assistant Superintendent of FCC, and Larry Wells, a correctional officer, alleging violations of his rights under the eighth a...
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DECISION and ORDER sitting by designation. The complaint in the instant case named as defendants the county of San Diego, its *964 chief administrator and its board of supervisors alleging that the plaintiffs were victims of racial discrimination and racial harassment in violation of Title VII, 42 U.S.C. § 2000e et seq. The plaintiffs sought declaratory and injunctive relief, compensatory a...
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OPINION Plaintiff, a putative class representative, filed suit against the defendants alleging violations of Sections 9(a)(2), (3), (4), 10(b) and 20 of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78i, 78j and 78t, as amended, and Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder. 1 Plaintiff alleged that the defendants had engaged in a scheme to corner the mark...
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MEMORANDUM-DECISION AND ORDER Introduction Plaintiff Rivers Electric Co. moves for partial summary judgment on the issue of its right to condemn certain lands located in Greene County, New York, for construction of a hydroelectric project. Plaintiff also moves for severance of the trial on compensation, and proposes to post a deposit to serve as interim compensation to affected l...
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OPINION Lois J. Jordan filed this suit on January 13, 1989 against Kent Recovery Services, Inc. (“Kent Recovery”) and Lee Murray (“Murray”), Kent Recovery’s president and owner of all of its stock, alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.A. §§ 1692-1692o (West 1982 & Supp.1989) (Docket Item (“D.I.”) 1). Thereafter, on May 9, 1989, Kent Recovery an...
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ORDER This matter arises on defendants’ cross-motions to disqualify counsel. Defendants Charles E. Horton, M.D., Jerome E. Adam-son, M.D., and John B. McCraw, M.D. [“the Horton group”], by their counsel Thomas J. Harlan, Jr., move this Court for an Order disqualifying Gregory Stillman, Esquire and the law firm of Hunton & Williams from representing Plastic Surgery Specialists, Inc. [“PSSI...
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THIS MATTER is before the Court on remand from the United States Court of Appeals for the Fourth Circuit. See Hickory Neighborhood Defense League v. Skinner, 893 F.2d 58 (4th Cir.1990). On remand, this Court has directed the parties to file supplemental briefs and has allowed the National Trust for Historic Preservation to file a brief as an amicus curiae. Plaintiff Hick...
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OPINION PMPA revisited. The Court has before it motions for partial summary judgment filed in the two cases comprising this consolidated action: Winks v. Feeney Oil, Inc., 88-3305, and Feeney Oil Co., Inc. v. Winks, 89-3052. (Because the parties are in opposite alignment in the two cases, we shall refer to them as Feeney Oil and Winks, rather than by their respe...
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MEMORANDUM AND ORDER Plaintiff Linda Nappa (“plaintiff”) brings this action pursuant to § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), for review of a final determination of the Secretary of Health and Human Services (“Secretary”) denying plaintiffs application for a period of disability and disability insurance benefits. Currently before the Court are motions by both sides f...
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MEMORANDUM This matter is before the Court on the motion of defendants International Battle of the Bands, Inc. (“IBB”) and The Exchange Club Fair of Charleston, Inc. (“Club Fair”) to dismiss plaintiff’s claims for lack of personal jurisdiction. Plaintiff, Anheuser-Busch, Inc., a Missouri corporation with its principal place of business in St. Louis, Missouri, brings the present action for declara...
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OPINION Presently before the court is the formal objection of defendant Modesto Anthony Caba to the contents of the presentence report pursuant to Fed.R.Crim.P. 32(c)(3)(A). Specifically, the defense disputes the government’s calculation of the *30base offense level of 26, and urges the court to find that the proper base offense level under the United States Sentencing Guidelines (hereinafter “U.S...
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OPINION This case is currently before the Court on plaintiff Marty Phillips’ Motion for a Preliminary Injunction. Plaintiff is a prisoner at the Riverside Correctional Facility in Ionia, Michigan. Plaintiff filed a complaint in September 1988 pursuant to 42 U.S.C. § 1983 alleging that defendant Michigan Department of Corrections (“MDOC”) has been deliberately indifferent to plaintiff’s se...
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OPINION Secretly recorded conversations. Wiretapping? Thomas J. Nietupski has been charged with conspiracy to manufacture or distribute a controlled substance, specifically methamphetamine, in violation of 21 U.S.C. § 846. The conspiracy involved over 20 individuals and touched on several states. One of Nietupski’s co-conspirators — and a ringleader — was his ex-wife, Nancy Niet...
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ORDER Plaintiff is a 16-year old disabled student at Hogan Senior High School in Vallejo, California. She has cerebral palsy, learning disabilities and rightside deafness. In her first amended complaint, filed on December 26, 1989, 1 plaintiff alleges that she *949 currently uses a wheelchair for mobility. In February 1988, she participated in an intensive two-week...
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MEMORANDUM OPINION, RULING, AND ORDER Plaintiff John E. Swanson alleges that Defendant Best Buy Co. harassed, retaliated, and discriminated against him in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3). Plaintiff also alleges several state law violations, including, “violation of Chapter 91A of the Iowa Code, fraud, breach of contract of employment, intentional or...
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OPINION The four plaintiffs, who are or have been railroad employees and who purport to represent others similarly situated, have sued the Transportation Communications International Union and two of its locals (collectively “the TCU” or “the Union”), complaining about the Union’s expenditure of dues for purposes unrelated to collective bargaining and its method of reducing dues to nonuni...
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MEMORANDUM I. Introduction. Plaintiff, the Greek Radio Network of America (“GRNA”), is a Pennsylvania corporation whose principal business consists of providing Greek and other ethnic programming to radio subscribers in the Philadelphia metropolitan area and in other areas throughout the United States. GRNA owns and operates radio stations in Media and Reading, Pennsylvania, ...
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MEMORANDUM AND ORDER The present case is a wrongful death action brought by plaintiff Joyce Stewart, the widow and administrator of the estate of George E. Stewart. The defendants are Hadley Regional Medical Center of Hays, Kansas, and Dr. Mickey Myrick. Defendant Hadley has moved for summary judgment against the plaintiffs claim made under 42 U.S.C. § 1395dd. A hearing on the matter...
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MEMORANDUM OPINION, RULING AND ORDER FOR JUDGMENT N.O.V. After suffering jury verdicts in favor of plaintiff insurer St. Paul Fire and Marine Insurance Company, defendant insured Salvador Beauty College, Inc. has moved for judgment notwithstanding the verdict and, alternatively, for a new trial, which have been submitted on written briefs and oral arguments of counsel. On August 30, ...
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OPINION In August 1989, the late Judge Gerald J. Weber issued an extensive Opinion in this case, concluding that most of the video poker machines seized here were subject to forfeiture under the Gambling Devices Act of 1962, 15 U.S.C. § 1171 et seq. United States v. 294 Various Gambling Devices, 718 F.Supp. 1236 (W.D.Pa.1989). Upon Judge Weber’s untimely passing, this matter fell to the under...
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MEMORANDUM OPINION AND ORDER This multidistrict litigation is presently before the court on various motions for *1562 summary judgment. Motions have been filed in 13 of the remaining 15 cases. 1 The motions have been fully briefed and the court heard oral argument on the motions on October 27, 1989. This opinion will discuss all the pending motions and will be refe...
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OPINION By this suit plaintiff seeks declaratory and injunctive relief to prevent the seizure of video poker machines by the federal government. The action dies aborning. Pennsylvania Association of Video Operators (“PAVO”) is a non-profit corporation serving as a trade association for owners of arcade amusement games such as pinball and video games. Most, if not all, of PAVO’s 25 members own...
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ORDER IN RESPONSE TO APPLICATION OF NOTARY PUBLIC This case is before the Court upon Application of Notary Public Jean Long for Advice and Instructions (Doc. # 27), submitted at the request of Plaintiffs’ counsel. While the Application is addressed to District Judge Herman J. Weber, Judge Weber has referred this case to the United States Magistrate for all pretrial proceedings. From the applicatio...
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MEMORANDUM AND ORDER This case is now before the court upon defendant’s motion to dismiss. This is a Federal Tort Claims Act case arising from an automobile accident. The accident occurred on August 2, 1987. Plaintiff filed suit on this matter once before, but agreed to dismissal without prejudice for failure to file an administrative claim. On March 6, 1989, the postal service received an adminis...
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MEMORANDUM AND ORDER This is an action brought by the plaintiff pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. Plaintiff contends that he suffered damages when the United States negligently destroyed his military medical records. The damages sought by plaintiff are the amount of disability benefits he would have received had he been able to prove certain se...
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MEMORANDUM This matter is before the Court on defendants’ motion to dismiss the amended complaint, or, in the alternative, for summary judgment. Defendants assert that plaintiff’s amended complaint fails to state a claim for a variety of constitutional reasons, and, as a threshold matter, this Court should exercise Younger abstention. Jurisdiction is based on 28 U.S.C. §§ 1331, 1343 and 42 U....
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OPINION AND ORDER This is an application for bail pending determination of a petition for habeas corpus. Petitioner Malcolm Richard was convicted after a jury trial in the Supreme Court of the State of New York of grand larceny in the second degree and falsifying business records in the second degree. The sentence is concurrent prison terms of one to three years and restitution in the amount ...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SANCTIONS AGAINST PLAINTIFF AND HER LEAD ATTORNEY AND REQUIRING DEFENDANT TO FILE SUPPLEMENTAL BRIEFING ON AMOUNT OF SANCTIONS Plaintiff Melody Perkins brought the underlying Title VII claim against General Motors Corporation (G.M.) alleging that she was the victim of both a sexually hostile work environment and quid pro quo sexual...
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MEMORANDUM OPINION AND ORDER James Klank (“Klank”) initially sued Sears, Roebuck and Co. (“Sears”) in the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois. Sears timely removed the case to this District Court on the premise that although Klank’s Complaint advanced only what purported to be state-law claims, federal jurisdiction nonetheless existed because the laws...
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MEMORANDUM AND ORDER This is a products liability case with several motions pending. Defendant has filed a motion for sanctions. Plaintiffs have filed a motion to supplement plaintiffs' response to defendant’s pending motion for summary judgment. Defendant has filed a motion to review a decision of the Magistrate in this case. Defendant’s motion for sanctions and plaintiffs’ motion to file a supp...
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ORDER Before the court are the objections of the plaintiffs to the report and recommendation of Magistrate James T. Balog denying plaintiffs’ application for a preliminary injunction. For the following reasons, the *873 court adopts the magistrate’s report and recommendation. FACTS A short history of the plaintiffs’ search for a preliminary injunction in this case i...
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MEMORANDUM OPINION This case is before the Court on the plaintiff’s petition for attorney’s fees and costs and the defendants’ motions to strike its offer of judgment and to reset this case for trial. For the reasons stated below, the plaintiff’s petition-is GRANTED AS MODIFIED and the defendants’ motions are DENIED. I. Wadie I. Said worked in the Department of Pathology of the Virginia Commonwea...
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OPINION On August 11, 1989, Telco Communications, Inc. (“Telco”) initiated this action against the State of New Jersey. Telco filed a notice of motion for preliminary injunction on August 18, 1989. Telco seeks to enjoin New Jersey from enforcing various state statutes and administrative regulations which Telco claims violate the First and Fourteenth Amendments: N.J.S.A. 2A:170....
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MEMORANDUM-DECISION AND ORDER Introduction The Hotel, Motel & Restaurant Employees & Bartenders Union, Local 471, AFL-CIO (“Union”) petitions the court to confirm two arbitration awards, pursuant to a section of the United States Arbitration Act, 9 U.S.C. § 9, and Section 301 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185. 1 The Union also s...
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MEMORANDUM-DECISION AND ORDER Introduction Plaintiff Joann Ralbovsky brought this action to enforce civil liability for violations of the federal odometer disclosure requirements contained in the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. §§ 1981-1991 (“Odometer Act”). Plaintiff has moved for summary judgment pursuant to Rule 56 of Federal Rules of Civil Procedure against def...
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*737 MEMORANDUM OPINION Plaintiffs in this action are the Board of Supervisors of Warren County, Virginia, 1 the County Board of Social Services, the County Department of Social Services and Ann Carbaugh, the Director of the County Department of Social Services. 2 There are two institutional defendants — the Virginia Department of Social Services and the Vir...
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*1197 OPINION AND ORDER Plaintiff investors charge defendants with fraudulent conduct in connection with the sale of interests in an oil and gas limited partnership. Defendants have moved to dismiss the amended complaint for failure to state a claim pursuant to Fed.R.Civ.P. (“Rule”) 12(b)(6) and for failure to plead fraud with particularity pursuant to Rule 9(b), or in the altern...
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OPINION AND ORDER Defendant has moved, pursuant to Fed.R.Crim.P. 32(d), to withdraw his guilty plea entered on May 10, 1989. For the reasons set forth below, defendant’s motion is denied. I. BACKGROUND On March 9, 1989, defendant Jose Fernandez (“Fernandez”) was indicted with two co-defendants, Nelson Marte (“Marte”) and Rafael Garcia-Flores (“Garcia-Flores”), in two counts for (1) conspira...
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ORDER Plaintiff Cheryl Churchill has sued the Defendants pursuant to 42 U.S.C. § 1983 and Illinois law, alleging that termination of her employment as a nurse at McDon-ough District Hospital violated her First and Fourteenth Amendment rights, as well as breaching her employment contract. Specifically, in Count I, Plaintiff charges the individual Defendants with violation of her First Amen...
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MEMORANDUM AND ORDER This matter is before the Court on the claimants’ Motion to Dismiss or Alternatively to Transfer and their Motion to Quash Warrant of Arrest or Alternatively Return of Seized Property. As a preliminary matter, this Court GRANTS claimant’s Motion to Consolidate in United States v. Selmar, Tenn. Property, 89-4222 (Document No. 14). I. FACTS The clai...
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OPINION At issue is whether the Defendant railroad is required to engage in nationwide, *1337 multi-employer collective bargaining or whether the railroad can bargain on its own behalf at the local level. We find that the Chicago & Illinois Midland Railway Company is not required to engage in nationwide handling of the wage and rules proposals that are in dispute. This c...
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MEMORANDUM AND ORDER The trial of this case was scheduled to begin on February 27, 1990. Plaintiff failed to appear. At that time, defendant requested that the court grant its pending motion to dismiss. In this motion, defendant seeks dismissal pursuant to Fed.R. Civ.P. 37(b) for plaintiffs failure to comply with the court’s discovery orders. Defendant also requested that the court dismiss this a...
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MEMORANDUM AND ORDER This case, originally brought as a case against four defendants, 1 commenced in Kansas City, Missouri over three years ago. Plaintiff National Association for the Advancement of Colored People-Special Contribution Fund (“SCF”) seeks restitution from SCF’s former staff attorneys of attorneys’ fees awarded primarily in pending school desegregation suits. Afte...
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BENCH OPINION 1 The case is a diversity case in which the plaintiff, New York Life Insurance Company (“New York Life” or “NYLIC”), seeks a declaratory judgment that the life insurance policy issued by it to the defendant’s son, of which the defendant is the beneficiary, should be rescinded. The claim of rescission is based on two alleged misrepresentations contained in the ap...
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MEMORANDUM ENTRY REGARDING GRANTING OF PARTIAL SUMMARY JUDGMENT WITH RESPECT TO THE APPLICABLE STATUTE OF LIMITATIONS AND DISCUSSION OF ISSUES TO BE ADDRESSED IN EVIDENTIARY HEARING Defendant, George S. Olive & Company (GSO), has moved for summary judgment against the plaintiff, Randall Davis (Davis). GSO bases its motion on one argument: the statute of limitations bars plaintiff’s accoun...
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MEMORANDUM OPINION AND ORDER Plaintiff, Elaine Ferrara, brought this products liability action in this court, pursuant to 28 U.S.C. § 1332, against two pharmaceutical manufacturers, Berlex Laboratories, Inc. and Parke-Davis, Inc., for failure to adequately warn the plaintiff of their products’ dangerous side effects when taken together. Currently before this court are the defendants’ moti...
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MEMORANDUM AND ORDER This matter is before the court on cross-motions for summary judgment. Plaintiffs seek a refund of income taxes and interest penalties thereon assessed against them by the Internal Revenue Service (“the IRS”) for monies received by them in settlement of a lawsuit against United Airlines (“United”). For the reasons set forth below, plaintiffs’ motion will be granted and defe...
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MEMORANDUM This Court is now called upon to determine whether the new Federal Bank Fraud statute applies to a novel variety of theft. It is alleged that the defendants stole a United States mailbox, disguised it and placed it on the premises of the Murfrees-boro Road Branch of the Third National Bank. It is charged that they then broke the lock on the bank’s regular night depository and p...
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ENTRY ON INVOLUNTARY DISMISSAL PURSUANT TO FED.R.CIV.P. 41(b) Findings of Fact 1. The defendant, United Parcel Service, Inc., (U.P.S.) is engaged in the small package delivery business throughout the United States and in numerous countries overseas. U.P.S. promises timely delivery service to its customers and requires its employees to commit their personal efforts toward effectuating this polic...
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MEMORANDUM This matter is before the Court on the defendant’s motion (filed January 11, 1990; Docket Entry No. 38) that this Court re-cuse itself under the provisions of 28 U.S.C. § 455. It is alleged that some time prior to February 1, 1989, the defendant filed a petition with the United States District *832 Court for the Middle District of Tennessee. The form of the petition, and the natu...
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MEMORANDUM Sitting by Designation. INTRODUCTION Defendant, Adelbert Bryan, filed a motion to dismiss the criminal information against him, claiming selective prosecution. The court held an evidentiary hearing on the matter on January 22, 1990. Defendant claims that because of his dissident political views and his frequent vocal criticism of various branches and agencies of the government — both lo...
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MEMORANDUM OPINION AND ORDER Presently pending are cross-motions for summary judgment, through which the parties desire resolution of a dispute concerning the defendants’ prohibition against the publication of an advertisement in a community college-associated newspaper. Basically, the plaintiff, ex-Editor-in-Chief of the paper, contends that the defendant Dean Frederick Hauenstein’s (her...
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RULING GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant’s motion for summary judgment, reduced to essentials, presents three questions: (1) Did defendant, manufacturer of a space heater, act negligently or produce a defective product in failing to warn users the heater could burn them; (2) Did defendant owe a duty to give special warning to users who have sensory loss; and (3) W...
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Edge Broadcasting Corporation (Edge), a corporation with its principal place of business in Virginia Beach, Virginia, has, since 1988, operated the 100,000 watt radio station WMYK-FM known as “Power 94.” That station is licensed by the Federal Communications Commission (FCC) to Elizabeth City, North Carolina, and broadcasts from Moyock, North Carolina, which is located approximately three miles...
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MEMORANDUM OPINION AND ORDER This case is now before the Court on defendant Mattin’s motion for summary judgment and plaintiff’s cross-motion for summary judgment pursuant to Fed.R. Civ.P. 56. Background Factual Background This is a condemnation action by the United States to acquire 13.1 acres of land, which are part of a 95.8 acre parcel in Putnam County owned by Chri...
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MEMORANDUM OPINION AND ORDER Pending is the defendants’ motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, requesting dismissal of the plaintiffs’ claims arising out of their termination as assistant prosecutors for Macomb County, Michigan. Briefly, all plaintiffs assert that the defendant Marlinga, subsequent to his election as County Prosecutor, failed to reappoint t...
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OPINION Plaintiff, a youth with several handicapping conditions, brings this lawsuit (by and through his parents) complaining of the special education services he presently receives. At issue, specifically, is the occupational and physical therapy given him. Essentially, plaintiff contends that such therapy is inadequate. He seeks, in part, injunc-tive relief and damages relying on the Ed...
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This is a discovery dispute in a Section 1983 action brought by Timothy Askew pro se against members of. the Monticello Police Department for alleged acts of brutality. Plaintiff, now represented by pro bono counsel, moves for an order pursuant to Federal Rule of Civil Procedure 37 compelling the production of certain police personnel records and the appearance of defendants Rigler, Bunce and Blac...
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This is an appeal of two final orders issued by Chief Judge Burton R. Lifland of the United States Bankruptcy Court for the Southern District of New York. The orders were issued in an adversary proceeding involving BCNR Mining Corporation, Nemacolin Mines Corporation, Tuscaloosa Energy Corporation (collectively “the Mining Companies”), their parent company LTV Steel Corporation (“LTV”), the Uni...
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ORDER Pending before this Court is the Motion to Dismiss of Defendant Judge Bill Elliott (Document # 5). Having considered Defendant’s motion and the submissions of the parties and the applicable law, the Court concludes that Defendant’s motion should be, and hereby is, granted. Facts Plaintiff filed this action under 42 U.S.C. § 1983 seeking damages and injunctive relief against State District ...
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ORDER The present declaratory judgment action was originally brought in the Court of Common Pleas for Marion County, South Carolina, and was subsequently removed to this court apparently pursuant to 28 U.S.C. § 1441(a) and (b).1 The matter is currently before the court upon plaintiff’s motion to remand filed on December 22, 1989. Because the court lacks subject matter jurisdiction, the court is c...
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MEMORANDUM OPINION AND ORDER Currently pending is the plaintiffs motion for summary judgment requesting the following alternative relief: (1) a declaration that Mich.Comp.Laws Ann. §§ 299.-413a and 299.430(2) are unconstitutional to the extent they pertain to disposal of waste generated outside the State of Michigan, along with an injunction prohibiting their enforcement; or (2) a declaration t...
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MEMORANDUM OPINION This controversy presents serious issues involving the civil forfeiture law, 21 U.S.C. § 881, and its impact upon lending institutions. It brings into play the duties and obligations of a commercial lending institution when unmistakable “red flags” have been raised as to the involvement of drug-related proceeds in a financial transaction. Concomitantly, it presents to t...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendant Thomson McKinnon Securities, Inc. for reconsideration of this court’s Memorandum an Order of January 31, 1990 denying defendant’s motion to compel arbitration in the above-captioned matter. 729 F.Supp. 1306. Upon consideration of defendant’s arguments, the court declines to reconsider its previous ruling; thus, the co...
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OPINION Plaintiff pro se John Murray (“Murray”), an inmate formerly incarcerated at the House of Detention for Men on Rikers Island, has moved to amend his Section 1983 complaint to add two additional correctional officers as defendants and to re-join as a defendant Marrón Hopkins (“Hopkins”), the Warden of the facility against whom the complaint was previously dismissed. Defendants object to...
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AMENDED MEMORANDUM DECISION This is a defamation action arising from the 1986 campaign for a seat on the Dade County Circuit Court. Plaintiff Joseph M. Nadler, the incumbent, won re-election. Defendant Frederick (Fritz) Mann, one of two challengers, was an Assistant United States Attorney at the time. Plaintiffs victory was marred by news accounts that he was under investigation by the Fe...
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OPINION AND ORDER Plaintiff Stuart Meyers holds three patents for cushioned running shoe insole designs, issued in 1981, 1984 and 1986 respectively. The issue raised by this motion is *641 whether plaintiff’s patent claims against these two shoe manufacturers, Hyde Athletic Industries and Asics Corporation, and against Asics Tiger Corp. (“ATC”), a retailer and subsidiary of A...
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ORDER Plaintiffs, construction companies in Wisconsin, brought this action challenging the constitutionality of the Wisconsin Department of Transportation’s Disadvantaged Business Development and Training Program, Wis.Stat. § 84.076. In an order entered February 27, 1989, I granted plaintiffs’ motion for a preliminary injunction enjoining defendants’ implementation of Wis.Stat. § 84.076. ...
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ORDER Respondents, Richard E. Martin, A.I.A. and Associates and The Martin Organization (Martin), move the court, pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., for confirmation of an arbitration award entered in their favor and against claimant, Atlantic Shores Resort Joint Venture (Atlantic Shores), in the amount of Sixty-Three Thousand Two Hundred Ninety-Fou...
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MEMORANDUM AND ORDER This action arises out of a dispute between an insurer and an insured as to whether the insured, who invoked his Fifth Amendment right against self-incrimination rather than answer questions relating to a claimed loss, complied with his duty of cooperation under the insurance policy, which obligation the insurer maintains is a condition precedent to recovery thereunde...
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*1068 ORDER Plaintiffs are residents of Georgia and seek to represent a class of ratepayers for electrical power within the state. They bring this suit against the electric utility defendants as well as Arthur Andersen & Co., the certified public accountant for the utility defendants. Plaintiffs allege that defendants, through their accounting methods, inflated maintenance costs ...
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*1575 MEMORANDUM DECISION ON MOTIONS FOR SUMMARY JUDGMENT This is a diversity action brought by Paul Bushell (“Bushell”) against his employer, Wackenhut International, Inc. (“Wacken-hut”), and his employer’s insurance carrier, Insurance Company of North America (“INA”). Pending before the Court are various motions for summary judgment filed by Bushell and Wackenhut. I. Background Bushel...
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*980 MEMORANDUM AND ORDER Pending before the Court is the defendant’s motion to dismiss. The plaintiffs have responded. For the reasons given below the motion will be denied. I. THE STANDARD ON MOTIONS TO DISMISS Under a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted the complaint is to be construed in the light most favora...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion for partial summary judgment on defendants Coxes’ counterclaim. This is an action on a promissory note assigned to the Small Business Administration, secured by personal and real property. The debtor on the note is Daryl Cox & Sons, Inc. and the note is guaranteed by Daryl B. Cox and Barbara A. Cox. The debtors and...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion to dismiss. On January 5, 1990, the court issued a show cause order to plaintiff ordering plaintiff to show cause why this motion should not be granted. On January 16, 1990, plaintiff filed a response to the court’s order and to defendant’s motion. The court is now prepared to rule on this motion. The following facts h...
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OMNIBUS ORDER This cause is before the Court for resolution of post-trial motions and enforcement of the July 10,1989 Order. 127 F.R.D. 224. Upon consideration of the arguments of counsel, we now enter the following order. I. POST-TRIAL MOTIONS A. Motion for JNOV or New Trial Plaintiff has filed a Motion for Judgment Notwithstanding the Verdict, or Alterna*154tively, for New Trial. The Court has ...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion for summary judgment. Plaintiff filed this civil rights complaint pursuant to 28 U.S.C. § 1331 in 1987 while an inmate at the United States Disciplinary Barracks at Fort Leavenworth, Kansas (USDB). In his complaint, plaintiff claims his constitutional rights were violated by a reduction in his custody level during an invest...
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MEMORANDUM AND ORDER Before the Court is a Report and Recommendation of United States Magistrate Philip M. Frazier that respondent’s motion to dismiss be granted and petitioner’s request for appointment of counsel be denied. Petitioner has filed objections to the magistrate’s report; therefore, the Court will make a de novo review of those portions of the record to which objections were made, p...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendant City of Emporia, Kansas (Emporia) for the court to reconsider or to alter or amend its Memorandum and Order of January 5, 1990, 729 F.Supp. 747, granting summary judgment for plaintiff firefighters on the issue of Emporia’s liability for overtime compensation for the firefighters’ on-call time under the Fair L...
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MEMORANDUM ORDER In this action, Sally Heath as the guardian ad litem for Jane Doe, a minor child, sues the publishers of Playboy magazine, Playboy Enterprises, Inc., (“PEI”) for invasion of privacy. PEI published the child’s photograph with an account of her paternity in “The Year In Sex” issue of Playboy. Defendant has moved for summary judgment. I. BACKGROUND...
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MEMORANDUM OPINION AND ORDER Presently pending are the defendant’s alternative motions for judgment notwithstanding the verdict (JNOV), for new trial, or for remittitur, pursuant to Federal Rules of Civil Procedure 50(b), 59, and 59(e). Essentially, the defendant challenges a jury verdict awarding the plaintiffs $50,000.00 in exemplary damages, 1 arguing that (1) exemplary dama...
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*1476 MEMORANDUM AND ORDER This matter is before the court on defendant United States Fire Insurance Company’s motion for summary judgment. 1 Plaintiffs have moved for summary judgment against defendant Ford Motor Credit Company and against defendant Rusty Eck Ford; both of these defendants have also moved for summary judgment against plaintiffs. This case involves a rolled-back odometer on...
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MEMORANDUM AND ORDER This matter is before the court on the United States of America’s motion for summary judgment. Plaintiffs filed this action seeking to quiet title to real estate owned by Allen E. Kindall in order to enforce judgments obtained by plaintiffs against Allen E. Kindall. The United States asserts that its federal tax liens constitute a prior and superior claim to the real estate i...
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MEMORANDUM ORDER This cause is before the Court for sentencing of the Defendant Mark Herre. The Defendant was convicted of one count of criminal contempt pursuant to 18 U.S.C. section 401(3) for his failure to testify before the grand jury as ordered by a United States District Judge. The Government had offered Herre use immunity for his testimony. The theory of defense at trial was that Herre’...
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*1029MEMORANDUM AND ORDER This matter is before the court on the summary judgment motions of defendants, Cargill, Inc. (Cargill) and the American Federation of Grain Millers (AFGM). In this case, plaintiff Charles Kincade (Kin-cade) alleges that his discharge from employment with Cargill constitutes wrongful termination, retaliatory discharge and a violation of the collective bargaining agreement...
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MEMORANDUM AND ORDER This matter is before the Court on defendant Mark C. Wagner’s Motion to be Admitted to Bail. The defendant was ordered detained by United States Magistrate Gerald B. Cohn on January 8, 1990. In his January 8th order, the magistrate found that probable cause triggered a rebuttable presumption for detention under 18 U.S.C. sec. 3142(e), and that the defendant had failed to rebu...
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Opinion and Order Appellant comes before the Court seeking reversal of a judgment entered by Chief Judge Burton R. Lifland of the United States Bankruptcy Court for the Southern District of New York on October 25, 1988. In that judgment, the Bankruptcy Court declared that the $3,496,423.69 debt of defendant-appellant, Bradford A. Sha-heen, to plaintiffs-appellees, Hong Kong Deposit an...
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MEMORANDUM AND ORDER This case is before the court on the motion of the defendant, Joseph F. Ruth, for an order staying administrative forfeiture proceedings now being conducted by the Drug Enforcement Agency (DEA), an agency of the United States (Doc. 42). The government has responded by asserting that the court is without jurisdiction to enter such an order, because there is nothing before the c...
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MEMORANDUM AND ORDER Before the court in this matter are the parties’ supplemental briefs on the issue of equitable relief and plaintiff’s motion for clarification. By order dated December 19, 1989, the court directed counsel to brief the issue of whether plaintiff waived any claim for equitable relief by refusing an unconditional offer of reemployment by defendant. See Giandonato v. Sybron Corp.,...
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MEMORANDUM OPINION AND ORDER The Court has reconsidered its Orders of March 21, 1989 and May 3, 1989 striking Defendant’s jury demand upon the reurg-ing of the demand by Defendant in the Pretrial Order. The gist of the problem is the nature of the relief Plaintiff seeks in this case. Plaintiff’s entire complaint is predicated upon 29 U.S.C. § 217, which allows the Secretary of Labor ...
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MEMORANDUM This is a civil rights action brought pursuant to 42 U.S.C. § 1983. For the reasons set forth below, the motion of defendants City of Chester, Captain Lastowka and Officer Elder for summary judgment will be granted in part and denied in part. BACKGROUND On October 15, 1984, Alesia Hynson was murdered by Jamil Gandy, her former boyfriend, and the father of one of her children. The...
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ORDER This matter is before the court upon the motion of plaintiffs attorney to dismiss this action without prejudice, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure (Doc. 41). Defendant Southwest Petro-Chem, Inc., opposes the motion and urges the court to dismiss this action with prejudice and assess both costs and attorneys’ fees against the plaintiff (Doc. 43). A brief restat...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motions for summary judgment. Plaintiff, Bennie Figures, filed this action under Title VII of the Civil Rights Act of 1964 (“Title VII”) and Title 42, United States Code, Section 1981, and Title 42, United States Code, Section 1983, claiming that he was discriminated against on the basis of his race (black) in his employm...
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MEMORANDUM AND ORDER This matter comes before the court on defendant Cushing Memorial Hospital’s motion to dismiss (Doc. 95) and motion for summary judgment (Doc. 97). Plaintiffs Heather Denton and Christopher Denton, by their natural mother and next friend, Paula Jamison, oppose both defendant’s motion to dismiss (Doc. 102) and defendant’s motion for summary judgment (Doc. 113). We will consid...
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MEMORANDUM AND ORDER This FOIA case is once more before the Court on cross-motions for summary judgment following remand from the court of appeals. 1 The plaintiff, a consumer organization, is requesting copies of certain reports presently furnished voluntarily to defendant Nuclear Regulatory Commission (“NRC”) by a former stranger to this litigation, the Institute of Nuclear Power Operations...
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ORDER ON APPEAL This is an appeal by Wilson M. Camp, II, the above named Defendant-Appellant, from a final order of the United States Bankruptcy Court for the Middle District of Georgia, Columbus Division, dated August 25, 1989, 104 B.R. 529, in which order the Bankruptcy Court held that Kal-O-Mine Industries, Inc. and Lumpkin Sand and Gravel, Inc., the above named Plaintiffs/Appellees, are the ...
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MEMORANDUM AND ORDER I. INTRODUCTION Plaintiff Richard V. Bisesti (“Bisesti”) and his upstart company, plaintiff Refuse & Environmental Systems, Inc. (“R & E”), filed suit against the named defendants on September 9,1985. In a lengthy complaint, plaintiffs sought relief on six counts, including violations of the federal antitrust laws, the Massachusetts Consumers Protection Act, and ...
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MEMORANDUM OPINION AND ORDER Nation Enterprises, Inc. (“Nation”) has sued Enersyst, Inc. (“Enersyst”) for selling Nation two allegedly defective pizza ovens, designated in the five-count Amended Complaint (the “Complaint”) as “Oven 1” and “Oven 2”: 1-2. Both Count I (breach of contract) and Count II (breach of warranty) are governed by the Texas Uniform Commercial Code, Tex.Bus. & Co...
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MEMORANDUM OPINION Three D Departments, Inc. and K Mart Corporation have filed cross-motions for summary judgment in their dispute over K Mart’s termination of a license. The court described this dispute and Three D’s initial allegations in Three D Departments, Inc. v. K Mart Corp., 670 F.Supp. 1404 (N.D.Ill.1987). Since that decision, Three D has reduced its complaint to two c...
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MEMORANDUM AND ORDER The above-captioned matter was tried to the court on September 26-28, 1989. Having received and carefully considered the evidence adduced at that hearing, as well as the parties’ supplemental briefing, the court now makes the following findings of fact and conclusions of law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. FINDINGS OF FACT 1....
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MEMORANDUM AND ORDER Plaintiffs are home health care providers who render medical and related services to Medicare-eligible patients pursuant to agreements with defendant U.S. Department of Health and Human Services (“HHS”). HHS then pays them the reasonable cost of such of those services as are covered by the Medicare Act, 42 U.S.C. *189 §§ 1395 et seq. (“the Act”). 1 Plaintiffs’ claim...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff's motion for reconsideration of the court’s order of February 6, 1990, granting defendant Insurance Company of the State of Pennsylvania’s (ICSP) motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. Plaintiff filed this n...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion for summary judgment. This is an employment discrimination case in which plaintiff, Lonnie Moore, asserts a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against defendant, Norfolk and Western Railway Company (NW), alleging (1) differential treatment in the terms and ...
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MEMORANDUM OPINION AND ORDER The issue in this consolidated bankruptcy appeal is whether a creditor of the estate, Paula Larsen, has standing to bring a § 544(b) fraudulent conveyance action against the debtor, Raul Munoz. The bankruptcy court, in two separate orders, concluded that Larsen lacked standing to bring a fraudulent conveyance action because that right belongs only to the trust...
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SUMMARY FINAL JUDGMENT I. INTRODUCTION This matter is before the court on the parties’ various motions: defendants’ motion to compel the appearance at deposition of John Bishop, filed July 19, 1989; plaintiffs’ motion for summary judgment regarding defendants’ affirmative defense number 11, filed August 15, 1989; defendants’ motion for summary judgment, filed September 13, 1989; plaintiffs’ m...
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MEMORANDUM OPINION This case is before the Court on defendant Aaron A. Felder’s motion to suppress evidence seized from his person and his property on December 1, 1989. The defendant contends that the actions of Metropolitan Police Department’s Narcotic Interdiction Unit violated his constitutional rights. The Government opposes the defendant’s motion maintaining that defendant’s encounte...
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MEMORANDUM OPINION This matter is before the court on Defendant Australia and New Zealand Banking Group Limited’s (“ANZ’s”) motion to dismiss Plaintiff Interpane Coatings, Incorporated’s diversity action in this court for lack of subject matter jurisdiction, and for improper venue under the common law doctrine of forum non conveniens. For the following reasons, the motion is denied with r...
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MEMORANDUM OPINION AND ORDER On November 1, 1989, the United States Court of Appeals for the Seventh Circuit remanded this case to us for further proceedings consistent with Parts II and III of its opinion. United States v. Rodriguez, 888 F.2d 519 (7th Cir.1989). We then ordered the parties to file supplementary briefs on the evidentiary issues remanded and referred the matter to Magistrate Ba-log...
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MEMORANDUM & ORDER Plaintiff Realdalist A. Fahie, proceeding pro se, brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3 (1982) for in-junctive and compensatory relief. He alleges that he was denied employment by defendant New York City Department of Corrections (the “Department”) in retaliation for his filing of a discriminat...
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JUDGMENT AND ORDER This matter is currently before the Court on defendants Angelica Corporation and Faye Whitener’s joint motion for summary judgment. Plaintiff initially filed a four-count complaint against her employer, her Union and her supervisor Faye Whitener. In Count II plaintiff alleged that her Union, the United Garment Workers of America, Local # 387, inadequately and wrongfully represe...
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MEMORANDUM & ORDER Petitioner Evidio Matos, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Matos is currently a New York state prisoner serving concurrent indeterminate prison terms of fifteen years to life and three and one-half to seven years upon conviction of murder in the second degree and assault in the second degree, respectively. T...
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OPINION This negligence, warranty, and strict liability action comes before the court on a motion for partial summary judgment by defendant, Marina Associates d/b/a Har-rah’s Marina Hotel Casino, against plaintiffs, Robert and Loretta Levondosky. Defendant maintains that there is no genuine issue of fact regarding plaintiffs’ warranty and strict liability claims, and that they are entitle...
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ORDER ON MOTION FOR SUMMARY JUDGMENT The cause is before the Court on Defendant’s motion for partial summary judgment, filed November 27, 1989; response thereto, filed December 8, 1989; Defendant’s motion for oral argument, filed December 21, 1989; and court-ordered joint memorandum of law, filed January 25, 1990. This circuit clearly holds that summary judgment should only be entered when th...
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Plaintiff, a resident of Chester Heights, Pennsylvania, proceeding without the assistance of legal counsel, attempts by her complaint herein to navigate the difficult waters of the qui tam provisions of the False Claims Amendments Act of 1986 (“FCA”). 31 U.S.C. § 3729 et seq. Plaintiff seeks indeterminate damages on behalf of the Internal Revenue Service (“IRS”) and over $20,000,000 ...
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MEMORANDUM OF DECISION This is an action by the trustees of a multi-employer welfare benefit plan 1 to collect fringe benefits from the defendant Sunbelt Sales & Rentals, Inc. (“Sunbelt”) for the months of June and July and the first three weeks of August 1986 pursuant to Section 301 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185, and sections 502 an...
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OMNIBUS ORDER I. INTRODUCTION THIS MATTER is before the court on the parties’ various motions: 1) plaintiffs motion to stay these proceedings, filed December 29, 1989; 2) claimant Luz Marina Morales’ motion to dismiss, filed January 19, 1990; 3) claimant Fernando Morales’ motion to adopt claimant Luz Marina Morales’ motion to dismiss, filed January 26, 1990; 4) plaintiff’s motion to ...
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MEMORANDUM AND ORDERS DIRECTING FURTHER PROCEEDINGS I A. This Court’s order certifying three questions to the Supreme Court of Missouri, published as Fletcher v. Armontrout, 725 F.Supp. 1075, 1076 (W.D.Mo.1989), stated that the “questions certified are questions that relate directly to the construction that should be given to Missouri Rule 29.15 and to this Court’s exercise of the habeas ...
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MEMORANDUM AND ORDER This matter comes before the court on the cross motions of plaintiff Allen Payne (“Payne”) and defendant General Motors Corporation (“GM”) for partial summary judgment. Payne filed this action against his former employer, GM, alleging race and sex discrimination in violation of Title YII of the Civil Rights Act of 1964, race discrimination in violation of the Reconstr...
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AMENDED MEMORANDUM OPINION AND ORDER Pursuant to Rule 60(a), the Court hereby amends its Memorandum Opinion and Order of January 11, 1990, and substitutes this amended version. This case presents an unusual procedural question. The suit began in 1988 in Dallas County District Court when Greg Sellards filed suit against MBank. The state district court granted Sellards’ Motion for Summ...
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RULING ON MOTIONS TO DISMISS Plaintiffs, two current Connecticut Valley Hospital (“CVH”) patients, sue “on behalf of all persons with mental retardation who are, were, or in the future will be patients at CVH,” a state mental institution located in Middletown. Amended Complaint, 111. Plaintiffs’ motion for class certification has been stayed pending resolution of defendants’ motions to di...
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ORDER Several Oklahoma banks move the Court to quash subpoenas duces tecum served on them by plaintiff Federal Deposit Insurance Corporation (FDIC),1 alleging that the FDIC has failed to comply with the Right to Financial Privacy Act (RFPA), 12 U.S.C. §§ 3401-22.2 The subpoenas direct the banks to produce the financial records of *104certain individuals or corporations using the banks’ services. T...
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ORDER STRIKING DEFENDANT’S SUPPLEMENTAL RESPONSE TO PLAINTIFF’S FIRST SET OF INTERROGATORIES, IMPOSING PRECLU-SIONARY SANCTIONS PURSUANT TO RULE 16(f), AND AWARDING EXPENSES I. BACKGROUND On January 24, 1990, more than two months after discovery had closed, more than two weeks after the jury was selected, and the afternoon before the trial was to begin, defendant served plaintiff with a Supplemen...
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ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT This case involves a dispute arising from the termination of a number of virtually identical franchise agreements for the operation of temporary personnel service (TPS) agencies under the Snelling and Snelling name between the plaintiffs and defendant, 1 and the subsequent formation of competing businesses by the pl...
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OPINION ON RECONSIDERATION 1. Introduction. Bear, Stearns & Co., Inc., challenges the court’s authority to order M.T. Amad’s property turned over directly to it in full satisfaction of a judgment debt. Reconsideration will be denied. The critical question is, not the direct delivery, but the full satisfaction part of the order. The delivery and the satisfaction will stand. 2. Background. Bear-Ste...
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OPINION AND ORDER The sole issue in this case is whether the voting apportionment of the Bennington-Rutland Supervisory Union violates the equal protection clause of the United States Constitution. For the forthcoming reasons the court finds that the Benning-ton-Rutland Supervisory Union Board is not subject to the fourteenth amendment’s guarantee of equal voting strength; therefore, the defend...
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MEMORANDUM OPINION This is an age discrimination ease. Plaintiff, Fred Chalawsky (“Chalawsky”), contends that defendant, Sun Refining and Marketing Company, Inc. (“Sun”), discriminated against him when it refused to give him a job following an employee reorganization at the plant at which Chalawsky worked. Chalawsky alleges claims under the Age Discrimination in Employment Act (“ADEA”), 2...
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FINAL JUDGMENT AND PERMANENT INJUNCTION 1. Background. John Woodland, who applied for employment with the Houston Fire Department, Ramdeo Jagassar, who applied for employment with the Houston Police Department, and Chris Goss, who applied for employment with the Houston Airport Police, sued the city urging that the city’s pre-employment polygraph examinations were arbitrary and were unreaso...
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MEMORANDUM Presently before the court is defendant’s motion for sanctions, including reimbursement for all fees and costs of litigation and dismissal with prejudice, and for summary judgment. The parties were given an opportunity to be heard on February 23, 1990. For the reasons stated herein, summary judgment will be granted, and limited sanctions will be imposed. I. The releva...
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MEMORANDUM AND ORDER The case comes before the court on the parties’ respective motions to reconsider the court’s order filed November 29, 1989, 725 F.Supp. 1536, and on the plaintiff’s alternative motion for certification of controlling questions of law for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). In its prior order, the court granted in part the defendant's motion for summary jud...
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OPINION This breach of franchise contract case comes before the court on a motion for a stay pending arbitration in Arizona or to dismiss by defendant, Alphagraphics Franchising, Inc., against plaintiffs, Harvey I. Alpert and Harriet J. Alpert. Plaintiffs cross-move to stay arbitration or in the alternative to compel arbitration in New Jersey. FACTS The parties entered into a fr...
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ORDER ON MOTION TO DISMISS This cause is before the Court on Defendants’ motion to dismiss the amended complaint, filed January 8, 1990, and response thereto, filed January 31, 1990. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct....
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MEMORANDUM AND ORDER The case comes before the court on the plaintiff’s motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, for new trial. On February 2, 1990, the jury returned a verdict in favor of defendant on plaintiff’s refund claim and on defendant’s claim for fraudulent underpayment of gift taxes. Plaintiff contends the jury verdict must be set aside because j...
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MEMORANDUM AND ORDER The defendant was indicted by the grand jury of one count of conspiracy to distribute cocaine, a violation of 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. § 846, three counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §...
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ORDER ON APPEAL FROM DECISION OF BANKRUPTCY COURT This cause comes before the District Court on the appeal of the Chapter 12 debtor. The central question presented is whether the Bankruptcy Court erred in lifting the automatic stay early in the bankruptcy to allow the debtor’s farm land to be sold, notwithstanding the fact that the secured creditor had an equity cushion and adequate prote...
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CF & I Steel Corporation and Thomas M. Evans (collectively “CF & I”) move for summary judgment against Ethel Fischer and Herbert Bonime, former shareholders of Southern Pacific Company (“Southern Pacific”). The complaint alleges that CF & I violated Section 10 of the Clayton Act, 15 U.S.C. § 20, when it sold more than $71.5 million in steel rail to Southern Pacific Transportation Company (“SPTC”),...
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MEMORANDUM AND ORDER The case comes before the court on the defendants’ motion, pursuant to D.Kan. Rule 219, for review and modification of the clerk’s taxation of costs. Defendants seek the addition of $182.50 for the cost incurred in hauling the plaintiff's truck from Pratt to Wichita for the jury’s viewing. One morning of the trial, the jury was permitted to view the truck which was displayed ...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS I. INTRODUCTION The Plaintiff alleges eight causes of action against the City of Monticello and the city’s Chief of Police, Kent Adair. The first and second causes of action are brought under 42 U.S.C. § 1983, alleging a due process violation. The first cause of action alleges deprivation of a property interest ...
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OPINION Richard P. Chace, Samuel H. Posner and Richard D. Via sued Champion Spark Plug Company alleging that Champion had violated the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. §§ 621-634 (1982), by terminating their employment because of their age. Their complaint seeks back pay with prejudgment interest, liquidated damages because they contend the termination was will...
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*76MEMORANDUM AND ORDER In this § 1983 civil rights action brought by an aggrieved prisoner for sexual attacks while an inmate in the city’s prisons, plaintiff’s counsel has produced more unnecessary sanction motions that has resulted in totally obfuscating the real issues to be resolved. BACKGROUND On January 5, 1988, the plaintiff filed a declaration in support of his request to proceed in form...
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OPINION On February 14, 1990, the Government filed this action under the provisions of the Racketeer Influenced and Corrupt Organizations statute (“RICO”), 18 U.S.C. § 1961, et seq., to remedy alleged corruption of the New York/New Jersey Waterfront, including alleged corruption of six Locals, Local 1804-1, Local 1588, Local 1814, Local 824, Local 1809 and Local 1909 (“Locals”) of the Interna...
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OPINION AND ORDER In a criminal jury trial held from November 27, 1989 to November 28, 1989, the defendant, Kenneth Joseph Fromal, was found guilty by the jury of possession of a firearm by a convicted felon, under 18 U.S.C. § 922(g)(1). The defendant has filed post-trial motions seeking a new trial under Fed.R.Crim.P. 33 and judgment of acquittal under Fed.R.Crim.P. 29. After a review of...
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MEMORANDUM Universal Security Instruments, Inc. (“Universal”) filed this breach of contract action against Wing Wah Chong Investment Company, Ltd. d/b/a HIQA Limited (“Wing Wah”). Wing Wah moves to dismiss the complaint, pursuant to Fed.R. Civ.P. 12(b)(2) & (3), for lack of personal jurisdiction and improper venue. (Paper Number 6). An opposition has been filed. Upon careful consideration of the ...
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MEMORANDUM OPINION AND ORDER Plaintiff, Ronald F. Weiszmann (Weisz-mann), an attorney licensed in Colorado, filed this action pro se under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961-1968 and 28 *1543 U.S.C. §§ 1381, 1332, 1334(b). The matters before me are: 1) defendants Oakbrook Corporation (Oakbrook) and Tom Klein’s (collectively the Oak...
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ORDER ON MOTIONS This cause is before the Court on Plaintiff’s motion to remand, filed February 5, 1990; Defendants’ responses thereto, filed February 13 and 15, 1990; Defendant May-apple Golf Links (Mayapple)’s motion to dismiss, filed January 18, 1990; Defendant Lawrence J. Lahr (Lahr)’s motion to dismiss, filed January 18,1990; and Plaintiff’s response to motions to dismiss, filed January 30...
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OPINION This is an Administrative Procedure Act (“APA”), 5 U.S.C. § 706, dispute over how the government should regulate the commercial and recreational harvest of certain billfish in the Atlantic Ocean. Representing commercial fishing interests, the plaintiffs challenge regulations issued by the Secretary of Commerce (“Secretary”) pursuant to the Magnuson Fishery Conservation and Managem...
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MEMORANDUM OPINION AND ORDER The sole issue before the Court is whether the defendant’s failure to provide notice pursuant to federal regulation of the amendment to the Mississippi State Medicaid Plan contained in transmittal 84-36 renders this transmittal invalid and unenforceable. All parties have filed motions for summary judgment directed to this issue. On January 19, 1990, the court ...
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ORDER With this lawsuit, the court again visits the often litigated issue of pre-emption under ERISA, the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. §§ 1001-1461. The issue now before the court is whether ERISA pre-empts two state-law claims for breach of contract and fraud which arose out of a reinsurance contract. Plaintiff Consumer Benefit Association of the United States, a ...
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MEMORANDUM ORDER Plaintiff, Sherwood Van Lines, Inc. (“Sherwood”), filed this action under the Freedom of Information Act (“FOIA”), 5 U.S.C.A. § 552 (West 1977 & Supp.1989), to cancel and refund fees assessed Sherwood for agency records it claims were not requested and to order the production of agency records improperly withheld. This matter is before the Court on the Motion t...
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Defendant Spiliada Maritime Corporation (“Spiliada”) filed a Motion for Summary Judgment, or Alternatively, Motion to Stay Proceedings which was heard on February 7, 1990. Spiliada seeks judgment against all the plaintiffs’ claims, including claims for wages and penalty wages pursuant to 46 U.S.C. 10313. 1 Plaintiffs responded in their opposition by asserting their own Motion for Sum...
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MEMORANDUM AND ORDER Plaintiffs 1 worked for BIF, a subsidiary of General Signal Corporation (the “company”) and were members of Local 5299 of the United Steelworkers of American (the “union”). They claim that the company breached its contract with the union by not granting them severance pay when it closed down its plant in West Warwick, Rhode Island and'that the union breache...
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MEMORANDUM OPINION Plaintiff William Broom, Jr. filed a complaint in the Circuit Court for Wayne County, Michigan, on October 13, 1989, against defendants TRW Credit Data, Co-Op Ser *68 vices Credit Union, Janice Perkins, and John Doe. Broom’s complaint alleges that Janice Perkins and an unnamed party fraudulently obtained a loan from Co-Op through the unauthorized use of Bro...
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In an earlier opinion this court warned of the dangers to our democracy in permitting searches of the innocent in order to find the guilty. If we choose to violate the rights of the innocent in order to discover and act against the guilty, then we will have transformed our country into a police state and abandoned one of the fundamental tenets of our free society. In order to win the war agains...
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MEMORANDUM OPINION This case is currently before the court on the defendants’ joint motion to suppress evidence and statements allegedly taken from them in violation of their constitutional rights, and upon the motion of Raymond *658Sinclair to dismiss the indictment against him. An evidentiary hearing was held on this matter on February 28, 1990. I In July of 1989, Officer Scott Cline of the Wayn...
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ORDER ON MOTIONS The cause is before the Court on the following motions, responses, and pleadings: 1. Defendant, City of St. Petersburg/s motion to dismiss pendant state claims and memorandum of law, filed September 8, 1989. (Docket No. 50). 2. Defendant, City of St. Petersburg,’s motion for partial summary judgment on all federal claims, appendix thereto, and memorandum of law,...
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The plaintiff, Cincinnati Insurance Company on October 2, 1989 filed its Motion For Summary Judgment seeking determination that an accident that occurred on July 31, 1988 was not covered under policy held by the defendants, John, Mary and Jeff Moen. On November 29, 1989, the Moen defendants filed their Motion and Brief In Opposition of Plaintiffs Motion for Summary Judgment. On December 1, 1989...
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Plaintiff is a former employee of Whirlpool, Inc., who claims he suffered a job related permanent injury to his lungs. He claims that this injury resulted from on-the-job exposure to toluene diisocyanate (TDI). The parties do not contest the fact that the TDI which allegedly caused the injury was manufactured and supplied by defendants Union Carbide and Mobay. After a four week trial, liab...
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MEMORANDUM I This is a civil action in which plaintiff, Victoria Faulk, seeks damages from defendants Donald D. Ludwig, A.C.S.W. (Ludwig) and Community Mental Health and Counseling Center (CMHCC) for deprivation of her civil rights under 42 U.S.C. § 1983 and for pendent state law claims. Defendants have filed motions for summary judgment pursuant to Fed.R.Civ.P. 56. 1 Specifically, defendan...
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ORDER Before the Court is plaintiffs’ motion for award of post-judgment interest. The State filed a response and plaintiffs filed a reply to the State’s response. The State filed a memorandum reply to plaintiffs’ reply and plaintiffs filed a comment to the State’s memorandum reply. Plaintiffs’ mo *1438 tion for award of post-judgment interest will be granted. On Septembe...
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MEMORANDUM OPINION AND ORDER Nancy Roberts (the “Claimant”) appeals from the final decision of the Secretary of Health and Human Services (the “Secretary”) denying her application for supplemental security income pursuant to Title XVI of the Act, 42 U.S.C. § 1381 et seq. Jurisdiction over Roberts’s petition for judicial review is conferred on this court by 42 U.S.C. § 1383(c)(3). I. In July of 198...
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OPINION AND ORDER This matter comes before the Court to consider the motion of the plaintiff, Wor-thington Foods, Inc. (“Worthington”) for a preliminary injunction, to enjoin the defendant, Kellogg Company (“Kellogg”), from selling its “Heartwise” cereal. Fed.R. Civ.P. 65. The plaintiff alleges that Kellogg’s use of the name “Heartwise” is a violation of the trademark, service mark, and c...
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MEMORANDUM OPINION This case involves the applicability of Exemption 4 of the Freedom of Information Act (“FOIA”) to animal studies concerning the safety of silicone gel breast implants submitted by Dow Corning Corporation (“Dow”) to the Food and Drug Administration (“FDA”). See 5 U.S.C. § 552(a)(4)(B). Both Dow and the FDA contend that the animal studies constitute “confidenti...
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MEMORANDUM OPINION AND ORDER On September 26, 1989, the Court granted summary judgment to the Securities and Exchange Commission (“SEC”) ordering Sentra Securities Corporation (“Sentra”) to disgorge the profits of unlawful trades made by Sentra on behalf of two customers, Frederick and Richard Strasburg. See Securities & Exchange Comm’n v. Stephenson, 720 F.Supp. 370 (S.D.N.Y.1...
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MEMORANDUM AND ORDER Petitioner seeks habeas corpus relief. The procedural history (dealing with the issue of exhaustion of state court remedies) is that the Supreme Court of the United States reversed the Court of Appeals, which had reversed this court. Castille v. Peoples, — U.S. -, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1988). On remand, the Court of Appeals returned the case. Peoples v. Fulc...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff Jerome Milton, Inc., a corporation engaged in the promotion and sale of health care products, and its president, Jerome Milton Schulman, brought this lawsuit to challenge certain conduct by the Federal Trade Commission (the “FTC” or “Commission”). Pending is the FTC’s motion for summary judgment on the grounds that there has been...
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RULING ON PENDING MOTIONS Plaintiff, The Associated General Contractors of Connecticut, Inc. (“AGC”), is a non-profit association of general construction contractors, subcontractors and suppliers. AGC challenges the facial constitutionality of Chapter 12V2, New Haven Mu*6nicipal Code, an Equal Opportunities Ordinance. This ordinance sets aside a percentage of public works contracts for minority a...
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MEMORANDUM OPINION AND ORDER Plaintiff Federal Deposit Insurance Corporation (“FDIC”) brings this motion to reargue the Court’s decision that its claims are barred by the Tax Injunction Act, that the Eleventh Amendment bars its claims against the State of New York, and that it lacks standing to bring this action. See Federal Deposit Insurance Corp. v. State of New York, 718 F.S...
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MEMORANDUM OPINION This matter is before the court on Defendants Caroline Danforth and Barcan Communications, Incorporated’s motion to dismiss this action as it applies to them on the ground that this court lacks personal jurisdiction over them. Plaintiff The Stuart-James Company not only opposes this motion but also itself moves this court to impose Rule 11 sanctions on Danforth and Barc...
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MEMORANDUM OPINION AND ORDER Plaintiffs Chauffeurs, Teamsters & Helpers, Lake County, Illinois, Local 301, et al.,1 (“the Chicago plaintiffs”) filed suit against Michael H. Holland (“Holland”), an election officer appointed pursuant to a consent decree between the United States and the International Brotherhood of Teamsters (“IBT”). The consent decree, entered by the United States District Court ...
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MEMORANDUM OPINION AND ORDER I.INTRODUCTION This is an action by several individuals against their former employer for race and sex discrimination in the termination of their employment. Defendant filed a motion for summary judgment on December 8, 1989, which is still pending but is not fully briefed. On January 4, 1990, the Court granted leave to plaintiffs’ privately retained counsel, John ...
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MEMORANDUM This case comes as an appeal from a final order of the bankruptcy court. This Court has jurisdiction to hear such appeals pursuant to 28 U.S.C. § 158(a). For the reasons stated below, I will affirm the decision of the bankruptcy judge. I.Facts. Valley Forge is the owner and operator of a convention center and hotel complex. Robert Schwartz, Psy.D., (“Schwartz”) trades as the In...
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MEMORANDUM AND ORDER The instant motion raises the issue of whether a defendant was “reasonably” stopped and frisked within the dictates of the Fourth Amendment to the United States Constitution where the sole basis for the stop was the fact that the defendant was in proximity to or accompanied a person about whom the police had a particularized reasonable basis to stop and/or probable cause to ar...
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Plaintiff Port Chester Nursing Home brings this action under Title XIX of Chapter 7 of the Social Security Act, 42 U.S.C. §§ 1396 et seq., Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, the equal protection clause of the United States Constitution, the laws of the State of New York, and the New York State Constitution. Defendants are administrative officials of New York...
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MEMORANDUM OF DECISION MODIFYING MAGISTRATE’S RECOMMENDED DECISION Plaintiffs, the wife and two sisters of the late Herman Reece (Decedent), filed suit against Defendant alleging that Defendant shipped Decedent’s body in a negligent or grossly negligent fashion, causing damage to the casket and Decedent’s body. Plaintiffs seek damages for negligent infliction of severe emotional distress....
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MEMORANDUM-DECISION AND ORDER Before the court is a motion to quash subpoenas served by the United States government on three newspaper reporters. The three reporters are Dale Seth, Lori Duffy and Jeffrey Bachman. Seth is employed by the Oneida Daily Dispatch; Duffy works for the Syracuse Post-Standard; and Bachman is a former reporter for the Post-Standard. ...
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MEMORANDUM OF DECISION AND ORDER AFFIRMING THE DECISION OF THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MAINE Appellants appeal an order of the United States Bankruptcy Court for the District of Maine which dismissed their cross-claims against Appellees. 101 B.R. 399. In their cross-claims Appellants seek to equitably subordinate Appellees’ secured liens against the bankruptcy estate to...
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MEMORANDUM OPINION ORDER GRANTING ATTORNEYS FEES THIS CAUSE comes before the Court upon Motion of Defendant for Attorney’s Fees pursuant to 28 U.S.C. Section 2412. The underlying cause of action was a civil lawsuit brought by the United States for a civil penalty of $1,000.00 against Defendant, a newspaper photographer, for failure to stop at an airport security checkpoint. 14 C.F.R. Section ...
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OPINION The defendant in this wrongful death diversity action seeks transfer to a more convenient forum pursuant to 28 U.S.C. § 1404(a). I. FACTS This action was filed by the mother of a young boy who was killed when he was struck by a truck which belonged to the defendant. At the time the truck was being driven by the defendant’s employee, Kenneth R. Inman, Jr., who resides in Memphis. The...
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OPINION & ORDER This opinion emanates from the voluntary settlement in the action commenced by the plaintiffs United States of America (the “Government”) against the defendants International Brotherhood of Teamsters (the “IBT”) and the IBT’s General Executive Board (the “GEB”) embodied in the voluntary consent order entered March 14, 1989 (the “Consent Decree”). The remedial provisions in...
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OPINION INTRODUCTION This action is brought pursuant to Title 28 United States Code Section 1335 (hereinafter “interpleader statute”) and Title 28 United States Code Section 1331. Pending before the Court is plaintiff’s motion for a complete and total discharge from liability pursuant to Title 28 United States Code Section 2361 (hereinafter “Section 2361”) and for attorney’s fees inc...
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OPINION AND ORDER Background This is an employment discrimination action against Campbell County, Kentucky. Plaintiff originally alleged that she was discharged from her position as secretary-clerk on account of her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., on account of her gender in violation of Title VII of the Civil Rights Act of...
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MEMORANDUM OF OPINION Rock music is doubtless among our society’s most popular forms of entertainment as well as a universally accepted American export. It is thus one of the more significant tragedies of our time that rock music culture is so indelibly stamped in the public mind as inextricably intertwined with the use of illicit drugs. 1 In light of this sad popular perceptio...
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ORDER Plaintiff brings this action to enforce a guaranty agreement executed by defendants. Jurisdiction is predicated upon 12 U.S.C. § 1819(b)(2)(A)1 and 28 U.S.C. § 1345. Currently before the court is defendants’ motion to dismiss for failure to state a claim. Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the court DENIES defendants’ motion to dismiss. FACTS Plaintiff Federal Deposit Insu...
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MEMORANDUM OPINION AND ORDER NATURE AND PROCEDURAL HISTORY At the status hearing conducted by this Court on September 28, 1989, the Court heard oral presentations by counsel representing the Bureau of Indian Affairs (BIA), the Indian Health Service (IHS) (the federal defendants), and the Oglala Sioux Tribe (OST). The record of the proceedings reflect the concerns of all parties and the Court....
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ORDER Plaintiff, Beverly J. Kachel (“Rachel”), a Colorado resident, commenced this suit by a complaint alleging: (1) violation of 42 U.S.C. § 2000e; (2) breach of contract; and (3) violation of § 24-34-301, et seq., C.R.S. 1973, as amended (sex discrimination in violation of Colorado law) against the defendant, The City of Pueblo ("The City”). Jurisdiction is asserted under 28 U.S.C. § 1331, ...
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MEMORANDUM AND ORDER An eleven count indictment dated December 11, 1989, charges Parris Phillips, Kevin Smith, London Williams and Michael Davis with conspiracy, unlawful interstate transportation and receipt of firearms, and aiding and abetting such unlawful transportation and receipt, in violation of 18 U.S.C. §§ 2, 371, 922(a)(3) and 922(a)(5). The *257 same indictment als...
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MEMORANDUM-DECISION and ORDER The issues of subject matter jurisdiction and failure to state a claim being dealt with by the Court in a Memorandum-Decision and Order 732 F.Supp. 333 (“Accompanying Opinion”) issued subsequent hereto, and reference to which is hereby made, the Court now addresses the issue of sanctions against Plaintiff’s attorney under Fed.R. Civ.P. 11. Rule 11, of course, require...
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MEMORANDUM OPINION ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT THIS CAUSE comes before the Court upon Defendants’ Motion for Summary Judgment. Upon careful review of the same, and of the record, it is the opinion of this- Court that Defendants’ motion must be DENIED. FACTS Plaintiff Edward Rosenthal filed an insurance claim under a group policy issued *109...
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I. FACTS The plaintiffs, Dentsply International Inc. and Dentsply Research and Development Corp. (“Dentsply” or the “Dentsply plaintiffs”), filed this action on April 7, 1989, against Sybron Corporation (“Sy-bron”) seeking redress for alleged trademark, trade dress and patent infringement (D.I. 1). After the Court denied a temporary restraining order filed by the plaintiffs, the plaintiff...
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MEMORANDUM-DECISION AND ORDER In this domestic relations suit disguised as a federal civil rights action, Defendants Ozzie Orbach (“Orbach”), Legal Aid Society (“LAS”), Brooklyn Society for the Prevention of Cruelty to Children (“BSPCC”), Ohel Foster Care Agency (“Ohel”), and the City of New York (the “City”) (collectively, the “Defendants”), move pursuant to Fed. R.Civ.P. 12(b)(1) and (6...
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ORDER Plaintiff brings this action pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., as amended (“ADEA”), the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. (“ERISA”) and O.C.G.A. § 34-1-2. Currently before the court is defendants’ motion for summary judgment. For the reasons stated below, the court PARTIALLY G...
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MEMORANDUM OPINION This matter comes before the court on the motions of both the plaintiff and the defendants. The plaintiff has moved for voluntary dismissal of the case under Rule 41(a)(2) of the Federal Rules of Civil Procedure. The defendants have moved to dismiss the case for lack of subject matter jurisdiction. The defendants contend, moreover, that the court must rule on their motion befor...
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OPINION AND ORDER Plaintiff, Elinor R. Reiner, instituted this action on March 23, 1988. She filed an Amended Complaint on February 9, 1989 charging the defendants, State of New Jersey, Secretary of State, Office of Administrative Law, and Ronald Parker with various acts in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, the Civil Rights Act of...
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MEMORANDUM OPINION I. INTRODUCTION. This habeas corpus action raises a novel double jeopardy issue. The petitioner was indicted in the Common Pleas Court of Tuscarawas County, Ohio, for aggravated vehicular homicide. The petitioner’s first trial ended with the declaration of a mistrial after the jury informed the trial judge that it was unable to reach agreement. After the jury was discharged...
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MEMORANDUM AND ORDER Plaintiffs, six employees of Montgomery County who are not members of the defendant union recognized by the County as their exclusive bargaining representative, bring this action pursuant to 42 U.S.C. § 1983 to vindicate their rights under the First and Fourteenth Amendments to the United States Constitution. In short, plaintiffs allege that the procedure implemented ...
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ORDER On January 6 and 7, 1989, a fire severely damaged defendant’s business. The central issue in this declaratory judgment action is whether plaintiff canceled defendant’s insurance policy prior to the fire. Jurisdiction is predicated on 28 U.S.C. § 1332. Currently before the court is plaintiff’s motion for summary judgment. For the reasons stated below, the court PARTIALLY GRANTS and P...
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MEMORANDUM OPINION Raymond Groom worked as a millwright for Golden Triangle Construction Company, which was a subcontractor for Enstar on a construction project for Exxon. Groom used a tool (a striking wrench) manufactured by Armstrong which was defective, and on December 22, 1984, a piece of steel flew from the head of a striking wrench and became embedded in his eye, effectively causing the loss...
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MEMORANDUM This patent case is before the court on the summary judgment motion of the defendant Commissioner of Patents and Trademarks. The motion is denied because genuine issues of material fact exist concerning the objective indicia of nonobviousness. It appears from the parties’ submissions that the plaintiff has failed to raise a genuine issue as to many of the other facts essential ...
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MEMORANDUM OPINION AND ORDER Plaintiff, Allstate Insurance Company, filed this diversity action seeking a declaratory judgment that it is not obligated to provide coverage under a homeowner’s policy. 1 Defendants are William and Viola Bills, the policy holders, their grandson, Brian Bills, their son, Bobby Bills, Jennifer Lewis, and her mother Jeanette E. Lewis. Plaintiff has m...
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*1187 MEMORANDUM OPINION AND ORDER Cynthia Allen and Sabra Diogioes conditionally pleaded guilty to knowingly and intentionally possessing 43 kilograms of a mixture containing cocaine, with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The underlying offense occurred on September 15,1987. Each defendant was sentenced to ten years’ incarceration to be followed by fiv...
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MEMORANDUM OPINION The National Treasury Employees Union (“NTEU”) and the National Association of Agricultural Employees (“NAAE”), which are collective bargaining representatives for certain employees of the U.S. Department of Agriculture (“USDA” or “the government”), have moved for summary judgment on the constitutionality of various aspects of the USDA’s Drug Free Workplace Program (the...
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MEMORANDUM OPINION AND ORDER In this consolidated multidistrict litigation arising from an air crash at Sioux City, Iowa, defendants United Airlines, Inc., McDonnell Douglas Corporation and General Electric Company (collectively “defendants”) move the court to dismiss all punitive damages claims under Fed.R.Civ.P. 12(b)(6). 1 In the alternative, defendants request an order dete...
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MEMORANDUM OPINION AND ORDER BACKGROUND This litigation involves a contract to sell a radio station in South Carolina. Flair Broadcasting Corporation, which was a Delaware corporation and is now a New Jersey corporation, and which has two shareholders John N. Boden and J. Timothy Harrington, was to be the Buyer (we will refer to these parties collectively as “Buyer” because of the co...
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ORDER AND REASONS Before the Court is the motion of plaintiffs to exclude from admission into evidence the Bureau of Alcohol, Tobacco and Firearms Report, Case No. 53440 87 2533 P (“ATF Report”), submitted by defendant. The Court, after reviewing the motion, memoranda of counsel, the record, and the law, hereby denies the motion in part and grants the motion in part. FACTS Plaintiffs, Janice and ...
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OPINION AND ORDER This is an action brought under the Age Discrimination in Employment Act (hereinafter “ADEA”), 29 U.S.C. §§ 621-634, wherein the plaintiff claims that defendant Nestle-Puerto Rico, Inc., (hereinafter “NPR”) terminated his employment because of his age. In addition to the ADEA claim, plaintiffs complaint also contains pendent claims of age discrimination under Puerto Rico...
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ORDER DENYING DEFENDANTS’ MOTION FOR NEW TRIAL AND REQUEST FOR EVIDENTIARY HEARING This cause comes before the court on defendants Nicolasa Blanco and Eligió Blanco’s motion for new trial and request for evidentiary hearing, pursuant to Federal Rule of Criminal Procedure 33. Federal Rule of Criminal Procedure 33 governs motions for new trial in criminal cases. That rule allows the court on motion ...
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ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This cause comes before the court on defendant Donald E. Dupee’s motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56. Federal Rule of Civil Procedure 56 governs motions for summary judgment in federal court. That rule provides that summary judgment shall issue if the pleadings, depositions, answers to interrogator...
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MEMORANDUM Petitioner pro se, Olakunle Lanre Arig-bede, seeks to have his conviction of June 25, 1987 vacated pursuant to 28 U.S.C. § 2255, on grounds of: (1) violation of his Sixth Amendment right to effective assistance of counsel; (2) insufficient evidence to sustain the conviction; and (3) violation of due process as a result of improper charges as set forth in the Indictment. Petitioner’s Mot...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW I. LIABILITY FACTS This suit arose from an injury plaintiff Ivy LeBlanc sustained on September 7, 1984, while working as a repairman for Coastal Marine on board the S.S. WASHINGTON. At the time of the injury, the WASHINGTON was in navigable waters and docked at the Coastal Marine docks in Port Arthur, Texas. The WASHINGTON is a public vess...
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RULING ON PENDING MOTIONS Pending are motions of defendants'. (1) Alba, joined by Vasquez, to suppress tangible evidence. (2) Gonzalez to suppress tangible evidence and statements. After a hearing and consideration of the briefs filed, this will constitute the findings and determination of each motion. Defendants are charged with attempted possession with intent to distribute and distribu...
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MEMORANDUM OPINION/FINDINGS OF FACT AND CONCLUSIONS OF LAW This case comes to this court following a remand from the Court of Appeals in Chicago Ridge Theater Ltd. v. M & R Amusement, 855 F.2d 465 (7th Cir.1988). In the wake of that decision, the defendants have renewed their motions for judgment under Rule 41(b), Fed.R.Civ.Pro. 1 In opposing these motions, Chicago R...
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OPINION AND ORDER Sitting by Designation. Section 6041(a) of the Internal Revenue Code of 1954, as amended in 1982, requires all persons who in the course of their trade or business make payments in excess of $600.00 a year 1 to file information returns reporting the name and address of its recipient and the amount paid. Its legislative history indicates that it was intend...
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OPINION AND ORDER Before the court is Juan R. Berganzo-Romero’s pro se petition under Title 28 U.S.C. section 2255, and the government’s opposition thereto. Pursuant to a plea bargain agreement, Berganzo-Romero pled guilty to Count Two of the indictment charging him with conspiracy to possess with intent to distribute amounts of heroin and cocaine in excess of one kilogram...
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OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW of the United States Court of International Trade, sitting by designation: INTRODUCTION Plaintiff New England Petroleum Co. (“NEPCO”) commenced this admiralty action seeking to recover damages in the amount of $99,489.71 plus interest from defendant O.T. Shipping Ltd. of London (“Owner”) for non-delivery of 4090 barrels of No. 6 f...
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ORDER OF REMAND This cause is before the Court on Plaintiffs’ motion to remand, filed January 30, 1990, and response, filed March 14, 1990. Statutes conferring diversity and removal jurisdiction should be strictly construed. Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). As to removal statutes they are strictly construed beca...
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MEMORANDUM OPINION The United States of America has sued A.F. Company of Illinois, Yale Security, Inc., and a corporation which Yale owns, Henry Soss & Company, Inc., under 26 U.S.C. §§ 7401 and 7403 (1982), as amended, to set aside a sale of assets among the defendants and to foreclose on federal tax liens. A.F. has not appeared in this action, but Yale and Soss have. The parties have fi...
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In this case the Court is asked to determine whether, as a matter of law, an employer’s discharge and a union’s processing of a grievance and its decision not to pursue formal arbitration on behalf of a union member, breaches the terms of a collective bargaining agreement, and/or violates the provisions of the Federal Labor-Management Relations Act (“LMRA”), (29 U.S.C. § 185), the Labor-Managem...
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ORDER Came on to be considered the defendant’s motion for reconsideration. For the following reasons, that motion is denied. The defendant Micom Communications Corp. (“Micom”), misnamed in the plaintiff’s complaint as Micon Systems, Inc., seeks reconsideration of this court’s order of October 16, 1989, 729 F.Supp. 53, denying summary judgment on the plaintiff’s Title VII claim. In its motion for r...
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MEMORANDUM OPINION ORDER AFFIRMING BANKRUPTCY COURT THIS CAUSE comes before the Court upon the appeal of National Union Fire Insurance Company of Pittsburgh, Pennsylvania (hereinafter “NUFIC”), from a decision of the Bankruptcy Court for the Southern District of Florida, in a declaratory judgment action brought by John R. Camp, Jr., as Trustee for the liquidation of Government Securi...
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MEMORANDUM-DECISION AND ORDER Introduction This is an action by current and former employees of the General Electric Co., Inc., employed at the Knolls Atomic Power Laboratory (“KAPL”) in Niskayuna, New York, and Local 301AE, International Union of Electricians, Electrical, Salaried Machinist and Furniture Workers of the AFL-CIO (“IUE”), seeking declaratory and in-junctive relief....
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MEMORANDUM OPINION AND ORDER Before the Court is petitioner’s application for a writ of habeas corpus under 28 U.S.C. § 2254. A jury convicted petitioner on December 10, 1986, of forcible rape for which the trial court sentenced him to thirty years confinement. In a per curiam opinion, the Missouri Court of Appeals affirmed his conviction on December 8, 1987. 745 S.W.2d 690. The Court of Appeals a...
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MEMORANDUM Defendant, Montgomery County, Maryland, has filed a Motion for Award of Attorney’s Fees and Costs pursuant to 54(d) and 68, Federal Rules of Civil Procedure, seeking recovery of costs incurred in the litigation of this matter subsequent to Plaintiff’s rejection of an offer of judgment exceeding the amount of the judgment finally obtained.. Plaintiff’s Opposition to *41Defendant’s motion...
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MEMORANDUM — DECISION AND ORDER Introduction This is an action for the recovery of accidental death benefits under an insurance policy issued by The Travelers Insurance Company (“Travelers”) to the General Electric Company (“GE”) for the benefit of GE’s employees. The plaintiff, Adelia Guisti, is the widow of Raymond Guisti, a GE employee who died on November 28, 1988. It is not ...
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This is an action brought pursuant to the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., seeking to recover damages for infringement of plaintiff’s copyright to an audiovisual recording (a videotape) of plaintiff's performance of a comedy routine called “Plitot Peh ” or, in English, a “Slip of the Tongue.” 1 The case was tried before the undersigned, sitting without a jury, in May 1989....
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ORDER Plaintiff filed this lawsuit pursuant to-the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964, alleging that defendants engaged in a pattern of racketeering activity to deprive plaintiff of her interest in certain personal property devised to her by Arthur Bryant, the legendary Kansas City barbecue restaurateur. The case is currently before the court on the motion ...
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OPINION AND ORDER Plaintiffs brought this action pursuant to this Court’s diversity jurisdiction, 28 U.S.C. § 1332, seeking one million dollars in damages for defendant’s alleged defamation. The alleged act of defamation consisted of the defendant advising the Postal authorities that it had received, through the mail, photographic film for development from plaintiffs, depicting an adult m...
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MEMORANDUM OF OPINION This is a tax refund suit brought pursuant to 28 U.S.C. § 1346(a)(1) in which the plaintiffs seek to recover capital gains taxes, income taxes, a negligence penalty and interest assessed against them for calendar year 1983. Plaintiff Charles E. Gray and his spouse, Francis Gray, filed a joint income tax return for the calendar year 1983. Mrs. Gray is a plaintiff here only ...
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OPINION AND ORDER Sylvester 0. Lomax and Roy Lee Jackson, two prisoners in state custody, commenced the above-captioned civil rights lawsuit against seven state employees in their individual capacities. See Plaintiffs Brief in Support of Amended Complaint at 1. The plaintiffs, who are proceeding pro se and in forma pauperis, are seeking declaratory and inj...
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MEMORANDUM OPINION The bell has sounded, and Round Four of this ineptly fought bout between Continental Casualty Company (“CCC”) and Great American Insurance Company begins. CCC is the excess liability insurer and contractual subrogee of Edward C. Levy Com *931 pany; Great American is Levy’s primary insurer. In Round One, the parties filed cross-motions for summary judgment, ...
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OPINION AND ORDER In these actions, the United States of America and the State of New York (“NYS”) seek declaratory judgments as to the dischargeability of environmental claims in the bankruptcy proceeding of defendant LTV Corporation and affiliated corporations (collectively “LTV”). Specifically, the government seeks a judgment declaring that (1) response costs incurred post-confirmation...
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MEMORANDUM This matter is before the Court on defendant, City of Clarksville’s (City), motion for summary judgment against 34 plaintiffs (designated plaintiffs), all of whom were hired by defendant as firefighters after the compensation changes at issue in this suit took effect. On August 21, 1989, 732 F.Supp. 804, this court held that the actions taken by the City were valid under Tennes...
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ORDER ELLIS, District Judge. This matter is before the Court on a petition for a writ of habeas corpus. In response, the Parole Commission members, through counsel, filed a Motion to Dismiss, or in the Alternative for Summary Judgment. Petitioner, given 20 days in which to respond, timely filed a brief in opposition to the government’s position. As the issue is properly joined, it is ripe f...
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ORDER IT IS HEREBY ORDERED that motion of plaintiff filed March 6, 1990, seeking an order continuing the trial in the above-captioned action to March 20, 1990, is DENIED. The trial of the action shall commence tomorrow morning, March 16, 1990, at 9:30 o’clock a.m. The issue is whether the period of the continuance which is sought is excludable time under 18 U.S.C. § 3161(h)(1)(G) of the Speedy Tri...
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ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS; ORDER REJECTING MARGISTRATE’S REPORT AND RECOMMENDATION Plaintiff James Kyle, a pretrial detainee confined at the Monroe County Jail, has filed a civil rights suit against defendants under Title 42 U.S.C. § 1983, and petitioned the court to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff alleges several instan...
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ORDER THIS MATTER came on to be heard and was heard before the undersigned and a jury at Charlotte, North Carolina on March 5, 6, and 7, 1990. The Plaintiff was represented by Bob Warren of the North Carolina Bar and by C. Alan Runyan and William A. Jordan of the South Carolina Bar. The Defendant was represented by Mel J. Garofalo and John Brim Smith of the North Carolina Bar. At the close of the ...
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Goya Foods, Inc. (“Goya”) brought this action for trademark infringement and unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and for common law trade dress infringement, misappropriation, dilution and unfair competition under New York Law. Goya moves for a preliminary injunction barring Condal Distributors, Inc. (“Condal”) from distributing or selling ri...
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ORDER Petitioner John Rasco is currently in federal custody. Claiming that the Federal Bureau of Prisons (“FBP”) has miscalculated the date he is to be released from prison, Rasco petitions this court for a writ of habeas corpus. 1 For the reasons stated herein, the court denies Rasco’s petition. I. FACTS Rasco has an extensive criminal history; he has been in and out of jail for the past...
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ORDER This is a 42 U.S.C. § 1983 action brought by plaintiffs Hill and Wilkins, who are inmates at Nevada State Prison, against Steve Koon, Associate Warden at the prison, and other prison employees, as defendants, for violation of plaintiffs’ constitutional rights on account of digital anal body cavity searches of plaintiffs at the prison. A trial before the Court was conducted on November 7-9...
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MEMORANDUM AND ORDER This matter is before the Court on defendant’s motion to stay proceedings pending arbitration. The motion will be granted. FACTS Defendant Gloria Jean’s Franchise Inc. (Gloria Jean’s) is an Illinois corporation headquartered in Arlington Heights, Illinois engaged in the business of operating and franchising retail gourmet coffee and tea stores throughout the Unit...
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ORDER Introduction The lower levels of plaintiffs’ homes were extensively damaged on July 23,1987, when Minnehaha Creek flooded following a torrential rainfall. 1 Each plaintiff held a flood insurance policy issued by the Federal Emergency Management Agency (FEMA), pursuant to 42 U.S.C. § 4013. FEMA determined that certain of plaintiffs’ losses were not covered by thes...
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MEMORANDUM & ORDER Plaintiff Perfumer’s Workshop, Ltd. (“Perfumer’s”), seeks compensatory and punitive damages for alleged violations of various federal and state antitrust laws, and for state breach of contract, common law fraud, and negligence claims. Defendants Roure Bertrand du Pont, Inc. (“Roure”), Roure Bertrand du Pont, S.A. (“Roure-France”), 1 and F. Hoffman-La Roche & ...
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MEMORANDUM AND ORDER On May 22, 1989, plaintiffs brought this action in New York Supreme Court against Brian McFadden, a United States park police officer, alleging that because of his negligence a dog trained, owned and controlled by him bit plaintiff Brendan Egan, an infant, on January 26, 1987. James Egan sued on behalf of his son and himself. On August 21, 1989 the Assistant Unit...
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MEMORANDUM AND ORDER Plaintiffs brought this action on May 22, 1989 in New York Supreme Court against Brian McFadden, a United States park police officer, alleging that due to his negligence a dog owned, possessed, and controlled by him bit plaintiff Beth Ann O’Neill, an infant, on June 19, 1986. Plaintiff Richard O’Neill sues on behalf of his daughter and himself. On August 21, 1989...
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ORDER Before this Court is plaintiff’s motion seeking a partial discharge of its duties pursuant to a Settlement Agreement and Release dated December 17, 1983 which was incorporated into a Stipulated Judgment filed in this Court on June 16, 1983. Plaintiff also seeks a declaration of its *1400 rights and obligations under the Stipulated Judgment. The pertinent history of...
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OPINION This matter arises out of a claim of plaintiff’s, William Brady, the insured, against Defendant, Louisiana Health Service and Indemnity Company, for payment of medical expenses incurred. Plaintiff seeks damages in the amount of $35,000, together with penalties and attorney’s fees and interest from the current defendant, Empire Blue Cross/Blue Shield. BACKGROUND William B...
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ORDER This matter is before the Court on defendants’ motion for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure (Fed.R.Civ.P.). Plaintiff claims that on July 20, 1987, she was injured by defendant Sletner when he violently threw her to the ground in the course of an arrest of her grandson. Plaintiff claims in Count I that Sletner’s acts violated her civil rights, pursuant t...
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MEMORANDUM OPINION AND ORDER Intervenor, Federal Savings and Loan Insurance Corp. (FSLIC), and defendant, Commonwealth Mortgage Corp. of America (Commonwealth), (hereinafter collectively “defendants”) pursuant to Rule 56 of the Federal Rules of Civil Procedure move for entry of summary judgment in their favor. The complaint is in two counts: in Count I plaintiff contends that the plaintif...
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MEMORANDUM OPINION AND ORDER Before the Court is Defendant Wood’s Motion to Suppress Fruits of Illegal Search and Seizure, filed December 15, 1989; and the Government’s Response, filed January 2, 1990. Defendant Wood requests a hearing to present evidence he claims will show that, while he and others were riding in a pickup truck bearing a camper shell in Garland on November 9, 1988, they were sto...
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MEMORANDUM OPINION AND ORDER Two motions are before me (1) defendant’s motion for summary judgment on plaintiffs’ first claim for relief and (2) defendant’s motion to dismiss plaintiffs’ second claim for relief. For the reasons to follow, I grant both motions. This action arises out of a plane crash that killed passenger Christopher Sewell and the pilot Charles E. Lewis Jr. on August...
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OPINION AND ORDER This matter was brought by United States Fire Insurance Company (hereinafter “U.S. Fire”), a New York corporation with a principal place of business in New Jersey against Reading Municipal Airport Authority (hereinafter “Airport Authority”), a Pennsylvania municipal corporation and Donald Freeman, a Pennsylvania resident. It was brought pursuant to the diversity jurisdiction of ...
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MEMORANDUM OPINION Plaintiffs are suing American Cab Company (“American”), alleging that drivers in taxicabs bearing American’s colors and markings refused to provide service to plaintiffs on account of their race in violation of, inter alia, 42 U.S.C. § 1981. American has filed a motion for summary judgment. The Court will deny the summary judgment motion because: (1) one of A...
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MEMORANDUM OPINION AND ORDER Arthur Hornsby and Kathleen Hornsby have filed this action against Hornsby’s Stores, Inc. (“the Store”), Century Wholesale Company, Inc. (“Century”), and Pubco Corporation. Hornsby and the Store have *304 filed cross motions for summary judgment, and Century and Pubco have filed a joint motion to dismiss. For the reasons explained herein, we grant...
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In this action, plaintiff asserts that defendant engaged in a host of discriminatory employment practices and retaliatory actions in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law (“Human Rights Law”), N.Y.Exec.Law § 290 et seq., as well as racial discrimination in violation of ...
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DECISION AND ORDER In this action alleging trademark infringement, trade dress infringement and false designation of origin, the plaintiff seeks a preliminary injunction restraining the defendants from using the plaintiffs marks in connection with the advertising and sale of stretch limousines. The plaintiff manufactures and sells a brand of luxury cars known as Exealibur. The defendant is in t...
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OPINION The Plaintiffs, David Krupa, Philip Kem-pista, James Leonard, Edward Maxwell and Andrew Miller (collectively the “Plaintiffs”), filed a complaint alleging that New Castle County (“County”), through its police department by whom they were employed as patrolmen, had discriminated against them on the basis of their race. Docket Item (“D.I.”) 1, 6. The amended complaint asserts that t...
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MEMORANDUM AND ORDER Plaintiff Joan A. Cury initiated this declaratory judgment action against defendant The Colonial Insurance Company of America (Colonial) in the Court of Common Pleas of Lehigh County on May 30, 1989. Colonial filed a timely Notice of Removal to this court pursuant to 28 U.S.C. § 1441 on the basis that the insurance policy at issue in this case is an Employee Welfare B...
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ORDER THIS MATTER is before the Court on remand from the Fourth Circuit for reconsideration of this Court’s order denying Defendant’s Motion under Federal Rules of *1274Criminal Procedure 35(b) for reduction of sentence. A hearing was held on January 30, 1990. Defendant was represented by Harold J. Bender, Esq., and the Government was represented by Thomas J. Ash-craft, United States Attorney. The...
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ORDER Before the Court is the Motion to Dismiss filed by the garnishee, United States of America. The United States contends that 15 U.S.C. § 714b(c) prohibits garnishment against Commodity Credit Corporation, operating agency for ASCS. The plaintiff has responded, citing two Arkansas state court cases in support of its proposition that the garnishment is intended to attach property of the defend...
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AMENDED FINAL ORDER OF SUMMARY JUDGMENT THIS CAUSE has come before the Court upon the parties' cross-motions for summary judgment. At issue today is the constitutionality of Florida Bar Rule 3-7.1 insofar as it prohibits complainants from disclosing information regarding Bar disciplinary proceedings. 1 The Rule was triggered in this case when John Doe filed a complaint with the...
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OPINION Jones Motor Co., Inc. (“Jones Motor”) initiated this action against Teledyne, Inc. (“Teledyne”) and the United States Government (“United States”) to recover unpaid transportation charges of $62,100.00 for 54 shipments of tank engine parts shipped by Jones Motor at Teledyne’s request from Muskegon, Michigan, to the harbor at Bal*491timore, Maryland. Docket Item (“D.I.”) 1. Teledyne answer...
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MEMORANDUM AND ORDER Defendant/petitioner moves for an order vacating or, alternatively, modifying an income execution issued to satisfy a judgment entered by this Court. For the reasons set forth below, the motion is granted in part and denied in part. FACTS On March 1, 1989, this Court entered a default judgment against petitioner Jeffrey Reif in the amount of $28,264.44. The ...
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ORDER Before the Court for determination is the Motion to Dismiss by third party defendant Physician’s Liability Insurance Company (“PLICO”) of the United States’ third party complaint for indemnification. After review of briefs of counsel and the relevant law, the Court denies PLICO’s motion for the following reasons. The plaintiffs Donna and Billy Ritchie sued the United States for injuries...
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OPINION AND ORDER This is an action for copyright infringement. Plaintiffs allege that defendants copied their design, “Style 1403, Range 100, Patt. 14261X” for which the Register of Copyrights issued Copyright No. VA 218-543. 1 This design is printed on fabric and sold by plaintiffs. Defendants move under Rule 56, Ped.R. Civ.P., for summary judgment dismissing the complai...
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MEMORANDUM OPINION The plaintiff, Ann H. Eastman, filed this action on April 20, 1988. The complaint seeks compensatory and punitive damages as well as injunctive relief from defendants for their alleged violation of § 504 of the Rehabilitation Act of 1973 — 29 U.S.C. § 794. Jurisdiction in this matter is based on a federal question, 28 U.S.C. § 1331 and 29 U.S.C. § 794. The case is presently b...
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OPINION & ORDER Plaintiff Carte Blanche (Singapore) PTE, Ltd. (“CBS”) is appealing discovery rulings made by United States Magistrate Leonard A. Bernikow of this Court during his supervision of pretrial discovery in this matter. CBS contends the Magistrate’s determinations, which required CBS to produce various documents sought by defendant Carte Blanche International (“CBI”), were in error. In a...
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MEMORANDUM The plaintiff, a citizen of Ghana residing in the United States, was convicted of possession of marijuana with intent to distribute on June 11, 1980. He was then found excludable by an immigration judge under 8 U.S.C. § 1182(a)(23) and, on June 8, 1982, was ordered excluded and deported. His appeal to the Board of Immigration Appeals (“BIA”) was dismissed on April 11, 1984. Dab...
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Defendants, County of Nassau and Nassau County Department of Public Works (“Nassau”), move to modify the Consent Decree and Enforcement Agreement (“Decree”) “so ordered” on August 2, 1989 by deleting from Article Y, Dewatering Measures For Land Based Management Of Sewage Sludge — the schedule requiring Nassau to construct and operate dewater-ing equipment capable of processing 100 percent of Na...
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This is an appeal from an order of the Bankruptcy Court of the Southern District of New York (Lifland, C.J.) awarding damages and sanctions pursuant to Section 362(h) of the Bankruptcy Code for numerous violations of the automatic stay. BACKGROUND Judge Burton Lifland made the following findings of fact and conclusions of law in his Order dated May 18, 1989 (“Order”). On July 17, 1986, LTV Co...
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MEMORANDUM OPINION Plaintiff Olympic Federal Savings & Loan Association (“Olympic”) filed a motion on March 6, 1990, requesting that the court issue a temporary restraining order (“TRO”) and a preliminary injunction (“PI”) enjoining the Director of the Office of Thrift Supervision (“OTS”) and the Federal Deposit Insurance Corporation (“FDIC”) from appointing a conservator or receiver for ...
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MEMORANDUM AND ORDER After her husband and ward John W. Williams suffered a severe stroke, Defendant Guardian and third-party Plaintiff Josephine Williams placed him under the care of Plaintiff, Sunny Acres Skilled Nursing Facility (“Sunny Acres”). She sought to pay for his care under her employee health benefits plan administered by Plan Administrator and third-party Defendant Metropolit...
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The matter before the court is the motion (# 11) of defendants, Anthony Frank, United States Postmaster General, and the United States Postal Service, to dismiss this action or, in the alternative, for summary judgment against plaintiff, Terri L. Nichols. Nichols brings this action under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., alleging ...
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MEMORANDUM AND ORDER This order addresses the pending motions of two defendants, Robert E. Anderson (“Anderson”) and Joseph V. Stuart (“Stuart”). 1 Both defendants have filed motions to dismiss the complaint with prejudice, or in the alternative, to disqualify the plaintiffs law firm of Bowditch & Dewey and to enjoin Bowditch & Dewey from discussing or disseminating their work ...
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MEMORANDUM OPINION AND ORDER In this criminal action, defendants James Culmer and Frank Jackson have been charged with possession of cocaine and cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Defendant Culmer is additionally charged with possession of heroin with intent to distribute. 21 U.S.C. § 841(a)(1). In an opinion dated October 30, 1989, this Court denied cert...
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MEMORANDUM Plaintiffs have filed a Motion to Amend the Consolidated Amended Complaint in this class action alleging securities fraud and the sole remaining defendant, Ernst & Young, has raised additional issues relating to discovery subsequent to a partial class settlement previously approved by the Court. I. Facts. On December 11, 1989, the Court conducted a fairness hearing to determine whether...
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OPINION AND ORDER Plaintiff McLaughlin, Piven, Vogel, Inc. (“MPV”), a Delaware corporation which engages in over-the-counter securities transactions, sues for equitable relief against defendant National Association of Securities Dealers, Inc. (“NASD”), a nonprofit organization created by the Securities and Exchange Commission to supervise the over-the-counter securities market. NASD is a ...
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OPINION The matters before the court are 1) defendant Charles Frank’s motion for a new trial; and 2) Frank’s motion for judgment of acquittal. 1. New Trial Frank moves the court for a new trial on the grounds that 1) the court’s refusal to sever the trials of co-defendants violated Frank’s right to a fair trial and constituted an abuse of discretion; and 2) the introduction and use of photographs ...
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MEMORANDUM AND ORDER Plaintiff Gerald Konrath, a Vilas County Sheriff’s Deputy, and defendant James D. Williquette, Vilas County Sheriff, were candidates for the office of Vilas County Sheriff in the 1988 election. Defendant Willi-quette won the election. Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging that he was reprimanded by his employer in retaliation for the exerc...
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ORDER Plaintiff Karen Vesely (“Plaintiff”) filed this civil rights action on March 31, 1987 against Defendant Cuyahoga Metropolitan Housing Authority, fifteen (15) named individual Defendants, and a number of unknown individual Defendants. She alleged, under 42 U.S.C. § 1983, that she was deprived of her Constitutional Rights under the First and Fourteenth Amendments of the United States Constitu...
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MEMORANDUM OPINION AND ORDER This diversity action alleges a claim in breach of contract and one for reformation of the contract. Presently before this Court are the cross motions for summary judgment by the plaintiff and defendant, Fed.R.Civ.P. 56, as well as defendant’s motion for sanctions pursuant to Fed.R.Civ.P. 11 and 56(g). *1261 BACKGROUND 1 In October 1...
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MEMORANDUM OPINION AND ORDER In this appeal, the debtor, Endrex Investments, Inc., and its attorneys, Sterling & Miller, P.C. and Nancy D. Miller (collectively, the appellants), appeal the imposition of sanctions against them. They raise five issues in this appeal: (1) whether the imposition of sanctions violated their right to due process, (2) whether sanctions under Bankr.R. 9011 were e...
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OPINION Plaintiff, Telecast, Inc., brings this action to collect monies allegedly due under a promissory note made by defendant Pacific Cablevision, and delivered by defendant to plaintiff on August 17, 1988. Currently, defendant has brought a motion to dismiss for lack of personal jurisdiction. See Fed. R.Civ.P. 12(b)(2). Plaintiff opposes this motion. “The burden of esta...
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ORDER Plaintiff Stephen Boulter filed this suit pursuant to 42 U.S.C. § 1983. Plaintiff alleges that the defendants have conspired to deprive him and have deprived him of personal property, his right of access to his residence, his right to freedom from unreasonable searches and seizures, his right to privacy, and his right to associate freely with his grandmother, prior to her death. Defendants ...
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OPINION The defendants Albert A. Terranova and Melany K. Terranova (the “Terranovas”) have moved pursuant to 28 U.S.C. § 157(d) to withdraw from the Bankruptcy Court an adversary proceeding. which includes a claim against them under the federal racketeering statutes, 18 U.S.C. § 1961 et seq. (“RICO”). For the reasons set forth below, the motion is denied. The Parties ...
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ORDER DENYING MOTION FOR RECONSIDERATION I. INTRODUCTION Plaintiff Edgar H.W. Lum (“Lum”) files his Motion for Reconsideration of this Court’s order granting Defendant City and County of Honolulu’s (“City”) Motion to Amend Interlocutory Order to Include Statement Prescribed by 28 U.S.C. § 1292(b). Since the Court of Appeals for the Ninth Circuit denied Defendant’s Petition for Permission to Appea...
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MEMORANDUM OPINION The plaintiff’s motion for partial summary judgment on his claims that his incarceration in the Angelina County Jail from November 2 to November 9, 1987 was unconstitutional and in violation of Texas Common Law is presented for consideration. Because there are a number of inconsistencies and several contradictions in the affidavits and deposition testimony of the Angeli...
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OPINION The matter before the court is the motion (# 18) of defendants, Teresa J. Woods and Kwik Snax, Inc. (KSI), for summary judgment or, in the alternative, a stay of this action. This is an action for libel brought by plaintiff, Tillamook Country Smoker, Inc. (Tillamook), against Woods and KSI. The action was initially filed in the Circuit Court of the State of Oregon for the County of Mu...
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OPINION AND ORDER In 1982, state and local agencies prepared a plan for achieving federal Clean *1451 Air Act standards in the San Francisco Bay Area. This “1982 Bay Area Air Quality Plan” is the subject of these consolidated actions brought pursuant to section 304 of the Clean Air Act (“Act”), 42 U.S.C. § 7604. Plaintiffs, Citizens for a Better Environment (“CBE”) and the Si...
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MEMORANDUM AND ORDER Defendants James Munro, Maurice A. Sathoff, the School District of Monroe and General Casualty Company of Wisconsin have moved for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, against the plaintiffs Jeffrey Thrasher, Douglas Thrasher and Rose Thrasher. Defendants William Dehn and General Casualty Company of Wisconsin, have also moved for summary j...
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MEMORANDUM OPINION AND ORDER This action comes before this Court on appeal from a ruling of the United States Bankruptcy Court, Northern District of Illinois, Western Division. For the reasons set forth in this opinion, this Court affirms the ruling of the Bankruptcy Court. BACKGROUND The facts have been told and retold in the various briefs of the parties and in detail in the M...
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MINUTE ENTRY Before the Court is the appeal of New Orleans Public Service Inc. (“NOPSI”) from the bankruptcy court’s order denying NOPSI’s application for post-petition utility charges from the secured creditors of the debtor, Delta Towers, Ltd., (“debtor”) under 11 U.S.C. § 506(c). This court has jurisdiction over the appeal pursuant to 28 U.S.C. § 158(a). 1 The bankruptc...
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The summary judgment motions of Sunbelt Savings, FSB (“Sunbelt”) in these consolidated actions present questions concerning the assumption of liabilities by the Federal Savings and Loan Insurance Corporation (“FSLIC”), the applicability of the federal holder in due course doctrine to the FSLIC and an assignee thrift institution, and the preclusive force of the doctrine as applied to the summary...
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MEMORANDUM ORDER On November 8, 1989, the United States filed a two-count information asserting criminal charges against defendants Dominic Cortina, Donald Angelini, Joseph Spa-davecchio, and seven other defendants. Count One charges that each defendant conspired with the other to conduct an illegal sports gambling operation in violation of 18 U.S.C. § 1955. Count One specifically alleges that Cor...
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MEMORANDUM This matter is before the Court on defendants’ motion for summary judgment. *76Plaintiff Robert Krueger brings this action against eleven current and former officials of the United States Department of Agriculture. Krueger, who formerly served as the Audrain County Executive Director (CED) for the Agricultural Stabilization and Conservation Service (ASCS), alleges that defendants violat...
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The instant motion to dismiss presents questions concerning the application of the D’Oench, Duhme 1 doctrine, and asks the court to decide whether the Federal Deposit Insurance Corporation (“FDIC”) can be liable for punitive damages and attorney’s fees. I Plaintiff The Royal Bank of Canada (“RBC”) filed this action against a predecessor of First RepublicBank Fort...
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MEMORANDUM OPINION Plaintiff, Homer Hair, is a black male and a resident of Milwaukee, Wisconsin. Helena Chemical Company (the “Company”) is a national company, headquartered in Memphis, Tennessee, and it has a facility located in West Helena, Arkansas where it formulates, blends and packages agricultural pesticides and other chemical products. During the time of plaintiff’s employment, the West ...
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OPINION I. STATEMENT OF FACTS On July 10, 1989 plaintiff Eunice L. Ross filed suit in the United States District Court, Middle District of Pennsylvania, against the Honorable Paul Zavarella, the President Judge of the Court of Common Pleas of Allegheny County, and the Justices 1 of the Pennsylvania Supreme Court individually and in their official capacities for violation of her rights under...
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MEMORANDUM OPINION AND ORDER The debtors, John and Judy Frawley, appeal a judgment of the bankruptcy court *33 denying the dischargeability of a debt to the Colorado Contractors Trust, a company which provided insurance benefits to Mr. Frawley through his insurer. The Fraw-leys contend that the bankruptcy court erred in excepting from discharge a $17,-353.52 debt to the Trust relating to its ...
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ORDER and REASONS The motion of defendants, Transit Management of Southeast Louisiana, Inc. (hereinafter “TMSEL”) and New Orleans Public Service, Inc. (hereinafter “NOPSI”) to dismiss or alternatively for summary judgment was taken under submission on a prior date. I. FACTS Defendant, NOPSI, sold its transit properties to the Regional Transit Authority (hereinafter “RTA”). In connection with this...
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OPINION This matter is before the Court on defendant’s motion to dismiss and plaintiff’s opposition. Upon consideration of the pleadings and the entire record, the Court grants defendant’s motion. Plaintiff is a former student at Southeastern University. Allegedly plaintiff tested positive for Human Immunodeficiency Virus (HIV). 1 Because of a complication *8 ...
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Plaintiffs move for class certification pursuant to Rule 23, Federal Rules of Civil Procedure (Fed.R.Civ.P.). Plaintiffs seek to certify a class of: All employers (excluding defendants and co-conspirators, including any subsidiary or affiliate thereof) with places of business within the State of Minnesota required by Minnesota law to carry workers’ compensation insurance coverage, who between June...
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ORDER This case is before the court on: (1) defendant Amoco Chemical Company’s (“Chemical’s”) motion for summary judgment; (2) defendant Chemical’s motion to bifurcate; (3) plaintiff’s request for a separate trial on the alter-ego question; (4) defendant Ardox Corporation’s (“Ardox’s”) motion for summary judgment, and; (5) defendant Chemical’s request for oral argument on its motion for s...
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OPINION This matter comes before the court upon motion of plaintiffs for a protective order quashing the deposition subpoenas served upon Jerald Cureton, Esquire (“Cureton”) and Hillary Peterson, Esquire (“Peterson”), and for a protective order precluding the taking of their depositions. The issue to be resolved is whether the plaintiffs are entitled to a protective order precluding the deposition...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff L.B. Foster Company brought this diversity action against defendant Railroad Service, Inc. for breach of two contracts in which defendant agreed to purchase railroad equipment from plaintiff. Defendant has filed a motion to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). For the reasons stated below, d...
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MEMORANDUM OPINION AND ORDER Before the court is the parties’ joint motion under Rule 23(e) of the Federal Rules of Civil Procedure for approval of a proposed settlement and consent decree. For the reasons stated below, the court grants the motion and enters the consent decree. BACKGROUND Plaintiffs brought this action on June 28, 1985, seeking declaratory and injunctive relief ...
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ORDER OF REMAND Upon review of the court file in this matter, the court determines that removal of this action from state court was not proper. Plaintiffs originally filed this action in state court. On February 5, 1990, plaintiffs served defendant U.S. Natural Resources, Inc. 1 (“USNR”) with a summons and a copy of the complaint. On March 6, 1990, USNR filed a notice of remova...
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MEMORANDUM AND ORDERS ON MOTION FOR SUMMARY JUDGMENT I This case pends on defendant’s motions for summary judgment in both of the above-captioned cases. Following a pretrial conference held on December 18,1989, the parties submitted, for both cases, a stipulation of facts and agreed briefing schedule on defendant’s motions for summary judgment. The Court has considered defendant’s motions and sugg...
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ORDER THIS MATTER is before the Court on a Memorandum and Recommendation (here *1344 inafter “M & R”) filed by United States Magistrate Paul B. Taylor on February 2, 1990. I. INTRODUCTION The M & R is in response to Motions to Suppress filed by Defendants on October 13, 1989. Defendant Queen filed an amendment to the Motion to Suppress on January 8, 1990. The Govern...
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The instant motion to remand presents questions concerning the proper interpretation of the removal provisions embodied in the newly enacted Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73, 1989 U.S.Code Cong. & Admin.News (103 Stat.) 183 (1989), codified at 12 U.S.C. § 1441a, as they relate to the Resolution Trust Corporation (“RTC”). I ...
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MEMORANDUM OPINION Introduction This case, simply put, amounts to an effort by plaintiff to stretch a bid bond into a payment and performance bond. The effort fails. A bid bond is separate and distinct from a payment and performance bond; it covers different risks. Here, defendant signed a subcontractor’s bid bond as surety. In conformity with the bid bond, the subcontractor deli...
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MEMORANDUM Plaintiff, Joan L. Mann, instituted this action when she was discharged from her employment with defendant, J.E. Baker Co. (J.E. Baker). Pursuant to Fed.R.Civ.P. 12(b)(6), defendants, J.E. Baker, Donald Hennel, J.E. Baker’s Vice-President, and Gary W. Kyson, Director of Sales for its Cement Division, have moved to dismiss Counts V, VI, VII, and VIII of the complaint. Counts I-I...
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*266 MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is an interpleader action filed on December 19, 1989, pursuant to 28 U.S.C. § 1335. Plaintiff General Railway Signal Company (“General Railway”) alleges that as a result of proceedings in Illinois state courts it is liable to the New York Superintendent of Insurance (“the Superintendent”) for $1,068,785.35 as of December...
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MEMORANDUM AND ORDER This case involves unseaworthiness and negligence claims brought by the survivors and estate of a deceased longshoreman against the shipowner for whom the longshoreman worked even though the longshoreman lost a similar case before he died. Facts and Procedural History In 1982 Alex Tillman brought an unseaworthiness and negligence action against Lykes Bros. Steamship Co., In...
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This case presents questions concerning the applicability of the D'Oench, Duhme 1 doctrine to transactions in which a failed financial institution acts both as a lender for and seller of property. I The facts set out by the plaintiffs are as follows. In 1982 First RepublicBank Waco, N.A. (“First Republic”) loaned money to Vector Development Company to develop a c...
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ENTRY ON DETERMINATION OF MENTAL COMPETENCY TO STAND TRIAL This matter comes before the court for a hearing pursuant to 18 U.S.C. § 4241 to determine the competency of the defendant. On December 14, 1989, the court had ordered that the defendant be examined pursuant to the provisions of 18 U.S.C. §§ 4241(b) and 4247(b) so that a determination could be made as to whether the defendant is s...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This lawsuit concerns the validity of a municipal billboard regulation scheme under both federal and state law. Plaintiff Scadron Enterprises (“Scadron”) is an Illinois partnership engaged in the business of leasing real property for the purpose of leasing or donating billboard space to commercial and noncommercial advertisers. The defenda...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is a diversity action in which the plaintiff, Lawrence Kinney (“Kinney”), alleges that he was injured as the result of the defective manufacture of a semi tractor-trailer driver’s seat by' the defendant, Anchorlock Corporation (“Anchorlock”). The plaintiff filed this suit in the Circuit Court of Cook County, Illinois, and Anchor-lock ...
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ORDER Before the Court are the Motion to Dismiss of defendant First Financial Corporation (“First Financial”) and the Motion to Dismiss or in the Alternative for Summary Judgment of defendant Home Owners Funding Corporation of America (“HOF-CA”), to both of which plaintiffs have responded. The Court will dispose of both motions and any supplements thereto in this Order. Plaintiffs are persons who...
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MEMORANDUM OPINION AND ORDER In this appeal, the trustee for the estate of Dry Wall Supply, Inc., Joseph G. Rosa-nia, contests the bankruptcy court’s decision granting summary judgment for William J. Haligas and the Chase Commercial Corporation on the trustee’s claims for fraudulent conveyance and equitable subordination. The trustee argues that the bankruptcy court erred in finding that ...
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MEMORANDUM AND ORDER GRANTING PETITIONER’S MOTION FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE I This case now pends on petitioner’s motion for voluntary dismissal without prejudice filed on his behalf by Kevin Locke, Esquire. Mr. Locke was appointed to represent the petitioner in this case for the reasons stated in detail in Richardson v. Miller, 721 F.Supp. 1087 (W.D.Mo.1989).1 Petitioner’s motion,...
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In this civil action against the Federal Deposit Insurance Corporation (“FDIC”), as receiver for a failed savings and loan association, the court grants summary judgment on the basis that plaintiff can recover nothing from the FDIC by reason of a provision of the recently-enacted Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (1989) (“FIRR...
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MEMORANDUM OPINION In January 1979, Earl Peterson and two other persons were indicted for murder, attempted murder, armed violence, and attempted armed robbery in Cook County, Illinois. One of Peterson’s co-defendants pleaded guilty; Peterson and the remaining co-defendant were tried simultaneously with separate juries. Peterson and the prosecution picked the jury in Peterson’s case on Ma...
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MEMORANDUM ORDER This labor-management relations matter was removed from the Cambria County Court of Common Pleas, and is presently before this Court on motions to dismiss filed by two of the defendants, Bethenergy Mines, Inc., and the International Union, United Mine Workers of America. As discussed below, we grant the motions in part. Plaintiff Jack J. Parke 1 is a coal ...
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MEMORANDUM OPINION On March 7, 1990, the above-entitled cause was removed to this court from the Circuit Court of Jefferson County, Alabama, by American General Group Insurance Company and the other served defendants. The basis upon which defendants have attempted to invoke the jurisdiction of this court under 28 U.S.C. § 1331 is the existence of a federal question. Defendants contend that th...
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MEMORANDUM ORDER Plaintiff filed a pro se complaint in this matter on November 16, 1989, alleging that defendants, his ex-wife and her attorneys in a state court divorce and child custody proceeding, had conspired to bring and maintain fraudulently the aforementioned family law matter in the Pennsylvania court system. The attorney defendants have moved to dismiss. We will grant the motion and dism...
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MEMORANDUM ORDER This pretrial motion to suppress evidence came before the Court for hearing on January 22, 1990. The parties were given until January 29, 1990, to file any supplemental memoranda in support of their respective positions. Having considered the record made at the hearing, our bench notes, and the submissions of the parties, we make the following findings: Facts Defendant Jo...
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This is an action under the Federal Tort Claims Act brought by the plaintiffs, Grace Deguio as conservator of the estate of Dwight Deguio and Grace Deguio individually, against the defendant, the United States of America, for money damages for personal injury allegedly caused by the negligent act or omission of an employee of the government while acting in the scope of his office or employment. 28...
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AMENDED ORDER OF TRANSFER TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Plaintiff Stuart M. Berger, M.D., a New York resident, is a physician with a nationally-known diet program and medical practice. He has substantial business and corporate interests in Michigan and his diet product is manufactured here. Defendant Inside Edition, Inc., a/k/a Inside Edition, i...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came on for trial on January 8, 1990. Having considered all the evidence, memoranda and arguments of the parties, the court hereby makes the following findings of fact and conclusions of law. A. Findings of Fact Most of the salient facts in this case have been stipulated to by the parties. The plaintiffs bring their cla...
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ORDER In response to the amended complaint filed in this action arising out of the transfer of management and control of the data processing unit of the City of Utica Board of Water Supply to the City Comptroller and the removal of plaintiff from the position of Data Processing Supervisor, defendants move for summary judgment dismissing plaintiffs four remaining federal claims and her three pen...
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MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT Plaintiff filed a complaint on October 17, 1988, challenging the “voluntary quit” and “income deduction” regulations that Defendant promulgated in accordance with federal regulations concerning the federally funded food stamp program. Defendant filed a third-party complaint against the Secretary of the United States De...
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OPINION George Hadges, a driver, trainer, and owner of standardbred horses, 1 has sued Yonkers Racing Corporation (“YRC”), the owner and operator of Yonkers Raceway (“Yonkers”) in Yonkers, New York, under 42 U.S.C. § 1983 (1982) for alleged violations of his Fourteenth Amendment due process rights. Specifically, he contends that YRC’s refusal to allow him to utilize his state-i...
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ORDER AWARDING ATTORNEY’S PEES This cause comes before the court on motion of plaintiff’s counsel, Luis A. Segar-ra, Esq., for an award of attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) (1985) (as amended), and the Social Security Act’s attorney fees provisions, 42 U.S.C. § 406(b). The motion raises the question of whether the court may award fees to an attorn...
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*1227 MEMORANDUM This case is a civil action brought by the plaintiff, ITT Corporation (“ITT”), against the defendant, LTX Corporation (“LTX”) for breach of contract. 1 ITT alleges that LTX failed to accept delivery of 479 cable assemblies pursuant to a written contract between the parties. ITT seeks the cost of the cable assemblies, approximately $540,-000, in damages...
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ORDER On January 2, 1990, plaintiff filed a motion to compel defendant George Koch Sons, Inc. (“defendant”) to produce financial statements and tax returns for the years 1985-1989. Plaintiff alleges in counts one and two of its third amended complaint that defendant made certain fraudulent misrepresentations knowingly, willfully, and/or with reckless disregard for their truth or falsity. Plaintif...
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MEMORANDUM OPINION On October 2, 1989, a jury reached a verdict against the City of Chicago and in favor of the ten plaintiffs in this suit, which the court described in Pontarelli Limousine, Inc. v. City of Chicago, 704 F.Supp. 1503 (N.D.Ill.1989). The City has moved for judgment notwithstanding that verdict pursuant to Rule 50(b), Fed.R.Civ. Pro., and renews in it the grounds which it set forth...
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MEMORANDUM This case requires our review of the visitation policy of the Blair County Prison in light of plaintiffs challenge that the policy is unconstitutional and in violation of the Fourteenth Amendment’s equal protection clause. Plaintiff is an adult female sentenced to incarceration in the Blair County Prison. She alleges that the institution’s visitation policy unconstitutionally discr...
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MEMORANDUM OPINION Presently before us is a motion to withdraw the reference in the ongoing bankruptcy proceedings of Allegheny International Credit Corporation (“Allegheny”), a Pennsylvania corporation, for mandatory abstention and for a change of venue to the District Court of the Southern District of Texas. We deny the motion. Litigation between the parties commenced in August, 19...
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Plaintiffs, Oreste and Thelma Kidder, assert that defendants violated the Comprehensive Omnibus Budget Reconciliation Act of 1985 (“COBRA”), Pub.L. No. 99-272, 100 Stat. 222 (1986) (codified at 29 U.S.C. 1161-68) (Supp. IV. 1986), by failing to provide them with COBRA continuation coverage under a group health plan. 1 Rather than receiving COBRA continuation coverage, plaintiffs we...
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*1478ORDER REJECTING CLAIMS RAISED IN ADDENDUM TO PETITIONER’S § 2255 MOTION This cause is before the court upon remand by the United States Court of Appeals for the Eleventh Circuit; the Eleventh Circuit ordered this court to consider the claims raised in the addendum to petitioner’s Title 28 U.S.C. § 2255 motion. 896 F.2d 557. Petitioner originally sought to vacate his sentence under 28 U.S.C. §...
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ORDER Plaintiff seeks the deposition of Barry Fallick, Esq. for the sole purpose of ascertaining from Fallick the whereabouts of Fallick’s client, Brian Campbell, whom plaintiff wishes to depose as a non-party witness. Fallick has indicated to plaintiff that, if deposed, he will assert, on behalf of Campbell, the attorney-client privilege as to the information sought. Accordingly, by agreement, th...
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MEMORANDUM OPINION AND ORDER Before the Court is Defendant’s Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, filed December 21, 1989, and Plaintiff’s Motion for Summary Judgment and Response to Defendant’s Motion, filed January 16, 1990. Plaintiff Chasar instituted this action seeking the refund of income taxes he paid for 1983. Defendant now moves this Court to dismiss...
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ORDER This action comes before the court on Defendant Dr. Douglas Kinkel’s motion to dismiss Counts II and III of Plaintiff’s complaint. For the reasons set forth herein, the court denies Defendant’s motion to dismiss. BACKGROUND Plaintiff, Barbara Sorrells, filed suit in the United States District Court for the Northern District of Illinois on June 8,1989 alleging a personal in...
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ORDER This action comes before the court for ruling on cross-motions for summary judgment. For the reasons set forth herein, the court grants Plaintiff’s motion for summary judgment and denies Defendant’s motion for summary judgment. No dispute as to the facts surrounding this matter exists. BACKGROUND Plaintiff, Alpine State Bank, is a corporation incorporated under the laws of...
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MEMORANDUM AND ORDER This cause comes before the court on a motion to dismiss for failure to state a claim filed by defendant Consolidated Rail Corporation (“Conrail”) and a motion to remand this action as improvidently removed filed by plaintiff Wilson Elliott. Because the court must be certain that federal jurisdiction is proper before entertaining a motion to dispose of the case on its...
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OPINION AND ORDER On December 11, 1989 defendant moved, pursuant to Fed.R.Civ.P. 12 and 56 for dismissal and/or summary judgment as to Counts II, III and, in part, Count IV. Trial by court on defendant’s liability as to these counts was held in May 1989 and with the exception of Count I this court found substantially for the plaintiffs. See Dague v. City of Burlington, 732 F.Su...
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MEMORANDUM AND ORDER This matter comes before the court on a motion by plaintiffs attorney Earl Studtmann for attorney fees in the amount of $4,986.00 pursuant to 42 U.S.C. § 1988. The defendant, Sheriff Richard McLochlin, objects to the motion and requests that the court deny or strictly limit any fee award to the plaintiff and that the court award the defendant attorney fees of $3,230.00 against...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs’ motion for a temporary restraining order. The court heard oral arguments *1124 concerning this matter earlier today. On February 16, 1990, defendant Office of Thrift Supervision (OTS), with the consent of defendant Kansas Savings and Loan Department (KSLD), appointed OTS as conservator for plaintiff Franklin Savings Associati...
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MEMORANDUM OPINION In the case at bar the court has been asked to decide whether there has been a violation of the Establishment Clause of the Constitution, set forth below, in light of the actions of both the plaintiff and the defendants [hereinafter the University]: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion for reconsideration of this court’s June 22, 1989, Memorandum and Order. Also before the court is plaintiff’s motion for partial summary judgment on two of defendant’s counterclaims, and counterclaim-defendant Seaboard Surety Company’s motion for a protective order. A. Plaintiffs Motion For Reconsideration. ...
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Elizabeth Garabedian and Varoujian Garabedian, neither of whom are parties, were subpoenaed to appear on January 22, 1990 at 10:00 A.M. to give testimony and produce documents in this case pursuant to Rule 45(a) and (b), Fed.R.Civ.P. The Notices of Deposition were filed on January 10,1990. See # # 326 and 327. Deposition subpoenas were served on the witnesses on January 15, 1990. See # 358. Neithe...
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OPINION Plaintiff Ronald A. Bainey brings this action under sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g) and 1383(c)(3), to review a final determination of the Secretary of Health and Human Services denying his application for disability insurance benefits and supplemental security income benefits based on disability. Both sides have moved for summary ...
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743 F. Supp. 515 (1990) GENERAL AVIATION, INC., a Michigan corporation, Plaintiff, v. The GARRETT CORPORATION, a California corporation, and The Cessna Aircraft Company, a Kansas corporation, Defendants. No. G87-657-CA5. United States District Court, W.D. Michigan, S.D. March 22, 1990. *516 Michael E. Cavanaugh, Lansing, Mich., for plaintiff. Stephen C. Bransdorfer and J. Terrence Dillon, Grand R...
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MEMORANDUM The defendants are charged in a two count indictment filed on August 10, 1989, with possession with intent to distribute cocaine base, 21 U.S.C. §§ 841(a) and (b)(1)(C), and use and possession of firearms in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). The case is now before the Court on the defendants’ motions to suppress evidence.1 After giving careful consideration to...
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MEMORANDUM OPINION Currently before this Court is the appeal of The First National Bank of Maryland (“FNB”) from a decision of the Honorable James F. Schneider, United States Bankruptcy Court for the District of Maryland, dismissing appellant’s civil case from the bankruptcy court for lack of jurisdiction. Appellee United States Wall Corporation (“Wall”) has chosen not to respond to this ...
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ORDER The above-captioned case having been referred to Magistrate Sharon E. Grubin on July 15, 1986 to issue a report and recommendation as to petitioner Jose Mercado’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, the Magistrate having filed and sent to the parties on February 6, 1990, her Report and Recommendation and petitioner having failed to submit any objections to t...
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RULING ON REVISED MOTION TO AMEND AND ADD PARTY DEFENDANT On April 21, 1989, plaintiff moved for permission to join Virginia Merrill (“wife”), wife of defendant Bruce Merrill (“Merrill”), as an additional defendant under Rules 19 and 20, and to amend under Rule 15 to add a fraud count against the Merrills. Plaintiff contended that the motion was necessitated by the recent disclosure that ...
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RULING ON BANKRUPTCY APPEAL On September 6, 1989, Judge Krechev-sky, Chief Bankruptcy Judge, denied CNB’s motion to strike the trustee’s request for trial by jury in an adversary proceeding and, since both parties agreed that the bankruptcy court had no authority to conduct a jury trial, he directed the parties to take appropriate steps to remove the proceeding from the bankruptcy court, ...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS This matter is before the Court on the motion to dismiss of the defendants Patricia Barry and Elizabeth Lightle (doc. 10) and the motion to dismiss of the defendants Robert Howser, Harmon Neal, Earl Berger, Hon. William Stapleton, and Deborah Parker (doc. 30). The plaintiffs have filed a memorandum in opposition (doc. 11) to which the defendants...
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OPINION This case is currently before the Court on plaintiff FDIC’s March 19, 1990 Motion for Immediate Consideration of Order to Pay. This case has a long history before this Court, and a brief background is in order. In August 1987, judgment was ordered in favor of FDIC against defendant Peter Wysong in the amount of $241,-210.98. In March 1988, this Court approved a bond of Peninsula Asphalt C...
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MEMORANDUM OPINION The question presented by this case is whether a local union may be held liable for damages from a strike by its membership which was not instigated or led by officers of the local, under the “mass action” or agency theories of recovery, as a violation of an implied no-strike obligation in the labor agreement entered into between the parties. I. On March 22, 1989, the 12:00 A.M...
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INTRODUCTION Defendants Marcos Montilla and Nitza Colon are charged with possession with intent to distribute a Schedule II controlled substance and conspiracy and agreement to possess with intent to distribute a Schedule II controlled substance, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 and 21 U.S.C. § 846. At the hearing on October 30, 1989, testimony was heard from Drug Enforcement Administr...
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OPINION This case is currently before the Court on appeal from the bankruptcy court. Appellants charge that the bankruptcy court erred in its June 7, 1989 Opinion and Order which discharged appellee’s $60,000 debt to appellants McHenry, Wiersma, Brennan, and Knapp. Appellants are four individuals who brought an earlier lawsuit against appellee Ward and two others in federal court for fraud in c...
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Defendants Archibald J. MacKenzie and Eldon R. Head have been charged in a two-count indictment with possession of cocaine with intent to distribute and conspiracy to possess cocaine with intent to distribute, pursuant to 21 U.S.C. §§ 841(a)(1) and 846. A suppression hearing was held, and briefs and oral argument have been considered. The following constitutes the court’s findings of facts and con...
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OPINION In this multidistrict case consolidated before this Court for pretrial matters, investors in Gas Reclamation, Inc. (“GRI”) bring suit for violations of federal securities laws, the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and vari *716 ous state statutory and common laws. We consider now the motion for summary judgment brought by Northwes...
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In this action, plaintiffs, Italusa Corporation, Parmalat, S.p.A., and New Hampshire *211 Insurance Company, seek damages for heat damage to a cargo of 466 cartons of Pecorino Romano cheese transported from Leghorn, Italy to New York by Compañía Transatlántica Española, S.A. (“Spanish Lines”). 1 Jurisdiction is based on 28 U.S.C. § 1333(1). The following constitutes the ...
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MEMORANDUM Plaintiff, a former federal prisoner, has brought this pro se action as a qui tam litigant asserting the interests of the United States under the False Claims Act. 31 U.S.C. §§ 3729-31. Liberally construed, plaintiff’s complaint alleges that current or former wardens from five federal correctional institutions conspired to defraud the Government by submitt...
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ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT This action arises out of an automobile race held at Fair Park in Dallas, Texas from July 5-8, 1984. Plaintiffs are persons who reside in neighborhoods adjacent to Fair Park. 1 They brought this action against the City of Dallas and other parties who acted in conjunction with it in allowing the automobile race to be held. ...
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MEMORANDUM OPINION AND ORDER The United States of America, for Farmers Home Administration (FmHA), appeals from an Order of the bankruptcy court denying FmHA’s motion for relief from the automatic stay to set-off amounts owed by the Commodity Credit Corporation (CCC) under five Agricultural Stabilization and Conservation Service (ASCS) contracts with the Debtor 1 against the am...
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MEMORANDUM & ORDER Plaintiff Michael J. Cronin brings this action alleging that defendant ITT Corporation (“ITT”) discharged him in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. (1982) and the New York Human Rights Law, N.Y. Exec. Law § 296 (McKinney 1982 & Supp.1990) and then retaliated against him for complaining about his ineligibili...
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This action arises from the transportation by sea of a shipment of Mocitaiba veneer subsequently found to have sustained fresh water damage. Plaintiff moves for summary judgment, or in the alternative for partial summary judgment, on the issues of liability, limitation of liability and damages. I. Background A shipment of Mocitaiba veneer was transported from Santos, Brazil to...
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OPINION Plaintiffs in this nationwide warranty action seek damages and equitable and declaratory relief against defendant for alleged defects in its motor vehicles. On behalf of a potential class of up to nine million parties, plaintiffs have moved for recertification or certification of four classes of Ford owners, pursuant to Rule 23, Fed.R.Civ.P., and the Magnuson-Moss Warranty Act, 15 U.S.C. ...
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OPINION AND ORDER Plaintiff Western Publishing Company, using the word “Golden” in its logo and otherwise, is and for a long time has been a prominent children’s toy and book manufacturer widely known for its “Little Golden Book” products and for various other toys. Defendant Rose Art, a small, sixty-five year old firm also in the toy field, with a long history of manufacturing, among oth...
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DECISION AND OPINION This litigation has resulted in a recovery which when fully collected will provide a cash fund in court for the benefit of the class plaintiffs of $14,600,000. Additionally, the plaintiff class members will have been relieved of obligations on promissory notes in the face amount in excess of $150,-000,000. Counsel for the plaintiffs, three law firms, have applied for allowanc...
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AMENDED MEMORANDUM AND ORDER In the beleaguered course of the exhaustive and exhausting legal war fought in many forums between and among Whitehead, Madco, Head Tillman, Allied, and Durkay, Trustee, a brief chronological listing of lawsuits, receiverships, bankruptcy filings, foreclosures (both valid and invalid), adversary hearings, interventions, settlements, claims, counterclaims, dismissals, j...
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MEMORANDUM-DECISION AND ORDER I. Introduction This suit is one of a number of construction contract and foreclosure actions arising out of the failure of efforts to renovate two large historical buildings located in the downtown business district of Syracuse, New York. These structures are generally known as the Larned building and the SA & K building. Different limited partnersh...
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ORDER GRANTING MOTIONS TO DISMISS AND TO REMAND This cause is before the Court on the following motions and responses, filed in the above-captioned cases: Case No. 89-1310-CIV-T-17(B) 1. Plaintiff Norman Hibbing’s second motion for remand, filed October 24, 1989. 2. Defendant Michael Sofarelli’s response to the second motion for remand, filed November 9, 1989.1 Case No. 89-1311-CIV-T-17(B) 1. Defe...
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MEMORANDUM OPINION AND ORDER In this bankruptcy appeal, the debtors, Larry and Cathy Barnhart, argue that the bankruptcy court erroneously entered summary judgment against them on Northwestern National Insurance Company’s claim that a portion of the Barnhart’s debt to it was nondischargeable under § 523(a)(2)(A) of the Bankruptcy Code. 1 The court entered summary judgment by gi...
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MEMORANDUM AND ORDER This pro se plaintiff is an Administrative Law Judge (“ALJ”) with the Social Security Administration. He had brought this suit charging that the Secretary of Health and Human Services (“the Secretary”) had impaired the decisional independence of its ALJs in violation of the Administrative Procedure Act (“the APA”), 5 U.S.C. § 551 et seq., and has presently moved for an award o...
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MEMORANDUM AND ORDER This case is before the Court on defendants’ motion for summary judgment. The motion will be granted. FACTS This lawsuit concerns an article about sexual abuse by therapists published in the September 1988 issue of Glamour magazine. Plaintiff Jill Ruzicka was interviewed for the article. Her experience of *1291 sexual abuse was discus...
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MEMORANDUM Plaintiff, Irving T. Schwartz, has filed an Amended Motion to Vacate Judgment and for Return of Forfeited Property. By order dated January 25, 1990 the Court denied Plaintiff’s original motion for post-judgment relief under Rule 60(b) of the Federal Rules of Civil Procedure. 129 F.R.D. 117. Although captioned as an “Amended Motion”, Plaintiff’s motion is properly considered as a “Motio...
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ORDER This matter is before the Court for determination of settlement approval pursuant *369to Fed.R.Civ.P. 23(e). The Court makes the following findings of fact and conclusions of law: Background 1. On January 12, 1989, a class action complaint was filed in the action Interbank Leasing Corporation v. Dun & Bradstreet Corp. and Dun & Bradstreet, Inc., Civil Action No. C-1-89-026 (S.D.Ohio). Sub...
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MEMORANDUM OPINION AND ORDER This is an appeal from the bankruptcy court’s decision denying the debtor, Bruce A. Sawyer, the discharge of a debt to his employer, Prudential-Bache Securities, Inc. Sawyer contends that the court erred in denying the discharge of this debt under § 523(a)(2)(A) of the Bankruptcy Code because (1) he obtained no money, property or services when he purchased com...
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MEMORANDUM OPINION AND ORDER NATURE AND PROCEDURAL HISTORY Plaintiff Rapid City School District 51-4 brings this action against defendants Ken Vahle and Judy Vahle, parents of Darin Vahle, appealing a decision dated August 14, 1989, by Mark Falk, hearing officer appointed by the South Dakota Board of Education. The examiner’s decision requires plaintiff to reimburse defendants $861 for occupa...
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*234 MEMORANDUM DECISION At the outset we express our great hope that this decision will help to resolve a long and often troubling course of events. This action has been particularly frustrating because the parties had reached the brink of what all considered to be an fair settlement over a year ago only to see it subsequently unravel. A recitation of the background to this action will amply...
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MEMORANDUM OPINION The Secretary of Labor, Elizabeth Dole, has filed a motion pursuant to Rule 26, Fed.R.Civ.P., to quash a subpoena issued by the United States District Court for the Northern District of Illinois requiring Gordon Carlson, Regional Director of the Job Corps of the Department of Labor in Chicago, Illinois to testify at a deposition in a case in the Eastern District of Michigan that...
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OPINION Currently before the court is the motion of pro se plaintiffs Tom and Jean Christensen for summary judgment. The defendant, the United States of America, has cross-moved for summary judgment. For the reasons stated in the following opinion, this court will deny plaintiffs’ motion and grant the government’s motion. I. FACTS AND PROCEDURE Plaintiffs initiated th...
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I. Introduction Presently before the court is defendant Goodyear Tire and Rubber Company’s pretrial motion for summary judgment on the claim for punitive damages advanced by plaintiffs, Sublizio and Hilda Germanio, in this products liability action concerning the explosive separation of a truck tire rim manufactured by defendant. Defendant argues that New Jersey’s scheme for the determinat...
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MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT In this pro se civil rights action brought under 42 U.S.C. § 1983, Plaintiff alleges that he sustained injuries while incarcerated at the Cumberland County Jail awaiting hearing on a Motion to Revoke Probation. Plaintiff alleges that he tripped on an open floor drain, hit the jail wall, and broke his nose. Plaintiff ...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion for summary judgment. For the reasons stated below, defendant’s motion will be denied. In addition, the court has determined that oral argument would not materially assist the disposition of the motion, and therefore defendant’s request for the same is hereby denied. D.Kan. Rule 206(d). Plaintiffs’ motion for leave...
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OPINION This reinstated petition 1 for a writ of habeas corpus squarely presents one question: does the Due Process Clause of the Fourteenth Amendment to the United States Constitution require personal delivery of process to an alleged criminal con-*746temnor? Andonis Morfesis was charged with violation of seven separate orders of a New York Civil Court Housing judge to provide heat and hot water...
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MEMORANDUM AND ORDER This matter is before the court on mov-ant James Lamont Marsh’s pro se motion for relief from sentencing pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. On June 27, 1989, Marsh pled guilty to three counts of wire fraud in violation of 18 U.S.C. § 1341 involving the sale of microwave popcorn vending machines. On August 14, 1989, Marsh was sentenced to thre...
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MEMORANDUM OPINION Plaintiff, Scott William Katz, filed suit against defendants, “Board of Trustees of University of Arkansas d/b/a the University of Arkansas, Fayetteville, Arkansas, Jake W. Looney, Phillip E. Norvell, Charles N. Carnes, Lonnie R. Beard, Paul Schwartz, and Donald B. Pedersen.” In his complaint he alleges that he was enrolled in the graduate agricultural law program at th...
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*53OPINION ON REMAND 1. Background. On filing his complaint, Fabian Vaksman applied to the district court for leave to proceed as a pauper. His application consisted of his answers to questions on the front and back of a one-page financial questionnaire. Judge Gabrielle McDonald denied Vaksman’s application. He moved for reconsideration, attaching several pages of food-stamp material. The case was...
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ORDER This matter is before the Court on a motion to dismiss the amended complaint filed by defendants Frank Cleveland, M.D. and the Hamilton County, Ohio Board of County Commissioners (Doc. 21). For the reasons stated below, the motion is hereby GRANTED. FACTS This is a diversity action brought by plaintiff against defendants EBAA, Cincinnati Eye Bank For Sight Restoration, Inc...
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OPINION This matter is before the Court on the motion to dismiss of defendants Edwin A. Meese, III, J. Michael Quinlan, George Wilkerson, and C.A. Turner, plaintiffs opposition, defendants’ reply, and the entire record herein. The Court concludes that this Court does not have personal jurisdiction over the defendants and that the complaint should be dismissed. Background The following fac...
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MEMORANDUM OPINION AND ORDER Before me are two of defendants’ motions addressing the portions of plaintiffs’ *1407 complaint alleging that defendants violated the Colorado Organized Crime Control Act, Colo.ftev.Stat. §§ 18-17-104(l)(a), 104(2) & 104(3) (COCCA), and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962(a), (b), (c) & (d) (RICO). Defendants ...
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MEMORANDUM DECISION This is a diversity action in which plaintiff International Commodities Export Corporation (“ICEC”) seeks a declaratory judgment under 28 U.S.C. §§ 2201 and 2202 stating that it has fully performed its obligations under a contract for the shipment of beans to defendant. Defendant North Pacific Lumber Company (“North Pacific”) denies that the claim arose in the Southern Distr...
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MEMORANDUM ORDER This case comes before the Court on a motion for summary judgment pursuant to Fed.R.Civ.P. 56 filed by defendant The Citizens and Southern National Bank (“Citizens”). Defendant argues that the limitations period applicable to this action expired prior to the date on which plaintiffs’ amended complaint — which names Citizens as a party defendant — was filed. Plaintiffs oppose the ...
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MEMORANDUM MEMORANDUM Defendant is charged in a one count indictment filed on October 5, 1989, with unlawful possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1), (b)(1)(C). The case is now before the Court on the defendant’s motion for reconsideration of the Court’s denial of his motion to suppress evidence. After giving careful consideration to the motion and the opposition th...
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*432ORDER The recommendations of the Special Master are adopted in their entirety and the parties are ordered to comply with their terms. RECOMMENDATION OF SPECIAL MASTER RE MOTION TO COMPEL FURTHER ANSWERS TO INTERROGATORIES GERALD A. COHN, Special Master. I INTRODUCTION This Recommendation deals with a motion by certain Defendants to compel Plaintiffs to provide further answers to interrogatori...
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MEMORANDUM OPINION AND ORDER Pending before me is: 1) Plaintiff Personal Representative’s (PR) Motion for Reconsideration of my July 7, 1989 Order granting defendants leave to amend their, counterclaim; 2) PR’s Motion for Partial Summary Judgment Respecting Constitutional Challenge to Colorado Probate Code; 3) Defendants’ Cross-Motion for Partial Summary Judgment; 4) Defendants’ motion for protect...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs motion for a new trial pursuant to Rule 59, Federal Rules of Civil Procedure. At trial, plaintiff, Board of Trustees of Johnson County Community College (College), sought to recover from defendant, National Gypsum Company (NGC), costs associated with removing an asbestos-containing plaster product (Sprayolite) from three c...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff William Robson’s timely motion for reconsideration of the court’s order of November 28, 1989, granting plaintiff’s motion for preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure and denying plaintiff’s motion for delivery of property pursuant to K.S.A. 60-1005. Since defendant has failed to file a res...
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OPINION AND ORDER This is a civil action brought by plaintiff Copps Food Center, Inc., to enforce an agreement with defendant United Food & Commercial Workers Union, Local No. 73A, in which the Union allegedly agreed to file representation petitions only for “wall-to-wall” bargaining units in plaintiff’s food centers. Plaintiff contends that defendant breached this agreement by petitionin...
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MEMORANDUM AND ORDER INTRODUCTION On March 15, 1990 defendants GAF Corporation; National Gypsum Company; Pfizer, Inc.; Union Carbide Corporation; and United States Gypsum Company filed a motion with this Court. Defendants requested that this Court “exclude any potential claim made by plaintiffs for punitive damages.... ” Several letters have been filed by defendants American Hoist an...
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OPINION In this case the Court has been called upon to examine and evaluate, among other things, the legal significance of the current state of relations between Libya and the United States. The facts and arguments presented by the parties have put this Court in the unenviable and precarious position of having to place legal labels on the foreign policy maneuvers of the Bush administratio...
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ORDER & OPINION Plaintiff Vincent M. Iavarone has brought suit against defendants Raymond Keyes Associates, Inc. (“RKA”), a New Jersey corporation, Raymond J. Keyes (“Keyes”) (Chairman of the Board of Directors of RKA), Kenneth McCurdy (President of RKA and a member of the Board of Directors), and six other members of the Board of Directors of RKA. Plaintiff Ia-varone is a former Presiden...
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DECISION AND ORDER The plaintiff, Modern Products, Inc., alleges that the defendants, Dr. George *363 Schwartz and Health Press, defamed Modern Products and disparaged its product, Spike, by publishing a book entitled IN BAD TASTE The MSG Syndrome. The defendants have moved for summary judgment on both claims; the motion will be denied in part and granted in part. ...
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ORDER DETERMINING THAT PLAINTIFFS ARE ENTITLED TO TRIAL BY JURY Plaintiffs, VINCENT K. and JOAN GANGITANO move this Court to enter an order determining that plaintiffs are entitled to trial by jury in this action; or in the alternative, move this Court pursuant to Fed.R.Civ.P. 39(c) to empanel an Advisory Jury. This is an action for the recovery of medical insurance benefits under a ...
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ORDER This matter is before the court on cross-motions for summary judgment. This is an action by the trustees of Service Employees International Union Local 96 Building Service Employees Insurance Welfare Fund, pursuant to Section 502 of the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1132. Plaintiffs seek to collect fringe benefit contributions owed by def...
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743 F.Supp. 309 (1990) Louise Robichaud SAMAROO, Plaintiff, v. Winston R. SAMAROO, Defendant. AT & T MANAGEMENT PENSION PLAN, Plaintiff, v. Louise M. ROBICHAUD, Defendant. Civ. Nos. 89-2215(GEB), 89-2216(GEB). United States District Court, D. New Jersey. July 17, 1990. *310 Christopher H. Mills, Collier, Jacob & Sweet, P.C., Somerset, N.J., for AT & T Management Pension Plan. William ...
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OPINION Plaintiff Walter Jones sues defendants CBS, Inc., Viacom International, Inc., Samm-Art Williams, Tim Reid and Hugh Wilson for alleged copyright infringement and false designation of origin under 17 U.S.C. § 501 et seq. and 15 U.S.C. § 1125(a) (the “Copyright Act” and the “Lanham Act" respectively). The copyright claim is based on Jones’ allegation that an award-winning ...
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ORDER The Court entertains the present appeal from the Bankruptcy Court pursuant to 28 U.S.C. section 158(a). Appellant, the United States, appeals from the Bankruptcy Court’s denial of priority status for appellant’s income tax claims. The parties agree that the issue presented is wholly one of law and that the standard of review for this Court to apply is de novo. For the reasons set forth he...
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OPINION & ORDER Futuronics Corporation (“Futuronics”) appeals from two decisions by the Honorable Cornelius Blackshear, United States Bankruptcy Judge of the Southern District of New York. First, Futuronics is appealing from Judge Blackshear’s decision, dated February 11, 1988, which granted Gen-*144esco Inc. (“Genesco”) damages in the sum of $282,233.50 for Genesco’s unsecured claim against Futu...
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This is a diversity suit arising out of an automobile-motorcycle collision occurring *787 on Interstate 91 in Rockingham, Vermont. On October 31, 1989, this court granted Defendant's motion to dismiss in the absence of any opposition by Plaintiffs. However, on March 7, 1990, Plaintiffs’ motion to reconsider Defendant’s motion to dismiss was granted. For the reasons that follow, Def...
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This suit was filed by John R. Cummings and his wife, Catherine, under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5 of the Securities and Exchange Commission. 17 C.F.R. § 240.10b-5. Named as defendants in this suit are A.G. Edwards & Sons, Inc. and Alfonso Schiebel. Plaintiff contends that defendants are liable for various violations of the securities ...
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ORDER AND OPINION Plaintiffs Broadway 41st Street Realty Corporation (“Broadway 41st”) and Rosen-thal & Rosenthal Inc. (“Rosenthal”) brought suit for damages and injunctive relief against certain public and private entities engaged in the 42nd Street Development Project (the “Project”). The amended complaint alleges that defendants have effected a de facto taking of plaintiffs'...
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ORDER GRANTING DEFENDANTS’ SUMMARY JUDGMENT MOTION IT IS HEREBY ORDERED: 1. Defendants GLOBE INTERNATIONAL, LTD. (GLOBE) and PETER RIG-BY’s (hereinafter RIGBY) motion for sum *84 mary judgment on the Second Cause of Action is GRANTED. 2. GLOBE and RIGBY contend that summary judgment should be granted in their favor on the Second Cause of Action for the following reasons: the article is pr...
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ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE The United States Magistrate having filed herein with the Court on February 21, 1990, with copies to counsel, his Recommended Decision on Motions to Dismiss of Defendants State of Maine and Donald L. Allen, Commissioner of Maine Department of Corrections (a copy of which is attached hereto as “Exhibit A”); and the time for filing ...
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MEMORANDUM ORDER The defendant has been charged in a six-count indictment, together with co-defendant Monie Khosravi, with conspiracy to distribute 50 grams or more of a mixture and substance containing cocaine base between September 21 and October 5, 1989, (21 U.S.C. §§ 846, 841(b)(l)(A)(iii)), distribution of 5 grams or more of a mixture and substance containing cocaine base on September 27, 198...
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RULING ON PLAINTIFF’S MOTION TO REMAND Camille Tullier filed this suit in the 23rd Judicial District Court in Ascension Parish on July 27, 1989 to recover damages for *238injuries sustained when plaintiff attempted to avoid another vehicle and struck a tree. She now seeks recovery from Chrysler Motors Corporation (Chrysler) and C.J.’s Auto Consignment (C.J.’s), the car manufacturer and retailer, ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION This proceeding is brought pursuant to Section 9 of the United States Arbitration Act of 1925 as amended (the “Arbitration Act”), 9 U.S.C. § 9, and Section 301(a) of the Labor Management Relations Act of 1947, as amended (“LMRA”), 29 U.S.C. 185(a), by petitioner Directors Guild of America, Inc. (“DGA”), a labor organization, to confirm a l...
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MEMORANDUM AND ORDER Having read and considered the defendant Nave’s ex parte motion for authorization of government funds for lodging during trial for the indigent defendant, the same must be denied. The statute cited by defendant’s counsel, 18 U.S.C. section 4285, does not authorize such payments, but only provides for payment of travel and subsistence to the...
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ORDER Before the Court is a Motion for Partial Summary Judgment by the Defendant pursuant to Rule 56 of the Federal Rules of Civil Procedure on Count II of the Plaintiff’s Complaint. After considering all of the pleadings, this Court grants summary judgment as to Count II. BACKGROUND FACTS The Defendant, Globe Life and Accident Insurance Company, is incorporated in the State of ...
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OPINION AND ORDER This is an action by plaintiff Kevin McGuire, who is a paraplegic, challenging New York State regulations that imposed a ceiling or “cap” on funding for his tuition *102 and maintenance expenses in connection with his law school education. He brings this action under Title I and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 ...
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MEMORANDUM ORDER The defendants have been charged in a six-count indictment with conspiracy to dis*138tribute 50 grams or more of a mixture and substance containing cocaine base between September 21 and October 5, 1989, (21 U.S.C. §§ 846, 841(b)(1)(A)(iii)), distribution of 5 grams or more of a mixture and substance containing cocaine base on September 27, 1989, (21 U.S.C. § 841(b)(l)(B)(iii)), di...
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MEMORANDUM OF OPINION AND ORDER This action arises out of the lease and possible sale of The Grand Hotel by Joseph *14 Kaempfer and his various real estate partnerships 1 to Joseph Yazbeck and his businesses (“the Yazbeck defendants”). 2 Plaintiff Richard Kassatly, a former confident of Joseph Yazbeck, brings this diversity action alleging that he is ent...
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*636REPORT AND RECOMMENDATION INTRODUCTION This copyright infringement case was referred to the undersigned United States Magistrate for supervision of discovery, a pretrial conference, and for report and recommendation on dispositive motions. Currently pending for consideration by the undersigned are: (1) the Motion to Dismiss filed on October 14, 1988 by individual counterclaim defendants R. Cla...
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ORDER OF REMAND This cause came on for consideration upon plaintiffs’ motion for remand and defendant’s motion for leave to amend its petition for removal. The Court, having reviewed the record and being fully advised in the premises, finds and concludes that the motion for remand should be granted and the motion to amend should be denied. This action was brought originally in the Circuit Cou...
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ORDER This is an action brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 522, as amended, in which plaintiff-author Tony Summers seeks access to more than 17,000 pages of former FBI Director J. Edgar Hoover’s daily logs and appointment calendars as material to be used in a book about the Former Director. The FBI has invoked Open America v. Watergate Special Prosecutio...
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*223 MEMORANDUM OPINION This matter is before the Court on defendant’s motion to dismiss plaintiffs’ complaint and on defendant’s motion to strike plaintiffs’ prayer for punitive damages in Count I of their complaint, pursuant respectively to Rules 12(b)(6) and 12(f) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant’s motion to dismiss is granted...
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This consolidated case concerns the September, 1987 breakdown at sea of the M/V PALM TRADER en route from Indonesia to the United States. Several plaintiff cargo interests have alleged causes of action against, inter alia, the ship, its owner, and its charterer, relating to the breakdown and subsequent general average declaration of the PALM TRADER. Defendant Perusahaan Peleyaran Samudera a/k/a P....
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MEMORANDUM DECISION AND ORDER Plaintiff applied for supplemental security income benefits under Title XVI of the Social Security Act on October 8, 1987. The Secretary denied his claim at all administrative levels. This matter is before the Court pursuant to the Plaintiff’s Motion for Reversal or Remand and the Defendant’s Motion for Judgment of Affirmance. 42 U.S.C. §§ 405(g), 1383(c)(3). I. STATU...
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MEMORANDUM AND ORDER This matter is before the Court on the motion of defendant, Tri-State Motor Transit Co. (Tri-State), to alter or amend the judgment entered for plaintiff, B & D Appraisals (B & D), pursuant to Federal Rule of Civil Procedure 59(e). The jury returned a verdict for B & D in the amount of $45,360.00 for damage done to its goods being transported by Tri-State. 1 ...
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DECISION AND ORDER INTRODUCTION Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g) to review the Secretary's decision to grant disability benefits *593 effective January 1985 rather than May 1977 as requested by plaintiff. The Secretary moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b) for lack of subject matter jurisdiction and for failure to state a claim upon wh...
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ORDER THIS CAUSE came on for consideration upon the filing of a petition for review of the decision of the Secretary of Health and Human Services. This matter was considered by the Magistrate, pursuant to the general order of assignment, who has filed her report recommending that the decision of the Secretary denying benefits be reversed and the case remanded to the Secretary for further proceedin...
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MEMORANDUM Plaintiffs, two environment organizations and an individual, seek declaratory and injunctive relief requiring the Defense Nuclear Facilities Safety Board (“Board”) to comply with the Sunshine Act (“Sunshine Act”), 5 U.S.C. § 552b, and the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.1 The Board contends that because its functions are wholly advisory, it is not an “agency” to whic...
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MEMORANDUM OPINION AND ORDER This opinion covers an appeal arising from the Frontier Airlines bankruptcy which was consolidated with Civil Action No. 89-K-1782 for the purpose of oral argument. Since oral argument, the companion case of 89-K-1782 has settled and was dismissed by stipulation. In this case, 89-K-421, T.G. Shown & Associates, Inc. (Shown) argues that the court erred in award...
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MEMORANDUM This case is before the Court on the Petition for a Writ of Habeas Corpus filed by Carlos E. Ledher. After careful consideration of the petition, the Court concludes that the petition must be dismissed. Ledher, proceeding pro se, is a federal prisoner serving his sentence at the United States penitentiary in Marion, Illinois. The gravamen of his petition is that he was forcibly a...
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AMENDED MEMORANDUM OF OPINION AND ORDER It has come to the Court’s attention that its Order of February 21, 1990 contained a clerical error on pages 2-3. The Court now AMENDS its February 21, 1990 Order. See Fed.Rules Civ.Proc., Rule 60(a). This is a Title VII action in which plaintiff, pro se, Dr. Lih Y. Young, alleges that her former employer, the Department of Health and Human Services, di...
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ORDER THIS CAUSE came on for consideration upon the filing of a petition for review of the decision of the Secretary of Health and Human Services. This matter was considered by the Magistrate, pursuant to the general order of assignment, who has filed her report recommending that the decision of the Secretary denying benefits be reversed and the case remanded to the Secretary for further procee...
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MEMORANDUM DECISION AND ORDER This matter is before the Court on appeal from an order of the United States Bankruptcy Court for the District of Columbia. See Case No. 87-01126. The appellants contend that the bankruptcy court erred in ruling that the Class A Limited Partners’ right' to interest on their invested capital was not a claim conferring creditor status within the mean...
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MEMORANDUM DECISION AND ORDER The defendants 1 in this matter are indicted with one count of possession with intention to distribute cocaine base of 5 grams and more in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(iii), two counts of using a firearm during and in relation to the possession with intent to distribute a controlled substance in violation of 18 U.S.C. § 924(c), and...
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MEMORANDUM Thiá tort action arises out of a highly-publicized dispute between divorced parents over their minor child. Plaintiffs originally filed the complaint in the Superior Court of the District of Columbia, but defendants removed it to this Court pursuant to 28 U.S.C. § 1441 by reason of diversity of citizenship under 28 U.S.C. § 1332. Defendants then moved for summary judgment or to...
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MEMORANDUM AND ORDER This matter is currently before the court on the motion for summary judgment of United States Fidelity & Guaranty Company. A hearing on USF & G’s motion was held on March 26, 1990. Consistent with the views of the court expressed at the hearing on the present matter, and for the reasons stated herein, the plaintiff’s motion for summary judgment is granted. Summar...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff Eldon Industries, Inc. (“Eldon”) is engaged in the business of designing, manufacturing and selling office accessories. Defendants Rubbermaid, Inc. and its subsidiary Rubbermaid Commercial Products, Inc. (collectively, “Rubbermaid”) are also in the business of designing, manufacturing and selling office accessories. In this actio...
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Plaintiff George M. Austin, M.D. (“Dr. Austin”), is a neurosurgeon and brings this action alleging violations of the Sherman Antitrust Act, 15 U.S.C.A. §§ 1, 2 (1982), and pendent state business tort claims against five individual physicians and the Santa Barbara Cottage Hospital (“Cottage Hospital”). Plaintiff’s claims arise out of the alleged conspiracy and concerted actions of the individual...
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MEMORANDUM AND ORDER This matter is presently before the Court on the motion of each defendant for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. *510The instant action arises as a result of a proposed highway alteration project to an area known as the “Wakefield cutoff”, located at the intersection of U.S. Route 1 and Old Tower Hill Road in the town of South Kingsto...
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ORDER This matter is before the Court pursuant to Petitioner’s petition for writ of habeas corpus, the Respondent’s motion to dismiss and the Intervenor United States’ motion to dismiss. In October, 1979, Petitioner was convicted by a jury in the Circuit Court of Prince George’s County, Maryland, of kidnapping *129and was sentenced on November 29, 1979, to 25 years incarceration. See Exhibit No. 1...
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MEMORANDUM DECISION AND ORDER The plaintiffs in this matter are twenty-three States who claim the right pursuant to their respective unclaimed property laws to custody of monies belonging to their respective citizens and contained in the United States Treasury trust fund receipt account “Unclaimed Moneys of Individuals Whose Whereabouts are Unknown” as established by 31 U.S.C. § 1322. The...
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OPINION AND ORDER This Opinion and Order addresses only the two motions currently pending before the Court which involve defendant Refi-nemet International, Inc. (“Refinemet”), one of the two remaining defendants in this action, along with Alcan Aluminum Corporation. These two motions are the City of New York’s (“the City’s”) motion for summary judgment against Refinemet, and the City’s m...
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MEMORANDUM OPINION Introduction This matter is before the court upon defendant Donaldson & Co.’s, (hereafter Donaldson) and defendant Invesco Capital Management Co.’s (hereafter Invesco) motion to dismiss pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. Alternatively, defendant Invesco moves to transfer venue to the United States District Court for the...
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MEMORANDUM OPINION AND ORDER Defendant Ramon Ruiz has pleaded guilty to Count One of a two-count indictment. Count One charges Ruiz with conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846. Pending is a dispute between Ruiz and the government concerning proper application of the Sentencing Guidelines. On September 5, 1980, defendant pleaded ...
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OPINION AND ORDER Before the Court is defendants’ petition for removal and plaintiff’s request for a remand. Defendants allege that this action is removable, because it is one which arises under the laws and regulations of the United States as well as those which govern the relationship between the United States’ Courts and Court officers. Plaintiffs contend that this action is not remova...
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Plaintiff has moved pursuant to Fed.R. Civ.P. 59 and Local Rule 3(j) for reargument with regard to the Court’s Order and Opinion of October 27, 1989 granting defendants’ motion to dismiss the complaint due to lack of personal jurisdiction. 723 F.Supp. 1011. Plaintiff argues that the Court failed to consider the affidavit of plaintiff Harriet Feigenbaum (“Feigenbaum”), sworn to on May 2, 1989 (“...
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MEMORANDUM AND ORDERS DIRECTING FURTHER PROCEEDINGS This Court’s letter of March 13, 1990 setting this case for oral argument stated that the “issues to be addressed by counsel should include the following: 1. The order in which the class certification and summa*405ry judgment motions should be determined. 2. Whether the case should be certified as a class action. 3. How the summary judgment moti...
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OPINION Larry Rollins, a/k/a Donald Beauchene, petitions this court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner argues that his right against self-incrimination under the fifth amendment and his right to counsel under the sixth amendment were violated when the trial court failed to suppress a confession obtained after a defective Miranda warning, that petitioner was ...
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MEMORANDUM AND ORDER By order dated November 6, 1989, 724 F.Supp. 59, this Court directed defendant William Grimm (“Grimm”) to make mainte*577nance payments to plaintiff Bart Ritchie (“Ritchie”) in the amount of $381 per week, and awarded attorney’s fees to plaintiffs in the amount of $5000. Grimm now moves this Court for an order under Rule 54(b) of the Federal Rules of Civil Procedure directing ...
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MEMORANDUM AND ORDER In January, 1990, defendant was charged by superceding indictment with sixteen counts of RICO, embezzlement, receipt of unlawful payments, filing a false loan application, mail fraud, tax evasion, and wilful failure to file his tax return. The government moves to disqualify his trial counsel Patrick M. Wall. I As charged in the indictment, defendant was a vice president...
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*492OPINION AND ORDER On March 14, 1990, plaintiff, Trailer Marine Transport Corporation, filed this action and requested a Temporary Restraining Order (“TRO”) against the defendants, the Secretary of Transportation, the Secretary of Treasury of Puerto Rico, and the Automobile Accident Compensation Administration (“AACA”), in order to enjoin the imposition of a tax imposed pursuant to Law No. 27 ...
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RULING ON MOTIONS TO INTERVENE and VACATE This action was brought by the City of Hartford based on an agreement with defendants which the City asserted had been breached. The agreement arose from negotiations during which the City was informed of substantial financial data pertaining to defendants who did not wish such to become public knowledge. 1 At defendants’ instance, the ...
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The instant motion for summary judgment in this race discrimination action presents the questions whether plaintiffs have adduced sufficient summary judgment evidence to warrant a trial and whether plaintiffs and their former counsel should be sanctioned for filing and continuing to prosecute this suit. I Plaintiffs are five African-Americans who were employed by defendant Garland Ind...
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OPINION Bankruptcy appeal. At issue: landlord’s portion of a crop share lease. Here, the Debtors’ landlord, Emma Stewart, contends that when — prior to rejecting a lease of farmland and in “timely perform[ing] all the obligations of the debtor” pursuant to 11 U.S.C. § 365(d)(3) — the trustee harvests growing crops, he must also pay to the landlord her entire share of the harvest as one of those o...
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MEMORANDUM OF DECISION AND ORDER DENYING THIRD-PARTY DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Third-Party Defendants filed a Motion for Partial Summary Judgment claiming that there exists no issue of material fact concerning Third-Party Plaintiff’s allegation that Third-Party Defendants’ employee negligently repaired a greenhouse heating system sold by Third-Party Defendants to Third-Party...
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OPINION AND ORDER All 22 defendants are charged with participating from July 1988 to July 21, 1989 in a conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of crack (count one). Defendant Roberto Rodriguez is charged with engaging in a continuing criminal enterprise (count two). He and defendant Manuela Pereyra are charged with distributing a half-kilogram ...
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MEMORANDUM OF DECISION AND ORDER DENYING THIRD-PARTY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Third-Party Defendants have filed a Motion for Summary Judgment alleging that the Court lacks personal jurisdiction over them pursuant to the Maine Long-Arm Statute, 14 M.R.S.A. § 704-A. The Court finds that it may exercise “specific” personal jurisdiction over Third-Party Defendants because the q...
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OPINION AND ORDER In this action for moneys due and owing under a guaranty, plaintiff moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff also moves to amend its complaint to correct an inadvertent error in the ad damnum clause. FACTS On March 26, 1981, defendant David Wulkan (“Wulkan”), a resident and citizen of Israel, executed a g...
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OPINION Introduction This action involves the issue of whether the acquisition of existing paying subscribers as part of an ongoing group of newspapers warrants a tax deduction for the depreciation and amortization of the value of those subscribers as an asset separate and apart from goodwill. The parties concede that the issue is a factual one, and that' in order to prevail...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of defendant Fidelity & Guaranty Insurance Underwriters, Inc. (FGIU) for summary judgment and the cross motion of plaintiff Eugene Matthews for summary judgment. Each party has responded to the motion of the other. The court has considered the memoranda of authorities together with attachments submitted by the parties and f...
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MEMORANDUM Plaintiff, Ace-Federal Reporters, Inc. (“Ace-Federal”), an unsuccessful bidder for a government contract to provide stenographic services 1 , filed this action for declaratory and injunctive relief to enjoin the Federal Energy Regulatory Commission (“FERC”) from awarding the stenographic services contract, to any entity other than the plaintiff. On February 28, 1990,...
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OPINION AND ORDER The Court has before it the parties motions for summary judgment. Omni Packaging Inc. and Daniel Avila de la Rosa have filed this action pursuant to 5 U.S.C. § 702. Jurisdiction is based on 8 U.S.C. § 1329, 28 U.S.C. § 1331 and 28 U.S.C. §§ 2201, 2202. Plaintiffs request equitable relief and costs and attorneys’ fees. Having fully considered the motions, all materia...
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ORDER This case is presently before the court on the defendants’ motion to disqualify Hen-drik G. Milne and his law firm of Squire, Sanders & Dempsey as attorneys for the plaintiff in the captioned case. After considering the arguments of the parties, the court finds that the defendants’ motion is completely without merit. Accordingly, the defendants’ motion to disqualify the plaintiff’s counsel ...
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ORDER The petitioner, John B. Duggan, filed a petition for approval of attorney’s fees and court costs arising from his successful representation of the plaintiff, Joe D. Wilson, in the underlying action to restore social security disability benefits. The petitioner seeks such an award pursuant to the Equal Access to Justice Act (hereinafter “EAJA,” 28 U.S.C. § 2412). See Guthrie v. Schweiker, 71...
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MEMORANDUM AND ORDER This case comes before the court on plaintiff’s motion for stay of execution of judgment upon appeal. The court previously entered judgment in favor of the defendant, holding that the real property owned by the plaintiff is subject to fore*459closure and sale under the defendant’s statutory tax lien. The court subsequently denied the plaintiff’s motion to alter or amend the j...
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DECISION AND ORDER This non-jury matter arises out of a suit by plaintiff seeking a preliminary injunction preventing a threatened strike by the defendant union. The plaintiff has brought suit under the Railway Labor Act, 45 U.S.C. § 151 et seq. Defendants have filed a counterclaim seeking a declaratory *1266 judgment that, in essence, the plaintiff is negotiating ...
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MEMORANDUM OPINION Plaintiffs in this case operated a flea market at the intersections of U.S. Routes 33 and 29 in Ruckersville, Greene County, Virginia. They allege that a tax ordinance passed by the defendant Board of Supervisors (the “Board”) and the subsequent enforcement of that ordinance by the defendant sheriff and his deputies (hereafter the “Sheriff”) were efforts to drive the plaintiffs...
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DECISION AND ORDER Monroe Savings Bank, FSB (“Monroe”) commenced this action to foreclose a mortgage it holds against a single family residence located at 789 Ayrault Road in Perm- *597 ton, New York (the “Property”). The property is owned by defendants Vincent and Lena M. Catalano (the “Catalanos”). The United States has seized the property and has brought a forfeiture proce...
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MEMORANDUM AND ORDER The case comes before the court on the plaintiffs’ motions for summary judgment. In this insurance coverage dispute, the insureds, Morrison Grain Company, Inc. (Morrison Grain), a dissolved Kansas corporation, and Morrison Coal Company, Inc. (Morrison Coal), a dissolved Arkansas corporation, seek a declaratory judgment that the plaintiffs, as insurers, have a duty to ...
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OPINION AND ORDER This non-jury matter comes before the court upon the plaintiff’s motion for a preliminary injunction. The plaintiff, a health maintenance organization, seeks to enjoin the plaintiff’s tort action against it in the Court of Common Pleas of Montgomery County until the plaintiff has exhausted the “Grievance Procedure” set forth in the contract between the plaintiff and the ...
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MEMORANDUM OPINION Before the Court is “what the courts have recognized as the most intractable of disputes — a church fight.” First Baptist Church v. Ohio, 591 F.Supp. 676, 680-81 (S.D.Ohio 1983). The central issue in this lawsuit by a “lifelong” Rock Creek Baptist Church (“RCB Church”) member against RCB Church (as well as its Pastor and its Secretary) is whether the plaintif...
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MEMORANDUM In this nonjury case, plaintiff Clarence Cain alleges that the defendants’ decision to remove him as regional partner of Hyatt Legal Services because he had contracted acquired immune deficiency syndrome (AIDS) violated the Pennsylvania Human Relations Act, Act of October 27, 1955, Pub.L. No. 744 (codified as amended at 43 Pa.Stat.Ann. § 951 et seq.), which proscribe...
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MEMORANDUM OPINION This case has been submitted to the Court upon a lengthy stipulation of facts *1276agreed to by all parties. The Court will, thus, view this matter as it would one in which cross-motions for summary judgment were pending. For the reasons which follow, the Court finds that defendants are entitled to judgment as a matter of law upon plaintiffs’ claims herein. The relevant facts in...
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MEMORANDUM OF DECISION AND ORDER PROCEDURAL BACKGROUND On November 28, 1989, plaintiffs McPhail and Gunter sued the defendants in North Carolina Superior Court, Gaston County, for alleged violations of the North Carolina Unfair and Deceptive Trade Practices Act, N.C.G.S. § 75-1.1. On December 28, 1989, defendants removed the case from state court, and on the same day they filed their...
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OPINION AND ORDER This is a motion by defendant and a cross-motion by a pro se plaintiff 1 for summary judgment pursuant to Federal Rule of Civil Procedure 56. Background Plaintiff seeks damages based on allegations of misconduct by Swiss Air Transport Co., Ltd., (Swissair) in transporting her from Geneva to New York against her will on July 4, 1985. 2 Prio...
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*466 OPINION AND ORDER In this civil action, David W. (“Nick”) Connell claims that officials of the Town of Hudson, New Hampshire, violated his constitutional rights by ordering him away from the scene of an accident and threatening to arrest him if he persisted in taking pictures. 1 Presently before the Court are cross-motions for summary judgment. Background ...
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MEMORANDUM OPINION AND ORDER Before me are cross motions for summary judgment. The sole issue is whether defendant Denver Public Schools (DPS) violated the First Amendment speech and expression rights of plaintiff teacher John G. Miles (Miles) by reprimanding him for a statement he made to his ninth grade National Government class. The issue has been' adequately briefed by both parties an...
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OPINION AND ORDER Ronald Ford was injured on the job on September 23, 1985, while employed by the National Railroad Passenger Corporation (Amtrak) as an Amtrak police officer. He was injured when he was knocked down or fell to the ground in pursuing a suspect who had attempted to break into an automobile parked at the Pennsylvania Station in Baltimore. Although he lost time from work by r...
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MEMORANDUM AND ORDER This matter is presently before the Court for decision after a bench trial. The case involves a misposting of pension funds by the New England Mutual Life Insurance Company (New England Mutual) to the account of defendant, Thomas Hastings, Jr., which funds should have been credited to the account of defendant’s father, Thomas Hastings, Sr. Esther Hastings, the widow o...
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MEMORANDUM AND ORDER I Plaintiff, a pro se litigant, brought this suit in federal court on January 29, 1990, after filing a document entitled “Application for Issuance of a Special or Preliminary Injunction, Ex Parte and Without Hearing”. Doc. No. 1. The crux of Plaintiffs grievance centers around the activities of the Office of Thrift Supervision (hereinafter “OTS”) and i...
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ORDER AND REASONS This matter came before the Court on March 28, 1990 on defendants’ motion for summary judgment. After oral argument by counsel, the Court took the motion under submission. For the following reasons, the Court now GRANTS the motion. I. This is an ERISA case concerning insurance coverage. Defendant Winn-Dixie of Louisiana, Inc. has established an employee welfare benefit p...
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MEMORANDUM-DECISION AND ORDER Defendant Heery International Inc. (“Heery”) has moved for reconsideration of this court’s bench decision of February 6, 1990. Defendant asserts that the court gave undue consideration to the plaintiff’s choice of forum when making its determination to deny its motion to transfer the venue of this action to the Middle District of Florida. The parties have not ...
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MEMORANDUM OPINION AND ORDER In 1992 the City of Columbus, Ohio will host an international floral and garden exposition which has been designated as the singular international event in the United States for the 1992 Christopher Columbus Quincentenary Jubilee Celebration. The event will be known as AmeriFlora 1992. The exposition will be organized, promoted and conducted by AmeriFlora ’92,...
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The instant motion for an award of attorney’s fees presents questions concerning the application of the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, to litigation in which the Federal Deposit Insurance Corporation (“FDIC”), acting as receiver for a failed financial institution, has been unsuccessful on the merits. Having prevailed on its motion for summary judgment, defendant Addison...
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The instant motion for partial summary judgment presents questions that pertain to the law of employment discrimination, including whether retaliatory discharge and discriminatory demotion claims are actionable under the Supreme Court’s interpretation of 42 U.S.C. § 1981 in Patterson v. McClean Credit Union, - U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and whether Patterso...
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ORDER ON DEFENDANTS’ MOTION TO STRIKE This matter comes before the court primarily upon the Defendants’ Motion to Strike Claims (DE 25). FACTUAL BACKGROUND This action was filed on March 13, 1989 by the United States pursuant to the provisions of the newly amended Fair Housing Act (Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988)...
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MEMORANDUM AND ORDER Claimant, David Thompson, filed a Jones Act claim in state court against Petitioner, Cooper/T. Smith Stevedoring Co. In this state court action, Thompson alleges that he sustained personal injuries while handling a mooring line from the Rig BUSSCO I to an oceangoing vessel. Thereafter, Cooper/T. Smith filed this petition for exoneration from or limitation of liability...
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ORDER Defendant seeks reconsideration of the Court’s October 3, 1989, Order which denied defendant’s motion to dismiss and for summary judgment. As the basis for reconsideration, defendant argues that the Court erred by applying New Hampshire law to determine (1) the effect of a previous release signed by plaintiff, and (2) the applicable statute of limitations. Defendant takes the positi...
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734 F.Supp. 896 (1990) HOSPITAL PRODUCTS, INC., Plaintiff, v. STERILE DESIGN, INC., Defendant. No. 88-1186C(1). United States District Court, E.D. Missouri. April 4, 1990. *897 *898 Mitchell Kramer, Philadelphia, Pa., J. Peter Schmitz, Biggs & Hensley, St. Louis, Mo., for plaintiff. J. William Newbold, Coburn, Croft & Putzell, St. Louis, Mo., for defendant. MEMORANDUM NANGLE, Chief Judge...
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STATEMENT OF REASONS FOR IMPOSING SENTENCE I. Findings of Fact Neither the government nor the defendant, George Andrew Myers, Jr., disputes the factual statements contained in the pre-sentence investigation report. The court therefore adopts those statements as its findings of fact. For purposes of this opinion the court will provide a synopsis of those findings and will highlight the facts t...
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741 F.Supp. 643 (1990) UNITED STATES of America, Plaintiff, v. Donald E. DISTLER, et al., Defendants. Civ. A. Nos. 88-0200-L(J), 88-0201-L(J). United States District Court, W.D. Kentucky, Paducah Division. February 9, 1990. *644 Jon A. Mueller, Atty., Environmental Enforcement Section, Land and Natural Resources Div., Washington, D.C., Richard A. Dennis, Asst. U.S. Atty., Louisville, Ky., for pla...
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In an order issued by the court in the above styled case on August 11, 1989, (herein referred to as Buckeye I), the court concluded that defendant’s Pay and Progression System was a discriminatory employment practice that had a disparate impact on blacks employed at Buckeye Cellulose Corporation (Buckeye). The court will now supplement Buckeye I with the following individu...
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MEMORANDUM This matter is before the Court on plaintiffs’ motion to remand and the motion of defendant Commissioner of the Internal Revenue [Commissioner] to dismiss plaintiffs’ complaint for lack of subject matter jurisdiction and for failure to state a claim. Plaintiffs originally filed this in St. Louis County Circuit seeking a declaration as to the proper construction of a testamentary trust....
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ORDER The Court has before it the plaintiffs’ Motion to Compel American to answer deposition questions and American’s Opposition thereto and Motion for Protective Order. In resisting the plaintiffs’ attempts to obtain discovery concerning its financial resources, American basically has relied upon arguments pending—until recently—in its motions for summary judgment and to dismiss punitive damages ...
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MEMORANDUM OPINION AND ORDER Law partnership Tompkins, McGuire & Wachenfeld (the “Firm”) has filed a motion framed in the alternative in this action brought by Bankers Leasing Association, Inc. (“Bankers”) for breach of an equipment lease, seeking: 1. to dismiss Bankers’ Complaint under Fed.R.Civ.P. (“Rule”) 12(b)(2) for lack of personal jurisdiction over the Firm; or ...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is an action against the United States pursuant to the Federal Tort Claims Act (FTCA) to recover damages for injuries incurred when the plaintiff fell on a stairway in the building where he was residing. Pending is the United States’ motion for summary judgment. For the reasons described below, the motion for summary judgment is granted. *825II. F...
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MEMORANDUM & ORDER On April 2, 1990, the defendant Carberry moved this Court to dismiss this suit, a lawsuit collateral to the action United States v. International Brotherhood of Teamsters, et al., 88 Civ. 4486 (DNE) (the “underlying action”). Plaintiffs opposed defendants motion, and additionally cross-moved seeking recusal from further consideration of the instant case. This...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff Vanguard Financial Service Corporation (“Vanguard”) has sued the twenty-two defendants in this case on claims of breach of contract, fraud, and racketeering arising from office equipment leases into which Vanguard entered with eight churches in Dallas, Texas. The defendants include the churches, the church officials who executed ...
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MEMORANDUM AND ORDER The Court has received the annexed Report and Recommendation (“Report”) from the Honorable A. Simon Chrein, United States Magistrate. None of the parties have filed written objections pursuant to 28 U.S.C. § 636(b)(1); Local R. Mag. P. 7. After a de novo review, I hereby adopt the Report as the opinion of the Court. SO ORDERED. REPORT AND RECOMMENDATION OF UNITED STATES MAGIS...
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OPINION & ORDER Defendant-appellant Connecticut Bank and Trust Company, N.A. (“CBT”), 1 is before this Court seeking to withdraw the reference of a proceeding to the District Court, which proceeding was initiated in the United States Bankruptcy Court. Plaintiff-Appellee Martin R. Pollner (“Poll-ner”), as Chapter 11 Trustee for Harbor Park Associates Limited Partnership (“Harbor...
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ORDER This matter comes before the court upon the alternative motions of the defendant Clarendon 1 to either dismiss this action or to compel arbitration. For the reasons stated below, the defendant’s motion to dismiss is denied and the motion to compel arbitration is granted. FACTUAL BACKGROUND Plaintiff, Interlocal Risk Fináncing Fund of North Carolina (“IRFFNC”), i...
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MEMORANDUM The plaintiff filed this action on July 3, 1989 to recover for payments it was required to make as the result of insurance policies issued to Pasargad Carpets of Isfahan, Inc. (Pasargad), Policy No. 42 UUCPC 555 and Schmeltzer, Aptaker & Sheppard, P.C. (Schmeltzer), Policy No. 42 UUCZJ 2521. The case came before the Court for a non-jury trial on March 27-29, 1990. This Memorandum const...
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ORDER Amidst allegations of what the Court must term an unusual fraudulent financing scheme, plaintiffs have filed this suit seeking damages for banking violations, racketeering activity, and pendent state law claims. Defendants have filed separate motions to dismiss, all of which argue that the complaint should be dismissed for lack of subject matter jurisdiction and failure to state a c...
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MEMORANDUM AND ORDER Petitioner, pro se, moves for a writ of habeas corpus to vacate or modify his criminal sentence. 28 U.S.C. § 2255. For the reasons discussed below, the motion is denied. FACTS On March 4, 1988, pursuant to a written plea agreement, petitioner pled guilty to count ten of an eleven-count indictment. Count ten charges that between July 19, 1987 and October 30,1987 petitioner unla...
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MEMORANDUM AND ORDER Petitioner, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied. FACTS On February 18, 1963 petitioner was convicted in New York Supreme Court, Kings County, for murder in the first degree. New York Penal Law § 1044(2) (McKinney 1944). Petitioner received a sentence of death, which was commuted ...
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MEMORANDUM OPINION This is a 42 U.S.C. § 1983 action in which plaintiff seeks both money damages and permanent injunctive relief from defendants. The Court has jurisdiction over plaintiffs claims pursuant to 28 U.S.C. § 1343(3) and (4). After a two-day trial and thorough briefing schedule, this matter is ripe for adjudication. Plaintiff, Lorece Teeters, has been employed at the Benton Service...
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MEMORANDUM AND ORDER This is a products liability action. Plaintiffs are the wife and children of Edwin Ray DeVader, an employee of Kansas Power and Light Company (KP & L) who was severely injured and subsequently died as a result of an accident that occurred in an underground pit in downtown Topeka, Kansas. Plaintiffs contend that an electrical switch manufactured by the defendant caused...
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MEMORANDUM OPINION Background The dismissal motion before the Court in this diversity indemnity action places subject matter jurisdiction in question. In essence, the jurisdictional amount requirement is satisfied only if the complaint’s allegations warrant plaintiffs’ reliance on the anticipatory breach doctrine. For the reasons stated here, plaintiffs’ invocation of this doctri...
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ORDER Defendant was charged in a two-count indictment with (1) possessing with intent to distribute 11.5 pounds of marihuana and approximately 275 marihuana plants; and (2) manufacturing approximately 275 marihuana plants. On March 12, 1989, defendant pled guilty to Count I of the indictment, with the issue of the number of plants possessed by defendant to be determined by the court at the time...
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MEMORANDUM AND ORDER INTRODUCTION In this diversity action for breach of contract and fraudulent and negligent misrepresentation arising out of a personal guarantee made to plaintiff by defendant, both plaintiff and defendant move for summary judgment. For the reasons stated below, plaintiff’s motion for summary judgment is granted, and defendant’s motion for summary judgment is denied. BACKGROUND...
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MEMORANDUM OPINION This action was brought by Regina Thomas Walton against Cowin Equipment Company, Inc., Walton’s employer, under both 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 as amended (42 U.S.C. §§ 2000e, et seq.). Walton, a black female and long-time Cowin employee, claimed that because of her race she received a rate of pay lower than white employees...
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MEMORANDUM OPINION This age discrimination (ADEA) case is before the Court on the motion of the defendant for summary judgment on its claim-in-chief and for partial summary judgment on its counterclaim, as well as plaintiffs motion for summary judgment on the counterclaim. The motions have been fully briefed, and no oral argument is deemed necessary. Summary judgment is to be awarded...
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MEMORANDUM OPINION I. BACKGROUND On January 21, 1990, two ships failed to pass in the night. The tanker Rich Duke, while on a voyage from Puerto Miranda, Venezuela to Delaware City, Delaware, collided with the drillship Neddrill 2. Both ships were damaged. After reducing speed and exchanging radio messages, the Rich Duke continued on to Delaware. Upon arriving in the territorial...
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MEMORANDUM OPINION This case came on for consideration by the Court on February 14, 1990, upon Cross-Motions for Summary Judgment. After hearing oral argument of counsel for the United States and for the Claimant, and after considering the Government’s Motion, together with supporting affidavits, the Claimant’s Cross-Motion, and the supporting briefs, the Court is of the opinion and finds that the...
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The instant motions to dismiss in these three related securities fraud actions require the court to address recurring questions of Fed.R.Civ.P. 9(b) pleading sufficiency inevitably presented in such actions. The court is also called upon to decide whether plaintiffs have stated claims for relief pursuant to § 11 of the Securities Act of 1933, 15 U.S.C. § 77k, and Texas common law theories. ...
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*1486 MEMORANDUM AND ORDER I. The complaint in this case was filed on October 3, 1988, by these plaintiffs against the defendant, Tippecanoe School Corporation (TSC) and Greater Lafayette Area Special Services (GLASS). The case was also filed as against other defendants who have been previously dismissed. On its face, the complaint purports to assert a claim for attorney fee...
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OPINION This is an age discrimination suit commenced 22 May 1989 by the Equal Employment Opportunity Commission (“EEOC”) under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq., as amended (the “ADEA”). The complaint alleges the termination of certain employees on 27 March 1987 by defendant Britrail Travel International Corporation (“Britrail”) violated the ADEA. Jurisdic...
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MEMORANDUM AND ORDER This is an antitrust action brought by way of a counterclaim. Feist Publications, *612 Inc. (FP) contends that Rural Telephone Service Company, Inc.’s (RTSC) refusal to license white page telephone listings to it is an antitrust violation under the “essential facility” theory and/or “intent to monopolize” theory of section 2 of the Sherman Antitrust Act, ...
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MEMORANDUM & ORDER This opinion emanates from the voluntary settlement in the action commenced by the plaintiffs United States of America (the “Government”) against the defendants International Brotherhood of Teamsters (the “IBT”) and the IBT’s General Executive Board (the “GEB”) embodied in the voluntary consent order entered March 14, 1989 (the “Consent Decree”). The remedial provisions...
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OPINION Defendant Richard O. Bertoli (“Bertoli”) filed this motion pursuant to 28 U.S.C. § 455(a) (“section 455(a)”) and Rule 32 of the Federal Rules of Criminal Procedure (“Rule 32”) for recusal because he asserts there may be a question of my impartiality as a result of comments he previously made about me and because I may have received data about Bertoli while presiding ove...
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OPINION Plaintiff Francis S. Denney, Inc. (“Den-ney”), a Delaware corporation, brings by Order to Show Cause this motion for a preliminary injunction against defendants I.S. Laboratories (“I.S. Labs”), a New York corporation, and its principal H. Allen Lightman to enjoin their further use of certain trademarks and copyrights. A hearing on this matter was held March 22 and 27, 1990. At the conclus...
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OPINION AND ORDER This is an action filed by plaintiff William P. Mullen (“Mullen”) against defendant New Jersey Steel Corporation (“NJS”) for violations of the Age Discrimination in Em *1537 ployment Act of 1967, as amended (“ADEA”), 29 U.S.C. § 621 et seq., the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-12, and Section 10(b) of the Securities ...
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MEMORANDUM-DECISION & ORDER This is another petition by Jaroslav Hrubec under 28 U.S.C. § 2255 to vacate his conviction and sentence. On March 6, 1985, following a jury trial, defendant Jaroslav Hrubec was convicted of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 (Count One), importation of cocaine in violation of 21 U.S.C. §§ 952(a) and 960(a)(1...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This matter came before this court on a motion made by the government for dismissal or in the alternative for summary judgment. The case is an action brought under 5 U.S.C. § 552, et seq., the Freedom of Information Act (hereinafter “FOIA”), by Walter R. Schoettle. Mr. Schoettle is seeking a list of mortgagors owed vested, ...
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733 F.Supp. 1346 (1990) Todd GANDER, Plaintiff, v. FMC CORPORATION, and Pedco, Inc., Defendants. No. 87-1155C(6). United States District Court, E.D. Missouri. April 6, 1990. *1347 Hullverson, Hullverson & Frank, James E. Hullverson, Jr., Saint Louis, Mo., for plaintiff. Shepherd, Sandberg & Phoenix, P.C., Paul N. Venker, Saint Louis, Mo., for defendants. MEMORANDUM AND ORDER GUNN, Distri...
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MEMORANDUM OPINION Defendants Jacques Dory and EDAP, S.A. (“EDAP”) and non-party Diasonics, Inc. seek an order allowing EDAP to disclose to Diasonics documents produced in the course of this litigation. This case was settled pursuant to a consent judgment dated October 12, 1989. EDAP has sued Diasonics in federal court in California. EDAP and Diasonics say the California litigation involves the s...
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ORDER THIS MATTER is before the Court on Defendant’s Motion made in open court on March 26, 1990, to withdraw his guilty plea. The Court denied the Motion at that time and proceeded with the scheduled sentencing hearing. The Court is entering this order to enunciate its reasons for denying Defendant’s Motion. Defendant was indicted in the summer of 1989 in seven different bills of indictment for b...
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MEMORANDUM AND ORDER This bankruptcy appeal challenges the confirmation of the debtor’s reorganization plan under Chapter 11 of the Bankruptcy Code. The appellants are Wyatt Shelor, Ruth Shelor and Ralph Shelor (the “She-lors”), and Marvin and Evelyn Harrell (the “Harrells”). Both the Shelors and Harrells argue that the plan of reorganization, which stretches to 30 years the terms of thei...
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ORDER DENYING DEFENDANT/PETITIONER’S PETITION TO VACATE JUDGEMENT AND CONVICTION The petitioner, James K. Muller, was convicted on June 25, 1985 of felony murder, second degree murder, kidnapping, assault with intent to commit murder and illegal possession or use of a firearm. He was sentenced by this court on July 30, 1985 to a term of life imprisonment on the count of *1393 felony murder an...
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MEMORANDUM OPINION AND ORDER The court has previously approved the settlement of this class action. Still pending is the petition for attorney’s fees, which are to be paid out of the settlement fund. The class received a base settlement amount of $9,900,000. As of January 31, 1990, the settlement fund also included an additional $600,000 1 of interest. The fund has not yet been...
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MEMORANDUM OPINION AND ORDER In this action, John D’Agnillo, pro se, seeks to enjoin the United States Department of Housing and Urban Development, the City of Yonkers and the other defendants from complying with the Consent Decrees and successive Orders in the “Yonkers case” (United States of America v. Yonkers, 80 Civ 6761 (LSB)) until the defendants have performed...
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MEMORANDUM AND ORDER This is an appeal from an order of the bankruptcy court. Appellants Theodore and Hilda Sinker, husband and wife, contend that the bankruptcy court erred in allowing the bankruptcy trustee to sell their redemption rights in certain real property. Having carefully viewed the memo-randa of the parties, the court is now prepared to rule. The facts pertinent to this a...
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MEMORANDUM ORDER This cause is before this Court on Plaintiff Alton Ray Carter’s Application for Attorney Pees pursuant to the Equal Access to Justice Act (hereinafter the “EAJA”), 28 U.S.C. § 2412(d); and, further, on Motion of the defendant, Otis R. Bowen, M.D., Secretary of Health and Human Services, to Dismiss, pursuant to 28 U.S.C. § 2412(d)(1)(B). Procedural History Upon m...
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OPINION AND ORDER This is a securities fraud action brought pursuant to §§ 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b) and 78t(a), § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and common law principles. Defendants 1 have moved on va...
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ORDER AND MEMORANDUM OF DECISION THIS MATTER is before the Court on (1) the Plaintiffs Motion for Injunction, filed June 26, 1989, (2) the Defendant’s Motion to Dismiss, Transfer or Stay, filed July 14, 1989, and (3) the Plaintiff’s Motion for Sanctions Pursuant to Rule 11, filed September 27, 1989. On January 5, 1990, this Court conducted a hearing and listened to testimony and oral...
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OPINION AND ORDER This action comes before the Court on defendant’s, C & M Electric, motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6) and plaintiff’s opposition thereto. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. BACKGROUND Plaintiff, International Brotherhood of Electrical Workers, Local Union No. 8, AFL-CIO (“Union”) represents electricians in the construction industry...
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ORDER Plaintiffs Kenneth and Marlene Schaap filed this contract action against defendants Executive Industries, Inc. (“Executive”) and Motor Vacations Unlimited, Inc. (“Motor Vacations”), alleging that defendants sold them a motor home with substantial defects. In addition to their breach of contract claim, plaintiffs assert claims for breach of express and implied warranties. With the commenceme...
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ORDER AND OPINION Defendant Mauricio Londono-Villa (“Londono”) was convicted after a trial by jury on two counts: first, for conspiring to import cocaine into the United States in violation of 21 U.S.C. §§ 952(a), 960, and 963 and second, for aiding and abetting the importation of cocaine in violation of 21 U.S.C. §§ 952(a) and 960, and 18 U.S.C. § 2. 1 Defendant has filed post...
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MEMORANDUM AND ORDER Presently before the court are cross-motions for summary judgment on the question of whether the city of Philadelphia’s minority, female and handicapped set-aside program is valid in light of the decision of the United States Supreme Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). I. INTRODUCTION ...
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MEMORANDUM This action arises out of a construction sub-subcontract between Trevose Construction Co., Inc. (“Trevose”) and Tyro Industries, Inc. (“Tyro”) for work on a state-sponsored highway construction project in Northhampton County, Pennsylvania. Tyro sued Trevose alleging breach of contract for improperly terminating the contract. Trevose filed a counterclaim against Tyro alleging br...
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OPINION Plaintiff Mishal Bin Saud (“Bin Saud”), filed a civil action under the Racketeer *630 Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962 et seq., alleging that defendants’ fraudulent activity resulted in his decision to guaranty a $42 million development loan and his subsequent $19,-071,196.51 liability under that guaranty. 1 The...
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MEMORANDUM A. Factual and Procedural Background Leonard Sokolowski was employed by defendant Allied-Signal, Inc. (Allied) until his death on September 6, 1987. Plaintiff Marie Flagg claimed that she was the common-law spouse of Mr. Sokolowski and sought survivors’ benefits pursuant to Allied’s Pension Plan. 1 Allied’s Plan Administrator concluded that Ms. Flagg was...
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MEMORANDUM AND ORDER I. INTRODUCTION Before the Court is plaintiff Virginia Fuller’s (“Fuller”) objections to an order of United States Magistrate Ponsor allowing defendant Connecticut General Life Insurance Company’s (“Connecticut General”) motion to strike Fuller’s claim for a jury trial. This controversy arises in the context of plaintiff Fuller’s action under section 502(a)(1)(B)...
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OPINION AND ORDER Defendant moves for summary judgment of this claim which is based on the Age *773Discrimination in Employment Act (ADEA). Plaintiff filed a complaint with the Equal Employment Opportunity Commission on May 7, 1987, claiming discrimination based on age since July 1978. This action, based on the same claim, was filed on July 14, 1987. Defendant claims plaintiffs claim is barred bec...
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OPINION Plaintiff, Richard McGuire (“McGuire”), moved by letter dated December 20, 1989 to “reopen” the unopposed prior motion by Murray and Hollander (“M & H”) to withdraw as counsel to McGuire. For the reasons set forth below, the motion is denied. Prior Proceedings On November 1, 1989, M & H filed a motion for an order allowing M & H to withdraw as counsel for McGuire. Upo...
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MEMORANDUM This action involves the condemnation of a parcel of land, identified as Tract 31E-6104 (“the property”), located in Eastham, Barnstable County, Massachusetts. After filing a complaint in condemnation of the property on June 3, 1973, the United States attempted to discover and notify all parties having an interest in the property of the condemnation proceedings. On April 8, 1975, the...
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Order and Reasons This matter is before the Court on defendant’s motion to dismiss or alternatively for summary judgment. Determining in its discretion that oral argument is unnecessary,1 the Court CANCELS the hearing on the motion, previously set for January 31, 1990, and now GRANTS the motion. This is a federal employee Title VII claim filed by a black woman for sex and race discrimination. T...
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MEMORANDUM AND ORDER Before the court is the motion of the Sheriff of Suffolk County, pursuant to Fed. R.Civ.P. 60(b)(5) and (6), to modify the April 9, 1979 consent decree between the parties in this case to the extent of permitting double-celling of inmates in 197 of the 316 regular male housing cells at the new Suffolk County jail at Nashua Street. I. This suit was brought in...
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MEMORANDUM DECISION Plaintiff, Town of New Castle (“New Castle”), brought this action against seven corporate defendants and seven individual defendants (collectively, the “Asphalt Companies”) alleging that they violated Section 1 of the Sherman Act, 15 U.S.C. § 1, by conspiring to restrain trade and competition in the sale and application of asphalt in Westchester County.1 New Castle, pursuant t...
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JUDGMENT AND ORDER Two employees of the St. Louis Southwestern Railway Company were discharged by the company. The discharge was submitted to the Public Law Board pursuant to a collective bargaining agreement between the Transportation Communications Union (TCU) and the St. Louis Southwestern Railway Company (Company). The Board ordered reinstatement with backpay. The Company, however, refused to...
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ORDER AND JUDGMENT This matter was tried before the Court from July 25, 1989 to August 18, 1989. Based upon the evidence presented during trial and upon the arguments made in the post-trial briefs, the Court issues the following order. I. BACKGROUND In September 1980, Asian Reliability Company, Inc. (“ARCI”), of which Chuidian owns 98%, filed a request with Philippine Export and...
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RULING This action is before the court on the objection of plaintiffs Keith Romney Associates (KRA) and Keith Romney to the magistrate’s July 25, 1989 report and recommendation (R & R) granting the motion to dismiss for lack of personal jurisdiction over defendants St. John Virgin Grand Villas Associates, Alien-Williams Corporation (AW), Perfect Circle Investments, Inc. (PC). The defendan...
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MEMORANDUM AND ORDER In this civil action for damages, the parties agreed to waive their right to a trial before a United States District Judge and instead try this case before a United States Magistrate pursuant to 28 U.S.C. § 636(c)(1). Plaintiff has filed a Motion to Withdraw Case from the Dispositive Jurisdiction of the Magistrate — that is, a motion to vacate the reference of this ac...
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MEMORANDUM OPINION AND ORDER The above-captioned tax refund law suits were consolidated on June 10, 1988 before Judge liana Diamond Rovner. They involved the plaintiffs’ respective federal personal income tax returns for the tax years 1984 and 1985. On April 29, 1988, after discovery was completed, plaintiff W. Stewart Roberts filed a motion for summary judgment on various issues wit...
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MEMORANDUM AND ORDER This matter is before the court on defendant Kansas Savings and Loan Department’s (KSLD) motion to dismiss, plaintiffs’ motion for leave to add a party, and the motion of the United States to intervene as a party-defendant. *461First, the court will address the related motions of defendant KSLD and plaintiffs. Defendant KSLD moves to be dismissed as a party in this case claimi...
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MEMORANDUM AND ORDER This matter is before the Court on defendants’ motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dennis M. Gallipeau, a former inmate at the Adult Correctional Institutions (ACI), filed this 42 U.S.C. § 1983 civil rights action, while still an inmate, against a host of prison officials in their official and personal capacities. Plaintiff ...
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MEMORANDUM-DECISION AND ORDER INTRODUCTION Suliao Zhou Huang, (“Plaintiff”), a New York domiciliary and administratrix of the *72 estate of her son, Rodger Huang (“Huang”), sues for her son’s conscious pain and suffering and wrongful death arising out of two causes of action based upon an unfortunate incident which occurred at the New Jersey home of Frank and Janny Lee (...
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Presently pending before the Court in this consolidated civil action is defendants’ motion for summary judgment. The plaintiff is Phoenix Mutual Life Insurance Company (hereinafter “Phoenix Mutual”), a Connecticut life insurance company. Phoenix Mutual has here sued Shady Grove Plaza Limited Partnership (hereinafter “Shady Grove”), a Maryland limited partnership, and its partners or principals....
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OPINION AND ORDER Defendants move to dismiss this action, a prisoner’s claim of guard brutality, for failure to prosecute. The alleged incident took place on June 26, 1985. The action was commenced in August 1985 by the filing of a pro sé complaint. Defendants took plaintiff’s deposition on or about April 21, 1986, pursuant to order of Judge Kram. The case was marked ready for trial by defendants...
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Plaintiff Southeastern Peanut Association filed its Complaint in this action on December 14, 1987, alleging that the shrinkage allowance for export peanuts set by Defendant Lyng, Secretary of the United States Department of Agriculture, was “arbitrary, capricious, an abuse of discretion, and not in conformance with 7 U.S.C. § 1359.” Complaint, ¶ 46. Plaintiff’s Prayer for Relief requests this cou...
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SUPPLEMENTED OPINION On 18 July 1986, this court issued a one page Order of Dismissal, which was filed on 23 July 1986 and entered on the docket on 24 July 1986 in the matter of Frank Langella v. W. Bryce Anderson and Ennis Paint Mfg., Inc., Civil No. 83-2223 (the “Dismissal Order”). The substantive portion of the Dismissal Order provided as follows: It appearing that it h...
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DETERMINATION AND ENFORCEMENT OF AN ATTORNEY’S LIEN This petition to determine and enforce an attorney’s lien was filed by Allen C.B. *567 Horsley, Esquire under the provisions of Massachusetts General Laws, c. 221, § 50. This court may enforce liens created by this statute. In re Hoy’s Claim, 93 F.Supp. 265 (D.Mass.1950). Petitioner asks that we establish a lien “...
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MEMORANDUM OPINION Movant, Stanley F. Meltzer (“Meltzer”) has moved pursuant to 42 U.S.C. § 406(b) for attorney’s fees for representation of plaintiff, Claire Mara (“Mara”) against the Secretary of Health and Human Services, Louis W. Sullivan (the “Secretary”). For the reasons set forth below, movant is awarded an hourly fee of $200.00 totalling $5,300 in fees due. Prior Proceeding...
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AMENDED ORDER A sentencing hearing was held in this matter on March 5, 1990 to determine whether defendant was growing “100 or more marihuana plants” within the meaning of 21 U.S.C. § 841(b)(l)(B)(vii). That section provides for a mandatory five year minimum sentence for violations of Section 841(a) involving “100 or more marihuana plants regardless of weight.” Defendant contends that the...
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ORDER Plaintiff, HMCA Inc., is a hospital management company under contract with the Commonwealth of Puerto Rico to manage and operate the named plaintiff, Hospital de Area de Carolina (“the Hospital”). In this action, plaintiffs challenge a final agency decision of the Department of Health and Human Services (“HHS”), providing that Medicare reimbursements for “ownership costs” related to the Hosp...
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ORDER AND REASONS After hearing testimony and reviewing the exhibits presented in this case, the Court ruled on several matters. The plaintiffs and counter-defendants, Ronald and Gail Nowling, reurged their Motion to Remand, and that motion is DENIED. Their Motion to Vacate and Set Aside Court Order is also DENIED. The defendants and counter-plaintiffs, Aero and Triton Energy Corp., have ...
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MEMORANDUM OF DECISION INTRODUCTION This is an action alleging breach of oral and written contracts (Counts One and Two) and the implied covenant of good faith and fair dealing (Count Three); tortious breach of the implied covenant of good faith and fair dealing (Count Four); fraud (Count Five); fraudulent inducement and misrepresentation (Count Six); promissory estoppel (Count Seven...
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DECISION AND ORDER In 1984, Robert J. Lyeth (“plaintiff”) purchased a new Jeep Cherokee motor vehicle. Very soon after the purchase, he had severe problems with the vehicle and he has attempted ever since to have the vehicle fixed or replaced. Today, almost six years after the purchase he continues to spar with Chrysler Corporation over the vehicle. Perhaps this decision will bring this s...
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MEMORANDUM OPINION This cause comes before the court on the plaintiff’s motion for a preliminary injunction. After an evidentiary hearing, the court took this motion under advisement. Having duly considered the motion, briefs, and evidence introduced at the hearing, the court is prepared to rule on the plaintiff’s motion. I. FACTS The Mississippi Agricultural and Forestry Experi...
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ORDER This matter is before the court upon the motions of plaintiffs United States Fire Insurance Company (U.S. Fire) and United States Fidelity and Guaranty Company (USF & G) for partial summary judgment and the motion of defendant Nationwide Mutual Insurance Company (Nationwide) for summary judgment. The court has considered the materials before it and the arguments of counsel and determines th...
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MEMORANDUM OPINION This is an unusual case involving admittedly wrongful conduct by State authorities and alleged abuse of authority by the Federal Government. After State authorities had wrongfully imprisoned claimant for over two years because his conviction was based on an illegal search in violation of claimant’s constitutional rights under the Fourth Amendment, the United States brought this ...
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ORDER AND REASONS This matter is before the Court on defendants’ motion to dismiss or alternatively for summary judgment. Determining in its discretion that oral argument is unnecessary, 1 the Court CANCELS the hearing on the motion and now GRANTS the motion. This is a federal employee Title YII case filed by Patricia Lopez, a black woman, against the Louisiana National Gu...
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ORDER GRANTING THE GOVERNMENTS PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY The Governments move for partial summary judgment asking the Court to find that Defendants Garmt J. Nieuwenhuis, Western Processing Company, RSR Corporation (RSR), and Union Oil of California (Unocal) are liable parties under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liabi...
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MEMORANDUM ENTRY REGARDING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION The problem of where to dispose of solid waste promises to be one of the most complex, expensive and emotional issues to confront this Nation as it prepares to enter the twenty-first century. With recycling technology lagging far behind this country's ability to produce trash, we must continually search for new pla...
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MEMORANDUM OPINION AND ORDER This matter comes before the court on plaintiff’s, Great Lakes Dredge & Dock Company (Great Lakes), motion to bar Mr. John Rumbarger and Franklin Research Center from acting as a consultant or testifying experts for the third-party defendant, FAG Bearings Corporation (FAG). Plaintiff contends that a conflict of interest exists if Mr. Rumbarger is allowed to be...
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OPINION The matter before the court is the motion of defendant, Portland General Electric Company (PGE), to dismiss the complaint (#4). BACKGROUND The plaintiffs, Mark Deller, Dale Halm, Wayne Hanville, Werner Stork and Jack Warren, are former employees of PGE who voluntarily elected to leave the employ of PGE in 1987 when their jobs were eliminated by a reduction in force (RIF) program. PG...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of defendant Earl Humphrey, individually and d/b/a Humphrey Motors, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the basis that plaintiff’s claims in this cause are precluded by the doctrine of res judicata. The facts giving rise to this lawsuit were set forth in a previous memorandu...
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*465ORDER THIS CAUSE has come before the court upon the motion of the defendant, the Board of County Commissioners for Palm Beach County, Florida (the Board or the County), to assess costs and attorneys’ fees. The plaintiff, Jack McGregor (McGregor) has filed a response and the defendant has replied. McGregor was an internal auditor working for Palm Beach County until he was fired. He filed suit a...
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MEMORANDUM OPINION AND ORDER Plaintiff, the United States Equal Employment Opportunity Commission (EEOC), has filed this action against defendants Arlington Transit Mix Inc. and Arlington Masonry Supply Co. (Arlington), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f). Plaintiff claims that Arlington discriminated against its employee, Neil Taylor, on t...
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MEMORANDUM DECISION AND ORDER The Court is asked to determine whether an employee of the Long Island Railroad *579 (“LIRR”) may assert pendent-party jurisdiction over a fellow employee based on state-law claims of assault, battery and intentional infliction of emotional distress in an action brought under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60, when...
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ORDER DENYING PRELIMINARY INJUNCTION I. BACKGROUND On January 25, February 15, and March 8, 1990, the State of California sprayed *427 Malathion insecticide from helicopters over portions of Garden Grove and other Orange County cities. On February 13, 1990, plaintiffs filed a complaint for injunctive relief and sought an immediate restraining order. After a brief he...
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MEMORANDUM DECISION AND ORDER This matter is before the court on plaintiff Debra T. Sauers’ Motion to File a Second Amended Complaint in order to include pendent state law claims previously dismissed. Both parties submitted memorandums regarding the motion, and the matter was argued extensively to the court. Kathryn Collard represented the plaintiff and Patricia J. Marlowe of the Salt Lak...
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ORDER THIS CAUSE has come before the court upon the motion of Anthony L. Celeste (Celeste), the plaintiff in this action, for an award of attorney’s fees and costs. The defendant, Louis Sullivan (Sullivan), has filed a response in opposition to the relief sought and the plaintiff’s motion is ripe for decision. Because of a personality disorder, the plaintiff sought disability benefits under t...
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OPINION This petition for habeas corpus presents the recently recurring issue of appellate delay. The facts presented to the court in the petition and in the opposition papers are less than crystal clear. The facts pertinent to resolution of the petition, however, do not appear to require an evidentiary hearing. FACTS The petitioner was involved with two co-defendants in a sordid crime which comme...
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ORDER Pending before the Court is Respondent’s Motion to Quash the Summons served by the Petitioner. In the Motion to Quash, Wettstein, who is a psychologist, disputes the ability of the Internal Revenue Service to gain discovery of her appointment book which contains a list of the names of the patients which she treated while she was employed as a psychologist at a clinic owned by a Mr. ...
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MEMORANDUM AND ORDER This criminal case is pending on the defendant’s motion for a factual determination of career offender status. No ore tenus hearing is necessary. *1004 The defendant is pending sentencing on a bank robbery charge. In compiling the pre-sentence report, the probation officer identified two prior offenses that would seemingly qualify the defendant for career offender sta...
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OPINION AND ORDER Plaintiffs allege that defendants infringed a copyright plaintiffs hold in a song entitled “Life Is a Rock (But the Radio *94 Rolled Me).” The alleged infringing work is a song that appears in various renditions in commercials of defendant McDonald’s Corporation (“McDonald’s”). I. FACTS The following facts are not in dispute, except where noted. In...
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MEMORANDUM DECISION AND ORDER This matter came on regularly on February 6, 1990 for hearing on Defendants’ Motion for Partial Dismissal and Motion for Partial Summary Judgment. Defendants were represented by Timothy C. Houpt and plaintiffs were represented by David O. Seeley. After briefing by the parties and extensive oral argument, the court took defendants’ motions under advisement. No...
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OPINION AND ORDER These are motions for summary judgment brought by the third-party defendants against the third-party plaintiff. *87Plaintiff Betys Greenspon (Greenspon) brought this tort action to seek damages for injuries allegedly incurred on September 2, 1987 at the Rickel Home Improvement Center located on Route 59 in Monsey, New York (the Monsey store). Plaintiff, a handicapped person, all...
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MEMORANDUM This memorandum is written in disposition of the two post-trial motions that remain undecided in this procedurally, but not factually, complex case. In this civil rights case brought under § 1983 and § 1985(3) of Title 42 of the U.S.Code and Title VII of the Civil Rights Act of 1964 plaintiff alleged that she had been fired from her job as a Septa police officer because of...
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ORDER This matter comes before the court on Saldivar’s motion to declare the Federal Sentencing Guidelines unconstitutional, arguing that they violate the Due Process Clause of the Fifth Amendment. (# 22, # 39). Supporting his position, Saldivar presents many different arguments, categorizing them into two groups: (1) defects in the Guidelines themselves and (2) defects resulting from the...
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ORDER Michael Smith, a state prisoner, has petitioned for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Smith raises two constitutional challenges to his state conviction. First, he contends the state authorities’ search of his apartment violated his rights under the fourth, fifth, and fourteenth amendments to the United States Constitution. Second, he alleges the state district court com...
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MEMORANDUM AND ORDER On April 27, 1989, the Defense Mapping Agency (“DMA” or “the Agency”) adopted a Drug-Free Workforce Plan, 1 an agency-wide program of drug testing, education and counseling for employees. Plaintiffs, *2 the National Federation of Federal Employees (“NFFE”) and the American Federation of Government Employees (“AFGE”), and individuals represented...
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MEMORANDUM AND ORDER Presently before the court are defendants’ motions for reconsideration of the court’s prior order granting in part plaintiffs’ motion for class certification, and defendants’ motion to dismiss plaintiffs’ complaint. For the reasons set forth herein, defendants’ motions will be granted. I. BACKGROUND In In re Bexar County Health Facility Development Corporation Securities Liti...
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ORDER THIS CAUSE has come before the court upon the various motions for summary judgment filed pursuant to Federal Rule of Civil Procedure 56 by the parties to this action. The insurer plaintiff has filed this declaratory action to determine its rights under a liability policy. James and Rosario Toward took out a policy as operators of a school. Allegedly, certain teachers at the sch...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on Motion of the consolidated Plaintiffs for an award of attorney’s fees and litigation expenses pursuant to both Section 14(e) of the Voting Rights Act, 42 U.S.C. § 1973l(e), and the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. The Defendant has responded to the Motion. The Court, having considered the Moti...
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ORDER THIS CAUSE has come before the court upon the motion of the Office of the United States Attorney for the District of New Jersey to intervene in this action and to stay all discovery. Leonard Tucker, the lead defendant in this case, has noticed the depositions of the other defendants. The court has heard oral argument by able counsel for the defendants and the Securities and Exchange Commissi...
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MEMORANDUM OPINION This is a voting rights case. It concerns the “8-3 system” for the election of members of the Dallas City Council — i.e., 8 single-member districts and 3 “at-large” places. Under this system, no African-American has ever been elected to one of the at-large seats; only one Mexican-American has been elected at-large under the 8-3 system but, as discussed below, this ...
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ORDER GRANTING DEFENDANT’S MOTION FOR WITHDRAWAL OF ORDER OF REFERENCE Defendant, Marc Iacovelli, has filed a motion requesting that this court withdraw its order of reference to the United States Bankruptcy Court for the Southern District of Florida. 1 Plaintiff 2 brought the above *86 captioned case to recover a specific parcel of real property alleged to have been fraudulently transfer...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs’ motion for an injunction restraining and enjoining defendants from infringing or continuing to infringe U.S. Patent No. 4,224,867 (hereafter referred to as “the ‘867 patent”). In response to plaintiffs’ motion for an injunction, defendants urge the court to modify the language of the proposed injunction and further urge t...
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ORDER This matter is before the Court on the renewed motion for partial summary judgment of plaintiff the Citizen Band Potawatomi Indian Tribe of Oklahoma (Tribe). Generally, the Tribe seeks a declaration that two bingo management agreements that it executed with defendant Enterprise Management Consultants, Inc. (Enterprise) are invalid under 25 U.S.C. § 81 because they were not approved ...
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MEMORANDUM AND ORDER The issue before the court is whether the Kansas Health Care and Peer Review statute, Kan.Stat.Ann. § 65-4915 et seq., protects, as privileged, documents and information, submitted to a hospital by a physician for the determination of staff privileges. For the reasons hereafter stated, the court finds that it does not. On September 11, 1989, plaintiff propounded her First Set ...
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ORDER Plaintiff Evangelos Lillios brings this action against the justices of the New Hampshire state courts and the Director of the New Hampshire Department of Motor Vehicles seeking injunctive and declaratory relief. The action is premised on 42 U.S.C. § 1983; jurisdiction is authorized by 28 U.S.C. § 1343. Presently before the Court is defendants’ motion to dismiss the complaint for fai...
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MEMORANDUM OPINION AND ORDER The court has reviewed Magistrate Lef-kow’s very thorough and thoughtful Report and Recommendation in this case. The court has also reviewed de novo those matters in the Magistrate’s Report to which Rockwell objects. 28 U.S.C. § 636(b)(1)(C). United States v. Fenet Jar-amillo, 891 F.2d 620, 627-28 (7th Cir.1989). Rockwell’s objections are...
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OPINION AND ORDER BACKGROUND Plaintiff Lee Hoffman (“Hoffman”) contracted with Albert Garlatti (“Garlatti”) on August 15, 1986. Garlatti agreed to construct a warehouse addition for Hoffman. The contract (“Contract”) between Hoffman and Garlatti contained the following arbitration clause: “8.1.14. Dispute Resolution. All claims, disputes and other matters in question ...
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ORDER Introduction Before the Court for determination is the Motion to Dismiss by the United States. The government asserts there is no subject matter jurisdiction for two reasons. First, 28 U.S.C. § 1346(a)(1) grants jurisdiction to district courts only to hear cases involving tax that was erroneously or illegally collected, and not cases involving abatement of interest already paid. Secon...
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ORDER On January 31, 1990, Todd and Pamela Langer filed a complaint in this Court, claiming diversity jurisdiction pursuant to 28 U.S.C. § 1332.1 Plaintiffs seek damages for physical injuries sustained by Todd Langer when defendant’s equipment allegedly struck him. In addition, plaintiffs seek compensation for loss of consortium, loss of income and earning capacity, medical care expenses, and pain...
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION INTRODUCTION In response to the plaintiff’s complaint, defendant Western Dairymen Cooperative, Inc. (WDCI) moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) alleging that this court lacks subject matter jurisdiction. More precisely, jurisdiction is premised on diversity and WDCI claims that the plaintiff, Gene E....
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MEMORANDUM OPINION RE: MOTION TO SUPPRESS On March 16, 1990, this court issued an Order denying defendants’ Motions to Suppress, and informing counsel that the court *925 would file a Memorandum Opinion setting forth the reasons for that decision. Defendants assert that the search of their property on October 26, 1989 was an illegal search in violation of the Fourth Amendment, and that ther...
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OPINION AND ORDER National Union Fire Insurance Company of Pittsburgh, PA. (“National Union”), an issuer of financial guarantee bonds, sues to enforce indemnity agreements between itself and limited partners in a tax shelter limited partnership, and to enforce its rights as subrogee on the limited partners’ promissory note which it honored on their behalf. National Union issued a bond which guara...
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ORDER On March 7, 1989, the plaintiff State of Colorado (“the State”) filed a motion to amend the court’s Memorandum Opinion and Order filed February 22, 1989, State of Colorado v. Idarado Min. Co., 707 F.Supp. 1227 (D.Colo.1989), to award the State approximately $1.9 million in response costs incurred prior to March 31, 1987. Defendants filed a response opposing the motion. On October 2,19...
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MEMORANDUM OPINION AND ORDER This is a citizen’s enforcement action under the Resource Conservation and Recovery Act (RCRA). Plaintiff Sierra Club moves for partial summary judgment seeking declarations that certain materials *947 mixed with plutonium, once burned and now stored at the Rocky Flats Plant, are subject to RCRA regulations as hazardous waste within the meaning of...
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ORDER GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT; FINAL JUDGMENT This cause comes before the court on defendants’ motion for summary judgment, plaintiff’s cross-motion for partial summary judgment and plaintiff’s motion to am...
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MEMORANDUM OPINION This case is before the Court on defendant Darrell Mason’s motion to suppress evidence seized from his apartment on October 25, 1989. It is defendant’s contention that the search of his apartment violated the Fourth Amendment. According to defendant, the police had no basis for entering his apartment without a warrant. Defendant also argues that any consent he gave to the polic...
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OPINION AND ORDER On June 30, 1989 the United States Court of Appeals for the First Circuit reversed the judgment of conviction under Count I (possession of marijuana with intent to distribute aboard a vessel of the United States or one subject to its jurisdiction) and III (unlawful use of social security number) of the Indictment against defendants Lynn O’Brien (O’Brien), Ralph Rios (Rios), Randy...
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MEMORANDUM AND ORDER Petitioner Rick S. Udzinski (“Udzinski” or “petitioner”), appearing pro se, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner’s application is denied. BACKGROUND Udzinski was arrested on March 29, 1986, outside his residence in Centereach, New York. He had met up with a sixteen-year old girl the n...
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MEMORANDUM AND ORDER Plaintiff Patrick T. Mertes brings this action under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., against the defendant Russell Devitt. This Court previously denied defendant’s motion to dismiss because plaintiff had not had sufficient opportunity to obtain discovery of the nature of defendant’s debt collection practices. In i...
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OPINION I. FACTS On April 7, 1989, Dentsply International, Inc. and Dentsply Research & Development Corp. (“Dentsply”) filed suit against Sybron Corporation (“Sybron”), seeking relief for alleged trademark and patent infringement by Sybron of some of Dentsply’s dental products. (D.I. 1). The Clerk of the Court assigned the case the designation of 89-167 (“89-167” or “Dentsply action”...
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Before the Court is the defendants’ Motion for Judgment Notwithstanding the Verdict or in the Alternative Motion for New Trial (Ct.Rec. 63), heard with oral argument on December 26, 1989. John Scott Blonien appeared on behalf of the defendants. Leo J. Driscoll entered an appearance on behalf of the plaintiff. Having reviewed the record, heard from counsel, and being fully advised in this matter...
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OPINION This matter is before the court upon motions of the Custodian of Records, Department of Law and Public Safety. The first motion seeks a protective order pursuant to Rule 26(c), Fed.R.Civ.P., as to eleven (11) documents (and later two other documents) which the State intervenor, through former Assistant Attorney General Eugene Sullivan, has claimed to be protected from discovery either as ...
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ORDER DENYING DEFENDANTS JEFFERSON NATIONAL BANK’S; ROLLNICK, ROSEN & LINDEN, P.A.’S; WEKIVA ASSOCIATES, LIMITED’S; AND GENERAL PARTNERS’ MOTIONS TO DISMISS; ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT TRUSTEE’S MOTION TO DISMISS This cause comes before the court on defendants Jefferson National Bank’s; Rollnick, Rosen & Linden, P.A.’s; Wekiva Associates, Limited’s; and Gene...
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ORDER This matter is before the court on the parties’ cross-motions to dismiss. Based on the briefs and arguments of counsel and the record, file and proceedings herein, and for the reasons identified below, defendants’ motion to dismiss will be denied; plaintiff’s motion to dismiss will be granted in part and denied in part. BACKGROUND Plaintiff International Broadcasting Corpo...
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MEMORANDUM AND ORDER This matter is before the Court on defendants’ motion to dismiss plaintiffs’ RICO claims, defendants’ motion for reconsideration and reinstatement of judgment, and plaintiffs’ motion for separate trial or severance. FACTS Plaintiffs’ complaint alleges that beginning on July 1, 1980, defendant Northwestern Bell provided officials of the Minnesota Public Utili...
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OPINION This matter is before the court upon motion of the State of New Jersey, as intervenor,1 for a protective order that 63 documents not be disclosed, pursuant to Rule 26(c), Fed.R.Civ.P., claiming a criminal investigative privilege. I. Factual Background and Procedural History This action is brought under 42 U.S.C. § 1983 and pendent state causes of action by an individual, code-named plaint...
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OPINION AND ORDER Plaintiff Flexi-Van Leasing, Inc. (FVL), moves and defendant Flota Venezolana de Mar, Rio y Lago S.A. (Flota) cross-moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff also moves in the alternative for an order compelling discovery and for sanctions pursuant to Federal Rule of Civil Procedure 37. FVL, a Delaware corporation with an office in New J...
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OPINION Habeas corpus. Bessie Fleming was a battered wife who shot her husband in the head and a jury convicted her of murder. The appellate court affirmed. People v. Fleming, 155 Ill.App.3d 29, 107 Ill.Dec. 801, 507 N.E.2d 954 (4th Dist.1987). And the Illinois Supreme Court denied leave to appeal. People v. Fleming, 116 Ill.2d 566, 113 Ill.Dec. 307, 515 N.E.2d 116 (1987). The state’s...
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ORDER THIS CAUSE has come before the court upon the motion for summary judgment filed by the third-party defendant, Chase Manhatten Bank, N.A. (Chase). The third-party plaintiff, William McGill (McGill), has responded and the motion is ripe for disposition. The government has not moved for summary judgment thereby, requiring a trial as to its claims in the complaint against Mr. McGill. This is a s...
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OPINION AND ORDER Now pending are a motion for new trial and a motion challenging the legality of the jury verdict filed by defendant Rafael Tormes-Ortiz (Tormes). Defendant Tormes was charged along with forty other defendants in a multicount indictment involving a drug smuggling conspiracy which spanned over a period of four years. Of the forty-one (41) defendants indicted, twenty-nine (29) we...
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ORDER On December 15, 1989, Defendants filed a Motion to Strike Plaintiff’s Jury Demand (#35). Plaintiff filed a Memorandum of Points and Authorities in Opposition to the Motion on January 8, 1990 (# 38), to which Defendants filed a Reply Memorandum (# 41) along with a Declaration of Mitchel D. Whitehead (# 42) on January 22, 1990. Plaintiff’s Amended Complaint (# 31) asserts three c...
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MEMORANDUM OPINION AND ORDER This action arises out of the sale by plaintiff Steven Rayman (“Rayman”) of all the shares of stock (the “Shares”) of Crest Savings (“Crest”) to defendant Peoples Savings Corporation (“PSC”), immediately followed by PSC’s transfer of the Shares to its wholly-owned subsidiary (and present codefendant) Peoples Bank for Savings (“PBS”). Two other codefendants, Ja...
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ORDER ON MOTIONS This cause is before the Court on the following motions and responses thereto: 1.Defendant NBC Houston (NBC)’s motion to dismiss and quash service of process, and, alternatively, to transfer and memorandum in support, filed March 13, 1990. (Docket Nos. 17 and 18). 2. Affidavit of Peter Coyne in support of motion, filed March 13, 1990. (Docket No. 21). 3. Af...
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OPINION Arie E. David (“David”) and the law firm practicing under the name Law Offices of Arie E. David (“Law Offices”) have moved pursuant to Rule 3(j) of the Civil Rules of the Southern District and Rules 59 and 60, Fed.R.Civ.P., to reargue the opinion of this court dated November 30, 1989 (the “November Opinion”) , 1989 WL 146767, which movants object to “in its entirety as a complete ...
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OPINION Collins & Aikman Floor Coverings Corporation, f/k/a Collins & Aikman Corporation (“C & A”) seeks by petition pursuant to 9 U.S.C. § 10 to vacate an arbitration award directing it to pay Robert Froehlich (“Froehlich”) the sum of $152,643.52 for the alleged breach of an employment agreement between C & A and Froehlich dated October 22, 1979 (the “Agreement”) and to reimburse Froehli...
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MEMORANDUM OPINION AND ORDER Chapman Associates General Business, Inc. (“Chapman”) has sued Gary and Karen Justak and Justak Bulk Transport, Inc. (collectively “Justaks”) in a three-count Amended Complaint (the “Complaint”) stemming from the individual Justaks’ sale of their corporation without paying Chapman a commission for its services in having located the ultimate buyer. Justaks have...
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MEMORANDUM AND ORDER This maritime action concerns two vacuum steam sterilizers damaged in shipment from New York to Keelung, Japan. Plaintiff Atlantic Mutual Insurance Company (“AMIC”), a subrogated insurer of the shipper, Environmental Tectonics, seeks the recovery of $50,000 from defendants Comet International Transport (“Comet”), American President Lines and its ship the M/V President Tyler...
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MEMORANDUM OPINION AND ORDER On February 6, 1990, the court declared that Article XXVIII of the Arizona Consti*412tution, entitled “English as the Official Language”, was unconstitutional on its face in violation of the First Amendment of the United States Constitution, 730 F.Supp. 309. Because Governor Rose Mofford, the sole remaining defendant, has stated that she has no intention of appealing ...
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In this appeal from a bankruptcy court order confirming a plan of reorganization, the court must decide whether appellants’ failure to obtain a stay of the order precludes appellate review. For the reasons set forth, the court dismisses the appeal in part. I Appellee Block Shim Development Company — Irving (“Block Shim”) was placed in chapter 11 bankruptcy following an involuntary pet...
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OPINION Defendants New York City Transit Authority (“TA”) and Metropolitan Transportation Authority (“MTA”) move for summary judgment dismissing the action of plaintiff Westinghouse Electric Corporation (“Westinghouse”). For the reasons stated below, the motion is granted and the complaint is dismissed. THE PARTIES MTA and the TA are public benefit corporations created by the Ne...
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ORDER Pending before the Court is the Motion for Summary Judgment filed by the Federal Deposit Insurance Corporation (“FDIC”) as receiver for defendant First National Bank (“Bank”). After reviewing all of the pleadings in this case and the applicable law, the Court finds that the plaintiff’s claims against the Bank are barred under federal law as embodied in 12 U.S.C. § 1823(e) and ...
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MAGISTRATE’S RECOMMENDATION TO THE HONORABLE TERENCE T. EVANS Plaintiff Blaw Knox Corporation obtained a default judgment against the defendant AMR Industries, Inc. in the amount of $8,515,490.62 plus pre-judgment interest on February 3, 1989 in the Western District of Pennsylvania. In an effort to determine what assets, if any, of AMR exist, Blaw Knox sought to depose Wisconsin residents Jerry Co...
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CLARIFICATION OF SUPPRESSION ORDER The government has asked the court to clarify its order of February 13, 1990, which suppressed the evidence seized on September 7 and 8,1989, from the tire shop operated by Bryan Maxwell. The government contends that the evidence should not be suppressed because it was ultimately seized under the warrant, irrespective of what the agents had done with it in the me...
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ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS, DENYING SANCTIONS, AND MODIFYING STAY OF DISCOVERY Xerox Corporation (“Xerox”) seeks declaratory and other relief against Apple Computer, Inc. (“Apple”) regarding certain copyrighted works. 1 Xerox claims in part that Apple derived its Lisa and Macintosh Finder copyright registrations from Xerox’ Star copyrighted material. On...
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OPINION Defendant Societe Des Hotel Meridien (“SHM”) moves pursuant to Federal Rule of Civil Procedure 12(b)(2) to dismiss the complaint for lack of in personam jurisdiction. For the reasons set forth below the motion is denied. Prior Proceedings Darby filed this complaint on October 25, 1988. Oral argument was heard on November 10, 1989 and on the request of part...
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MEMORANDUM OPINION AND ORDER This dispute centers around the interpretation of an exclusion in a directors’ and officers’ liability policy. Both the insured and the insurer have moved for summary judgment. The insured, a company and its directors and officers (referred to collectively as “Alfin”), seek, inter alia, a declaration that the exclusion in issue does not exclude cove...
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OPINION Defendant, Bell Atlantic TriCon Leasing Corporation, (named as formerly known, Tri-Continental, and referred to as “TriCon”) has moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment to dismiss the complaint of plaintiff Ogden Martin Systems of *1059 Tulsa, Inc. and to recover on its counterclaim for transaction expenses. For the reaso...
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DECISION ON MERITS AFTER BENCH TRIAL This § 1983 employment action comes before the Court for a decision on the merits after a bench trial. As shown below, the issues raised are subtle but complex, and the Court’s prior rulings on summary judgment require reexamination in light of the discovery that the Court previously relied on an inapplicable statute. Today’s opinion thus requires a rather l...
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ORDER Plaintiff, Kevin VandenBossche, brought this action against the First National Bank of Rochester (“the bank”) and against City Securities Corporation and John Michael Perry (collectively, “the brokers”). Since filing this action, plaintiff has voluntarily dismissed the bank with prejudice. Meanwhile, City Securities and Perry, the broker defendants, have moved to dismiss the complaint or, a...
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SENTENCING MEMORANDUM On February 2, 1990, a jury found Jeffrey Sergio, aged 21, ,guilty of one count of conspiracy to distribute more than 500 grams of cocaine, 21 U.S.C. § 846, and *844 fourteen counts of possession with intent to distribute cocaine. 21 U.S.C. § 841(a)(1). Count 1 is punishable by imprisonment for not more than forty years and a fine of as much as $2,000,000.00. 21 U.S.C. §...
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OPINION AND ORDER These are three separate actions for fraud in connection with a public offering *297of securities of Boardroom Business Products, Inc. The cases have been consolidated for pre-trial purposes. Each of the three plaintiffs now moves pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure to certify a class consisting of all persons who purchased the units and all persons...
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Plaintiff Carl J. Buscemi brings this age discrimination action against defendant PepsiCo, Inc. 1 pursuant to the Federal Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 (1985) et seq., and the New York Human Rights Law, N.Y. Exec. Law §§ 296 (1982 & Supp.1990) et seq. The background and procedural history of this case are adequately described in...
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MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT This diversity case asks the Court to apportion the costs of defending a lawsuit between two insurance companies, each of whom provided insurance coverage to the defendant in the underlying negligence action. Plaintiff insured the owner of an automobile that was involved in an accident, and Defendant insured the driver...
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MEMORANDUM OPINION AND ORDER Terrence Donohoe (“Donohoe”) and 53 other investors in one or more of a series of oil and gas limited partnerships have filed a nine-count Fourth Amended Complaint (the “Complaint”) against Consolidated Operating & Production Corporation (“COPCO”), its sole principals and shareholders Jack Nortman (“Nortman”), Morando Berrettini (“Berrettini”) and Dennis Bridg...
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OPINION AND ORDER Plaintiffs ILGWU National Retirement Fund (“Fund”) and two of its trustees move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on its claim against defendant Smart Modes of Ca., Inc d/b/a Madison 7 (“Smart Modes”) for withdrawal liability allegedly due under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq...
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MEMORANDUM AND ORDER Plaintiff sues for patent infringement. Defendant moves to dismiss or transfer, arguing that venue in this district is improper because defendant is incorporated in Indiana. I. The patent venue provision provides in part that an action for patent infringement may be brought “in the judicial district where the defendant resides.” 28 U.S.C. § 1400(b). 1 ...
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ORDER This matter is presently before the Court on the motion for stay pending appeal of secured creditor City Bank & Trust (City Bank), pursuant to Bankruptcy Rule 8005. City Bank moved the bankruptcy court for a stay in the first instance, but the motion was denied by order dated 16 March 1990. Having carefully considered the briefs and other pertinent materials, the Court concludes tha...
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MEMORANDUM OPINION AND ORDER This is the latest (and it is to be hoped the last) excursion into the arcane mysteries of federal jurisdiction in this action — excursions that have contributed to keeping this case in existence far longer than either the mean or median life of eases on this Court’s individual calendar (let alone the total calendars that make up the caseload in this District ...
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MEMORANDUM DECISION With regard to the motion of plaintiff Local 1-2, Utility Workers Union of America (Local 1-2), for a default judgment, the Court denies the motion because the late filing of an answer was due to the excusable neglect of defendants. Pursuant to Federal Rule of Civil Procedure 6(b)(2), the Court retroactively enlarges the time so *653 that the currently filed answer and cou...
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Plaintiffs Michael and Carol Ann Sendlewski, husband and wife, bring this action under 42 U.S.C. § 1983 against the Town of Southampton (the “Town”) and numerous Town officials (collectively, “defendants”) seeking declaratory, injunctive, and monetary relief and attorney’s fees. Presently before the Court is defendants’ motion to dismiss or, in the alternative, to stay the proceedings in this a...
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OPINION AND ORDER Defendants New York Department of Corrections (DOCS) and Dr. Melvin J. Steinhart (Steinhart) move for reargument, pursuant to Local Rule 3(j) of the Southern District of New York, of this Court’s Opinion of November 29, 1989 725 F.Supp. 780 (the Opinion). The Opinion denied in part defendants’ motions to dismiss the complaint of Rafael Santiago (Santiago), a his-panic employee of...
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MEMORANDUM AND ORDER Petitioner Dario Velez, pro se, moves under 28 U.S.C. § 2255 for an order correcting a sentence he claims is illegal. In a two count indictment, petitioner was charged with conspiracy to possess with intent to distribute and possession with intent to distribute cocaine. Count two, more specifically, charged petitioner with knowingly and intentionally possessing with intent to...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION The defendants in this case have been charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and with conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846. Pending are the government’s proffer concerning admissibility of co-conspirator statements and...
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MEMORANDUM AND ORDER * I. This is a criminal case. Defendant Harold Evan Grant (Grant) is charged with possession with intent to distribute one kilogram or more of a mixture containing a detectable amount of phencyclidine (POP), in violation of 21 U.S.C. § 841(a)(1). Before the Court for decision is Grant’s motion to suppress. For the reasons stated below, the motion is GRANTED. II. The procedura...
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OPINION This action involves a dispute between an author and a publisher arising under their publishing agreement. The publisher moves for partial summary judgment with respect to the author’s claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(a), for breach of contract and for copyright infringement. For the reasons stated below, defendant’s mo...
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*376 MEMORANDUM DECISION This action is before the court on the motion of plaintiff Federal Deposit Insurance Corporation (FDIC) for partial summary judgment and to strike, the motions of defendants Edward Burton and Graham Doxey for summary judgment, and the motion of defendant Robert Rice to dismiss. The remaining defendants join on Doxey’s motion for summary judgment. The...
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MEMORANDUM AND ORDER Plaintiff Rebecca T. Halbrook, a former assistant general counsel of defendant Reichhold Chemicals, Inc. (“Reichhold”), brought this action alleging that Reichhold discriminated against her on the basis of her sex in the terms and conditions of her employment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”...
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MEMORANDUM This matter is before the Court on the Motion to Dismiss plaintiff's claim for negligent supervision, hiring and retention filed by defendant Washington Metropolitan Area Transit Authority (“WMATA”). *9 After careful consideration of the motion, the opposition thereto, and the entire record in this case, the Court concludes that the motion should be granted. T...
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*551 MEMORANDUM OPINION Plaintiff Dr. Samuel Song was hired in 1975 as the Associate Medical Director at Ives Laboratories. Beginning in July 1981, disputes arose involving plaintiffs role at Ives until, in October 1983, plaintiff was notified that his employment was to be terminated. On May 30, 1984, plaintiff filed a charge of discrimination with the Equal Employment Opportunit...
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K. is a thirteen year old Downs Syndrome child receiving special education in the public schools of Groton, Connecticut. K.’s parents, E.H. and H.H., have brought this action pursuant to, inter alia, the Education of the Handicapped Act (“EHA”), 20 U.S.C. Sections 1400 et seq., 1 to reverse the decision of a state hearing officer and to grant them permission t...
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OPINION AND ORDER This action is presently before the Court on defendants’ motion in limine to exclude from trial plaintiff’s proffered expert testimony that defendants violated the United Kingdom’s tax laws or, alternatively, to limit such testimony.1 Defendants’ motion is predicated upon on the grounds that the testimony (i) is irrelevant because it does not provide a logical basis from which a...
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MEMORANDUM OPINION AND ORDER Plaintiff Keith G. Rosentreter filed this 42 U.S.C. § 1983 action against the Village of Winthrop Harbor (“Winthrop Harbor”) and David J. Munding, a police officer employed by the village. In addition, Rosentreter brings a pendant state claim against Winthrop Harbor under the Illinois Local Governmental And Governmental Employees Tort Immunity Act, (“Illinois Tort I...
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ORDER Before the Court in this case is the Motion of Defendant Federal Trade Commission (“FTC”) to dismiss Plaintiff TK-7 Corporation’s First Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of jurisdiction and for failure to state a claim. TK-7 Corporation (“TK-7”) has twice responded to FTC’s motion, and this matter is now ripe for decision. Because FTC’s motion under Ru...
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MEMORANDUM OPINION AND ORDER This matter is before the court on defendant’s, A.E. Staley Manufacturing Co. (Staley), motion for summary judgment pursuant to FRCP Rule 56. Defendant contends that plaintiff, Alvin W. Cohn (Cohn), failed to file a timely charge of age discrimination with the Equal Employment Opportunity Commission (EEOC) and therefore, plaintiff’s action in this court is bar...
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PARTIAL RULING ON PENDING MOTIONS TO DISMISS The three plaintiffs in this case alleging investment fraud purchased interests in May 1984 in a limited partnership known as the “Keystone 84-1 Oil and Gas Drilling Partnership” (“Keystone”). In their six-count complaint, the plaintiffs allege violations of several federal securities statutes, a Connecticut securities statute, and common law. ...
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OPINION This is yet another one of the many § 1981 employment discrimination cases that must be completely re-evaluated in light of the Supreme Court’s intervening decision in Patterson v. McLean Credit Union, — U.S. —, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Suing in their individual capacities and on behalf of a class of similarly-situated persons, 1 the seven blac...
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*109 DECISION and OPINION SUMMARY Having heard and seen the witnesses and considered all documentary evidence and having evaluated all of the facts and circumstances herein, I decide and find as follows: The Carriage of Goods by Sea Act (COG-SA) 46 U.S.C.App. § 1300, et seq., applies to the shipment and the loss of the tin ingots involved therefrom. The shipment co...
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OPINION This Court, having received post-trial motions on behalf of Joel Kaye and Salvatore Coniglio pursuant to Rules 29(c) and 33 of the Federal Rules of Criminal Procedure, denies both motions. With a single exception, the motions pursuant to Rule 29(c) are little more than a reiteration of counsel’s summations in which the jury was asked to draw inferences in favor of the defendants. The jury...
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ORDER Before this court is defendant’s motion for summary judgment in the above-captioned matter. Plaintiff Zellner was employed as a deputy clerk by defendant Ham who was Clerk of the Superior Court of Monroe County. Plaintiff alleges that she was fired because she advised defendant Ham that she planned to run against defendant Ham for the position of Clerk of the Superior Court of Monroe Coun...
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MEMORANDUM OPINION AND ORDER Pending before the Court is the motion of the plaintiff, Envy Limited, for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Federal jurisdiction is properly invoked in that plaintiff’s claim for relief is under 42 U.S.C. § 1983 thereby invoking the jurisdiction of this Court under 28 U.S.C. § 1343(a)(3). This action seeks declaratory relief ...
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ORDER This matter is before the Court on cross-motions for summary judgment filed by all parties. Pursuant to Fed.R.Civ.P. 52, the Court does hereby set forth its Findings of Fact, Opinion, and Conclusions of Law. FINDINGS OF FACT 1) Plaintiffs Claudie Cook and Erma Schaefer are elderly residents of nursing homes in Hamilton County, Ohio. Both are handicapped individuals as that...
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MEMORANDUM OPINION AND ORDER This case involves two wrongful death actions brought against the defendant, *173Volkswagen of America, Inc. (“Volkswagen”), by the plaintiffs, Barbara McCord-Shell, administrator of the estate of Lamont Lewis Moss, and Dennis Nichols, administrator of the estate of Sheila Nichols-Mangun. According to the amended complaint, on September 24, 1988, Lamont Lewis Moss was ...
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OPINION 1. BACKGROUND Peggy A. MacCauley (“MacCauley”) was injured on August 28, 1987, while roller skating at the Christiana Skating Center. She filed suit on July 5, 1989, against Charles T. Wahlig, Constance S. Wahlig, the Christiana Skating Center, and Christiana Skating Center, Ltd. (collectively “the Wahligs”), alleging negligence in the operation and supervision of the skating center. See ...
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I. Introduction Plaintiffs, Donald Rochon, a black Federal Bureau of Investigation (“FBI”) agent, and Susan Rochon, his wife, allege that they have been the victims of an ongoing conspiracy and campaign of racial discrimination, harassment, and retaliation that began when plaintiff Donald Rochon was assigned to the Omaha Office of the FBI in January, 1983 and that continued through...
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MEMORANDUM AND ORDER Defendants’ motion for partial summary judgment is granted in part and denied in part. Fed.R.Civ.P. 56. Plaintiff’s motion for leave to file a third amended complaint is granted. Fed.R.Civ.P. 15(a). Plaintiff’s motion for reversal or modification of Magistrate Gershon’s denial of its motion to compel the deposition testimony of Levine is denied. 28 U.S.C. § 636(b)(1)(...
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Memorandum and Order This case involves an appeal by defendant below, Alan Borbidge, from a decision of the U.S. Bankruptcy Court that he owed his mother, Sally Borbidge, $134,339.26 and that this debt was not dischargeable in bankruptcy, and a cross appeal by plaintiff below, Murray S. Eckell, Guardian of the Estate of Sally Borbidge, from a decision of the U.S. Bankruptcy Court that...
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MEMORANDUM AND ORDER Presently before the court is the motion of defendants and intervening defendant for a stay of the injunctive relief entered by this court’s April 5, 1990 Order 735 F.Supp. 1274, pending appeal before the Court of Appeals for the Third Circuit. The April 5, 1990 Order declared unconstitutional the minority, female and handicapped set-aside programs set forth at Chapte...
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*493MEMORANDUM OPINION AND ORDER qad.inc and its principals Karl and Pamela Lopker (collectively “qad”) and their lead counsel Edward Langs, Esq. (“Langs”) have moved for a protective order to preclude the taking of Langs’ deposition by defendant ALN Associates, Inc. and its principals Sally and Mike Allen (collectively “ALN”) under Fed.R.Civ.P. (“Rule”) 26(c). For the reasons stated in this memor...
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ORDER This matter is before the court on petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed May 2, 1989, and amended September 29, 1989. Prior History Petitioner was convicted, after his third trial, on June 25, 1986, in the Iowa District Court for Linn County, of kidnapping in the first degree in violation of Iowa Code § 710.2. He was sentenced to life imprison...
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OPINION AND ORDER This matter is before us on federal question jurisdiction, 28 U.S.C. §§ 1331 and 1343, in that claims are asserted under 18 U.S.C. §§ 1961-1968 and 42 U.S.C. §§ 1981, 1983, 1985 and 1986, and under diversity jurisdiction, in that plaintiff alleges he is a citizen of the State of Michigan and that all *613defendants are citizens or public bodies of the Commonwealth of Pennsylvania...
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RULING ON PENDING MOTIONS Plaintiffs operated gasoline stations and convenience stores pursuant to an “AM-PM Mini-Market Agreement” and “Lessee Dealer Gasoline Agreement” with defendants (hereinafter “ARCO”). On May 21, 1985, Arco informed plaintiffs that it intended to terminate each petroleum and convenience store operation as of November 30, 1985 by reason of its intended withdrawal fr...
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736 F. Supp. 147 (1990) Kenneth D. GINGERICH, et al., Plaintiffs, v. WHITE PIGEON COMMUNITY SCHOOLS, et al., Defendants and Third-Party Plaintiffs, v. MICHIGAN STATE BOARD OF EDUCATION, Third-Party Defendant. No. K89-10134 CA. United States District Court, W.D. Michigan, S.D. April 13, 1990. *148 William A. Redmond, Deming, Hughey, Lewis, Keiser, Allen & Chapman, P.C., Kalamazoo, Mich., and D...
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*858ORDER This case is an appeal from the order of the Bankruptcy Court in which Judge Al-tenberger ruled that Appellee was entitled to retain a 1986 government entitlement payment turned over to it by the Debtor. The basis for the Bankruptcy Court’s holding was its finding that the Debtor had transferred all his interest in the 1986 payments to the Appellee under the Loan Modification Agreement a...
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MEMORANDUM AND ORDER Presently before the Court is plaintiffs’ motion for a preliminary and permanent injunction to enjoin defendants, Drexel Burnham Lambert, Inc. (“Drexel”), Robert J. Becker, and R. Michael Laub 1 , from objecting to consolidation of plaintiffs’ claims before the American Arbitration Association, or, in the alternative, for an order requiring defendants to wa...
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OPINION This matter is before the court on an application for a writ of habeas corpus filed by Jesse Bell. The magistrate has recommended that the application for writ of habeas corpus be denied. The court agrees with the magistrate that the petitioner’s application for a writ of habeas corpus should be denied. However, the court wishes to set forth its understanding of the applicable law insofar ...
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ORDER Coming on for consideration is the motion for summary judgment filed by the defendants on March 16, 1990. After reviewing the motion, brief, the summary judgment evidence, and the response, the Court is of the opinion that the motion is meritorious and should be granted. I. In this 42 U.S.C. § 1983 civil rights action, the plaintiff alleges that he was placed in cell D-3 in the Lubboc...
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ORDER This case is before the Court on the defendants’ Motion To Dismiss For Improper Venue, filed on December 4, 1989. The plaintiff filed a response in opposition on December 20, 1989. The facts of this case are as follows. Expedia, Inc. [hereinafter “Expedia”], a subcontractor, has brought this action pursuant to the Miller Act, 40 U.S.C. § 270b (1982), against Altex Enterprises, ...
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MEMORANDUM OPINION This matter is before the Court on appellants’ notices of appeal (Filing Nos. 1). Appellant McQuillan & Spady, P.C., appeals pursuant to Bankruptcy Rule 8001, et seq., from an order of the Bankruptcy Court filed June 9, 1989, which found appellants liable to Adams Bank & Trust for conversion (CV. 89-0-545). Adams Bank & Trust, as cross-appellant, appeals from...
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*1006ORDER The defendants collectively have moved the Court for summary judgment pursuant to Rule 56, F.R.Civ.P., with respect to all of plaintiff’s claims. Plaintiff has filed a Cross-Motion for Summary Judgment with respect to the same issues. Additionally, the defendant, Robert W. Swanagon, has filed his Motion for Summary Judgment on the issue of his qualified immunity. The Court will GRANT s...
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MEMORANDUM OPINION This matter came before the court on motions to dismiss filed by plaintiff Ques-Tech, Inc. (“QuesTech”), counterclaim defendants Bigler, Hayes, Raffel, and Salvatori, and by counterclaim defendant Ques-Tech Model Company (“QMC”). Plaintiff QuesTech is seeking recovery of $311,000.00 for monies allegedly past due and owed by the defendant Liteco, AG (“Liteco”) to Qu...
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MEMORANDUM AND DECISION Before the Court is defendants’ motion to suppress the products of video surveillance conducted from November 21, 1988 through February 2, 1989 during an investigation which led to the present indictment, as well as that in United States of America v. Koyomejian, et al. In Koyomejian, the Honorable Consuelo Marshall was presented with and gran...
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OPINION The plaintiff, Bristol-Myers Squibb Company (“Bristol-Myers”) brought a declaratory judgment action pursuant to 28 U.S.C. §§ 1338(a), 2201, and 2202 on March 3, 1989, against Defendants Erbamont, Inc. (“Erbamont”), Farmitalia Carlo Erba, S.r.l. (“Farmitalia”), and Erbamont, N.V. Bristol-Myers sought a declaration of invalidity, noninfringement, and unenforceability with respect to...
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OPINION AND ORDER This action under the antitrust and commodity laws is before the Court on defendants’ motion for summary judgment. BACKGROUND Plaintiff Transnor (Bermuda) Ltd. (“Transnor”) is a corporation established under the laws of Bermuda and with its principal place of business there. Trans-nor’s suit arises out of its purchase of two cargoes of North Sea Crude Oil in De...
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ORDER QUASHING SUBPOENA AND DISMISSING CAUSE This matter has come before the Court upon the petitioner, National Transportation Safety Board’s (“the Board”) motion for judgment on the pleadings. The Board seeks the production of documents concerning the psychiatric examination of the intervenor, Thomas L. Root, Esq. (“Root”). The respondent, Hollywood Memorial Hospital (“the Hospital...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This action for fraud and breach of warranty in connection with the sale of real property was brought by Meridian Title Insurance Company (“Meridian”) in its own right and as subrogee to the rights of its insured, Veronica Cahill. Defendants, Fredrick V. Lilly, II and Lilly Homes, Inc. filed a Third Party Complaint seeking contribution from U.S. Titles, I...
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MEMORANDUM This is a class action lawsuit brought by blind vendors and their representatives against the District of Columbia Rehabilitation Services Administration and other District of Columbia agencies. Plaintiffs claim that defendants have mismanaged the District’s Randolph-Sheppard program to the detriment of plaintiffs and the class. Plaintiffs seek a writ of mandamus to compel defe...
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ORDER This case came to be heard on the defendant’s Motion To Dismiss Amended Complaint, filed on December 15, 1989. The plaintiff filed a response in opposition on January 5, 1990. Oral argument was held on March 1, 1990. The facts of the case are as follows. Lynch-Davidson Motors, Inc., the defendant, employed the plaintiff, a Hispanic female, as Manager of the Finance and Insuranc...
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735 F.Supp. 331 (1990) Jo Ann JOHNSON, Plaintiff, v. STATE MUTUAL LIFE ASSURANCE CO. OF AMERICA, Defendant. No. 89-1242C(1). United States District Court, E.D. Missouri, E.D. April 18, 1990. Alan Cohen, St. Louis, Mo., for plaintiff. John Emde, Armstrong, Teasdale, Schlafly, Davis & Dicus, St. Louis, Mo., for defendant. MEMORANDUM NANGLE, Chief Judge. Plaintiff brings this matter under the E...
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MEMORANDUM AND ORDER This matter is before the Court on defendants’ motion to dismiss for failure to state a claim or, in the alternative, for summary judgment. The motion for summary judgment will be granted. FACTS There is no dispute about the facts in this case.1 Defendant Marquette Bank Minneapolis, N.A. (Marquette) is a national banking association. On September 28, 1989, Marquette submitted ...
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ORDER This is a petition for a writ of habeas corpus. Petitioner, an inmate at the Columbia Correctional Institution in Portage, Wisconsin, claims that he is in custody in violation of the laws or Constitution of the United States. 28 U.S. § 2254. In his petition, petitioner contends that his Sixth Amendment right to confront the witness against him was violated by the use at trial of the videotap...
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TRANSFER ORDER This litigation presently consists of ten actions listed on the following Schedule A and pending in two federal districts: nine actions in the Central District of California and one action in the District of Arizona.1 Before the Panel is a motion, pursuant to 28 U.S.C. § 1407, by plaintiffs in one California action2 to transfer the California actions to the District of Arizona for ...
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ORDER The United States of America (government) seeks reimbursement of the educational cost required to enroll James F. McCrackin (McCrackin) at the United States Air Force Academy (Academy) for three years because of the administrative determination that McCrackin was ineligible to fulfill his active duty service commitment (ADSC) upon his resignation from the Academy on May 16, 1985. Th...
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MEMORANDUM This action was commenced pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671-80. The court held a nonjury trial on February 22, 1990. The following consists of the court’s findings of fact, discussion and conclusions of law. Findings of Fact The plaintiffs, husband and wife, own a farm in Lycoming County, Pennsylvania. In 1982, plaintiffs applied for a mortgage loan fr...
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OPINION I. Factual Background and Procedural History This breach of contract action is before the court upon motion by defendant Philadelphia Electric Company [“PECo”] to compel plaintiffs Public Service Enterprise Group, Incorporated and Public Service Electric and Gas Company [“Public Service”] and Atlantic City Electric Company and Delmarva Power & Light Company [“Atlantic/Delmarva” (for purpo...
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ORDER CONCERNING PETITION FOR ATTORNEY FEES This matter is before the Court on the Petition for Allowance of Attorney Fees, filed on October 17, 1989, by plaintiff’s counsel (“petitioner”). Petitioner, who successfully represented plaintiff in a claim for social security disability benefits, now seeks attorney fees pursuant to 42 U.S.C. § 406(b) (1982). Defendant filed his response to the...
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ORDER On February 28, 1990, this Court heard plaintiffs’ and defendants’ cross-motions for summary judgment. Laurence Pul-gram and Richard Marcantonio appeared for plaintiffs. Mary Magee appeared for defendants. For all the following reasons, the Court grants summary judgment to plaintiffs on the issue of post-accident testing, and permanently enjoins such testing by defendants. In addition, th...
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OPINION AND ORDER Defendant Cast (1983) Ltd. (Cast) moves for reargument of Dei Dogi Calzature v. Summa Trading Corp., 730 F.Supp. 567 (S.D.N.Y.1990), in which this Court denied Cast’s motion for summary judgment and granted partial summary judgment to plaintiff, Dei Dogi Calzature S.P.A. The decision held that Cast, the carrier, was fully liable for the value of missing cargo ...
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736 F. Supp. 201 (1990) Richard M. STILLWELL, Rose Stillwell and Robert N. Stillwell, Plaintiffs, v. BROCK BROTHERS, INC. and Transamerica Insurance Services & Transamerica Insurance Group, Defendants. No. NA 88-107-C. United States District Court, S.D. Indiana, New Albany Division. March 28, 1990. *202 Michael T. Forsee, Jeffersonville, Ind., for plaintiffs. Jerry L. Ulrich, New Albany, Ind....
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ORDER THIS CAUSE is before the court SUA SPONTE after having received notice from the first alternate juror, CAROL RECIO MADONIA, during this trial, that her employer, SUPERCUTS, was threatening her with non-payment of wages and other benefits, as well as causing other problems because of her service as a juror. BACKGROUND This matter first came to the attention of the court when a note fro...
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ORDER AND REASONS This case arose from a fire on July 8, 1980, which destroyed the chinaware manufacturing plant owned by American Standard, Inc. Plaintiffs, American Standard and its insurers, brought suit against New Orleans Public Service, the Sewerage and Water Board and its insurer, Lexington Insurance Company, the City of New Orleans, and the New Orleans Fire Department. Jurisdiction...
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OPINION The action was filed by DONALD COW-GER (COWGER) against DONALD ROHR-BACH (ROHRBACH) pursuant to 29 U.S.C. Section 501 alleging that ROHR-BACH violated his fiduciary duty to Local 80 of the International Alliance of Theatrical Stage Employees and Moving Picture Operators (Local 80) by reason of unauthorized expenditures of Local 80 funds and use of Local 80 credit cards, receiving unauthor...
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*745ORDER AND REASONS Before the Court is the motion of federal defendants to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. By agreement of the parties, oral argument was waived and this matter was taken under submission on the briefs. After reviewing the motion, memoranda of counsel, the record, and the law, the Court grants the motion for the reasons set forth below....
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OPINION This action is before the Court on Defendant’s motion for summary judgment and Plaintiff’s motion to amend complaint. Plaintiff, a company that provides hardware maintenance to computer users, sued Defendant, a company that supplies computer systems, distributes software and provides hardware maintenance. The complaint alleged an illegal tying arrangement between software upgrades...
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MEMORANDUM AND ORDER Plaintiffs challenge housing regulations promulgated by the City of New York Department of Housing Preservation and Development (“HPD”) and applicable to Cad-man Towers, Inc. (“Cadman Towers”) on the grounds that the regulations violate the Due Process, Equal Protection and Takings Clauses of the Fourteenth Amendment as well as 42 U.S.C. § 1983 (1982); they also mount...
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OPINION On 22 March 1990 I filed an Opinion (the “Recusal Opinion”) denying the motions by Richard O. Bertoli (“Bertoli”) and Richard S. Cannistraro (“Cannistraro”) for my recusal (the “Recusal Motions”). .734 F.Supp. 1137. On 2 April 1990 counsel to Bertoli, Franklin M. Sachs, Esq. (“Sachs”), filed a Motion for Reargument and Reconsideration (the “Reconsideration Motion”). 1 In support of th...
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MEMORANDUM DECISION This memorandum decision results from an evidentiary hearing on the plaintiffs’ motion for a preliminary injunction to enjoin defendant’s use of “trade dress” and certain terms contained in their advertisements on the grounds that they are allegedly “confusingly similar” to advertisements used by the plaintiffs and also that the defendant’s advertising of the wipers at...
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BACKGROUND Plaintiffs Michael Juliano, Timothy Rambler, and Salvatore Sacco were at all relevant times employees of defendant Stroehmann Bakeries, Inc. (“Stroehmann”), and members of defendant Local 15080 of the United Steelworkers of America and defendant District 4, United Steelworkers of America, AFL-CIO-CLC (referred to collectively as “the Union”). They seek confirmation of an arbitra...
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MEMORANDUM OPINION ON CROSS MOTIONS FOR SUMMARY JUDGMENT BEFORE THIS COURT are cross Motions for Summary Judgment filed by the Plaintiff and by collective Defendants Se-qua and Chromalloy (hereinafter referred to as “Sequa”). The issue before the Court is whether the recovery costs incurred by the Government in its initial response to the chromium contamination found in the Trinity Aquife...
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MEMORANDUM OPINION On February 23, 1990, this court entered judgment in favor of plaintiff, Reliance Insurance Company, in the amount of $269,-746.02. Recovery was awarded the plaintiff on theories of negligence, breach of contract, and breach of warranty. On March 13, 1990, plaintiff filed a motion for attorney’s fees with accompanying itemization. Defendant timely responded and this issue is ri...
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OPINION AND ORDER Eric Montalvo Martinez seeks relief under 28 U.S.C. section 2255, alleging that his guilty plea to a violation of 21 U.S.C. section 952 was induced by a lawyer’s promise that he would receive no more than a five-year prison sentence. (Montalvo in fact received a fifteen-year prison sentence and a five-year special parole term.) This is the second time petitioner has raised this a...
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MEMORANDUM OPINION AND ORDER The plaintiffs, Fanny Moy and Daniel Vondrak have filed this Section 1983 suit against Chicago Police Officers Deborah Gold and Edward Reines, the City of Chicago (“City”), Police Superintendent LeRoy Martin and Office of Professional Standards Director David Fogel. The defendants have moved to dismiss a majority of the claims raised by Moy and Vondrak. In turn, Moy a...
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ORDER AND MEMORANDUM OF DECISION THIS MATTER is before the Court on the Plaintiffs Motion to Dismiss Termination Assessment, filed March 26, 1990. The Plaintiff filed this Complaint on March 2, 1990, seeking judicial review of a termination assessment against the Plaintiff on imposed December 20, 1989. Section 7429(b) of Title 26 of the United States Code provides the jurisdictional basis for...
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OPINION I. INTRODUCTION Plaintiff Opticians Association of America (“OAA”) has registered and maintained a group of seven collective marks (the “guild marks”) that were intended to be used exclusively by its members. Defendants, former members of the OAA, used these guild marks while they were members of the OAA and have continued to use these marks despite having terminated those me...
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ORDER AND OPINION Defendant Giuseppe Gambino has filed a motion to suppress evidence in the form of conversations recorded by the federal government using electronic eavesdropping devices. Gambino is joined in his motion by all other defendants before the Court. Gambino claims that the government has violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §...
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MEMORANDUM AND ORDER David Raff (“plaintiff”) brings this suit to recover fees, expenses, prejudgment interest and attorneys’ fees with respect to his service as arbitrator in connection with a labor dispute. Named as defendant is Paul C. Maggio, (“defendant”), who, as the employer involved with the arbitrated labor dispute, is liable for half the cost of the arbitrator’s fees according to a colle...
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ORDER The plaintiffs are correctional officers at the Danville Correctional Center. They filed this suit pursuant to 42 U.S.C. § 1983 alleging a deprivation of their Fourth Amendment right to be free from unreasonable searches. The plaintiffs allege that on March 30, 1987, the defendants subjected them to strip searches at their place of employment without probable cause or reasonable suspicion...
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ORDER On February 21, 1990, this Court heard plaintiff’s motion for judgment on the pleadings. After consideration of the relevant pleadings, affidavits and argument of counsel, the Court GRANTS plaintiff’s motion for judgment on the pleadings. I. This action is brought by the Federal Deposit Insurance Corporation (“FDIC”) as receiver for Centennial Savings and Loan Association ...
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MEMORANDUM OPINION/FINDINGS OF FACT AND CONCLUSIONS OF LAW This suit came before this court for trial without a jury on January 29-31, 1990, and for a hearing on questions relating to this court’s jurisdiction on March 15, 1990. The court has heard the evidence and has considered the testimony, exhibits, memoranda of law, and arguments of counsel. The court also has reviewed the motion of...
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Richard S. Cannistraro (“Cannistraro”) has filed this motion pursuant to Fed.R. Crim.P. 32(d) to withdraw his guilty plea to all nine counts of the indictment in United States v. Cannistraro, Crim. No. 87-193 (the “First Indictment” 1 ). Cannistraro claims he would not have pleaded guilty to the First Indictment but for the ineffective assistance of his former trial counse...
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RULING AND REDUCTION OF SENTENCE Defendant William J. Emanuel pleaded guilty to possessing with intent to deliver LSD in violation of 21 U.S.C. § 841(a)(1), and pursuant to § 841(b)(1)(A)(v) I sentenced him to imprisonment for 151 months (the minimum of the applicable Sentencing Guideline range and 31 months above the statutory mandatory minimum sentence of 10 years). The sentence was affirmed....
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ORDER This matter is before the court on appeal from the bankruptcy court’s order of August 18, 1989, in which the bankruptcy court apportioned the undersecured amount of an IRS (appellant herein) claim against debtor, Specialty Cartage (appellee herein). Only one issue is presented on appeal to this court and that is whether the bankruptcy court has the legal power to choose which portion of a...
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ORDER Pending before this Court is a motion to dismiss (Document # 2) filed by defendant The Mounties, Inc. (“The Mounties”). On December 22, 1989, The Mounties, a Washington corporation, filed suit against Igloo Products Corporation (“Igloo”), a Texas corporation, in an Oregon state court. On January 18, 1990, Igloo filed this action against The Mounties. Igloo subsequently removed ...
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MEMORANDUM AND ORDER Currently before the Court is an unusual motion — a motion by a non-party to withdraw his affidavit voluntarily given to the plaintiff and submitted by the plaintiff on his motion for summary judgment. Before discussing the legal ramifications of the motion, we will briefly set out the relevant facts. Plaintiff, Robert D. Krumme (“Krumme”), worked for Cluett, Pea...
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ORDER This matter is before the court on defendant’s motion for leave to file a complaint in impleader. The issues have been fully briefed and oral arguments were heard on March 26, 1989. For the reasons set forth below, defendant’s motion will be denied. Factual Background Greene Line commenced this action in July, 1989, claiming that Fibreboard had failed to make full payment for certain indu...
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OPINION AND ORDER The case was instituted by plaintiff Coco Rico, Inc. (“Coco Rico”), a manufacturer of *615 a coconut-flavored soft drink, in an attempt to enjoin codefendants from manufacturing a competing coconut-flavored beverage, Coco Frio. In response, codefendants José Luis Fuertes Pasarell (“Fuertes”) and Myrna Skerrett de Fuertes (“Skerrett”), and their conjugal part...
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OPINION AND ORDER On August 11, 1989, this Court rendered an opinion denying the motions of defendants Con Edison Company of New York, Inc. (Con Edison) and Utility Workers Union of America, AFL-CIO Local 1-2 (Local 1-2) for summary judgment dismissing *656plaintiffs second amended complaint pursuant to Fed.R.Civ.P. 56 with respect to Counts I, II and II, and reserving decision on Count IV. Therea...
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MEMORANDUM AND ORDER Situated virtually in the shadows of the skyscrapers of New York City, and recognized as one of the few national parks within an urban area, Gateway National Recreational Area (“Gateway”), which includes the Jamaica Bay Wildlife Refuge (“Jamaica Bay”), is a natural and national resource protected by federal law. Created to “preserve and protect for the use and enjoyme...
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ORDER This cause is before the Court as an appeal from the ruling of the United States Bankruptcy Court for the Middle District of Florida, dated November 18, 1988, which granted appellee’s motion for summary judgment and denied appellant’s motion for summary judgment. 93 B.R. 281. This Court heard oral argument on July 5, 1989. After deliberation and consideration of the briefs filed in ...
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ORDER DENYING DEFENDANT’S MOTIONS TO SUPPRESS PHYSICAL EVIDENCE, STATEMENTS, AND/ OR CONFESSIONS (WITH FINDINGS) The above-entitled matter having come on regularly for hearing before the Court on defendant’s motions to suppress; plaintiff appearing by and through its attorney, David A. Kubicheck, Assistant United States Attorney for the District of Wyoming; defendant appearing by and thro...
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736 F. Supp. 51 (1990) Camilio A. GOPEZ, M.D., Plaintiff, v. Sun K. SHIN and Prudential-Bache Securities, Inc., Defendants. Civ. A. No. 89-641-JRR. United States District Court, D. Delaware. April 18, 1990. *52 Roderick R. McKelvie of Ashby, McKelvie & Geddes, Wilmington, Del., for plaintiff. Francis G.X. Pileggi of Morris, James, Hitchens & Williams, Wilmington, Del., for defendant Sun K...
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ORDER This matter comes on for consideration upon a Motion for Summary Judgment filed on April 27, 1989, by Defendants City of Catoosa (City), James Enos Combs (Combs) and Joe Garber (Garber). Combs and Garber were Catoosa Police Officers at times material herein. Plaintiff Sandra Howell (Howell), individually and as next friend of Tina Patterson (Tina) (hereinafter Plaintiffs), alle...
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OPINION This action involves a claim that defendants exceeded their authority under a licensing agreement and improperly distributed video cassettes of certain movie films produced by plaintiff. There is also a claim of failure to perform the licensing agreement in regard to those distributions which were authorized. Defendants move to dismiss the complaint for lack of subject matter juri...
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MEMORANDUM AND ORDER This case comes before me on a motion for summary judgment. Fed.R.Civ.P. 56. The movant, Consolidated Rail Corp. (“Conrail”) seeks to extricate itself from a multiparty suit in which it is involved as a third party defendant. The non-movant, Phil Orzell Associates (“Orzell”) is both a defendant and a third party plaintiff. The basic facts are not in dispute. The ...
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MEMORANDUM OPINION This case is presently before the court on defendants’ motion to sever certain class members from the class pursuant to Rule 23(c)(1). Fed.R.Civ.P. 23(c)(1). This is a class action under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), together with Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5. The *916 named plaintiffs have b...
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OPINION AND ORDER Plaintiffs have sued defendants for negligence and breach of contract with respect to an excess liability insurance policy issued by defendant Travelers Indemnity Company (“Travelers”). In their complaint, plaintiffs claim that defendants are liable for a $200,000 gap in coverage between the Travelers policy and plaintiffs’ primary liability policy. Travelers has moved f...
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MEMORANDUM OPINION AND ORDER Randall Weidner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before us is the supplemental affidavit of Judge Richard L. Samuels and the Renewed Motion of Petitioner Randall Weidner With Respect to Procedures on Remand from the United States Court of Appeals. Before addressing the merits of Weidner’s petition and motion, we review the confusin...
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MEMORANDUM In this products liability action, the defendants have moved to dismiss the entire action because of the absence of diversity, to strike paragraph six of the amended complaint as immaterial matter, and to dismiss Count Three of the amended complaint for failure to state a claim upon which relief may be granted. The motion to dismiss the entire action shall be denied; the other ...
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MEMORANDUM Plaintiff ER Holdings Inc. (“ER”), a Delaware corporation, is a wholly-owned subsidiary of BTR pic, a holding company organized under the laws of the United Kingdom. The defendant Norton Company (“Norton”) is a manufacturing concern incorporated in Massachusetts with headquarters in Worcester. Additionally, a number of individuals have been named as defendants, including the tw...
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MEMORANDUM This action came to this District Court via removal from the Superior Court of the District of Columbia. Plaintiff Matthew L. Hubbard, a maintenance man for the Washington Metropolitan Area Transit Authority (WMATA), alleges that in the course of his employment he was injured by the use of a cleaner, “Winta-Dis”. In 1984, plaintiff filed this action in the Superior Court of the Distric...
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MEMORANDUM Before the Court in docket no. 1-90-0002 is an action for declaratory and injunctive relief brought by the Knights of the Ku Klux Klan against a group known as the Giles Countians United (which the Ku Klux Klan has referred to as the “Martin Luther King Jr. Worshippers”) and the following individuals: Bettie Higgins, the executive director of the Giles County Chamber of Commerce and ...
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MEMORANDUM Pending before the Court are plaintiffs’ motion for a preliminary injunction and defendants’ motion to dismiss. FACTS The plaintiff, Michael Crocker, is a student enrolled in the 12th grade at McGavock High School in Nashville, Davidson County, Tennessee. The defendant, Ten *755 nessee Secondary School Athletic Association, is an organization designed to regulate high school at...
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OPINION AND ORDER This is a declaratory judgment action pursuant to 28 U.S.C. §§ 2201 and 2202. Defendant has moved for dismissal of the action or, alternatively, for transfer of the action to the United States District Court for the Northern District of Texas. For the reasons stated below, defendant’s motion to dismiss is granted. BACKGROUND The instant action arises out of rei...
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ORDER I. INTRODUCTION Before the court is plaintiff’s motion for entry of final judgment and award of attorneys fees. The court heard oral argument on these motions on February 20, 1990, and took the motions under advisement. Plaintiff, Joey Gutierrez, originally filed a complaint with this court contesting a decision of the Secretary of Health and Human services denying him dis...
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MEMORANDUM OF DECISION AND ORDER Appellant, Byron Lee Lynch, is attorney for the trustee of the estate of Kucek Development Corporation, Inc. He appeals from an order of the bankruptcy court denying his application for compensation on the basis of a one-third contingency fee. He also appeals a denial of compensation for travel time. The appeal came on for hearing at the court’s regul...
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MEMORANDUM ORDER I. Introduction Plaintiff Arlene A. Johnson brings this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1988) (“FTCA”), alleging that Army physicians and medical personnel negligently misadvised her for almost four months that she had AIDS, which resulted in her having an unnecessary and unwanted abortion. The United States has moved to...
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“0 accurst craving for gold.” —Virgil, Aeneid, Bk. Ill, 1. 57 This case arises out of an ill-fated attempt to resurrect a historical Montana gold mine, the Spotted Horse. Investor-turned-plaintiff John A. Healey alleges violations of § 12(2) of the Securities Act of 1933 (the “1933 Act”), 15 U.S.C. § 111(2), § 10(b) of the Securities Exchange Act of 1934 (the “1934 Ac...
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MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION In a recent case involving the same parties, American Postal Workers Union v. Frank, 725 F.Supp. 87 (D.Mass.1989), the present plaintiff American Postal Workers Union (APWU) requested and obtained injunctive relief against urinalysis testing of applicants for positions in the Postal Service as well as its members for...
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MEMORANDUM In December 1988, this Court granted summary judgment and permanent injunctive relief for plaintiffs in this action. The Court found that defendants, five federal agencies, were failing to comply with the Stewart B. McKinney Homeless Assistance Act, 42 U.S.C. § 11301 et seq., which requires federal agencies to make vacant federal properties available to assist the ho...
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MEMORANDUM OPINION AND ORDER Sharyn Vantassell-Matin and Philip Ma-tin (collectively “Matins”) brought this action against Jeannie Nelson and her minor daughter Amy Beth (collectively “Nelsons”), American Airlines, Inc. (“American”) and numerous others, asserting equally numerous claims. As a result of events too complicated (and really unnecessary) to recount here, the numbers of Matins’...
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ORDER Presently pending before the court is an appeal by the plaintiff, Dr. Alan Dale Clark, and a cross-appeal by the defendant, Mary Carole Bray Clark, of the bankruptcy court’s decision with respect to the dis-chargeability of a portion of plaintiff’s obligations under a judgment and decree of total divorce from defendant. On December 5, 1989, Dr. Clark (appellant), filed his notice of...
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ORDER This matter is before the court on defendant’s motion for summary judgment filed on September 15, 1988 and plaintiff’s motion for partial summary judgment filed on September 23, 1988. On November 10, 1988 the defendant responded to the plaintiff’s motion for partial summary judgment and on November 14, 1988 the plaintiff responded to defendant’s motion for summary judgment. A hearin...
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MEMORANDUM Plaintiffs, licensed docking masters, filed this action on July 14, 1989, seeking recovery of attorney’s fees and costs expended in successfully defending charges of misconduct brought by the U.S. Coast Guard in 1988. The facts of the underlying litigation 1 are that plaintiffs were each cited for violations of 46 U.S.C. § 8502, which requires that a “coastwise seagoing vessel” be under...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT BY THIRD-PARTY DEFENDANT USG INTERIORS, INC. THIS MATTER comes before the court on the “Motion For Summary Judgment By Third-Party Defendant, USG Interiors, Inc.” (“USGI”). USGI requests a judgment of dismissal. The court reviewed the file and the pleadings filed in support of and in opposition to the motion and heard oral argument. I. STATEM...
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MEMORANDUM OPINION AND ORDER This Memorandum Opinion and Order will confirm and supplement the oral order announced by the Court on March 9, 1990, at the conclusion of the hearing on plaintiffs’ Motion for New Trial and, in the Alternative, for Amendment of Judgment. The Court requested counsel to cooperate in the preparation of the amended judg *944 ment; unfortunately, they...
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OPINION Plaintiff, Nikkal Industries, Ltd. (“Nikkal”), brings this action against defendant, Saltón, Inc. (“Saltón”), alleging that Saltón has violated section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1988), by making false claims about a home ice-cream maker sold by Saltón. The case was tried to the court and the following, including those additional facts referred to in the Discuss...
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OPINION AND ORDER This case raises the recurring question of what is a “package” for purposes of § 4(5) of the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C.A.App. § 1304(5), which limits the liability of a carrier to $500 per package unless the shipper declares on the bill of lading the value of the goods and *130 pays additional freight. 1 The issue presented ...
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MEMORANDUM This matter is before the Court on Defendant’s Motion to Dismiss, or, in the alternative, for Summary Judgment, pursuant to Fed.R.Civ.P. 12(b)(6) and 56(b). The matter has been fully briefed and argued and is ripe for disposition. Jurisdiction is based on 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Plaintiff Coleman is an African-American and former employee of the Division of Emergency Medi...
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MEMORANDUM OPINION AND ORDER This case is the product of an undercover investigation into the trading practices in the Japanese Yen Pit of the Chicago Mercantile Exchange. Defendants Bailin, Baker and Cali each seek to suppress statements made to agents of the Federal Bureau of Investigation (“FBI”) and Assistant United States Attorneys (“AUSA”) during interviews. A question frequently asked ...
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MEMORANDUM OPINION Sofija Ostojic is a member of Local 25 of the Service Employees International Union, AFL-CIO. Local 25 is the collective bargaining representative for the janitors, elevator employees, and working supervisors of National Cleaning Contractors, Inc., the company which employs Ostojic.1 Ostojic works for National at the 222 S. Riverside building in Chicago, Illinois. Ostojic claim...
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MEMORANDUM This is an action for collection of delinquent contributions to an employee benefit fund and for breach of a collective bargaining agreement provision barring subcontracting with entities that are not bound by a collective bargaining agreement. Plaintiffs are Metropolitan District Council of Philadelphia & Vicinity, United Brotherhood of Carpenters and Joiners of America (hereinafter, ...
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ORDER I. JURISDICTION. Plaintiff United States of America (“Government”), commenced this action against the defendants A. Rowland Boucher and Mary K. Boucher (“Settlors”) to, inter alia, reduce federal tax assessments to judgment. The government also named Pamela Boucher, Ericsson Boucher, Denise Boucher, Andrea Boucher (“Beneficiaries”), and Stanley B. Hallman (“Hallman”)...
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ORDER Before the Court is an appeal by Pearson Bros. Company, Inc. and a cross-appeal by Leland Pearson. The District Court has jurisdiction for this appeal under to 28 U.S.C. § 158(a). This Court affirms the decision of the bankruptcy court, 98 B.R. 427, but for different reasons than those given by the bankruptcy court. STATEMENT OF THE ISSUES The first issue is whether the pa...
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MEMORANDUM OF DECISION In this action plaintiffs claim that the defendants are using a racially discriminatory selection process for the promotion of police officers to the rank of sergeant in the Bridgeport Police Department. Plaintiffs allege that defendants’ promotion procedures violate sections 1981 and 1983 of Title 42 of the United States Code and Title VII of the Civil Rights Act o...
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OPINION AND ORDER This securities action is presently before the Court on the motion of defendants First Interstate Bank, Ltd. and First Interstate Services, Inc. to dismiss the complaint as against them for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, defendants’ motion is denied. BACKGROUND The complain...
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ORDER Appellee Ozark National Life Insurance Company (hereinafter Ozark) has at all relevant times been engaged in the business of selling life insurance. Appellee NIS Corporation (hereinafter NIS) is a wholly owned subsidiary of Ozark and is the exclusive selling agent for Ozark. Appellant Nelson Hallahan began work for Ozark on October 1, 1977 as a sales agent. He became an Ozark m...
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OPINION Plaintiff, Lester Stone, filed an action against defendants, the City and County of San Francisco (“CCSF”) alleging state tort claims and violations of his constitutional rights guaranteed under 42 U.S.C. § 1983. After removing this case to federal court, defendants moved for dismissal on the ground that plaintiff’s claims were barred by the applicable statute of limitations. The ...
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MEMORANDUM OF DECISION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, alleging that there exists no genuine issue of material fact concerning her claim that the Food Stamp Act does not permit Defendants to offset an underissuance,...
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*1026 ORDER This matter comes before the court upon the Defendant’s Motion for Summary Judgment (DE 11). Having reviewed the facts of this case and the relevant authority, the court enters the following order. STANDARD OF REVIEW ON SUMMARY JUDGMENT On a motion for summary judgment, the moving party will prevail if “there is no issue as to any material fact and ... the moving party is enti...
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OPINION A question of possible contamination of fruit juice for school children. Can a Civil Rights action lay? Not under these facts. Juici-Rich Products, Inc., has brought this suit — under the aegis of 42 U.S.C. § 1983 — seeking to recover for injuries stemming from an alleged violation of its constitutional rights by Illinois Public Health official Lowe. Juici-Rich complains that Lowe’s actio...
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ORDER This is an action in rem in which the United States seeks to have forfeited a parcel of real estate allegedly used to facilitate violation of federal drug laws. The property in question is owned by Edward Hilst and Arvin Hilst who were selling the real estate pursuant to a contract for warranty deed to Larry Tinker and Anna Lee Tinker. During May of 1988 the parcel of real estate was ...
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ORDER Before the Court is a Motion by the Defendants to Dismiss Counts IX through XII of the Plaintiffs' Amended Complaint based upon the fact that the Racketeer Influenced and Corrupt Organizations Act is unconstitutionally vague. The Court denies this Motion. BACKGROUND The Defendants Jones and Company and Jack Cahill are moving pursuant to Rule 12(b)(6) of the Federal Rules o...
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MEMORANDUM OPINION AND ORDER Before the Court is Plaintiffs’ Motion to Remand, filed March 19, 1990, and Defendant Resolution Trust Corporation’s (hereinafter “RTC”) response, filed April 9, 1990. Plaintiffs seek to remand this case to state court on the grounds that the removal by the RTC was untimely and to the wrong district. Plaintiffs filed their original petition in state court on Janua...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This action is brought by the plaintiff, John Huss, as the independent personal representative of the estates of Clarence and Norma Davey, against the defendants, the United States of America and the State of Michigan. Clarence and Norma Davey, husband and wife, were killed on the evening of August 6, 1983 when their car collided with a Michigan National ...
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ORDER Pending before the Court is an appeal and cross-appeal of the bankruptcy court’s decision that while Appellant KMB, Inc. did not have a valid security interest in funds owing to the Debtor, KMB did have a valid mechanics lien on those funds. For the reasons stated below, the bankruptcy court is affirmed. FACTS Tri-County Materials, the Debtor below, operated a sand and gra...
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OPINION I. FACTS A. Introduction This case essentially involves a dispute between a savings bank and its largest shareholder over the bank’s recent poor financial performance and what should be done about it. Plaintiff is D & N Financial Corporation (hereinafter “D & N”), a corporation with its principal place of business in Hancock, Michigan. Its sole subsidiary is D&N ...
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MEMORANDUM-DECISION AND ORDER In this taxpayer refund action commenced pursuant to 28 U.S.C. § 1346(a)(1) to recover an overpayment of estate taxes in the amount of $50,000 plus statutory interest under 26 U.S.C. § 6611(a) and (b)(2), the parties have cross-moved for summary judgment regarding the liability of the Internal Revenue Service for interest accruing after March 1986 the point in time...
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MEMORANDUM AND ORDER This is a suit by some former shareholders of Narragansett Capital Corporation who seek damages for the sale of all of the corporation’s assets for what they say was a grossly inadequate price. Most of the defendants are directors, officers and/or shareholders who are accused of having orchestrated the sale for their own benefit and having solicited the approval of th...
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736 F. Supp. 267 (1990) REGION 8 FOREST SERVICE TIMBER PURCHASERS COUNCIL; Hankins Lumber Company, Inc.; Hood Industries, Inc.; and Hunt Plywood Company, Inc. v. John E. ALCOCK, in his official capacity as Regional Forester for Region 8 of the United States Forest Service; F. Dale Robertson, in his official capacity as Regional Director of Region 4 of the United States Fish and Wildlife Service; ...
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OPINION This matter is now before the Court on the summary judgment motions of defendants Wilmington, Delaware Police Officer Robert Merrill, the Borough of Trainer, Pennsylvania, and Trainer, Pennsylvania *555 Police Officer James Magaw. 1 Isom Cooper, a Wilmington, Delaware resident, initially filed this action in the Eastern District of Pennsylvania, pursuant to...
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OPINION A civil rights lawsuit against two state police officers. We grant them summary judgment. I. Facts The facts of this case are relatively simple and undisputed. The Plaintiff, Raymond Dykhouse, was employed as a truck driver for Herrud & Co. and en route with a load of cargo to Jacksonville, Illinois, on May 27, 1986. At approximately 4:00 p.m. that afternoon a ...
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OPINION This matter is before the Court on plaintiff Secretary of Labor’s motion for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff contends that no issues of fact exist and that plaintiff is entitled to judgment as a matter of law. Defendant asserts that factual questions remain concerning the characterization of the May 16, 1988 letter sent by Joe Glaab to the local membership, thereby...
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RULING ON MOTION TO SUPPRESS STATEMENTS Defendant John Palacio has moved to suppress the statements he made during custodial interrogation, arguing that the government unreasonably delayed presenting him before a magistrate and that neither his waiver of constitutional rights nor his resulting confession was voluntary. This Court’s findings of facts and conclusions of law are as follows. ...
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DECISION and ORDER Plaintiffs Mark Soucie, Gregg Soucie, and Virginia Soucie commenced this action pursuant to 42 U.S.C. § 1983, alleging that the defendants unlawfully disseminated and publicized confidential youthful offender information contained in a pre-sentence report. Defendants County of Monroe, County of Monroe Department of Probation and Laura Dennany now move to dismiss plainti...
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MEMORANDUM AND ORDER Defendant’s motion to correct an illegal sentence is denied. Fed.R.Crim.P. 35(a). BACKGROUND On March 5, 1986, defendant Santiago Larroque was arrested on charges of violating certain federal narcotics laws. On April 3, 1986, a one count indictment was filed against Larroque, charging him with possessing approximately three kilograms of cocaine with the intent to distribute, ...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on Appeal from the decision of the United States Bankruptcy Court for the Southern District of Mississippi dismissing these two adversary proceedings. The Court, having reviewed the record, and having considered the briefs of counsel, is of the opinion that the decision of the court below should be *254 reversed and ...
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ORDER ON PLAINTIFF’S MOTION FOR ATTACHMENT, PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION, PLAINTIFF’S MOTION FOR A PARTIAL STAY FOR ITS MOTION FOR A PRELIMINARY INJUNCTION, PLAINTIFF’S MOTION FOR EXPEDITED TRIAL AND DEFENDANT’S MOTION TO STRIKE This action is here on remand from the Federal Circuit for a trial on damages for infringement by Defendant of Plaintiff’s Knop patent. 847 F.2d ...
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735 F.Supp. 333 (1990) Karen CLARK, Plaintiff, v. CITY OF LAKE ST. LOUIS, et al., Defendants. No. 89-1657C(1). United States District Court, E.D. Missouri, E.D. April 23, 1990. *334 David Godfrey, Clayton, Mo., for plaintiff. Robert Krehbiel, Evans & Dixon, St. Louis, Mo., for Lake St. Louis. Ben Ely, Jr., Kortenhof & Ely, St. Louis, Mo., for Ron Gann. F. Douglas O'Leary, Moser & Mars...
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ENTRY In the present case, the United States (the “government”) brought suit against the defendants to collect unpaid withheld federal income taxes due and owing from the Mystik Corporation (“Mystik”) for the first, second, and fourth quarters of 1983. In March of 1987, a delegate of the Secretary of the Treasury made separate assessments against defendants Vaccarella (for $241,774.58 plu...
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RULING ON MOTIONS FOR SUMMARY JUDGMENT This matter is before the court on a motion by plaintiff for a determination as *717to whether the defendants are entitled to a trial by jury on any of the issues to be tried in this case, and on cross motions for summary judgment. The motions for summary judgment are opposed. The court finds there is no need for oral argument. Jurisdiction is allegedly based...
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ORDER Defendant Robert Lee Mathis represented by court-appointed counsel, Neal Graham, pled guilty to Count 2, charging him as a previously convicted felon with possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1), which provides a mandatory minimum fifteen year imprisonment sentence for any person who has three prior violent felony convictions. Defendant’s violent felony c...
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The motion currently before the Court is the defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 41(b). The City of New York and the municipal officials named as defendants (collectively the “City”), assert that plaintiff James West (“West”), has failed to diligently prosecute his section 1983 civil rights complaint. We agree for the reasons that are set forth below. BACKGROUND At the commencem...
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ORDER This case concerns efforts on the part of plaintiff, the United States Navy, to recover the costs of cleaning up portions of the Concord Naval Station which once were owned by defendants, later were acquired by the Navy via eminent domain, and now are known to contain toxic pollutants. In 1983, plaintiff brought this action for recovery of clean-up costs pursuant to the Comprehensiv...
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MEMORANDUM OPINION American States Insurance Company has moved to dismiss Counts 5-6 1 of the Consolidated Second Amended Complaint of Maureen and John L. Hoth, pursuant to Rule 12(b)(6), Fed.R.Civ.Pro. Count 5 is John’s claim that American States defamed him. Count 6 is his claim that American States invaded his privacy. The facts alleged in the Hoths’ current complaint are these: The Hoth...
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MEMORANDUM OPINION AND ORDER This bankruptcy appeal presents an interesting twist to the common problem of characterizing a marital debt as support or a property settlement for the purposes of dischargeability under § 523(a)(5). 1 In this case, Charlotte Robinson, the ex-wife of debtor Edward Earl Robinson, claimed that Mr. Robinson’s obligation to make payments on a note secured by a second ...
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736 F. Supp. 737 (1990) Gary TURPIN, et al., Plaintiffs, v. MERRELL DOW PHARMACEUTICALS INC., Defendant. Civ. A. No. 84-105. United States District Court, E.D. Kentucky, London Division. April 25, 1990. Barry J. Nace and Thomas H. Tate, Paulson, Nace, Norwind & Sellinger, Washington, D.C., for plaintiffs. Frank C. Woodside, III, Joseph E. Conley, Jr. and Stephen M. Rosenberger, Dinsmore &...
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MEMORANDUM This is a personal injury action arising out of an industrial accident that took place in South Africa. Defendants have moved for dismissal under Federal Rule of Civil Procedure 12(b)(2), for summary judgment, and for dismissal under the doctrine of forum non conveniens. FACTS Jan Abraham Dutoit worked as a shift foreman at a Vametco Minerals Corporation (“Vametco”) processing mi...
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ORDER This matter is before the court on plaintiffs’ “Verified Motion for a Temporary Restraining Order and Preliminary Injunction” filed on April 25, 1990. This motion was filed with a complaint in which plaintiffs seek to enjoin defendants from various activities at the Fort Wayne Women’s Health Organization facility located at 827 Webster Street, Fort Wayne, Indiana, which activities are allege...
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MEMORANDUM OPINION Caryl Wolf has petitioned this court for costs pursuant to Rule 54(d), Fed.R.Civ. Pro., and attorneys fees pursuant to 42 U.S.C. § 1988 (1982). Wolf makes these requests since she prevailed on some aspects of her dispute with Planned Property Management. See Wolf v. Planned Property Management, 1990 WL 19918, 1990 U.S.Dist. LEXIS 1947 (N.D.Ill. Feb. 23, 1990)...
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MEMORANDUM AND ORDER Plaintiff Willa Reid brought this action under 42 U.S.C. § 1983 against the City of New York (the City) and three uniformed New York city police officers. The second amended complaint alleges that defendants violated her rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments by assaulting, falsely arresting, and maliciously prosecuting her. The secon...
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MEMORANDUM Defendant pleaded guilty to one count of wire fraud and one count of mail fraud. The offense conduct, which commenced in February of 1987, involved a scheme to defraud South African nationals through false representations that the defendant was able to obtain special assistance from Senator Heinz in obtaining permanent residency status in the United States. Defendant defrauded five v...
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The Federal Deposit Insurance Corporation (“FDIC”), as manager of the FSLIC Resolution Fund and as statutory successor to the Federal Savings and Loan Insurance Corporation (“FSLIC”), moves for partial summary judgment, presenting the question whether plaintiff’s claims are barred by § 212 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73,...
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WHITMAN KNAPP, District Judge. After a bench trial of several days, 1 we made preliminary findings on the record in plaintiffs favor, both as to the direct claim that defendants Aretha Franklin and Crown Productions, Inc., breached a contract under which Franklin was to star in a musical production entitled “Sing Mahalia Sing” (“Mahalia”), and as to defendants’ counterclaim alle...
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*924ORDER This matter is before the Court pursuant to defendant Ferris J. Alexander’s mid-trial request for a grant of judicial immunity for Randall D.B. Tigue, or, in the alternative, for dismissal of Count I. Defendant seeks to present Tigue as an exculpatory witness. Tigue is also a defendant is this matter, but was severed from the trial of his co-defendants by this Court’s order, dated Januar...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on motion of plaintiff under Rule 60(b)(6), Fed. R.Civ.P., to set aside and reopen the judgment of this Court of November 14, 1985, dismissing plaintiffs pendant state claim of intentional infliction of emotional distress. Having carefully considered the briefs filed in support of and in opposition to plaintiffs motion, as well as th...
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OPINION Presently before the court is the motion of the State of New Jersey Department of Environmental Protection (hereinafter “NJDEP”) for an order to show cause with temporary restraints. Essentially, this is an application for immediate access to property owned by defendant Briar Lake Development Corporation (hereinafter “BLDC”). The property is adjacent to the Gloucester Environmenta...
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MEMORANDUM OF DECISION On May 7, 1987, plaintiff Cathy Arrowood Walker filed this suit against Sullair Corporation and Jon Lewis alleging (1) sexual discrimination in violation of Title VII *96 of the Civil Rights Act of 1964; (2) intentional infliction of emotional distress; and (3) malicious prosecution. On June 5, 1989, all claims against Lewis were settled and the action was dismissed as ...
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*702 ORDER On January 11, 1990, the Court heard evidence on the motion to suppress of defendants Jose David Leija and Santiago Margil Cortez. After a lengthy hearing, the Court makes the following determination. FACTUAL FINDINGS The facts are basically undisputed. On January 7, 1989, Border Patrol Agent Steven C. Hunt and Fort Worth Police Officer Robert Rangel were conducting traffic o...
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RULING ON MOTIONS TO DISMISS This matter is before the court upon two motions to dismiss Texaco counterclaims filed on behalf of Louisiana. Alternatively, the state moves for a more definite statement of the claims made. The matter is presented to the court upon the report and recommendation of United States Magistrate Christine A. Noland, dated January 29, 1990. The State has filed a ser...
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MEMORANDUM OPINION Southern Scrap Material Company, Ltd., has moved under Rule 12(b)(2), Fed.R.Civ. Pro, to dismiss the suit of Blanco Oso International Trading Company. Southern Scrap contends that this court lacks jurisdiction over the company. Blanco Oso has presented weak arguments for why Southern Scrap is wrong, and pleas for a delay in the decision on Southern Scrap’s motion until ...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION On November 28, 1989, defendant Willie Clark was convicted by a jury of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) of the Armed Career Criminal (“ACC”) Act. When a defendant who has been convicted for this offense has three previous convictions for violent felonies or serious drug offenses, 18 U.S.C. § 924(e) im...
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OPINION AND ORDER This is an action for declaratory judgment. Chartwell Associates L.P. and all other defendants except First Chicago Trust Company of New York ask the court to hold that an amended Rights Plan adopted by Avon Products, Inc. as a defensive maneuver against risk of takeover violates New York law. Chartwell seeks expedited final determination of three claims: a) that the Rights ...
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ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendant State Farm Mutual Automobile Insurance Company (“State Farm”) has moved this court for summary judgment on the complaint filed by plaintiff Sylvia D.Y. Kim (“plaintiff”). Plaintiff has filed both an opposition to State Farm’s motion and a counter-motion for summary judgment...
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MEMORANDUM OPINION I. On March 28, 1988, Geraldine Powell filed a voluntary bankruptcy petition in the United States Bankruptcy Court for the Western District of Arkansas. Powell stated under penalty of perjury that her land at Route 5, Box 108 (“Box 108”) in Nashville, Arkansas was covered by the Arkansas homestead exemption, A.C.A. § 16-66-210 (1989 Supp.), and therefore could not be attach...
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ORDER Robert Durchslag’s desire to contrive fraudulent schemes first became evident in 1982, when he was convicted of writing approximately $1.3 million in counterfeit money orders. (82 CR 200.) On December 17, 1982, former U.S. District Court Judge George N. Leighton sentenced Durchslag to five years of probation on each of two counts of interstate transportation of forged securities. Within t...
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ORDER I. INTRODUCTION THIS MATTER is before the Court on Defendant’s Motion, filed April 12, 1990, to Suppress Evidence. The Government filed a response to the Motion on April 12, 1990. Because the trial of this matter was scheduled to begin on April 16, 1990, the Court heard arguments from the parties following jury selection. Thereafter, the Court denied the Motion from the bench in open court. ...
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ORDER In this civil action, plaintiff New Hampshire Podiatric Medical Association alleges that licensed podiatrists of New Hampshire have been unlawfully denied hospital privileges in violation of the United States Constitution and the New Hampshire Constitution, 42 U.S.C. §§ 1983, 1985(2), (3), New Hampshire’s antitrust statute, and New Hampshire common law. Specifically, plaintiff ...
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*1228 RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS On December 18, 1985, the plaintiff in this diversity case, Cumis Insurance Society, Inc. (“Cumis”), a Wisconsin corporation with its principal place of business in that state, brought this action as assignee and subrogee of St. Mary’s Windsor Locks Parish Federal Credit Union (“St. Mary’s”). In a six-count complaint against Wi...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant Maryland Casualty Company’s motion for summary judgment came on for hearing before this court on April 16, 1990. Woodruff K. Soldner, Esq. appeared on behalf of plaintiff, and James Kawashima, Esq. and Lyle Y. Harada, Esq. appeared on behalf of defendant. The court having reviewed the motion and t...
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ORDER Plaintiff Grace Tragarz, special administratrix of the estate of Henry Tragarz, brings this lawsuit against numerous asbestos sellers, manufacturers, and distributors which were allegedly responsible for her husband’s fatal exposure to asbestos. Several of the defendants moved for summary judgment, arguing that Tragarz failed to sufficiently identify the asbestos products to which h...
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MEMORANDUM AND ORDER Plaintiff, Acme Fill Corp. (“Acme”), owner and operator of a landfill facility, filed a petition for judicial review of a closure plan approved by defendants, the United States Environmental Protection Agency (“EPA”), and the California Department of Health Services (“CDHS”). Plaintiff alleges that this court has federal question jurisdiction over both defendants. CDH...
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ORDER This is an action by the United States at the behest of the Environmental Protection Agency against Ford Motor Company for penalties in excess of 50 million dollars and injunctive relief. Plaintiff alleges Ford has emitted volatile organic compounds (“VOCs”) in excess of allowable from its Claycomo plant coating operation in violation of the Clean Air Act of 1970, 42 U.S.C. § 7401 ...
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MEMORANDUM OPINION These consolidated cases are actions by former workers at the now-closed Cumberland, Maryland tire plant of the Kelly-Springfield Tire Company (hereinafter KS), in which they assert claims against the corporate parent of K-S, the Goodyear Tire & Rubber Company (hereinafter Goodyear). The plaintiffs (or their decedents) have all suffered from various physical ills that t...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION FOR SANCTIONS I. Background This is the third case to be filed against Grant Thornton (Grant), a national partnership of certified public accountants, arising out of investments in a tax shelter limited partnership known as Polls Creek Associates of Illinois (Polls Creek). Summary judgments in favor of Grant hav...
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MEMORANDUM OPINION AND ORDER This matter came on for consideration on defendant’s motion to stay the trial of April 16, 1990 pending the appeal of my order of April 2, 1990 denying defendant’s motion for summary judgment on the issue of qualified immunity. Having considered the motion the response, the reply, and being otherwise fully advised in the premises, I find that the motion for th...
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OPINION The Plaintiff, pursuant to Local Rule of Civil Procedure 3.3, filed a motion for reargument of this Court’s Opinion, Docket Item (“D.I.”) 28, granting the Defendants’ motion to dismiss this action because the Plaintiff lacked standing to pursue this lawsuit derivatively. 731 F.Supp. 643, 652. While common in federal practice, the Federal Rules of Civil Procedure do not provide a mecha...
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ORDER THIS MATTER is before the Court on Defendant Gordan Platt’s Motion, filed April 11, 1990, for relief from prejudicial joinder. Because the trial of this matter was scheduled to begin on April 16, 1990, the Court heard arguments from Defendant Gordan Platt and the Government after the jury was selected. Thereafter, the Court denied Defendant Gordan Platt’s Motion from the bench in open court ...
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Yellow Freight System, Inc. (“Yellow Freight”) filed this action seeking declaratory and injunctive relief against the Attorney General of Vermont (“Defendant”). Defendant subsequently commenced an enforcement proceeding as a counterclaim against Yellow Freight. Yellow Freight requests that we declare the Vermont Drug Testing Act, Vt.Stat.Ann. tit. 21, § 511 et seq. (the "Act”), to b...
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MEMORANDUM OPINION AND ORDER Dr. Lifchez represents a class of plaintiff physicians who specialize in reproductive endocrinology and fertility counselling. Physicians with these medical specialities treat infertile couples who wish to conceive a child. Dr. Lifchez is suing the Illinois Attorney General and the Cook County State’s Attorney, seeking a declaratory judgment that a provision of the ...
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MEMORANDUM AND ORDER This matter is presently before the Court for decision after a bench trial. The issue in the case is whether plaintiffs, Lou and Reta Roseman, are the equitable owners of a one half interest in a certain parcel of real property located at 474 Ocean Road in *462 the Town of Narragansett, Rhode Island. The current owners of the property, defendant, Dr. David B. Sutter, and ...
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MEMORANDUM OPINION AND ORDER On September 30, 1988, Joseph P. East-land entered a plea of guilty to one count of bank robbery, 18 U.S.C. 2113(a). We held that the Federal Sentencing Guidelines (“Guidelines”) were unconstitutional and sentenced Eastland to 9 years imprisonment.1 When the -Supreme Court subsequently upheld the constitutionality of the Guidelines, United States v. Mistretta, 488 U.S....
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*528OPINION BACKGROUND This case was brought by the Plaintiff, Counterclaim Defendant International Brotherhood of Electrical Workers against the Defendant, Counterclaim Plaintiff Ernest Skaggs to collect fines levied against him by the union for alleged violations of the union’s constitution and working agreement. Defendant’s answer to the complaint, which contained a counterclaim alleging that ...
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FINDINGS OF FACT 1. This litigation challenges the constitutionality of Section 5(b) of the Immigration Marriage Fraud Amendments of 1986, Pub.L. No. 99-639, 100 Stat. 3537 (“IMFA”) A. Plaintiffs. 2. Plaintiffs are Katherina Manwani and her husband, Prakash Manwani. Mrs. Manwani is a native-born citizen of the United States. [Affidavit of Katherina Manwani at ¶ 1, Exhibi...
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OPINION AND ORDER Plaintiff sues to recover under 42 U.S.C. § 2000e (“Title VII”) and 42 U.S.C. § 1981 for employment discrimination on the basis of race. Two sets of motions have been filed by the defendants. First, defendants *139 Greendolf, Inc., Sandra Atlas Bass, Morton M. Bass and Lincoln Page (“Greendolf defendants”) move to dismiss the amended complaint (“complaint”) for failure to st...
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OPINION I. INTRODUCTION This is a lender liability case. Plaintiff International Minerals and Mining Corporation (“IMMCO”) filed this action against Citicorp North America, Inc. and Citibank, N.A. (collectively “Citicorp”) alleging that Citicorp improperly denied IMMCO’s request for a twenty million dollar loan, the proceeds of which IMMCO had intended to use to purchase an anthracit...
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ORDER AND REASONS This case, like the sixteen related cases consolidated with Civil Action No. 89-3657, arises out of the tragic crash of a Boeing model 737-400 aircraft operated by British Midland Airways, Ltd.; the ill-fated flight was enroute from London to Belfast. Kenneth Nolan is the administrator of the estate of Luka Berta Rita Stoker, a victim of the crash. I. Under rec...
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MEMORANDUM AND ORDER Plaintiffs have filed suit to enjoin implementation of a state administrative rule mandating a specific minimum ratio of licensed journeymen pipefitters for each apprentice pipefitter at all jobsites where high pressure pipefitting is being performed. 1 Plaintiffs argue that the rule is preempted both by the Employee Retirement Income Security Act (ERISA) a...
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ORDER Pursuant to § 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), plaintiff filed this action seeking reversal of the defendant’s decision denying her claim for child insurance benefits under the Act. This order concerns the parties' cross-motions for summary judgment. For the reasons stated herein, defendant’s motion for summary judgment is granted; plaintiff’s motion is d...
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MEMORANDUM OPINION AND ORDER This matter came on for consideration on plaintiffs’ motion for a preliminary injunction. Before the hearing on the preliminary injunction, the parties stipulated that the matter would involve only a declaratory judgment without a request for an injunction. A hearing was held on September 18, 1989. Having considered the motion and various responses and replies...
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MEMORANDUM OPINION AND ORDER The plaintiff, T.P. Crigler, filed this 10-count diversity action on November 22, 1989, alleging various breaches of contract, misrepresentation and fraud. Currently before us is the defendants’ motion for summary judgment on the grounds that the action is either barred by res judicata or, in the alternative, that there exists no genuine issue of material fact...
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ORDER Pending before the Court is Plaintiffs’ motion for class certification. Defendants have filed a joint response and three Defendants have filed supplements to the response. After careful consideration of the motion, responses and relevant case law *72the Court is of the opinion that class certification is appropriate in this matter. This suit arises out of an alleged conspiracy to illegally ...
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OPINION ON DEFENDANTS’ MOTIONS TO DISMISS BACKGROUND Indictment 89 Cr. 446 was filed on June 15, 1989. A superseding indictment adding Defendant McDonald was filed on August 24, 1989. The superseding indictment charges defendants with the following: substantive and conspiracy violations of the Racketeer Influenced and Corrupt Organizations (“RICO”) statute, 18 U.S.C. Sections 1962(c)...
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ORDER This is an appeal from an order of the United States Bankruptcy Court for the Western District of Wisconsin denying appellants’ motion pursuant to 11 U.S.C. § 522(f)(1) to avoid the judicial lien on their homestead property held by appellee. Section 522(f)(1) allows a debtor to avoid a judicial lien if the lien impairs an exemption to which the debtor would have been entitled but fo...
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OPINION Plaintiff Securities and Exchange Commission (“SEC”) brings, by Order to Show Cause, this motion for a preliminary injunction and temporary restraining order (“TRO”) against Defendants Wellshire Securities, Inc. (“Wellshire”), Environmental Landfills, Inc. (“Environmental Landfills”), Ventura, Inc. (“Ventura”), Robert Edwin Cohen, Carol Catherine Martino, Joseph Jenkins, Jr., Edwa...
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MEMORANDUM OPINION AND ORDER This action is before the Court on plaintiff’s Order to Show Cause for a temporary restraining order. Plaintiff, Wallace International Silversmiths, Inc., manufactures and sells silverware, including a line of ornamented silverware called “Grande Baroque.” Plaintiff seeks to enjoin defendant, Godinger Silver Art Co., Inc., from showing its new line of silverwa...
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MEMORANDUM OPINION AND ORDER The First National Bank of Gordon appeals the bankruptcy court’s ruling dismissing its complaint against the debtors, Edwin and Doris Serafini, pursuant to Fed. R.Civ.P. 41(b), made applicable to bankruptcy proceedings through Bankr.R. 7041. The Bank alleged that the Serafinis should be' denied a discharge in bankruptcy under §‘ 727(a)(2)(A), § 727(a)(2)(B) and § 72...
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MEMORANDUM Plaintiff, Federal Deposit Insurance Corporation (“FDIC”), as Receiver for San Marino Savings and Loan Association (“San Marino”), seeks summary judgment against Quality Hotels and Resorts, Inc. (“Quality") on all counts of Quality’s Amended Counterclaim. In addition, FDIC requests entry of final judgment Counterclaim. In addition, FDIC requests entry of final judgment on its p...
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MEMORANDUM Sitting by Designation. Barmet Aluminum Corporation has brought this action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 (as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499, 100 Stat. 1613 et seq. (1986)), more commonly known as the Superfund Act. The defend...
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MEMORANDUM OF DECISION AND ORDER GRANTING IN PART DEFENDANT IVES’ MOTION TO DISMISS Plaintiff Robert Whitehouse was admitted to a nursing home in Maine and applied for assistance under the cooperative federal-state Medicaid program. The state found him eligible for Medicaid benefits, but under the program’s rules determined that he was required to contribute almost all of his monthly income fro...
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MEMORANDUM DECISION By Memorandum Decision dated January 8, 1990 (“January 8th Decision”), this court dismissed the second, third, fourth and fifth causes of action alleged in defendants/third-party plaintiffs’ Arthur Andersen & Co. (USA), Arthur Andersen & Co. (Republic of Ireland) and Arthur Andersen & Co. (United Kingdom) (hereinafter collectively “AA”) amended third-party complaint. I...
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MEMORANDUM ORDER On April 11, 1990, the Court issued a Memorandum Order (the “April 11 Order”) quashing a subpoena served by defendant Giuseppe Gambino (“Gambino”) on Dennis M. Culnan (“Culnan”), a reporter for the New Jersey Courier Post. In support of his subpoena, defendant Gambino had alleged that Culnan possessed information tending to show that electronic surveillance con...
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ORDER & OPINION Plaintiff American Telephone and Telegraph Company (“AT & T”) brought suit against defendants New York City Human Resources Administration (“HRA”) and the City of New York (the “City”) under the Federal Communications Act, 47 U.S.C. § 151 et seq. (the “Communications Act”), for long-distance telephone charges allegedly incurred by telephone numbers subscribed to by HRA. Plaintiff ...
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OPINION AND ORDER Defendant Federal Savings and Loan Insurance Corporation (now FSLIC Resolution Fund, pursuant to the Financial Institutions Reform, Recovery and Enforcement Act of 1989, enacted on August 9, 1989) (hereinafter FSLIC) moves for an order, pursuant to Rule 56 of the Federal Rules of Civil Procedure (a) dismissing the complaint in its entirety, and (b) granting it summary judgment o...
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OPINION Defendants Patrick J. Kelly and Debra B. Kelly move, pursuant to Rules 52(b) and 59(e) of the Federal Rules of Civil Procedure, for an order amending and modifying the Findings of Fact, Conclusions of Law and Decision of this Court dated November 28, 1989, and amending the judgment entered upon said decision on December 13, 1989. Defendants first take issue with the Court’s f...
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OPINION AND ORDER Random House moves for summary judgment against defendants George Curry *192 and Sylvester Monroe 1 pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, the motion is denied. BACKGROUND On October 19, 1984, Random House entered into a contract with George Curry, Sylvester Monroe and Kenneth Walker...
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736 F.Supp. 759 (1990) MICHIGAN HOSPITAL ASSOCIATION, a Michigan nonprofit corporation, et al., Plaintiffs, v. C. Patrick BABCOCK, Director of The Department of Social Services, Defendant. No. 5:89-CV-70. United States District Court, W.D. Michigan, S.D. April 26, 1990. David A. Ettinger, Frederick M. Baker, Jr. and Chris Rossman, Lansing, Mich., for plaintiffs. *760 Robert S. Welliver and Christ...
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MEMORANDUM AND ORDER This matter is before the court on appeal by the plaintiff, James H. Hardesty, from a ruling of the bankruptcy court, the Honorable Judge Pearson presiding. The plaintiff asserts that a certain debt owed to the plaintiff from the defendant, Leo Anthony Goseland (“Goseland” or “debtor”), should not be dischargeable in bankruptcy. The plaintiff’s complaint in this ...
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MEMORANDUM OPINION AND ORDER This is a bankruptcy appeal. Plaintiff-Appellant, Queen Archer Banks (“Banks”), appeals from an order entered by the bankruptcy court on February 24, 1987 in favor *557 of the defendant-appellee, Russell LoPic-colo (“LoPiccolo”). In that order, the bankruptcy court granted LoPiccolo’s motion to strike and dismiss Banks’ complaint to avoid the mortgage foreclosure ...
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MEMORANDUM AND ORDER This matter is presently before the court on the motions for summary judgment of Dr. Surinder Kumar and Newton Health Care Corporation, the defendants in this medical malpractice action. The defendants generally contend that the evidence *955in the case fails to prove that any negligent actions on their part caused any injury to Amie Switzer. The court heard the arguments of t...
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MEMORANDUM A. Factual and Procedural Background This is an appeal from a final order of the bankruptcy court entered on February 15, 1990. This court has jurisdiction to hear such appeals pursuant to 28 U.S.C. § 158(a) and Bankruptcy Rule 8001(a). On July 1, 1989, U.S. Fax, Inc. and lessor, Robert Morris Building Associates (Morris), entered into a commercial lease agree...
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OPINION This case is currently before the Court on a motion to dismiss filed by defendants U.S. Equal Employment Opportunity Commission and Delores L. Rozzi, Director, Office of Review & Appeals of the Commission (“EEOC” or “defendant”). 1 EEOC *1092 also requests attorney fees and costs to be paid by plaintiff. The lawsuit here is an employment discrimination acti...
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MEMORANDUM OPINION On May 9, 1988, Harold Rothstein appeared before Judge Nicholas J. Bua of this district and entered pleas of guilty to one count of wire fraud and one count of fraudulent use of a credit card, in violation of 18 U.S.C. § 1343 (1982) and 15 U.S.C. § 1644(a), respectively. Rothstein came to court with counsel. As part of a plea agreement which Rothstein signed in open court, Roths...
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MEMORANDUM AND ORDER The present case involves a civil action brought by the Securities and Exchange Commission (SEC) under the Securities Exchange Act. The matter is now before the court on the motions for summary judgment of defendants Peters and Lounsbury. In addition, defendant Lounsbury has filed a motion seeking a separate trial. These motions were argued before the court in a ...
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MEMORANDUM OPINION AND ORDER Defendants in this case, three former investment brokers for plaintiff (“Merrill Lynch”), clandestinely removed approximately 1800 client files and photocopied them before leaving the employ of Merrill Lynch on February 16, 1990, to work for a competing brokerage firm. Over the weekend after their termination, defendants sent solicitation letters to an undeter...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came before the Court on October 18 and 19,1989 for a bench trial on the merits. Pursuant to a post-trial briefing schedule, the parties submitted Proposed Findings of Fact and Conclusions of Law. The matter is now ripe for disposition and the Court sets forth here its Findings of Fact and Conclusions of Law, pursuant to Rule 52(a), Fed....
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MEMORANDUM OPINION AND ORDER Presently before the court is defendants’ motion to remand this case to the state court from which it was removed. It is first necessary to set forth the relevant proceedings that occurred in state court. 1 In 1985, defendants Lot and Irene Delgado had improvements done on their home. A retail installment contract was used to finance the improveme...
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MEMORANDUM AND ORDER The plaintiff, Sandra Zowayyed, has filed the present action against her former employer, Lowen Company, Inc., alleging sexual harassment and retaliatory discharge in violation of federal civil rights statutes. The defendant has now moved for summary judgment against the plaintiffs claim, while the plaintiff has filed a demand for a jury trial of her claims. Thes...
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MEMORANDUM This is an appeal from an order of the United States Bankruptcy Court for the Eastern District of Pennsylvania, which denied appellant Bruce Manley (“Manley”) relief from the automatic stay provisions of the Bankruptcy Code. Manley seeks relief from the stay in order to litigate, in state court, whether he holds a security interest in appellee FRG, Inc.’s account with Fidelity ...
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MEMORANDUM OPINION This matter comes before the Court on plaintiff’s motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, plaintiff’s motion is granted. Background On December 5, 1989, the United States filed a complaint seeking forfeiture of the defendant realty pursuant to 18 U.S.C. § 981. The verified complai...
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ORDER DENYING SUMMARY JUDGMENT This is an action arising under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (“CERCLA”) in which the plaintiff seeks to hold the defendants liable for the costs of cleaning up property contaminated with hazardous wastes. The matter is currently before the Court on defendant NL Industries’ moti...
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MEMORANDUM AND ORDER These are consolidated medical malpractice suits arising out of the death of plaintiff’s decedent, Thomas McElya, who died of cancer following certain treatment at the Naval Air Station, Memphis. The actions allege that Dr. Jay S. Cox and Sterling Medical were negligent in their care and treatment of Mr. McElya in that they failed to properly x-ray, test, and diagnose the canc...
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MEMORANDUM AND ORDER Plaintiff and defendant both produce a beer named “Blue Heron Pale Ale.” Plaintiff, a California limited partnership, produces its beer in Mendocino, California, and defendant, an Oregon corporation produces its beer in Portland, Oregon. Plaintiff sues defendant, inter alia, for infringement of its California trademark. Plaintiff moves for a preliminary injunction enjoining de...
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ORDER DENYING MOTION TO REMAND Before the court is plaintiff Murry Bou-dra’s Motion to Remand. The original complaint in this action was filed in the Circuit Court of Tennessee for the Thirteenth Judicial District at Memphis, Tennessee. Plaintiffs complaint alleges that the defendant Humana Health Insurance Co. of Florida, Inc., wrongfully denied plaintiffs claims for medical benefits under a grou...
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JUDGMENT We have before us a Petition for Writ of Habeas Corpus filed by MS2 Edwin A. Ortiz challenging his “confinement pending a court martial scheduled to be convened on April 24, 1990.” The facts 1 which gave rise to this petition are as follows: Petitioner, an active member of the U.S. Navy, was arrested on December 16, 1989 for alleged possession of cocaine with intent to distribute. He was ...
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OPINION In the matter before the court, defendant, Thomas W. Hansen, moves (#24) for an order striking Plaintiffs Supplemental Answer to Defendant’s Interrogatories on the grounds that plaintiff, Combined Insurance Company of America (Combined Insurance) has failed to supplement reasonably its previous response to Hansen’s interrogatories. BACKGROUND Combined Insurance filed this action against Ha...
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ORDER This matter comes before the Court on motion of plaintiffs to compel compliance with a deposition subpoena directed to eight employees of the non-party Underwriters Laboratories, Inc. of Research Triangle Park, North Carolina. The subpoena also seeks certain records relating to the testing of a specific ladder manufactured by defendants. Neither Underwriters Laboratories nor the employees ha...
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ORDER REALIGNING THE UNITED STATES AS INVOLUNTARY PLAINTIFF THIS MATTER is before the Court on a motion by defendant the United States of America for an order dismissing the United States as a party to this action and on plaintiff’s motion to realign the United States as an involuntary plaintiff. After consideration of the briefs submitted by the parties and the arguments presented by counsel duri...
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Plaintiffs Thomas Hoffman and Timothy Ulrich are citizens of the State of Maryland and residents of Baltimore City. Both are currently registered to vote in Baltimore City.1 Defendants are the State of Maryland; the Maryland State Administrative Board of Elections (State Board), an agency of the State of Maryland; the individual members of the State Board in their official capacities; the Baltimor...
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MEMORANDUM This matter is currently before the Court on two motions. Plaintiffs seek to have defendants adjudicated in civil contempt for violation of this Court’s August 29, 1988, Partial Consent Order (“the Order”). Defendants’ motion asks the Court to modify the Order based upon changes in federal law. At a hearing on these motions on March 5, 1990, the Court held that defendants were in con...
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735 F.Supp. 937 (1990) UNITED STATES of America, Plaintiff, v. CITY OF BERKELEY, Defendant. No. 90-0746C(6). United States District Court, E.D. Missouri. May 3, 1990. *938 Edwin Brzezinski, Asst. U.S. Atty., St. Louis, Mo., for plaintiff. Louis Czech, St. Louis, Mo., for defendant. MEMORANDUM GUNN, District Judge. This matter is before the Court on plaintiff's motion for a preliminary injunction...
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MEMORANDUM OPINION AND ORDER In this action the plaintiff, Gordon Makray (“Makray”), alleges that the defendant, Sara Lee Corporation (“Sara Lee”) wrongfully terminated Makray’s employment on or about October 21, 1987. Makray originally filed an action in the Chancery Division of the Circuit Court of Cook County, Illinois on December 30, 1988. (88 CH 11922). Service on Sara Lee was obtain...
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Defendant, ODECO, Inc., moves the Court for summary judgment in its favor, dismissing the claims of plaintiffs, William and Patricia Crisman, on the basis that their claims have prescribed. For the reasons given below, the Court GRANTS the motion. I. INTRODUCTION This matter involves personal injuries allegedly sustained by Crisman during the course of his 19 years of employment with ...
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MEMORANDUM AND ORDER This cause comes before the court on the plaintiff’s motion for partial summary judgment. The matter has been fully briefed and is ripe for review. Numerous issues pend, but resolution of those issues depends on whether the syndication interests that plaintiff Stephen M. Sheets purchased in the stallions Aly North and Speedy Nijinsky were “securities” as that term is ...
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OPINION This cause is now before the Court for final determination of the issue of liability based upon the evidence produced in open Court on April 18, 1990. 1 This Court has jurisdiction pursuant to 28 U.S.C. § 1346. The cases at bar arise from an alligator attack on Plaintiff, Kermit H. George, while he was swimming in the Open Pond Recreation Area of the Conecuh National Forest. Plainti...
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ORDER On December 6, 1989, the government filed, in camera and under seal, a notice of unauthorized entry into the grand jury room along with a supporting memorandum. Affidavits reciting the facts of the event were filed, in camera and under seal, on December 21, 1989, by the two Department of Justice attorneys and the EPA Special Agent involved. The issue to be resolved by the Court is whether th...
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ORDER The issue before the court is whether the amount in controversy is sufficient to support removal jurisdiction in this case, originally filed in the Iowa District Court for Mahaska County. Plaintiff alleged in his state court petition that he was “seriously injured” and claimed damages for past and future medical expenses, lost wages and future earnings, past and future lost function...
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OPINION Appellant US West, Inc. (US West) brings this appeal from a final judgment of Bankruptcy Judge Donal D. Sullivan ordering it to pay the bankruptcy trustee the unrefunded portion of debtor Kincaid’s and Kellas’s pension plan accounts. This is an appeal from In re Kellas, 386-07097-S7, and In re Kincaid, 385-05403-P7, consolidated for trial by the Bankruptcy Co...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This action was commenced by plaintiff Elizabeth Dole, Secretary of Labor (“the Secretary”), pursuant to § 402(b) of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 482(b) (“the Act”). Plaintiff seeks to set aside and require the rerunning of the October 1987 election for the office of Secretary-Treasurer/Business Manager (“Business Manager”)...
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MEMORANDUM AND ORDER Introduction In this ERISA action brought by trustees of welfare and pension fund for the collection of unpaid contributions to a multiemployer plan pursuant to ERISA Sections 502(a)(3) & (d) (29 U.S.C. § 1132(a)(3) & (d)) and Section 515 (29 U.S.C. § 1145), defendant moves for summary judgment and plaintiffs move for partial summary judgment. For the reasons sta...
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MEMORANDUM AND ORDER I. INTRODUCTION Before the Court are a variety of motions filed by both the United States government and the various defendants. By and large, little formal discussion is required with respect to any of these pleadings, but for the sake of completeness, they will be disposed of individually. II. DISCUSSION A. Demand For a Speedy Trial The defendants Joseph Noone and Marion ...
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MEMORANDUM OPINION AND ORDER The Equal Employment Opportunity Commission (“EEOC”) has brought this action against the Board of Governors of State Colleges and Universities (“Board”) and the University Professionals of Illinois (“Union”). The EEOC alleges that the defendants’ collective bargaining agreement violates the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(d). Currently b...
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MEMORANDUM OF OPINION AND ORDER Third-party defendants Robert H. Haines, III (“Haines”), Priscilla L. Baldwin (“Baldwin”), the R. Roberts Company (“Roberts”), and Ommen Associates Limit *377 ed Partnership, Inc. (“Ommen Associates”) move this Court pursuant to Fed.R.Civ.P. 12(b)(1) and (2) to dismiss the third-party claims asserted against them by Joseph J. Machera (“Machera”...
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MEMORANDUM AND ORDER On December 15, 1989, Plaintiff Sun Village Farms filed a Motion for Preliminary Injunction to enjoin a pending foreclosure sale of property located in Surprise, Arizona. This Court temporarily granted the Plaintiff’s Motion and ordered further briefing on the matter. The Court indicated that it would construe the remaining pleadings as a Motion to Quash the Preliminary Inj...
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DECISION AND ORDER On April 13, 1990, plaintiffs moved this court to compel discovery of 1) defendant Joseph Luterbach Construction Company’s (“Luterbach”) employee wage records for employees other than plaintiffs and 2) Luterbach’s annual income tax statements. On April 27, 1990, this court conducted a telephonic hearing on plaintiffs’ motion, to provide counsel with an opportunity to present any...
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I. Introduction This Court has before it two appeals from the debtor Anthony Greco and one cross-appeal from the Kishi Trustees stemming from three related orders of the Bankruptcy Court in the above-captioned bankruptcy proceedings. The first appeal involves the Bankruptcy Court’s denial of the debtor-appellant’s Motion for Declaratory Judgment heard and orally denied on February ...
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MEMORANDUM OF DECISION CONCERNING THE FOOD STAMP QUALITY CONTROL AND SANCTION PROCESS The plaintiff Commonwealth of Massachusetts (the “Commonwealth” or “Massachusetts”) has filed a motion for summary judgment to set aside a decision of the United States Department of Agriculture (the “Department”) imposing a monetary sanction on Massachusetts for excessive errors in the Commonwealth’s ad...
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Currently pending before the court are cross-motions for partial summary judgment filed by plaintiff Marjory Ann Swain (Swain) and intervenor Liberty Mutual Insurance Company (Liberty Mutual). The respective motions seek to determine whether or not Liberty Mutual is entitled to assert a subrogation claim in the above styled action. FINDINGS OF FACT Plaintiff Marjorie Ann Swain, a citi...
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MEMORANDUM OPINION AND ORDER The plaintiffs, Charles Schulze and Berner Kellough, brought this two-count action against the Illinois State Police alleging violations of the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (as amended) (“ADEA”), and the Illinois Human Rights Act, Ill.Rev.Stat, ch. 68, 11111-101 et seq. (“IHRA”). The State Police have moved to dismiss ...
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736 F. Supp. 650 (1990) William F. LORENZ and Karen M. Lorenz, his wife; Victor A. Czerny; John Schmidt, and Janice J. Schmidt, his wife; Marjorie Slapin; Thaddeus E. Drake and Celia Drake, his wife; and Edith E. Berenkey: individually and on behalf of a class of former debentureholders similarly situated, Plaintiffs, v. CSX CORPORATION (formerly Chessie Systems, Inc.), The Chesapeake & Ohio ...
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ORDER This is an extraordinary case and a troublesome one. It purports to be an action for damages under the Civil Rights Acts. The case came before the court, on its own motion,1 for an ex parte hearing with the plaintiff, in open court, under the provisions of Fed.R.Civ.P. 16 in an attempt to determine the nature of the plaintiffs claims and the basis for federal jurisdiction. The plaintiff appe...
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MEMORANDUM OPINION Plaintiff is a prisoner in the custody of the Michigan Department of Corrections. He brings this action under 42 U.S.C. § 1983, alleging defendant corrections officers twice subjected him to cruel and unusual punishment in violation of the Eighth Amendment. Defendants move for summary judgment. Plaintiff alleges that on March 30, 1986, shortly after 10:00 p.m., Off...
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ORDER ON MOTION FOR SUMMARY JUDGMENT Plaintiff, Gerald T. Bourque, filed this civil rights action alleging the defendants unlawfully terminated him from his position as a town employee. Plaintiff sued the Town of Bow, New Hampshire, and its road agent, Leighton Cleverly. Also named as defendants are three selectmen for the Town of Bow: Eric E. Anderson, Alfred H. Ward, and Sara H. Swenson...
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MEMORANDUM AND ORDER Plaintiff Roger Manygoats, (“Many-goats”) filed an action requesting judicial review of the Navajo and Hopi Indian Relocation Commission’s (“NHIRC”) determination that he was not entitled to relocation assistance benefits. Manygoats claims that the NHIRC’s decision is unsupported by substantial evidence and is arbitrary, capricious and contrary to the law. Manygoats filed a Mo...
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MEMORANDUM OPINION AND ORDER The law offices of J.E. Losavio, Jr. (“Lo-savio”) appeal the bankruptcy court’s decision denying Losavio’s application for employment as the attorney for the debtor-in-possession, the Neidig Corporation, and ordering Losavio to refund to the estate attorney fees previously paid to Losavio. Lo-savio contends that the court’s decision was in error because there was no...
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MEMORANDUM OF OPINION This matter is before the Court upon defendant’s motions to suppress evidence *739 seized during the arrest of the defendant, for disclosure of the identity of the government’s confidential informant, and for a bill of particulars. On April 20, 1990, an evidentiary hearing was held to determine the merits of the motions to suppress and for disclosure of the identity of t...
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*437 OPINION The plaintiff, Michael E. Hubbard, seeks injunctive relief against the Environmental Protection Agency (“EPA”) in connection with the EPA’s decision not to hire Hubbard as a criminal investigator. Plaintiff alleges that the decision not to hire was based impermissibly on his exercise of his first amendment right of free speech. The Court of Appeals affirmed in part a...
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ORDER This matter is before the Court on appeal from two orders of the bankruptcy court, In re Grubbs, Bankruptcy No. 88-3857 (Bankr.D.S.C. May 23, 1989), and In re Murphy, Bankruptcy No. 89-703 (Bankr.D.S.C. Aug. 29, 1989). The material facts are not in dispute. The appellants in these two proceedings, George T. and Gail T. Grubbs (“the Grubbses”) and Johnny L. Murp...
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MEMORANDUM OPINION AND ORDER This case is before the Court on defendant Amoco Foam’s motion for summary judgment. The issues presented are ones of first impression in South Dakota: I. When an employee of a temporary employment agency has been assigned to a temporary or special employer, is that special employer considered her employer under the exclusivity provision of South Dakota's...
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OPINION AND ORDER Plaintiffs seek attorneys’ fees and expenses incurred in prosecuting this action *90against and obtaining a settlement from the defendant union. The action was brought by plaintiffs under Title I of the Labor Management Reporting and Disclosure Act of 1959 (“the LMRDA”), 29 U.S.C. § 401 et seq. (1982). They obtained a limited preliminary injunction but were denied a summary judg...
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MEMORANDUM ORDER After an arbitrator ordered the reinstatement of one of plaintiff’s former employees who had been discharged for violating a safety regulation, plaintiff brought this action pursuant to § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). Plaintiff’s complaint asks the court to overturn the arbitrator’s decision *893 for being violative of publ...
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OPINION & ORDER These are motions by defendants requesting a bill of particulars and the following discovery materials: statements of co-defendants and co-conspirators, Brady material, a witness list, and evidence of prior similar acts. Memoranda have been filed by defendants Miguel Munoz, Enrique Houellemont, and Nelson Omar Tabar-Laro. In addition, defendants Daniel Bret-ton,...
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ORDER This order concerns the various pretrial motions filed by defendant Jeffrey Dell. For the reasons stated herein, defendant’s motions are denied. I. THE INDICTMENT A. Factual Allegations The charges in this case concern the residence at 1305 James Avenue in Long Lake, Illinois, owned by defendant Jeffrey Dell (“Dell”) and his wife Patricia. In 1981, Dell and his wife purchased a ho...
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MEMORANDUM In this action plaintiffs challenge a Library of Congress regulation that permits Library of Congress employees, under certain emergency circumstances, to be placed on enforced leave or suspension from work without a prior administrative hearing. Plaintiffs allege that this regulation violates fifth amendment procedural due process and the first amendment. Before the Court are ...
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ORDER THIS CAUSE came on for consideration upon the filing of a petition for review of the decision of the Secretary of Health and Human Services. This matter was considered by the Magistrate, pursuant to the general order of assignment, who has filed her report recommending that the decision of the Secretary denying benefits be reversed and the case remanded to the Secretary for further proceedin...
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ORDER Before the court is the motion of E.A. Cox Company (“Cox”), pursuant to Fed.R. Civ.P. 24(a)(2), to intervene, as a matter of right, in the supplementary proceedings ongoing in this action. FACTS On September 23, 1988, judgment by default was entered against defendant, Sam Alberto, and in favor of plaintiff, The CIT Group Equipment Financing, Inc., in the amount of $522,772.44, plus costs. S...
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OPINION Plaintiffs, Estee Lauder International, Inc. and Commercial Union Insurance Companies, (“Lauder”) have moved pursuant to Rule 56 for summary judgment against defendant, Travelers (“Travelers”), in the amount of $52,264.80 on a disputed special marine policy allegedly issued by World Wide Marine Service, Inc. (“World Wide”) on the a Travelers’ form. For the reasons set forth, below this mo...
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ORDER Before the court is defendants’ motion to dismiss. For the following reasons, it is granted in part and denied in part. On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe v. St. Joseph’s Hosp., 788 F.2d 411 (7th Cir.1986). The plaintiff need not set out in detail the facts upon wh...
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ORDER THIS CAUSE comes on for consideration upon the magistrate’s report and recommendation recommending that: (1) defendants Rouse and Perrin’s motion to dismiss for failure to state a claim (Dkt. 26) be GRANTED and the complaint be DISMISSED as to these defendants and the unnamed Polk and Martin Correctional Institution officers and officials without prejudice and with leave to amend wi...
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736 F. Supp. 71 (1990) UNITED STATES of America v. William J. LITTLE, Defendant. Crim. No. 89-481(SSB). United States District Court, D. New Jersey. May 3, 1990. *72 Samuel A. Alito, Jr., U.S. Atty. by Donna D. Gallucio and Howard J. Wiener (argued), Asst. U.S. Attys., Camden, N.J., for U.S. Office of the Federal Public Defender by John J. Hughes, Asst. Federal Public Defender, Trenton, N.J., for...
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The instant motion for partial summary judgment presents questions concerning the application of the D’Oench, Duhme 1 and federal common law holder in due course doctrines, including whether the holder in due course doctrine precludes the assertion of counterclaims against the Federal Deposit Insurance Corporation (“FDIC”). I This civil action arises out of a pro...
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OPINION AND ORDER This is yet another case brought under 42 U.S.C. § 1983 in which the validity of certain zoning regulations of the Commonwealth of Puerto Rico are attacked as unconstitutional. Plaintiffs are the owners of a parcel of land located in the offshore island of Culebra. Defendants are the Puerto Rico Planning Board, the Culebra *415 Conservation and Development A...
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MEMORANDUM OF DECISION AND ORDER DENYING PETITIONER’S HABEAS CORPUS PETITION Petitioner filed this habeas corpus petition with the Court on November 11, 1989, pursuant to 28 U.S.C. § 2254, seeking relief on the ground that Maine courts unconstitutionally revoked his preconviction bail. Petitioner’s confinement by the state resulted from his indictment for attempted murder and aggravated assault af...
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OPINION A question of pendent-party jurisdiction. Background This suit was brought to recover damages flowing from the death of Gerald Clemons on March 30, 1987. The Plaintiff, who is Gerald’s mother, has sued (both as an individual and as Administratrix of Ger-*310aid’s estate) six Defendants: a Springfield, Illinois, city police officer (Stephen Pellegrini), the Chief of the Springfield Police...
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ORDER Before the court is the motion of defendant, Allen L. Freels (“Freels”) for summary judgment, pursuant to Fed.R.Civ.P. 56, on the complaint of plaintiff, T.M. Doyle Teaming Co., Inc. (“Doyle”). For the following reasons, the motion is denied. 1 Rule 56(c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatorie...
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MEMORANDUM OPINION AND ORDER Agents of the United States Drug Enforcement Administration (DEA) seized the *136defendant Thirteen Thousand Seven Hundred and Fifteen ($13,715.00) following a police-citizen contact initiated by the agents at the Detroit Metropolitan Airport (Metro Airport). Subsequent to the seizure, a dog trained to detect such scents indicated that the money had been in contact wit...
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MEMORANDUM DECISION AND ORDER The plaintiff seeks review of the Secretary’s decision that plaintiff is only entitled to a monthly retirement benefit of $348 under Title II of the Social Security Act. This matter is before the Court pursuant to plaintiff’s motion for judgment of rever*6sal1 and the defendant’s motion for judgment of affirmance. I. Record Review The ALJ’s decision is the final revi...
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ORDER The plaintiff, Bruce Roy, has brought an action challenging the Illinois wage garnishment statutes and the Champaign County procedures for issuing wage garnishment summons. The plaintiff and the two defendants, Betty Smith in her official capacity as Circuit Clerk of Champaign County, Illinois, and Personal Finance Company, have each moved for summary judgment (docket ##7, 8, and 10). For t...
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*372 MEMORANDUM AND ORDER On February 5, 1990, the court held oral argument on defendant’s motion for reconsideration. This motion was directed at the court’s order of May 16, 1989, which has been published at 713 F.Supp. 1389. In that order, we had denied summary judgment to the defendant on the “flammability defects” asserted by the plaintiff. In response to the defendant’s mot...
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OPINION The matters pending before the court are: 1) plaintiff’s motion (#42) for approval of attorney fees pursuant to 42 U.S.C. § 406(b); 2) plaintiff’s application (# 30) for fees and expenses pursuant to the Equal Access to Justice Act (EAJA); 3) defendant’s motion (#35) to dismiss plaintiff’s application under the EAJA; and 4) plaintiff’s motion (# 37) to reopen the previously rema...
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ORDER The plaintiff filed her complaint against the Secretary of the Navy and the Equal Employment Opportunity Commission for allegedly unlawfully denying her request *9 to reopen an administrative appellate decision issued by the EEOC. This matter is before the Court pursuant to defendants’ motion to dismiss and the plaintiff’s opposition thereto. I. Statement of Facts On October 29, 198...
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OPINION The government, the plaintiff in this case, moves for an order preliminarily enjoining defendant, Michael Sciarra, from holding any position of trust within Teamsters Local 560. An evidentiary hearing was held at which defendant and Local 560 opposed the application. This constitutes my findings of fact and conclusions of law. A. The Background On March 9, 1982 the government file...
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*323 MEMORANDUM OPINION In this action for declaratory and injunctive relief, plaintiffs, two active mortgage bankers approved by HUD to be Federal Housing Administration (“FHA”) coinsuring lenders with authority to provide financing and issue mortgage insurance for qualified multifamily housing projects, and a trade association of which the two mortgage bankers are members, chal...
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MEMORANDUM OPINION AND ORDER Plaintiff has moved to certify a class of defendants pursuant to Federal Rule of Civil Procedure 23(b)(1)(A) in this action alleging that defendants and others similarly situated have infringed certain patents owned by plaintiff. Rule 23(b)(1)(A) provides: An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addit...
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ORDER Peerless Insurance Company and The Netherlands Insurance Company ask the Court to declare that they have no obligation to pay millions of dollars claimed by Commonwealth Automobile Reinsurers (“CAR”), a Massachusetts reinsurance association. Before the Court is defendants’ motion to dismiss which, in relevant part, details defendants’ contention that this Court is without jurisdicti...
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OPINION Defendant Jerome Roberts (“Roberts”) has moved pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure for acquittal on Count II of the indictment on which he was convicted by jury on the ground that in the absence of an intent to distribute a controlled substance within 1000 feet of a school, the “schoolyard statute”, 21 U.S.C. § 845a(a) is not proven. For the reasons s...
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MEMORANDUM OPINION This case is before the court on the plaintiff’s and the defendants’ cross-motions for summary judgment. The court has jurisdiction of the case pursuant to 28 U.S.C. § 1332. FACTUAL BACKGROUND 1 The plaintiff, J.J.B. Hilliard, W.L. Lyons, Inc. (“Hilliard”) is a stockbrokerage firm. T. Bryant Terry, Jr. (“Terry”), an employee of Hilliard, contacted defe...
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MEMORANDUM OPINION This matter is before the court on the plaintiff’s motion for summary judgment. The plaintiff, Allstate Insurance Company (“Allstate”), brought this action in order to obtain a declaration of its rights and obligations under the uninsured motorist provisions of an automobile liability insurance policy. Allstate relies on 28 U.S.C. § 1332 as the basis for this court’s ju...
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ORDER SUSTAINING OBJECTIONS TO REPORT AND RECOMMENDATION AND REMANDING CASE TO SECRETARY This cause is before the Court pursuant to plaintiff’s action seeking review of the decision of the Secretary of Health and Human Services. This matter was considered by the United States Magistrate, pursuant to standing order concerning assignment of social security cases. See Rule 6.01(c)(21), Local Rules o...
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ORDER AND REASONS Before the Court is the motion of the defendants for summary judgment based on prescription. The Court, having reviewed the motion, the memoranda of counsel, the record, facts, and applicable law, hereby denies the motion for the reasons set forth more fully below. The Facts and Procedural History In an invitation dated April 20, 1982, defendant Louisiana Coca-Cola Bottling Co...
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OPINION This is a civil action for insurance proceeds. Specifically, plaintiff seeks compensation for fire damage to his home. He complains that the defendant insurers wrongfully denied his claim. The case has proceeded to trial and, at present, the Court is called upon to resolve an evidentiary issue. For the reasons given below, evidence of plaintiff’s nolo contendere plea may be admitt...
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727 F. Supp. 952 (1990) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. BETHLEHEM STEEL CORPORATION and United Steelworkers of America. Civ. A. No. 88-0175. United States District Court, E.D. Pennsylvania. January 2, 1990. *953 Spencer H. Lewis, Jr., Philadelphia, Pa., for plaintiff. Dona S. Kahn, Philadelphia, Pa., for defendant. OPINION AND ORDER VAN ANTWERPEN, District Judge. INTRODUCTION: I have...
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ORDER Before the court is the motion of plaintiffs and counter-defendants, Central States, Southeast and Southwest Areas Health and Welfare Fund and Howard McDougall, Trustee (hereinafter collectively “Central States”) to dismiss the counterclaim and counts I through IV of the third-party complaint of defendant and counter-plaintiff, Borden, Inc. It involves issues of preemption of state law clai...
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736 F. Supp. 746 (1990) WYNN OIL COMPANY, a California corporation, Plaintiff, v. AMERICAN WAY SERVICE CORPORATION, a Michigan corporation and Thomas A. Warmus, Defendants. Civ. No. 89-CV-71777-DT. United States District Court, E.D. Michigan, S.D. April 30, 1990. *747 *748 William C. Potter, Jr., Detroit, Mich., for plaintiff. Raymond L. Morrow, Troy, Mich., for defendants. MEMORANDUM OPINION AN...
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MEMORANDUM Plaintiff, a non-profit environmental advocacy group, filed this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff seeks disclosure of records relating to the participation of J. Paul des Rosiers, an employee of the Environment Protection Agency (“E.P.A.”), in a public meeting held in Haysville, Kansas by Vulcan Chemicals Company (“Vulcan Chemicals”). 1...
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736 F. Supp. 337 (1990) CONSUMERS UNION OF U.S., INC., Plaintiff, v. FEDERAL RESERVE BOARD, Defendant. Civ. A. No. 89-3008-GHR. United States District Court, District of Columbia. May 2, 1990. *338 *339 Michelle Meier and Linda Lipsen, Consumers Union, Washington, D.C., for plaintiff. Steve Frank and Theodore C. Hirt, Attys., Dept. of Justice, Civ. Div., and Richard Ashton and Katherine Wheatley,...
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OPINION This is a postscript to the final chapter of this saga which we wrote three months ago. We return to the uncommon facts surrounding the unauthorized disclosure of tax return information by an agent of the Internal Revenue Service to the Director of the Illinois Department of Revenue. This story, like most tales, can best be understood by reviewing the events in chronolog...
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MEMORANDUM Plaintiffs, domestic shipbuilders and fishing vessel operators, bring this action to challenge the United States Coast Guard’s *11interpretation of the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987. Particularly, plaintiffs challenge the Coast Guard’s interpretation of the Act’s savings clause1 relating to the citizen-control and domestic rebuilding requirements. Plain...
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OPINION AND DECISION On May 2, 1988, the parties entered into a stipulation which was so ordered by the Court reading that “this stipulation and order represents a compromise of disputes and claims and is not to be construed as an admission of liability on the part of either party. The parties expressly deny liability for all such disputes and claims and intend merely to limit further litigatio...
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MEMORANDUM OPINION AND ORDER The issue in this appeal is whether the bankruptcy court abused its discretion in imposing sanctions against the debtor’s attorney for filing a fraudulent conveyance action under § 548 of the Bankruptcy Code. 1 Ted W. Trauernicht, on behalf of himself and his professional corporation, Trauernicht Hyman, P.C. (collectively, Trauernicht), argues that ...
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MEMORANDUM OPINION AND ORDER This Opinion resolves the present dispute under the Sentencing Guidelines. BACKGROUND Familiarity with the general history of this litigation is assumed, but a brief history of the dispute is useful here. In an indictment filed on November 28, 1988, defendant Martin was charged with six counts of bank robbery and five counts of armed bank robbery, arising out of six se...
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OPINION ON SUMMARY JUDGMENT MOTIONS These consolidated actions arise from the so-called Diamond Mortgage Corporation (“Diamond”)/A.J. Obie & Associates, Incorporated (“Obie”), mortgage-backed securities fraud. As the court has explained elsewhere in more detail, Diamond, Obie, and Commerce Mortgage Investments, Limited (“CMI”) (collectively, “the Diamond entities”) were an interrelated gr...
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ORDER THIS CAUSE comes on for consideration upon the magistrates’s report and recommendation recommending that: (1) plaintiffs’ Petition for Allowance of Reasonable Attorneys’ Fees and Expenses (Dkt.210) be GRANTED insofar as plaintiffs are entitled to the recovery of reasonable attorneys’ fees totalling $191,135.75 as the prevailing parties in this action; (2) that insofar as plaintiffs’ petitio...
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ORDER Plaintiff, the United States Equal Employment Opportunity Commission (“EEOC”) brings this action under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. 621 et seq., as it is authorized to do under Section 7(b), 29 U.S.C. § 626(b), against defendants, the City Colleges of Chicago, 1 and the Board of Trustees of Community College District 508 (“City C...
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MEMORANDUM DECISION AND ORDER The plaintiff filed this claim against the defendant to obtain technical data on the MK-46 torpedo in order to compete for MK-46 requirements synopsized in the March 2, 1987 and July 27, 1988 issues of Commerce Business Daily. The plaintiff contends that the defendant’s failure to provide the information violates the Small Business Act, 15 U.S.C. § 637, the C...
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ORDER ON MOTIONS TO DISMISS AND TO ABSTAIN FROM EXERCISING JURISDICTION I. Background The plaintiff Fort Wayne Community Schools (School System) and defendant Fort Wayne Education Association (Teachers Union) are parties to a collective bargaining agreement. One provision of that agreement is at issue here; the pertinent provision requires the School System to carry certain Union cor...
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ORDER Before the court is the motion of defendants to dismiss those allegations of plaintiff’s complaint which raise a sex discrimination claim under Title VII. *256 The specific issue before the court is whether the sex discrimination claim asserted in plaintiff’s complaint is “like or reasonably related to” the allegations of her EEOC charge and “growing out of such allega...
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MEMORANDUM Defendant, Consolidated Rail Corporation (Conrail), has filed a motion for judgment notwithstanding the verdict and for a new trial. Plaintiff, Robert L. Williamson, brought this action under the Federal Employer’s Liability Act (FELA), see 45 U.S.C. § 51, to recover for injuries suffered while he was transferring cargo from a damaged trailer to another one at a train yard operated by ...
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MEMORANDUM AND ORDER EARL E. O’CONNOR, Chief Judge. Before the court in the above-captioned matter is plaintiff’s motion for summary judgment on its claim of breach of contract and on defendant’s counterclaim for breach of implied warranties. For the reasons set forth below, plaintiff's motion will be granted. According to the pretrial order in this case, the parties entered into a “Security Agree...
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736 F. Supp. 808 (1990) E.J. McGOWAN & ASSOCIATES, INC., Plaintiff, v. BIOTECHNOLOGIES, INC., and John D. Perry, individually, Defendants. No. 89 C 3946. United States District Court, N.D. Illinois, E.D. March 16, 1990. George E. Bullwinkel and Jamie S. Freveletti, Burditt, Bowles & Radzius, Chicago, Ill., for plaintiff. Terrence W. McMillin and Richard M. LaBarge, Marshall, O'Toole, Gers...
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OPINION A number of issues relating to the equal access obligations of the Regional Companies remain to be resolved although, as explained below, substantial progress toward equal access has been made, and the problems, when measured against the original requirements, are not of exceptional magnitude. I Introduction Section 11(A) of the decree requires each Regional Company to provide to all in...
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MEMORANDUM ORDER This matter is before the Court on defendant National Capital Region, National Park Service’s (NPS) motion to dismiss and plaintiffs motion to amend the complaint. Plaintiff was riding his bike along a bicycle path within the jurisdiction of the NPS. Defendant Stotland was also riding on that path, going the opposite direction. The bicycles collided and plaintiff was injured. P...
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MEMORANDUM AND ORDER I. INTRODUCTION Before the Court is an appeal by Gary J. MacDonald and Earl MacDonald (“the appellants”) of a holding in United States Bankruptcy Court for the District of Massachusetts, in which the bankruptcy court held in favor of the trustee in bankruptcy, Maurice M. Cahillane (“the trustee”). At issue is ownership of the controlling block of shares in S...
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ORDER This matter comes before the court upon the defendant’s motion for summary judgment. For the reasons stated below, the motion is granted. *180 I. This is a civil action brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq. The plaintiff, administrator of the estate of Milton Ray Moye, alleges that Mr. Moye’s death was caused by a government employe...
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MEMORANDUM OPINION AND ORDER This case comes before this court on appeal from the Bankruptcy Court for the Northern District of Illinois, Eastern Division. Debtors filed a joint petition pursuant to Chapter 11 of the Bankruptcy Code on March 3, 1987. Thereafter, debtors moved to consolidate their estates pursuant to Section 302(b) of the Code. 11 U.S.C. § 302 (1990). The Bankruptcy Court ...
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ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS In this action Petitioner seeks review of his state conviction on two counts of murder for which he is currently serving concurrent sixty year terms of imprisonment. Petitioner’s direct appeal of that conviction was denied by the Maine Law Court. State v. Barczak, 562 A.2d 140 (Me.1989). His appeal of sentence to the Appellate Division of the Sup...
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ORDER This case is before the court on defendant’s Motion for Judgment on the Pleadings. The court GRANTS defendant’s motion. FACTS On or about April 10, 1987, defendant Collins & Company, General Contractors, Inc. (“Collins”) and Roswell Steel, Inc. (“Roswell”) entered into a subcontract (the “subcontract”) obligating Roswell to provide and install steel for a project called Of...
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OPINION Plaintiff, Brent J. Mesher, commenced this action pursuant to 26 U.S.C. § 7429 to obtain summary review of a jeopardy assessment made against him for unpaid federal income taxes and the penalties thereon for the tax years 1981 through 1988 in the aggregate total amount of $1,105,371.00. The government moves for summary judgment (# 16) on the grounds that no genuine issue of material fact r...
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MEMORANDUM OF DECISION AND ORDER DENYING PLAINTIFFS’ MOTION TO VOLUNTARILY DISMISS ACTION I. Procedural Background This matter is before the Court on Plaintiffs’ motion to voluntarily dismiss Plaintiffs’ complaint herein, which motion was filed on March 19, 1990 (Docket No. 25). The issues generated by the motion have been fully briefed, and the Court now decides the issues on the written submiss...
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MEMORANDUM Plaintiff Cantiere DiPortovenere Piesse (Cantiere) brought this action for recovery of a judgment in the amount of $190,981.33 obtained against NRG Enterprises, Inc. (NRG). Discovering that the corporation was insolvent, plaintiff filed the instant lawsuit 1 against Jerome Kerwin, sole shareholder of NRG, and Helen Kerwin, an officer of the corporation, alleging, ...
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ORDER Before the court is the motion of plaintiff, subcontractor, Mid Seven Transportation, for summary judgment pursuant to Fed.R.Civ.P. 56(a) on its Miller Act, 40 U.S.C. § 270a et seq., claim against defendants, general contractor, Blinderman Construction and surety, Fidelity and Deposit Company of Maryland for $16,576.67 allegedly owing for the transportation of materials from third-party defe...
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ORDER Before the court is the motion of the defendant, the United States of America, for a summary judgment, pursuant to Fed. R.Civ.P. 56(b). Plaintiff brought this action to recover an aggregate of $53,965.56 in penalties imposed (1) for his failure to timely file his 1983, 1984 and 1985 federal income tax returns, (2) for his failure to timely pay his 1983, 1984, and 1985 federal income tax lia...
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OPINION This matter is before the Court on both plaintiffs’ and defendants’ appeal from Magistrate Haneke’s Order dated February 10, 1987 and the Magistrate’s Findings and Conclusions filed September 27, 1989. The Magistrate’s original order and later opinion denied the application of plaintiffs Dome Petroleum Limited and Dome Energy Limited (collectively “Dome”) for an order compelling Raymond J...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This Bivens action comes before the Court on the defendants’ motion for summary judgment. For the reasons set forth below, the Court GRANTS the motion. I. FACTS On May 14, 1989, the plaintiff was a detainee in the United States Penitentiary in Terre Haute, and was involved in an incident which resulted in the finding that plaintiff refused to obey an order and ...
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ORDER On May 19, 1989, appellant appealed the Bankruptcy Court’s orders of December 30, 1988, and February 8,1989. The Court will affirm in part and reverse in part the Bankruptcy Court’s orders. Under Bankruptcy Rule 8013, a reviewing court may not set aside findings of fact unless clearly erroneous. In re Sheehan, 350 F.Supp. 907 (W.D.Mo.1972). The district court is not permitted to try t...
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ORDER Before the court is the joint motion of defendants Clayton, Sanders, Stokes, Blackman, Carpenter, Meyers, Stephenson, Stewart, West, Gully, Tilford and Wilson to conduct a hearing, pursuant to Federal Rule of Evidence 606(b), to inquire into the validity of the guilty verdicts rendered against them. The government has filed a consolidated response. The motion, which asks the co...
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736 F.Supp. 258 (1990) Robert A. BIONDOLILLO, Plaintiff, v. The CITY OF SUNRISE, et al., Defendants. No. 89-6115-CIV. United States District Court, S.D. Florida. May 4, 1990. *259 Prof. Steven Wisotsky and J. Phillip Landsman, Fort Lauderdale, Fla., for plaintiff Robert A. Biondolillo. E. Bruce Johnson and Patricia A. Burton, Fort Lauderdale, Fla., for defendant City of Sunrise. Harriet Lewis, Ho...
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ORDER Before the Court are the Magistrate’s Report and Recommendation that this Court grant Defendants’ Motion to Dismiss Count XI of Plaintiffs’ Amended Complaint and grant Plaintiffs’ Motion to Substitute, as to Counts I-III, V, VI, VII, VIII, and IX. The respective parties have filed timely objections to the Magistrate’s Report and Recommendation as to both motions. Since the Magistrat...
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ORDER Before the court is the motion of defendant, Uni-Fin Corporation for summary *162 judgment on the claim of plaintiff, Irving Tanning Company. Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,...
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MEMORANDUM OF DECISION Plaintiff filed this suit seeking to invalidate and enjoin enforcement of the Jay Environmental Control and Improvement Ordinance (Ordinance). Plaintiff contends that the Ordinance: (I) is preempted under the National Labor Relations Act; (II) violates the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution; and (II...
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ORDER Before the court is the motion of plaintiff, James C. Harris, Sr., to vacate judgment and for other relief, brought pursuant to Fed.R.Civ.P. 60(b)(5), (6). Plaintiff brought this action against both his union and his employer alleging failure to properly represent him in a grievance against the employer and breach of contract, respectively. The union moved to dismiss, asserting the statute o...
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MEMORANDUM This lawsuit was filed by William Juliano on behalf of himself and the United States pursuant to the False Claims Act (“Act”), 31 U.S.C. § 3729 et seq. The Act allows the government to recover funds, civil penalties, and treble damages against those who knowingly present false or fraudulent claims to the federal government for payment or approval. William Juliano, th...
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MEMORANDUM ORDER The plaintiff filed this action on April 20, 1990, in which it alleges that the Defense Mapping Agency (DMA) “wrongfully deprived plaintiff of a small business ‘set aside’ ” Government contract to which it is entitled. The case came before the Court on April 23, 1990, for a hearing on plaintiff’s Application for a Temporary Restraining Order. Subsequent to the hearing the Court...
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MEMORANDUM AND ORDER Before the court in the above-captioned matter are plaintiff’s proposed journal entry, defendant’s objections thereto, and plaintiff’s motion concerning attorney’s fees. By order dated July 10,1989, 719 F.Supp. 966 (“the July 10 order”) the court directed plaintiff to file and serve on defendant a proposed journal entry regarding distribution of the front pay award. Plaintiff ...
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ORDER Before the court is the motion of defendant, the City of Chicago, for summary judgment, pursuant to Ped.R.Civ.P. 56(b), on the Title VII, 42 U.S.C. § 2000e et seq., sex discrimination claim of plaintiff, Virginia Mitilinakis. Plaintiff alleges that the City discriminated against her as part of its practice of “refusing and failing to automatically reinstating [sic] f...
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ORDER The motion of defendant, Allied Products Corporation, to dismiss Count II of plaintiff’s complaint on the grounds that the claim contained in Count II is barred by the exclusive remedies provision of the Illinois Workers’ Compensation Act, Ill.Rev.Stat. ch. 48, ¶ 138.5(a),1 is denied. On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn f...
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MEMORANDUM ORDER This is a hybrid action by an employee against his employer for breach of contract and against his union local for breach of the duty of fair representation under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. This matter now comes before the Court on motions by the employer and the union for summary judgment. Both defendants assert that plaintiffs suit is ...
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MEMORANDUM and ORDER Pending before the court is the appeal of Joseph W. Chandler (“Chandler”) from the Opinion and Order of Bankruptcy Judge Scholl, dated August 4, 1989. 103 B.R. 628. Chandler timely filed a notice of appeal docketed as Civil Action No. 89-6398; 1 *419 he also filed a motion to alter or amend the Order of August 4, 1989 and a motion to stay that Orde...
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OPINION Plaintiff Leo Haviland brings suit against his former employer Goldman, Sachs & Co. (“Goldman”) and its affiliate J. Aron & Co. (“Aron”) alleging injury caused by a pattern of racketeering activity that included mail fraud, wire fraud and attempted extortion. The defendants now seek an order pursuant to section 3 of the Federal Arbitration Act, 9 U.S.C. § 3, staying these judicial...
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MEMORANDUM OPINION I. INTRODUCTION This Cause is before the Court on Plaintiff Peter Anthony Sasso’s Application for Preliminary Injunction. 1 The Plaintiff, a deportable alien presently detained at the Dade County Jail, requests that the Immigration and Naturalization Service be enjoined from conducting his deportation hearing in El Paso, Texas. In support thereof, Plaint...
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MEMORANDUM DECISION This matter is before the court on the renewed motion to suppress made by defendants Charles Goff, et al. (the Goffs). This court has agreed to review its December 30, 1987 memorandum decision, United States v. Goff, 677 F.Supp. 1526 (D.Utah 1987), in light of United States v. Leary, 846 F.2d 592 (10th Cir.1988).1 The facts upon which this decision is based are adequately set ...
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MEMORANDUM OPINION AND ORDER In this case white members of the Chicago Fire Department (“CFD”) bring claims under 42 U.S.C. Sections 1981 and 1983 alleging that the CFD's promotional decisions subjected them to reverse discrimination in violation of the Equal Protection Clause. Plaintiffs Chicago Fire Fighters Union Local No. 2 and some of its white members, and defendants City of Chicago...
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MEMORANDUM OPINION AND ORDER This court faces the issue of how long is too long for a party to delay before filing a motion for sanctions pursuant to Federal Rule of Civil Procedure 11. On November 25, 1986 plaintiffs William B. Kaplan and KBK Associations, Inc. filed their original complaint in this action against defendants Sheldon Karras and Stephen Barth. Plaintiffs’ complaint alleged violati...
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ENTRY On December 27, 1985, the paths of the defendants, Kenneth R. Jackson and Melva Grunden, crossed, or more appropriately, collided. On that date, Mr. Jackson drove a 1976 Oldsmobile into a car in which Ms. Grunden was a passenger, causing Ms. Grunden to be injured. The car being driven by Mr. Jackson at the time was owned by Joe Martinez, the father of his roommate Michael Martinez. ...
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MEMORANDUM AND ORDER Plaintiff Schwinn Bicycle Company (“Schwinn”) charged defendant Diversified Products Corporation (“DP”) with trade dress infringement violating Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), relating to exercise bicycles, and Sears, Roebuck and Co. (“Sears”), DP’s biggest customer, intervened. Plaintiff claims that its exercise bicycle, the Air-Dyne, created th...
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ORDER Defendant, Mario Naylor, was found guilty by a jury verdict of aiding and abetting another to possess with intent to distribute approximately 2 kilograms of cocaine base, in violation of Title 21, United States Code, Section 841(a)(1) and (b)(l)(A)(iii) and Title 18, United States Code, Section 2. She was also found guilty of conspiracy to possess with intent to distribute cocaine base, i...
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ORDER This case is before the Court on the Motion of Defendants and Counter-Plaintiffs, Glenn K. Johnson and Johnson Utility Company, Inc., for an extension of time for discovery. This is the third such request and is denied for the following reasons. This case is a declaratory judgment action brought by an insurance company seeking adjudication that it is not liable under a particular policy. It ...
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*1096 MEMORANDUM OPINION This is an action challenging the constitutionality of a City of Boynton Beach ordinance which regulates the location of adult entertainment establishments. The case was tried before the court without a jury on February 26, 1990. The Court took the matter under advisement and now issues its opinion incorporating its findings of fact and conclusions of law...
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ENTRY The appellant-Trustee seeks to overturn a bankruptcy court order denying the Trustee’s Motion for Summary Judgment and granting General Accident’s Cross-Motion for Summary Judgment. This court may review questions of law de novo, Matter of Evanston Motor Co., Inc., 735 F.2d 1029 (7th Cir.1984); In re Cricker, 46 B.R. 229 (N.D.Ind.1985), but must accept the bankruptcy court’s findings of fac...
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736 F. Supp. 662 (1990) Graeme MacArthur LACEY, Plaintiff, v. CESSNA AIRCRAFT COMPANY, a corporation; Hanlon & Wilson Company, a corporation; Teledyne, Inc., a corporation; and John Does 1-10, Defendants. Civ. A. No. 87-1506. United States District Court, W.D. Pennsylvania. April 27, 1990. Michael Louik, Berger, Kapetan, Malakoff & Meyers, P.C., Pittsburgh, Pa., for plaintiff. Donald W. B...
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MEMORANDUM OPINION AND ORDER Before the Court is the motion of defendant, Graphic Computer Service, Inc., now known as HCS Support Services, Inc. (“HCS”), to transfer this action to the Southern District of Texas, Houston Division, pursuant to 28 U.S.C. section 1404(a). For the reasons set forth below, the motion is granted. I. FACTS Plaintiff, Pansophic Systems, Inc. (“Pansophic”) is an Il...
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OPINION OF THE COURT This action presents a dispute between the owners of two adjoining parcels of property. The dispute concerns the use of an access route which traces the border between the two parcels, but which lies exclusively on defendants’ parcel. Defendants want to alter the access route, though both property owners have freely used it for over 30 years. Based on this longstanding, contin...
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MEMORANDUM OPINION This case is currently before the Court on the stipulations and briefs of the parties. The Court having considered the pleadings, the documents in evidence, and the stipulations of the parties, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure. I. FINDINGS O...
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OPINION AND ORDER This is an action for the collection of money owed on certain promissory notes executed by codefendant Consolidated Mortgage and Finance Corporation (“Consolidated”) and purchased by plaintiff Federal Deposit Insurance Corporation (“FDIC”) on March 31, 1978 upon the closing of the Banco Crédito y Ahorro Ponceño by the Puerto Rico Secretary of the Treasury. Codefendants J...
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*388MEMORANDUM OPINION AND ORDER Gerald McCabe (“McCabe”) has filed a pro se action under 42 U.S.C. § 1983 (“Section 1983”), complaining of the revocation of his license to practice medicine more than a decade ago by the Illinois Medical Disciplinary Board (“Board”). McCabe has named a host of defendants — persons who were individual members of Board when the challenged license revocation hearing...
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OPINION AND ORDER Plaintiffs, the owners of “La Casa del Agricultor,” filed this diversity action for breach of contract by defendant, Sunshine Bird Supplies, Inc. (“Sunshine”). Plaintiffs purchased sacks of corn from Sunshine for resale, and plaintiffs allege that Sunshine delivered contaminated corn. Plaintiffs *460seek $6,934.50 for the price of the corn and $50,000.00 in loss of reputation and...
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OPINION Presently before the court is defendant’s motion for summary judgment. This motion requires an analysis of the degree of deference due a decision rendered by a board acting under color of a collective bargaining agreement. *575I. FACTS AND PROCEDURE Plaintiff filed suit on April 7, 1988, alleging a breach of a collective bargaining agreement in violation of the Labor Management Relations ...
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MEMORANDUM OPINION AND ORDER The United States of America has brought this action seeking the forfeiture of $37,590.00 seized from Bennett Masel on June 2, 1987. Masel, the claimant, now moves to dismiss the complaint. Background On or about June 2, 1987, two plain-clothed law enforcement officers, police officer Jeffrey McCormick and DEA agent James Mueller, were waiting to...
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MEMORANDUM OPINION AND ORDER The debtor, Larry Bryon Groshans, appeals a bankruptcy court decision denying the discharge of his debt to Harvey H. Wagner and the estate of Marvin A. Wagner under § 523(a)(6) of the Bankruptcy Code.1 Mr. Groshans makes two arguments in this appeal. First, he argues that the bankruptcy court erred in determining that Colorado’s dead man’s statute applied in the procee...
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MEMORANDUM In 1986, a Pennsylvania insurance company called Mutual Fire was declared insolvent by the Insurance Commissioner and placed into rehabilitation proceedings. A step-by-step description of the machinations unloosed by the Mutual Fire proceedings is probably beyond the ability of this Court to relate. But for the purposes of this case, one subset of developments is the most important.1 I...
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MEMORANDUM Plaintiffs, The Trustees of the University of Pennsylvania and University Patents, Inc., commenced this action to recover royalties allegedly owed to them by defendant Dr. Albert Kligman for his development and licensing of a medication for photoaged (sun-damaged) skin. Presently before the court is plaintiff University’s motion to disqualify the lawyer representing defend...
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MEMORANDUM AND ORDER Plaintiff Dale Pankow brought this two-count action against defendant WestAmerica Mortgage Company (WestAmerica) seeking recovery for unjust enrichment and for breach of an oral contract of employment. We have before us defendant’s motion for summary judgment on Count I, the contract claim. For the following reasons, the motion is denied. FACTUAL BACKGROUND ...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion to set aside the entry of default judgment pursuant to Rule 55(c) of the Federal Rules of Civil Procedure. This action was filed by the United States on June 14, 1989, to enforce the payment of a Small Business Administration (SBA) loan in the amount of $62,319.95, plus interest. Defendants are husband and wife and are the...
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MEMORANDUM ORDER Petitioner Joseph Beringer (“petitioner”) was charged with the murder of Joanne Barkauskas in 1981. He was tried and convicted for the murder in 1983, but the Appellate Court of Illinois for the First District reversed his conviction, finding that the prosecution’s conduct during the 1983 trial “was so egregious as to deny [petitioner] a fair trial.” People v. Berin...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion for judgment notwithstanding the verdict. Plaintiff has also moved that the judgment in this case be altered or amended to require the City of Topeka, Kansas to hire plaintiff Vicki L. Scott as a firefighter. On March 5-6, 1990, plaintiffs sex discrimination in employment claim under Title VII of the Civil Rig...
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736 F. Supp. 1103 (1990) The NATURIST SOCIETY, INC., and T.A. Wyner, Plaintiffs, v. John FILLYAW, Defendant. No. 89-8130-CIV-JAG. United States District Court, S.D. Florida, Fort Lauderdale Division. May 4, 1990. *1104 *1105 James K. Green and W. Trent Steele, W. Palm Beach, Fla., for plaintiffs. Martha C. Olive, Parker, Skelding, Labasky & Corry, Tallahassee, Fla., for defendant. GONZALEZ, D...
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MEMORANDUM AND ORDER Plaintiffs James R. Bartholomew and Judith Bartholomew filed a suit against defendants claiming breach of an alleged oral settlement agreement. Plaintiffs maintain that this court has jurisdiction because their action involves a federal question, in that the alleged oral settlement agreement was made in a prior unrelated federal court action. Defendants have filed a m...
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MEMORANDUM AND ORDER This ease is an appeal from an order entered on May 4, 1989, by the United States Bankruptcy Court for the District of Kansas. That order denied the objection of S & E Investments Partnership (S & E Investments) to the sale of debtor’s truck terminal facility located at 7750 Reinhold Drive, Cincinnati, Ohio (the Cincinnati property). Essentially, S & E Investments con...
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MEMORANDUM Appeal is taken by appellant Edward Cantor & Co., a real estate agency, from a final order of the bankruptcy court administering a Chapter 11 proceeding. 108 B.R. 512. Jurisdiction is founded upon 28 U.S.C. § 158. BACKGROUND Appellant filed a proof of claim with the bankruptcy court in the amount of $497,-500, claiming that debtor owed it these funds pursuant to a bro...
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AMENDED MEMORANDUM OPINION AND ORDER Once again, an action has been brought challenging the constitutionality of a Metropolitan Dade County ordinance and resolution granting preferential treatment to blacks in its contract bidding process. 1 The ordinance has a provision that allows the county to set aside certain designated county contracts exclusively among Black contractors....
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MEMORANDUM OPINION AND ORDER The plaintiff, Dominic Saracco, brought this ERISA action challenging the denial of *1155pension benefits by the trustees of the defendant, Teamsters Local Union 786 Building Material Pension Fund (“Fund”). The parties have filed cross-motions for summary judgment. In the alternative, the Fund has moved for dismissal on the ground that Saracco had failed either to exh...
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AMENDED MEMORANDUM OPINION AND ORDER On September 5 and 6, 1989, this cause came on to be heard by the Court. After hearing the testimony and after reviewing the parties’ briefs, the applicable law, and all the relevant facts, exhibits, and depositions, the Court is of the opinion that Defendants/Third-Party Plaintiffs Donald W. and Donna M. Hardeman (hereinafter “the Defendants” or “the ...
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OPINION AND ORDER Defendants Conoco, Inc., Conoco (U.K.) Ltd. and Exxon Corporation move for summary judgment pursuant to Rule 56, Fed.R. Civ.P. on the grounds that the claims of plaintiff Transnor (Bermuda) Ltd. (“Trans-nor”) for losses in the Brent Oil market, allegedly totalling $17 million, and lost profit damages on unrelated businesses, allegedly totalling nearly $65 mill...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion for summary judgment against defendant Massachusetts Mutual Life Insurance Company (hereafter referred to as “Massachusetts Mutual”). Because plaintiff is not seeking summary judgment against defendant Richard D. Rooney, the court will consider plaintiff’s motion as a motion for partial summary judgment under Rule ...
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ORDER Came on this date for consideration the Plaintiff’s Motion for Remand. The Court, having considered said motion, finds that it lacks merit and should be denied. Background Plaintiff, Pamela Barton, had an automobile accident with Tericia Ann Loran whose insurance carrier at the time of the accident was in receivership. Plaintiff filed suit in the 200th Judicial District Court of T...
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*679MEMORANDUM AND ORDER This matter is before the court on defendant Clarence Long’s motion for protective order in which he seeks to quash three deposition notices. Plaintiff issued three deposition notices: one for the deposition of defendant Long’s wife, Jeanie C. Long, to be taken on January 23, 1990; one for the deposition of defendant Long, to be taken on January 24, 1990; and one for defen...
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MEMORANDUM AND ORDER This action is before the court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner, an inmate at the United States Penitentiary, Leavenworth, Kansas, (USPL), claims his due process rights were violated in prison disciplinary proceedings conducted by the USPL- Institution Disciplinary Committee (IDC). Plaintiff specifically claims (1) the IDC...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion for reconsideration of this court’s Memorandum and Order of September 26, 1989, which is reported at 722 F.Supp. 668 (D.Kan.1989), and plaintiff’s motion to reconsider that same decision. Also before the court is defendant’s responsive pleading to the court’s order requiring salary information necessary for the final calcul...
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MEMORANDUM OPINION AND ORDER John O’Conner,1 Q.L. Patterson, Ronald Sievertson, Leon Ellis, Frances LaReau and Kenneth Macek are members of Local 719 of the United Auto Workers. The plaintiffs claim that Local 719 violated their rights under the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411 (“LMRDA”). Currently before us is Local 719’s motion for summary judgment. For the reasons...
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*1049 MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Defendant County of Santa Barbara moves to dismiss the complaint pursuant to Rules 12(b)(6) and 12(b)(1), Fed.R.Civ.P. or, in the alternative, requests the Court abstain from the exercise of jurisdiction and dismiss or stay the case because resolution of state law claims may obviate the need for constit...
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MEMORANDUM OPINION This case came before this court on C.B. Fleet Co., Inc.’s (Fleet’s) motion for a preliminary injunction. This court conducted a hearing without a jury on the motion on January 26, January 31, and February 1, 1990. The court has heard the evidence and has considered the testimony, exhibits, memoranda of law, and arguments of counsel. Now fully advised in this matter, th...
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ORDER Came on this date to be considered, sua sponte, the status of this action. Petitioner brought this action pursuant to 28 U.S.C. § 2254, in the United States District Court for the Northern District of Texas, Amarillo Division. Petitioner is presently serving a 15-year sentence in the Texas Department of Corrections as a result of a conviction in the 181st District Court of Potter County...
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MEMORANDUM DECISION AND ORDER This decision is a final ruling on a Report and Recommendation from Bankruptcy Judge Honorable Stephen D. Gerling pursuant to Bankruptcy Rules 5011 and 9033. Judge Gerling has recommended that discretionary abstention pursuant to 28 U.S.C. § 1334(c)(1) is warranted from adversary complaints brought by third party inter-venors in two related bankruptcy proceed...
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MEMORANDUM OPINION RE APPLICATION OF SENTENCING GUIDELINES The issue before the Court is whether, as applied to this defendant, the provision of the Sentencing Reform Act of 1984 [18 U.S.C. § 3553(a)(4), (b)] requiring the Court to use the guidelines in effect at time of sentencing violates the prohibition against ex post facto laws of the United States Constitution. [Art. I, §...
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ORDER Pending before the Court is Plaintiffs’ Motion to Vacate the Judgment of the State Court pursuant to Federal Rule of Civil Procedure 60(b)(6). After careful consideration of the respective briefs and the applicable law, it is the opinion of this Court that the Plaintiffs’ Motion should be denied. I. FACTS The causes of action asserted by the Plaintiffs arose from an oral commitment made by t...
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MEMORANDUM Plaintiff, Kale is a Massachusetts resident and a twenty year employee of Defendant and its predecessor-in-interest. In May 1989, he brought an action in Middle-sex County Superior Court alleging a host of state law claims stemming from his employment termination in March 1983. Defendant, Combined, an Illinois corporation with a principal place of business in that state, timely...
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MEMORANDUM OPINION AND ORDER This is a civil in rem proceeding in which plaintiff seeks forfeiture of defendant automobile that was used to facilitate the attempted sale and distribution of illegal narcotics. Previously, on July 7, 1989, this Court found probable cause to believe defendant automobile was used to facilitate *727 the attempted sale and distribution of illegal narcotics. 1 P...
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ORDER This Order addresses plaintiffs’ motion to set aside a January 1989 judgment entered after this Court ruled that “plaintiffs are unable to establish the causal breach of any legal duty owed them by defendant pursuant to the [Federal Tort Claims Act].” Jan. 12, 1989, Order at 11. 1 Authority for this motion is found in Rule 60(b), Federal Rules of Civil Procedure, which st...
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736 F. Supp. 952 (1990) D.O. McCOMB & SONS, INC. and Terra Services Incorporated, Plaintiffs, v. MEMORY GARDENS MANAGEMENT CORP., INC.; Covington Memorial Gardens, Inc.; Fred W. Meyer, Jr.; Donald Grose; The Lindenwood Cemetery, Inc.; and Highland Park Cemetery, Inc., Defendants. Civ. No. F 89-157. United States District Court, N.D. Indiana, Fort Wayne Division. May 10, 1990. *953 Vincent J. ...
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MEMORANDUM Defendant Victor Bellucci was indicted on August 10, 1982, as part of United States v. Pioggia, et al., CR No. 82-231-K (D.Mass.) (Keeton, J.), for allegedly conspiring to distribute cocaine. Defendant was arrested on September 22, 1983 and, on September 30, 1983, filed a motion to reduce bond, which Judge Keeton denied on October 3, 1983. Two days later, defendant f...
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736 F.Supp. 422 (1990) TURKS HEAD REALTY TRUST, Plaintiff, v. SHEARSON LEHMAN HUTTON, INC., Defendant. Civ.A. No. 89-0210 L. United States District Court, D. Rhode Island. May 10, 1990. *423 Philip L. Eiker, Providence, R.I., for plaintiff. Richard M. Borod, Edwards & Angell, Providence, R.I., for defendant. MEMORANDUM AND ORDER LAGUEUX, District Judge. This matter is before the Court for de...
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MEMORANDUM AND ORDER Plaintiff, Grace C. Adipietro, is a New York citizen. Defendant Colonial Life Insurance Company of America (“Colonial”) is an insurance company incorporated under the laws of New Jersey with its principal place of business in New Jersey.1 This Court’s jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1331. FACTS On September 1, 1982 Loriann Adipietro, plaintiff...
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MEMORANDUM AND ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER Defendant Commercial Union Insurance Company (Commercial Union) issued a general liability policy to North Shore Towers Associates, an apartment complex in Queens, New York, for the period of June 14, 1980 to June 14, 1981. Plaintiff Employers Insurance of Wausau (Wausau) issued an excess umbrella liability policy for the period of Septe...
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RULING These three appeals deal with the propriety of the bankruptcy court’s appointment of an examiner with “expanded powers,” who has been allowed to pursue adversary complaints. The Court GRANTS leave to appeal, but for the following reasons, relief is DENIED on all three appeals. In Civil Action No. 89-1647, appellants, Hurley Petroleum Corporation, H. Williamson, Jr., and Willia...
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ORDER ON MOTION FOR SUMMARY JUDGMENT Presently before the court in this diversity action is the defendant’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiff Ben Sims, Jr. has filed this action alleging that the defendant is liable in negligence under Tennessee tort law for a failure to maintain its loading dock in a safe condition...
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MEMORANDUM AND ORDER Plaintiff United States Shoe Corp. (“U.S. Shoe”), asserts trademark violation and unfair competition against Brown Group, Inc., in connection with the advertising and sale of women’s dress shoes. Plaintiff advertises its women’s dress pumps under the slogan and musical jingle, “Looks Like a Pump, Feels Like a Sneaker.” Defendant has launched an advertising campaign th...
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ORDER REAFFIRMING PREVIOUS ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT On January 26, 1989, the Comptroller of the Currency (Comptroller) approved the applications of First National Bank and Trust Company, Columbia, Missouri (FNB), to establish two branch offices outside its home county. In ruling on these applications, the Comptroller used a functional definition of the term “state ba...
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MEMORANDUM AND ORDER Petitioner, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied. FACTS Petitioner, charged with two counts of burglary in the third degree and one count of burglary in the second degree, was convicted on all three charges following a jury trial in the County Court o...
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OPINION The Equal Employment Opportunity Commission (“Commission”) filed the complaint in this action on September 29, 1989, charging defendant James Julian, Inc., with violations of sections 703(a)(1) and 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(l), 2000e-3(a), against Bernard Thompson (“Thompson”), a former employee of the defendant. The Commission charges th...
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MEMORANDUM OPINION AND ORDER Defendants William Moore, Ronald Irving Peters, and Tommy Woods are charged with conspiring to transport in interstate commerce a stolen motor vehicle and knowingly transporting in interstate commerce a stolen motor vehicle. 18 U.S.C. §§ 371, 2312. Peters has moved to dismiss the indictment on the ground that his right to due process of law was violated because the ...
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ORDER DENYING PLAINTIFF’S MOTION TO REMAND CASE TO STATE COURT AND GRANTING DEFENDANT’S MOTION FOR LEAVE TO FILE AN AMENDED NOTICE OF REMOVAL Plaintiff has filed a Motion to Remand this case to the Circuit Court of Jackson County, Missouri. Defendant opposes plaintiff’s motion and has filed a Motion for Leave to Amend Notice of Removal which plaintiff opposes. *546This is an action originally fil...
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ORDER The above-captioned suit arises out of a Freedom of Information Act (“FOIA”) request for the names and addresses of retiring and retired officers of the United States Army, Air Force, Navy and Marine Corps. Defendants maintained that they were entitled to withhold this information from plaintiff pursuant to FOIA Exemptions 2 (internal personnel rules and practices) and 6 (unwarranted inva...
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MEMORANDUM AND ORDER Plaintiffs Buctouche Fish Market Ltd. (“Buctouche”) and Seafare Specialty Products (“Seafare”) bring this action against defendants City Sea Foods, Inc. (“City”), and Z.B. Industries (“Z.B.”), two California corporations, for breach of contract, failure to pay for goods sold and delivered, misappropriation of trade secrets, fraudulent misrepresentation, and interference wit...
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MEMORANDUM AND ORDER On October 1, 1981, at approximately 4:45 p.m., Andrew Kalina, the proprietor of a liquor store at 44-24 College Point Boulevard, Queens, New York, was shot to death during an armed robbery. By 6:45 p.m. that same day, the New York City Police had found petitioner, Marvin Pinkney, at Jamaica Hospital receiving medical attention for wounds he incurred while escaping, h...
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736 F. Supp. 15 (1990) Linda Ann TAYLOR, Plaintiff, v. STATE OF RHODE ISLAND, DEPARTMENT OF MENTAL HEALTH RETARDATION AND HOSPITALS, Defendant. Civ. A. No. 89-0395 L. United States District Court, D. Rhode Island. May 11, 1990. *16 Robert B. Mann and Suzanna J. Mitchell, Providence, R.I., for plaintiff. Ellen Evans Alexander and Robin E. Feder, Dept. of the Atty. Gen., Providence, R.I., for defen...
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ORDER Plaintiff John B. Whitley brought this declaratory judgment action in his capacity as trustee or substitute trustee (trustee) under various deeds of trust given on real property in Cumberland County, North Carolina. The complaint names two state defendants, the Clerk of Superior Court of Cumberland County and the State of North Carolina, and various federal defendants, the Department of Hou...
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MEMORANDUM OPINION AND ORDER This matter is before the court on two formal motions. The first is the Motion of Plaintiffs Dianne and Gary Dawson (“Dawsons”) to Remand under 28 U.S.C. § 1447(c) (1988) “on the basis of [a] defect in removal procedure.” In the event that the court remands, Defendant has requested that it certify the issue of interpretation of 28 U.S.C. § 1446(b) (1988) to th...
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*744 FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW This matter is before the Court on the application of Plaintiffs for a Temporary-Restraining Order and Preliminary Injunction. Upon notice to Defendants, oral argument was heard in open Court on April 8, 1990, with all counsel present. In accordance with Rule 52, Fed.R. of Civ.P., the Court does submit herewith its Findings of Fact, Opinio...
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RULING ON PETITION FOR WRIT HABEAS CORPUS Jerry Daniels petitions this Court pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. He is presently incarcerated at the Connecticut Correctional Institution at Somers, Connecticut. Petitioner claims that his separate convictions and sentences for both multiple murder capital felony and for murder of one of the victims of the capital felony offens...
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MEMORANDUM OPINION AND ORDER This matter is now before the Court on the defendant’s Motion for Summary Judgment, filed October 30, 1989. Having reviewed the memoranda of the parties, and being otherwise fully advised in the premises, the Court finds that the motion is well-taken and will be granted. This is a claim for breach of an implied contract of employment and wrongful discharge in violatio...
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736 F.Supp. 387 (1990) William C. HAYS, Executor of the Estate of Arthur Groves, Plaintiff, v. MOBIL OIL CORPORATION, Defendant. Civ. A. No. 87-1089-WF. United States District Court, D. Massachusetts. May 10, 1990. *388 Robert F. Corliss, Corliss & Romero, Boston, Mass., for plaintiff. Robert M. Gault, H. Joseph Hameline, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, Boston, Mass., for defen...
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OPINION The Air Line Pilots Association, International (“ALPA”) has appealed from two decisions of the Bankruptcy Court. The first decision denied its application for relief from the automatic stay to permit it, and to require respondent Eastern Airlines, Inc. (“Eastern”), to submit to arbitration a dispute over whether there has been a merger of the operations or facilities of Eastern an...
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ORDER On March 6, 1990, plaintiff Sea-Land Service, Inc. (“Sea-Land”) filed this action *901 pursuant to the Shipping Act of 1984, 46 U.S.C. App. § 1701 et seq. Sea-Land alleges that defendant Trans-Senko Corporation (“Trans-Senko”) breached a service contract which the parties executed on January 9, 1985. Trans-Senko, relying on Sea-Land’s acknowledgement that the...
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ORDER This cause is before the Court on Motion of Defendant for Reconsideration of Motion for Summary Judgment against Plaintiffs King and Jackson, and on Plaintiffs’ Motion for Sanctions. Having considered these Motions, the Court is of the opinion that the Motion of Defendant is without merit and should be denied, and that Plaintiffs’ Motion should be granted. The Motion for Reconsideration appa...
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MEMORANDUM OPINION AND ORDER Petitioner Robert Reutter was convicted in state court of two counts of aiding and abetting the distribution of cocaine and one count of conspiracy to distribute cocaine, and the conviction was affirmed on appeal. State v. Reutter, 374 N.W.2d 617 (S.D.1985). The conviction was vacated in the federal habeas action. Reutter v. Solem, 888 F.2d 578 (8th Cir.1989). Petition...
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ORDER Pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., plaintiff initiated this sex discrimination action against her former employer, Commonwealth Edison Company (“Commonwealth Edison”), and eight of her former supervisors. The eight individual defendants have filed a motion to strike certain portions of the complaint, a motion to strike plaintiffs discovery ...
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RULING ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT On June 16, 1988, Jimmie Lou Freeman was employed as a seaman aboard the M/V CENTRAL, a vessel owned and operated by Thunder Bay Transportation Company, Inc. (“Thunder Bay”). Freeman was injured when she was thrown from her bunk while sleeping when the M/V CENTRAL lost rudder control and ran aground at Mile 168 of the Upper Mississippi R...
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MEMORANDUM OPINION AND ORDER Dr. Chi Feng Su (“Su”) filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. section 2254 on June 5, 1989. The respondents 1 have answered the petition and Su’s motion for judgment on the pleadings is now before the Court. The Court grants both the petition for writ of habeas corpus and the motion for judgment on the pleadings for the reasons...
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MEMORANDUM This is yet another case concerning the federal government’s effort to create a drug-free workplace for its employees by compelling urine drug testing without any suspicion of drug use. In this instance, the individual plaintiff, Carl Willner, challenges drug testing required during pre-screening of new employees under the Department of Justice Drug Free Work Place Plan (“DOJ Plan”) ...
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RULING ON DEPENDANT’S MOTION FOR SUMMARY JUDGMENT Bobby E. Watson originally filed this suit in the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana against United of Omaha Life Insurance Company (United) to recover life insurance benefits allegedly owed to him. The defendant timely removed this suit to this Court based on diversity jurisdiction. 1 United has now fil...
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FINDINGS OF FACT and CONCLUSIONS OF LAW This matter was tried to the court on an evidentiary record consisting solely of stipulated facts and unchallenged documentary exhibits. The court makes the following statement of facts and conclusions of law: I.STATEMENT OF FACTS 1. Plaintiff James J. McDowell, Sr. resides in the Borough of Pine Hill (“Borough”), at Lots 3A, 4A, 5A, and 6A, Block 99.C on t...
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MEMORANDUM On March 26, 1990 this Court issued an Order and Opinion denying plaintiffs’ motion for recertification of various implied and written warranty classes. In its Opinion this Court stated that it found no basis for maintaining the plaintiffs’ action once class certification had been denied. The Court, therefore, dismissed the plaintiffs’ complaint. See Order and Opinion, 130 F.R.D. 260, ...
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*543 MEMORANDUM OPINION This case involves application of the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, to a condemnation proceeding. The two defendant landowners in the condemnation case underlying this fee petition are Sally A. Dickerson, in her individual capacity as a landowner (hereinafter “Mrs. Dickerson”), and Sally A. Dickerson as trustee for the Trust of Ha...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER Coherent, Inc. has alleged federal claims against Coherent Technologies, Inc. for trademark infringement and false designation of origin under 15 U.S.C. §§ 1114 and 1125(a) (1988), respectively, and a state law claim for unfair competition. Plaintiff seeks injunctive relief and attorney fees. 1 Exercising original jurisdictio...
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ORDER This matter is before the Court on a motion for summary judgment (Doc. No. 26) filed by defendant Gardner & White, Inc. (“GW”) and an opposing memorandum (Doc. No. 31) submitted by plaintiff The Deaconess Hospital of Cincinnati, Ohio (“Deaconess”). GW moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. *155OPINION On June 7, 1989, Deaconess, a non-profit ...
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MEMORANDUM AND ORDER Plaintiff Logan Equipment Corp. (“Logan”) brought this action on January 21, 1987 against defendant Simon Aerials, Inc. (“SAI”), a Wisconsin corporation, and Simon Engineering, P.L.C., its British parent (collectively “Simon”). Plaintiff charges breach of contract, breach of warranty, misrepresentation, negligence, interference with contractual relationships, and viol...
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MEMORANDUM AND ORDER Petitioner, pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied. FACTS Petitioner was convicted on May 13, 1986 of robbery in the first degree and robbery in the second degree in the New York Supreme Court, Queens County. Following the jury’s verdict of guilty on both charges, petitioner was sente...
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ORDER This matter originally referred to the late United States Magistrate Conan pursuant to 28 U.S.C. § 636(b) and Local Rule 44(F), was subsequently referred to Magistrate Gustave J. Di Bianco for report and recommendation by this Court by Standing Order dated March 22, 1984. This court adopts the facts contained within defendant’s “Statement of the Case” as did the Magistrate with...
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MEMORANDUM AND ORDER For the third time, plaintiff has filed a motion which seeks to have the first jury re-empaneled for the remaining phases of the trial of this action. For the third time, I will deny this request. In addition, I will require plaintiff's counsel to pay the costs, including reasonable attorney’s fees, incurred by defendant in responding to this motion. I. Plaintiff brought this ...
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OPINION The American Telephone and Telegraph Company (“AT & T”) initiated this action against MCI Communications Corporation (“MCI”) and Pioneer TeleTechnologies, Inc. (“Pioneer”) (collectively the “defendants”) for alleged violations of the deceptive practices provisions of section 43(a) the Lanham Act, 15 U.S.C. § 1125(a), and violations of the New Jersey common law of unfair competitio...
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OPINION These cases come before the Court on the cross-motions for summary judgment filed by the City of Alexandria (Alexandria) and Old Town Yacht Basin, Inc. (OTYB). The cases involve the continuing controversy over the dispute that has been pending for one hundred and forty three years concerning the boundary between the District of Columbia and the Commonwealth of Virginia. See United States ...
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MEMORANDUM OPINION AND ORDER Before the court is the motion of defendant to dismiss the Plaintiff’s Motion for Preliminary Injunction enjoining the implementation of certain aspects of defendant’s Fitness-For-Duty program until the arbitration process is completed. Defendant argues that the Union has “failed to allege facts sufficient to support either a finding that an injunction is necessary to ...
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MEMORANDUM OPINION AND ORDER Plaintiff’s amended complaint asserts causes of action for copyright infringement under 17 U.S.C. §§ 101 et seq., false designation of origin and unfair competition under 15 U.S.C. §§ 1114 and 1125(a), and state statutory and common law claims under'principles of pendent jurisdiction. Defendants move under Rule 12(b)(6), F.R.Civ.P., to dismiss ...
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MEMORANDUM OPINION AND ORDER Kenneth Wallendorf (“Wallendorf”) has just transmitted two letters to this Court seeking relief from the sentence previously imposed on him (attached Ex. 1, a letter dated April 21, 1990 and received April 25, and Ex. 2, a letter dated May 2 and received May 7). Because Fed.R.Crim.P. (“Rule”) 35(b) is not applicable in this situation,1 both transmittals will be treate...
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MEMORANDUM OPINION Alex Rodriguez Gerrero is a Cuban native who landed in Key West, Florida, in May 1980, as part of the well-publicized “Mariel Boat Lift.” Gerrero came to this country without authorization, but he asked for political asylum. The Attorney General of the United States paroled Gerre-ro into the United States pursuant to 8 U.S.C. § 1182(d)(5) (1976), as amended. Gerrero remained ...
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OPINION Defendants Lome Coates and Michelle A. Dillard are charged with (1) conspiracy to possess with intent to distribute 500 grams or more of cocaine, and (2) possessing with intent to distribute 4,018 grams of cocaine, within 1,000 feet of a school, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 845a(a). The defendants were arrested in the Amtrak section of Pennsylvani...
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ORDER In our Memorandum Decision of March 28, 1990 (the “March 28th Decision”), 737 F.Supp. 792 familiarity with which.is assumed, we dismissed all causes of action against the Trump defendants alleged in the first amended complaint. However, we allowed plaintiffs to amend the first amended complaint to add the Trump defendants to the sixth cause of action alleging the Trump defendants’ p...
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Plaintiff a 30 year old black male has been diagnosed with multiple sclerosis. He is currently a prisoner confined at the D.C. Detention Facility Infirmary. Pursuant to Fed.R.Civ.P. 65, plaintiff moves the Court to grant a preliminary injunction directing defendants to immediately provide him appropriate medical care commensurate with prevailing community medical standards for a person suffering ...
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MEMORANDUM AND ORDER This matter is before the court on the plaintiff’s motion to enforce the settlement agreement. Dk. No. 92. The defendant filed an objection to plaintiff’s motion. Dk. No. 93. The court held a hearing on January 12, 1990 and took the matter under advisement. The court has examined the applicable administrative regulations and case law and is now prepared to rule. Plaintiff sued...
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MEMORANDUM-DECISION-ORDER Facts This action is brought by the United States of America on behalf of the SBA for a money judgment on a defaulted loan made to the defendants, John F. Arsenault and David J. Chrisler. On December 28, 1984, defendants had purchased from the SBA the restaurant facility known as the “Red Caboose” in Vestal, New York. The purchase price was $285,000.00, $28,500.00 of wh...
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MEMORANDUM AND ORDER This matter is before the court on the Secretary’s motion to affirm and the plaintiff’s motion for summary judgment. This action involves two applications made under the Social Security Act. Plaintiff filed an application for disability insurance benefits under Title II of the Act, 42 U.S.C. § 401 et seq. and an application for supplemental security income (SSI) benefits ...
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736 F. Supp. 570 (1990) John R. CONNOR, Plaintiff, v. UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Clarence Thomas, Chairman, Equal Employment Opportunity Commission, U.S. Department of Labor, Elizabeth H. Dole, Secretary, U.S. Department of Labor, Defendants. Civ. A. No. 89-4636. United States District Court, D. New Jersey. March 12, 1990. *571 John R. Connor, Millburn, N.J., pro se. S...
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MEMORANDUM OPINION Pursuant to an order issued January 28, 1990, this court granted plaintiffs’ request to continue this action against Bilzerian to the extent of allowing discovery to proceed as to Bilzerian’s assets. Defendants’ request to extend to Bilzerian the Florida Bankruptcy Court’s stay as to BiCoastal in this action was denied. The court’s reasoning for the said order granting ...
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MEMORANDUM AND ORDER These consolidated cases were brought by some twenty-five prisoners from Colorado who have been transferred to Western Missouri Correctional Center (Cameron) from their home state, pursuant to a contract for imprisonment here. Plaintiffs are before the court on motions for a preliminary injunction. They contend they have been deprived of liberty interests without due process o...
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MEMORANDUM OPINION On complaint of the United States, this court, on January 5, 1990, pursuant to findings of fact and conclusions of law contained in a memorandum opinion published at 727 F.Supp. 1414 (N.D.Ala.1990), ordered the forfeiture of sixty (60) acres in Etowah County, Alabama, owned by Evelyn Charlene Ellis. Thereafter, in response to a timely post-trial motion by Mrs. Ellis, th...
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MEMORANDUM DECISION Plaintiffs Martin Greenhouse and Sherry Greenhouse brought this action seeking relief from defendant’s efforts to collect sums of money allegedly due on plaintiffs’ tax returns for years 1982, 1986, and 1988. By Order to Show Cause, plaintiffs seek a temporary restraining order and a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure (“F...
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MEMORANDUM-DECISION AND ORDER INTRODUCTION In response to an amended complaint filed by Charles W. Heckman, a retired Air Force captain and a veteran of the Viet Nam War, alleging discrimination on account of age in connection with defendants’ failure to hire plaintiff for the position of Aquatic Biology Post Doctoral Research Associate, a position to be funded by a grant from the New York State ...
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ORDER Before the court are defendant Jose R. Rodriguez’s and defendant Jorge F. Pegue-ro’s motions to suppress as evidence contraband discovered as the result of a search of their vehicle by Georgia State Patrol Trooper Greg Patrick. A hearing was held on this matter on April 30, 1990. The court, having considered the evidence presented at the hearing, the briefs filed by the parties, the argument...
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MEMORANDUM-DECISION AND ORDER I. BACKGROUND This is a motion by the defendant, Michael O’Higgins, to recover legal fees and costs which he incurred in the course of successfully defending against . claims brought by the plaintiff under the Employee Retirement Income Security Act of 1974 (“ERISA”). Defendant’s motion is based on 29 U.S.C. § 1132(g)(1) and Rule 54(d) of the Federal Rul...
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MEMORANDUM This case is now before the Court on twelve pretrial motions brought by the defendants. On September 21, 1989, the grand jury handed down a twenty-count third superseding indictment in this case. The indictment charges the defendants, as described in the various counts, 1 with criminal conspiracy in violation of 21 U.S.C. § 846, engaging in a criminal enterprise in v...
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OPINION Defendants James “Buster” Douglas, John P. Johnson, Golden Nugget, Inc. and The Mirage Casino-Hotel (“Mirage”) move to dismiss on jurisdictional grounds, or alternatively, to transfer to the United States District Court for the District of Nevada the complaints brought against them in these consolidated actions by Don King Productions, Inc. (“DKP”) and Trump Plaza Associates (“TPA...
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These actions involve local opposition to the United States Postal Service’s (the “Postal Service”) condemnation of 23.24 acres of land (the “County parcel”) belonging to Westchester County (“the County”) and the Postal Service’s potential condemnation of a portion of a 10.1 acre parcel owned by New York State (the “State parcel”) for the construction of a large new General Mail and Vehicle Mai...
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OPINION In a forty-six count indictment (the “Indictment”), defendant Robert Howard Willis is charged with securities fraud and mail fraud in connection with his purchases of common stock of the BankAmerica Corporation (“BankAmerica”) in January and February of 1986. The defendant, a psychiatrist, is charged with having used material, non-public information acquired from a patient for pro...
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MEMORANDUM DECISION AND ORDER In this wrongful death action the defendants Buchanan Construction Corporation (“Buchanan”) and Scotty Construction Corporation (“Scotty”) move for summary judgment pursuant to Fed.R.Civ.P. 56, on the ground that there are no genuine issues of material fact in dispute. The defendant, the City of New York (“City”), also moves for summary judgment claiming that as a ma...
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MEMORANDUM AND ORDER This case involves a claim brought by plaintiff under the Federal Employers’ Liability Act (“FELA”). Plaintiff was injured in a fall after being ordered into a smoky tunnel to investigate damage to signal equipment from a track fire. Defendant denied liability and raised the affirmative defense of contributory negligence. On May 8, 1990, after a one-week trial, a jury rende...
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MEMORANDUM AND ORDER Plaintiffs have brought this action against defendant Mead Johnson & Co., a pharmaceutical manufacturer, alleging that on October 10, 1983 its antidepressant medication Desyrel caused Paul Sabel to develop a priapism, a prolonged, painful erection, which ultimately required surgery and left him impotent. They seek to recover on theories of negligence and breach of war...
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MEMORANDUM This is an appeal from a final order of the bankruptcy court entered on February 15, 1990. This court has jurisdiction to hear such appeals pursuant to 28 U.S.C. § 158(a) and Bankruptcy Rule 8001(a). In April of 1986, New York City Shoes, Inc., and lessor, Rose McCarthy, entered into a commercial lease agreement under which New York City Shoes rented a storefront. New York City Sho...
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MEMORANDUM AND ORDER BACKGROUND Plaintiff National Union Fire Insurance Company of Pittsburgh, Pa. (“National Union”) is the liability insurer of the directors and officers of Ambassador Group, Incorporated (“Ambassador Group”), an insurance holding company whose two principal subsidiaries, Ambassador Insurance Company and Horizon Insurance Company, are presently in receivership. Nat...
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ORDER The present action was commenced on October 31,1988, by the United Association of Black Landscapers, an unincorporated group allegedly comprised of black employees of the City of Milwaukee, Bureau of Forestry, and various employees of the Bureau of Forestry against the City of Milwaukee, the Department of Public Works, Bureau of Forestry; Robert Skiera, the Chief Managing Officer and Direct...
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ORDER DENYING GOVERNMENT’S MOTION FOR STAY; ORDER GRANTING CLAIMANT’S MOTION FOR RELEASE OF SEIZURE AND ENFORCEMENT OF JUDGMENT; ORDER DIRECTING MARSHALL TO RELEASE SUBJECT VESSEL AND OTHERWISE ENFORCE THE JUDGMENT OF THIS COURT Claimant Jose Torres has moved this court for release of his seized vessel and for enforcement of the judgment entered in his favor. Plaintiff United States opposes this m...
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OPINION AND ORDER (sitting by designation). This case began as a civil rights suit under 42 U.S.C. § 1983, charging racial discrimination in housing, with pendent counts under state law. The jury brought in a verdict for the defendants on four of the five counts, leaving only a count for breach of contract under Illinois law against defendant Village of Summit — but on that count it ...
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MEMORANDUM OPINION AND ORDER Defendant, Fansteel, Inc. has filed a motion pursuant to FRCP Rule 12(b)(1) to dismiss plaintiff’s two count complaint for age-discrimination arguing that this court lacks subject matter jurisdiction. For the reasons stated herein, defendant’s motion is denied as to Count I and granted as to Count II. For purposes of a motion to dismiss, the court takes the allega...
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736 F.Supp. 261 (1990) Grecia ("Mimi") M. KORMAN, Plaintiff, v. Julio IGLESIAS, Defendant. No. 90-0119-CIV. United States District Court, S.D. Florida. May 10, 1990. *262 James B. Tilghman, Jr., Miami, Fla., for plaintiff. Marty Steinberg, Holland & Knight, Miami, Fla. by John Campbell, for defendant. ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTIONS TO DISMISS JAMES LAWRENCE KI...
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ORDER The plaintiff, a former federal employee proceeding pro se and in forma pauperis, is suing the defendant for discrimination in violation of Title VII. The defendant has filed a motion to dismiss, arguing that the Court does not have subject matter jurisdiction over this claim because it was filed more than thirty days after the plaintiff received the final agency decision. See 42 U.S....
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ORDER This insurance action is before the court on Plaintiff’s motion to deposit funds into the registry of the court. This case arises from the freezing of Defendants’ water pipes while they were away from home on vacation. Plaintiff seeks to have Defendants’ insurance policy declared void ab initio due to alleged misrepresentations contained in Defendants’ insurance application. Recognizing tha...
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MEMORANDUM OPINION August, Bishop & Meier, Inc. (“ABM”) is an Illinois-based corporation which is in the business of developing promotional products. This business carries some risks; as many prudent companies do, ABM purchased insurance to protect itself from losses directly associated with its line of work. ABM’s insurer was First National Insurance Company, a Washington corporation who...
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OPINION Plaintiff A.F.L. Falck, S.p.A. (“Falck”) has moved for reargument of its prior motion for summary judgment granting relief against James Karayannides (“Karayannides”) and to compel discovery in this turnover proceeding brought to enforce its rights against alleged debtors to the defendant and judgment debtor E.A. Karay Company, Inc. (“Karay"). For the reasons set forth below, the motion t...
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ORDER This matter is before the court on the report and recommendation of the bankruptcy court, filed February 5, 1990. The bankruptcy court recommends that the motion to remand, filed with the bankruptcy court by defendant Maurice Stark on August 24, 1989, and joined in by defendant McGladrey, Hendrickson & Pullen on August 29, 1989, be denied. Defendant Stark filed objections to the report and ...
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ORDER This copyright infringement action was referred to Magistrate Robinson in December 1988 for pretrial proceedings and a report and recommendation on dispositive motions.1 On November 16, 1989, we stayed this action pending the conclusion of bankruptcy proceedings involving counterclaim defendant Datacomp Corporation (“Datacomp”). We subsequently lifted this stay for the limited purpose of all...
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MEMORANDUM OPINION Grand Trunk Western Railroad Co. (GTW) wants to lease its Chicago “Rail-port” facility to Canadian National Railway Co. (CN). The lease transaction would, among other things, result in the loss of 28 railway workers’ jobs. The plaintiffs, a group of railway labor unions, have collective bargaining agreements with GTW. They have each notified GTW of their intent to add terms to ...
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OPINION Plaintiffs, E.J. Novak and Debra Studer (“Novak and Studer”) have moved by order to show cause for leave to serve defendant Don Novello (“Novello”) with a supplemental summons and amended complaint. For *45the reasons set forth below, this motion is denied. Prior Proceedings The long and tortuous attempt to serve Novello is set forth in this court’s opinion dated February 9, 1990. In th...
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MEMORANDUM OPINION This matter is before the court on defendants’, Strange and Mardelli, Motion For Summary Judgment. For the reasons set forth below, the motion is granted. I. On December 21, 1987 plaintiff’s decedent, Carolyn S. Lindsay (“Lindsay”) was admitted to the Northern Virginia Mental Health Institute (“NVMHI”), a state mental health facility. This action was taken in response to ...
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ORDER Before the Court are a Motion by the Plaintiff for summary reversal (# 9-1) and a Motion by the Defendant for summary affirmance (# 17-1) of a final decision of the Secretary of the Department of Health and Human Services denying disability benefits to the Plaintiff. This Court grants the Plaintiff’s Motion for Summary Reversal (# 9-1) and denies the Defendant’s Motion for Summary Affirmance...
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MEMORANDUM Plaintiff Richard Formanek brings this action for monetary and declaratory relief under 42 U.S.C. § 1983 against Jo Arment, Clerk of the Shelby County Circuit Court, and Toni Riekeberg, a court reporter. Plaintiff complains of delay in the receipt of the transcript of a proceeding in the Circuit Court of Shelby County during which he pleaded guilty to charges of sexual abuse and sodomy...
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MEMORANDUM OPINION The plaintiff has filed a motion to alter or amend this court’s order of March 27 granting summary judgment to the defendant. For the first time her counsel has raised the issue of whether the Administrative Law Judge (AU) erred in not considering Mrs. Carty’s residual functional capacity in determining whether she was eligible for benefits. As the court stated in its memorandum...
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DECISION AND ORDER The plaintiff seeks redress under the Federal Employers’ Liability Act, (FELA), *96345 U.S.C. § 51 et seq. for the emotional injuries he sustained as a result of the alleged negligence of his employer. The defendant, Chicago & Northwestern Transportation Company, has moved for summary judgment on all of the plaintiffs claims; the motion will be granted on the claims of intentio...
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RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Plaintiff sues under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701, et seq., 1 and now moves for summary judgment: (1) ordering the State, as required by IGRA, to negotiate with the Tribe concerning the terms of operation of games of chance, as defined by Conn. Gen. Stat. § 7-186a, et seq., on th...
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ORDER Plaintiff Mary Wright filed this lawsuit after suffering injuries during surgery. She alleges various medical malpractice claims against the individual defendants and products liability claims against the corporate defendants. Plaintiff Wayne Wright alleges a derivative cause of action for loss of spousal consortium and plaintiffs Rachel Wright and Melinda Wright allege derivative c...
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MEMORANDUM AND ORDER The case comes before the court on the defendants’ motion to dismiss (Dk. 392) and motion for summary judgment (Dk. 394). As this case is one of the oldest on the court’s docket, this court has promptly taken up the motions before it. A complete summary of the lengthy history to this case would require more effort than deserving of the result. Suffice it to say, the c...
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OPINION Plaintiff Stanley E. Holmes brought this action in February 1988, seeking damages from defendant Telecredit Services Corp. (“Telecredit”) for alleged violations of the Fair Debt Collection Practices Act, 15 U.S. C.A. §§ 1692 et seq. (“FDCPA” or “the Act”). The case was referred to Magistrate Sue L. Robinson in April 1988. On May 31, 1988 Telecredit moved for dismissal o...
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736 F. Supp. 1512 (1990) Susan HILDEBRAND, Plaintiff, v. William HILDEBRAND, M.D., Defendant. No. IP 89-159-C. United States District Court, S.D. Indiana, Indianapolis Division. May 7, 1990. *1513 *1514 Joseph I. Cronin, Minden, Nev., and Gayle M. Phelps and Thomas A. Fara, Indianapolis, Ind., for plaintiff. Gil I. Berry, Jr., Buck, Berry, Landau & Breunig, Indianapolis, Ind., for defendant. ...
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INTRODUCTION Plaintiff, Alice M. Guy, brings this action for summary judgment against defendant, Secretary of Health and Human Services (“Secretary”), under 42 U.S.C. § 405(g) and pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that there is no genuine issue of material fact and she is entitled to judgment as a matter of law. Defendant moves to dismiss the action purs...
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RULING ON MOTION TO DISMISS This matter is before the court on a motion to dismiss filed by defendant, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, (“Board of Supervisors”) incorrectly named in this case as “Louisiana State University Assembly Center.” Plaintiffs have filed an opposition. The court finds there is no need for oral argument. Jurisdi...
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OPINION Presently before the court is plaintiffs’ motion seeking the entry of final judgment pursuant to Fed.R.Civ.P. 54(b) as to all claims against defendant the Township of Gloucester (the “Township”) in the first phase of these sets of consolidated suits. Plaintiffs had initially sought certification pursuant to 28 U.S.C. § 1292(b) of the order in Genty dismissing certain RI...
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MEMORANDUM This two-count civil action was filed by the United States of America on July 11, 1988. The United States sought in Count I to reduce to judgment a tax assessment against Herman Klayman. In Count II, the United States sought to set aside as a fraudulent conveyance the sale of real property from Herman Klayman to his wife Carolyn Klayman, and to obtain a judgment in the amount o...
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OPINION and ORDER This case is before the court for a determination of certain disputed issues relating to plaintiffs’ off-reservation hunting of white-tailed deer, fisher and other furbearing animals, and small game within the area of the state ceded to the United States by the plaintiff tribes. Deer hunting was the subject of a trial held in August 1989. The hunting of the other animals...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Federal Tort Claims Act case was tried before the Court without a jury on July 25, 26, and 27, 1989. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court enters the following findings of fact and conclusions of law. I. FINDINGS OF FACT 1. Plaintiff, Cornelia Dutcher, is the mother of the deceased, Jeffrey Miller, and is the duly...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF; DENYING DEFENDANTS’ COUNTER-MOTION FOR SUMMARY JUDGMENT; AND GRANTING DEFENDANTS’ CONDITIONAL COUNTER-MOTION FOR STAY INTRODUCTION On May 7, 1990, the court heard oral argument on plaintiff’s motion for summary judgment and permanent injunctive relief and defendants’ counter-motion for summary jud...
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OPINION AND ORDER James Rogers, a prisoner in state custody, has commenced the above-captioned case pursuant to 42 U.S.C. § 1983 against Captain Oestreich, Brenda Hubertus, Thomas Nickel, H. Van Burén, and Danny Parker for violating his civil rights in connection with his conditions of confinement. The defendants, who are all employed by the State of Wisconsin at the Waupun Correctional Instituti...
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MEMORANDUM OPINION This is yet another, but final, chapter in the ongoing dispute which has arisen as a result of the announcement by Jack F. Kemp, Secretary of Housing and Urban Development (“HUD”), of his intention to terminate the coinsurance program established under Section 244 of the National Housing Act, as amended, 12 U.S.C. § 1715z-9. Plaintiffs are two active mortgage bankers approved b...
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MEMORNADUM DECISION AND ORDER Plaintiff Dennis Nelson Fixel is an inmate at Ely State Prison. He has submitted to the clerk of the court two motions to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and two civil rights complaints pursuant to 42 U.S.C. § 1983. In one complaint (Action I), Fixel sues the United States; Richard Owens, pro se law clerk for the U.S. District Court; and ...
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OPINION AND ORDER Before this Court is a discovery issue arising from a non-party witness’ refusal to comply with a subpoena duces tecum served by plaintiffs on June 12, 1989. 1 With this order, the Court will put to rest various pending motions which have sprung from this discovery conflict. First, non-party witness, Mr. Ferdinand Bonilla 2 has filed a Motion to Qua...
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*1163 OPINION I. Introduction The above action is only the latest chapter in the long running battle for turf on the part of two powerful industries, each of which is subject to governmental regulation. In this case, the insurance industry seeks protection from incursions into its claimed territory by the commercial banking industry. On behalf of life, health, proper...
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ORDER Plaintiff, Allied-Signal, Inc., filed this action for a declaratory judgment and injunctive relief, charging that the Navy and the Department of the Interior (“government” or “federal defendants”) violated the Endangered Species Act (“ESA”) when they designed the Remedial Action Plan aimed at cleaning up hazardous waste at the Concord Naval Station. 1 Specifically, plaintiff claims that...
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DECISION AND ORDER This is a negligence action brought pursuant to the Federal Tort Claims Act, Title 28 U.S.C. § 2671 et seq. The principal plaintiff is a 12 year old boy who has contracted Acquired Immune Deficiency Syndrome (AIDS) through a series of blood transfusions following a tonsillectomy. His mother is also a named plaintiff both in her capacity as parent and next fri...
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MEMORANDUM OPINION AND ORDER This matter comes before the court on the motion of plaintiff William Brooks for leave to file an amended complaint, and defendant American Broadcasting Companies’ motion for summary judgment. The parties having fully briefed the issues and the court having viewed the videotape of the broadcast in question, as well as the outtakes, the court will rule on these...
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OPINION AND ORDER This matter comes before the Court to consider the motion of the defendants, Dresser Industries, Inc. (“Dresser”) and George A. Korb, for partial summary judgment. In 1985, the plaintiff, Chester Hawley, filed this employment discrimination action against Dresser, his former employer, and defendant George A. Korb, the Corporate Senior Vice President-Operations of Dr...
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736 F. Supp. 1337 (1990) GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. Keith BENJAMIN, et al., Defendants. Civ. A. No. 81/79. District Court, Virgin Islands, D. St. Croix. May 14, 1990. *1338 *1339 Keith Benjamin, Lompoc, Cal., pro se. Michael Joseph, St. Croix, U.S. Virgin Islands, for Keith Benjamin. Office of the U.S. Atty., by James S. Carroll III, Asst. U.S. Atty., St. Thomas, U.S. Virgin ...
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MEMORANDUM AND ORDER Plaintiffs Eugene and Annie Clark filed this suit against the defendants Moran Towing and Transportation Company and the M/V MAUREEN MORAN. Eugene Clark was employed as a seaman by defendant Moran Towing and Transportation Company and claims that he suffered injuries on February 16, 1989 while working aboard the M/V MAUREEN MORAN, a vessel chartered to Moran Towing an...
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MEMORANDUM OPINION This action was brought by the United States seeking injunctive relief and the imposition of civil penalties against the defendants for placing fill materials into waters of the United States without first seeking a permit from the United States Army Corps of Engineers (hereinafter referred to as “Corps”). 1 The court conducted a twelve (12) day jury trial in January, 1990,...
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ORDER On November 22, 1989, pro se petitioner Leroy Geames was granted a writ of habe-as corpus under 28 U.S.C. § 2254 for excessive delay in the determination of his state court appeal from a conviction after trial for first degree burglary. This Court ordered that petitioner be retried if the state appellate court did not ultimately decide his appeal within a specified time. The judgment was ent...
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OPINION Plaintiff brought this civil rights action against Mantua Township ("Township”) and various officials for their failure to reappoint her as Deputy Municipal Clerk (“deputy clerk”) of the Township. She alleges that, when the Township Committee changed from a Democratic majority to a Republican majority, it refused to reappoint her because she is active in the Democratic party. Defe...
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MEMORANDUM OPINION Presently before the Court is defendant Equitable Life Assurance Society of the United States’ (“Equitable’s”) appeal of Magistrate Robert C. Mitchell’s Order denying Equitable’s motion for leave to amend its answer to add an affirmative defense. Equitable wishes to allege that the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”) preempts plaintiff Re...
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ORDER This matter is before the court on the government’s motion for summary judgment on its indemnification claim and the defendant’s motion for summary judgment on his counterclaim. The issues have been fully briefed and oral arguments were heard on April 18, 1990. For the reasons set forth below, the government's motion for summary judgment will be denied and the defendant’s motion for summa...
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740 F.Supp. 585 (1990) M.C. JEFFERS, Al Porter, Evangeline Brown, Clyde Collins, O.C. Duffy, Earl Foster, the Rev. Ellihue Gaylord, Shirley M. Harvell, Linda Shelby, J.C. Jeffries, Lavester McDonald, Joseph Perry, Clinton Richardson, T.E. Patterson, Earnest Simpson, Brian Smith, and Charlie Statewright, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. Bill CLINTON, in His...
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OPINION The matter before the court is the objections of plaintiff, Leaco Enterprises, Inc. (Leaco), to the Findings and Recommendation of the Honorable George E. Juba, United States Magistrate, dated December 13, 1989. Judge Juba recommends to this court that the motion for summary judgment (# 116) of defendant, General Electric Co. (GE), be granted in its entirety. Leaco alleges three c...
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MEMORANDUM OPINION Introduction This unusual labor dispute 1 comes before the Court on plaintiffs’ Application for a Temporary Restraining Order (“TRO”) and defendant’s Motion to Dismiss Count I *1398 of the Complaint. The novel and central question presented is whether a company is a “carrier” under the Railway Labor Act (“RLA” or “the Act”), 45 U.S.C. § ...
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MEMORANDUM OPINION I. Procedural History Plaintiffs Edwin Walker, Jr., George Hill, Jr. and Central Carolina Bank and Trust Company, as the Executors of the estate of John S. Hill, II, filed this case on January 11, 1988, in Durham Superior Court against Defendants Montclaire Housing Partners (“Montclaire”), Tricap Corporation (“Tricap”), and Shelby J. Kaplan (collectively re...
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MEMORANDUM AND ORDER Plaintiffs Lamb’s Chapel and John Steigerwald (“Steigerwald”) bring this action for declaratory and injunctive relief against the Center Moriches Union Free School District (“School District”) and Louise Tramontano, in her official capacity as President of the School District’s Board of Education (the “Board”), because of defendants’ refusal to allow plaintiffs to use...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Hoyt Dixon and Denny Jones died at sea during an attempt by the crew of the SS PONCE to rescue them from their shrimp boat, the JOAN J II. A three-day bench trial produced an array of deposition witnesses, live testimony, documents, exhibits, photographs and records to support the parties’ positions. The Court has considered all of the evidence as w...
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MEMORANDUM OPINION Plaintiffs in this case are a minor child, who is a student in the defendants’ schools, and his mother. The defendants are the county school board and several of its employees. Plaintiffs allege that the defendants, their employees, or agents have permitted or engaged in conduct which violates plaintiffs’ rights under the Free Exercise and Establishment Clauses of the F...
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OPINION This appeal from an Order of the United States Bankruptcy Court for the District of Delaware requires this Court to analyze Delaware’s common and statutory law concerning foreclosure of a debtor’s property. 1 In particular, the Court must examine the effect which an automatic stay in a Chapter XIII bankruptcy proceeding has on rights which arise in the purchaser of a de...
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MEMORANDUM OPINION Plaintiff in this case seeks to recover funds which it alleges are owing to it under a loan participation agreement entered into by the parties. This action was originally filed in the Circuit Court for the City of Charlottesville and was removed to this court by the defendant pursuant to 12 U.S.C. § 1730(k)(l)(C). This court has jurisdiction under 12 U.S.C. § 1730(k)(l...
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OPINION AND DECLARATORY JUDGMENT For decision, in this case of first impression, is the constitutionality of certain sections of the Georgia Tort Reform Act of 1987 (Tort Reform Act, or Act), and in particular O.C.G.A. §§ 51-12-5.1(e)(1) and 51-12-5.1(e)(2), as enacted in Section 5 of said Act, effective July 1, 1987. 1 By verified complaints in the above actions the Plaintif...
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MEMORANDUM OPINION AND ORDER Plaintiff brings this action pro se against individual representatives of his employer, the Defense Logistics Agency, seeking a temporary restraining order and damages for alleged deprivations of his constitutional rights and for alleged violations of the Privacy Act, 5 U.S.C. §§ 552a et seq., the Freedom of Information Act, 5 U.S.C. § 55...
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ORDER This matter is before the Court on a motion for sanctions and costs (Doc. No. 13) filed by defendant Gannett Satellite Information Network, Inc., d/b/a/ The Cincinnati Enquirer (“the Enquirer”). Plaintiffs, the Cincinnati Newspaper Pressmen Union No. 20N of the Graphic Communications International Union of the AFL-CIO and Robert J. Bryan (“the Pressmen Union” and “Bryan” respectively), file...
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ORDER AND OPINION RE DISCOVERY Plaintiff, Bio-Rad Laboratories, Inc. (“Bio-Rad”), has brought an action against defendant, Pharmacia, Inc., et al. (hereinafter solely “Pharmacia”) for patent infringement in a complaint filed May 26, 1988. On January 23, 1989, Judge Jensen referred the action for discovery purposes only to this court, pursuant to 28 U.S.C. § 636(b). Bio-Rad alleges that Pharmacia ...
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ORDER Having reviewed the findings of fact and conclusions of law issued in Judge Duber-stein’s Decision and Certificate of September 12, 1989, pursuant to 28 U.S.C. § 157(c)(1), and no objections having been filed, the court hereby denies without prejudice plaintiffs motion for partial summary judgment and New York University’s cross motion for discovery and sanctions. SO ORDERED. ...
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MEMORANDUM OPINION AND ORDER Pending are the defendant’s motion for summary judgment and the plaintiff’s motion for voluntary dismissal. The plaintiff alleges that the defendant, as claims administrator of an employee welfare benefit plan, wrongfully denied her disability benefits. The parties agree that this action is governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U....
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ORDER The Magistrate's recommendation is accepted. Defendant’s motion to dismiss the petition on supervised release is denied. Defendant raises a serious question. He was sentenced to the maximum imprisonment, one year, on his conviction for possession of cocaine, and to a term of supervised release of one year to follow the imprisonment. If the pending petition regarding his supervised relea...
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This is an action for trademark infringement and unfair competition by plaintiff Valu Engineering (hereinafter “Valu”) against defendant Nolu Plastics (hereinafter “Nolu”) based on Nolu’s alleged eopy-ing of Valu’s “unique” plastic guide rails for conveyor belts. Nolu has filed a motion with the Court seeking a preliminary injunction against Valu. This motion revolves around allegedly false state...
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OPINION This is an action for legal malpractice and for misrepresentation arising out of an opinion letter prepared by defendant Michael Taylor, Reservation Attorney for the Confederated Tribes of the Colville Reservation (“Colvilles” or “Colville Tribes”). At issue before me now is defendant’s motion to dismiss for lack of jurisdiction and motion to dismiss or for summary judgment for fa...
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MEMORANDUM OPINION This matter is before the Court on defendant’s motion to dismiss, or in the alternative for summary judgment, and upon plaintiff’s cross-motion for summary judgment on its claim for slander of title. Defendant has also filed a motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. Plaintiff in its complaint asserts claims for negligence, torti...
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OPINION This case involves the question of whether plaintiff, Service & Training, Inc. (“STI”), may use a diagnostic software program called “MV/Advanced Diagnostic Executive System” (“MV/ADEX”), which has been developed, manufactured and copyrighted by defendant, Data General Corporation. STI claims — and Data General disputes — that the plaintiffs have a right to use the diagnostic on o...
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ORDER This matter is before the Court on the defendants’ Motion to Strike Plaintiffs Jury Demand and Punitive Damages Claim From the Amended Complaint, filed October 30, 1989. Also before the Court is the Motion for Summary Judgment on the Counterclaim, filed April 16, 1990, by the defendant-eounterplaintiff, Midwest Operating Engineers Pension Trust Fund. For the reasons set forth herein...
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OPINION AND ORDER These are motions for summary judgment and to dismiss the complaint brought by all defendants pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 56. Although discovery has not commenced, the parties have presented the Court with certain documents outside of the pleadings; thus, the Court applies the summary judgment standard where appropriate. To grant a...
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MEMORANDUM AND ORDER I. INTRODUCTION Before the Court are the objections of the plaintiffs, Alfred and H. Lee Hutt (“the Hutts”) to a January 9, 1990 Report and Recommendation by United States Magistrate Michael A. Ponsor, in which he recommended that summary judgment be entered against the plaintiffs on virtually all aspects of their suit. The Hutts’ objections are opposed by the de...
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MEMORANDUM OPINION Eugene Wzorek has moved for attorneys fees and costs in his successful civil contempt action against the City of Chicago. 1 The City did not oppose petitions for fees for two of Wzorek’s attorneys, Mary Sto-well and Linda Friedman, and thus this court granted those petitions. The City’s “benevolence” apparently does not extend, however, to Wzorek’s principal ...
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ORDER THIS CAUSE comes on for consideration of defendant Cherry Bekaert & Holland’s (“Cherry Bekaert”) Motion to Compel Production of Documents and for Sanctions (Dkt. 138), and Cherry Bekaert’s Request for Oral Argument (Dkt. 140) with respect thereto. Cherry Bekaert seeks an order compelling the production of certain documents in the possession of plaintiff which it considers responsive to the ...
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Memorandum Opinion This matter comes before the court on the appeal of National Westminster Bank, USA (“the Bank”) of the Order of the United States Bankruptcy Court for the Middle District of North Carolina allowing the retention of the firm of Ross & Hardies as special counsel for William L. Yaeger, the Trustee in bankruptcy for the debtor, RPC Corporation (“RPC”). The appeal arises...
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ORDER THIS CAUSE comes on for consideration of defendant Cherry Bekaert & Holland’s (“Cherry Bekaert”) Motion for Reconsideration of the Court’s Order of November 28, 1989, 129 F.R.D. 188, (Dkt.151) and Cherry Bekaert’s Request for Oral Argument with *203respect thereto (Dkt.153) as well as FDIC’s response (Dkt.167). The order of the undersigned magistrate dated November 28, 1989 denied Cherry Be...
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MEMORANDUM AND ORDER INTRODUCTION Defendant Cassiar Mining Corporation filed a motion with this Court on January 4, 1990. In its motion, Cassiar requested the Court, “pursuant to Fed.R.Civ.P. 12(b)(2), to dismiss the complaints against it for lack of personal jurisdiction.” On February 2, 1990 this Court ordered filed Master Pretrial Order No. 1, consolidating cases Al-89-098 through...
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ORDER Defendant-Appellant Bruce Friend (“Friend”) appeals from the denial of his motion in limine by United States Magistrate William L. Harper. Friend sought to suppress the results of a breathalyzer test, which indicated that he had been driving under the influence of alcohol, because he claimed National Park Service rangers denied him the opportunity to obtain an independent blood test. After t...
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MEMORANDUM OPINION AND ORDER Defendants, Wyse Technology Incorporated, Bernard K. Tse, Phillip W. White, Howard H. Graham, Laurence D. Lummis, Ronald E.F. Codd, Frank J. Caulfield, and James P. Lally (collectively “Wyse Technology”) and Arthur Young & Company (“Arthur Young”), filed separate motions to dismiss each of the three counts of plaintiffs’ consolidated amended complaint (“amende...
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MEMORANDUM OPINION AND ORDER After discovering that property which its subsidiary had purchased from Delores Mache and The John Mache Declaration of Trust was severely contaminated with deposits of polychlorinated biphenyl ("PCB”), Quadion Corporation (“Quadion”) filed its complaint in this ease. The First Amended Complaint (hereinafter “Complaint”) alleges a violation of the Comprehensiv...
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The instant Fed.R.Crim.P. 35(a) motion for correction of sentence in this pre-guide-line case presents questions of statutory construction arising from Congress’ efforts to revise the federal drug laws and to delay implementation of the Sentencing Reform Act of 1984. *981i Defendant Alfonso Ramirez (“Ramirez”) was convicted by a jury of aiding and abetting the distribution of one kilogram of cocai...
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MEMORANDUM AND ORDER Plaintiff Brenda James, a black female, filed an amended complaint on September 27, 1989, asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, 42 U.S.C. § 1981, 42 U.S.C. 1985(3), and state law. Defendant International Business Machines Corporation (“IBM”) moves for partial summary judgment on the grounds that the Titl...
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MEMORANDUM OPINION AND ORDER Before the Court are the following pleadings: (1) Defendants’ Second Amended Motion for Summary Judgment, filed March 5, 1990; (2) Plaintiffs’ Response, filed March 26, 1990; (3) Supplementation to Plaintiffs’ brief in opposition, filed April 5, 1990; (4) Defendants’ reply, filed April 4, 1990; (5) Plaintiffs’ letter of transmittal wit...
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MEMORANDUM AND ORDER The plaintiff in this social security disability case is the widow of Charles Melton, a former truck driver who was injured in a tractor-trailer accident that occurred on May 23, 1980. At the time of the accident, Mr. Melton was fifty-five years old. He ceased working the day he was injured and filed for disability insurance benefits in February of 1981, alleging that he suffe...
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MEMORANDUM OPINION AND ORDER Defendant, the National Organization for Women (“NOW”), along with others, sued plaintiff Joseph Scheidler (“Scheidler”) and others in the United States District Court for the Northern District of Illinois for violation of the antitrust laws by participating in a conspiracy to close abortion clinics. NOW, through its officers defendants Molly Yard (“Yard”), Presiden...
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OPINION AND ORDER James R. Mayock, the plaintiff and an attorney, and his attorneys Hancock, Rothert & Bunshoft seek awards of attorney’s fees. The petitions are opposed by defendant the Immigration and Naturalization Service (INS), and were briefed, argued and submitted to the court for decision. The court has reviewed the moving and opposing papers, the record of the case, the arguments of coun...
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SUMMARY JUDGMENT Pending before the Court is the defendant, Universal Savings (“Universal”), motion for summary judgment. This Court must determine the validity of the plaintiffs’ allegations in a somewhat unremarkable, yet allegedly dishonest fraudulent financing scheme. After careful consideration of the motion, responses, and the relevant statutes, this Court finds that summary judgmen...
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ORDER Pending before the Court is the plaintiff’s, Arkwright-Boston Manufacturers Mutual Insurance Company’s (“Arkwright-Boston”), Motion for Summary Judgment. After careful consideration of the motion and the response thereto, the Court finds that dismissal of this case under Federal Rule of Civil Procedure 12(b)(6) is more appropriate. STATEMENT OF FACTS This case involves a coverage dispute be...
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MEMORANDUM OPINION AND ORDER Plaintiff John E. Reid and Associates, Inc. (“Reid”) brought this declaratory judgment action against the Illinois Human Rights Commission (“Commission”), its individual commissioners, and one of the Commission’s Administrative Law Judges (“AU”). Reid is a polygraph examiner and is currently a defendant in a race discrimination proceeding before the Commission based...
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ORDER THIS MATTER comes on for consideration by the undersigned Judge of the *1132above-entitled court upon motions, that of the defendants denominated a motion for summary judgment dismissing the plaintiffs’ claims for delinquent trust fund contributions “on the grounds that this court lacks jurisdiction over the subject matter of the dispute”, and that of the plaintiffs, denominated a cross mot...
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MEMORANDUM OPINION AND ORDER Before me is Plaintiffs’ Motion for Certification of a Defendant Underwriter Class. Briefs were submitted and oral argument was heard on Thursday, May 10 at 3:30 p.m. Because plaintiffs have shown that class certification is appropriate under Fed. R.Civ.Proc. 23(b)(3), I grant the motion. Plaintiffs bring this action pursuant to Sections 11, 12(2) and 15 of the Securi...
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ORDER This Matter is before the Court on the Government’s motion, filed May 15, 1990, to quash an order, entered by North Carolina Superior Court Judge Marvin K. Gray, that is being served on United States Probation Officer James R. McLean, Jr. for a state court proceeding, State v. James Clifton Gibbs, which seeks disclosure of the probation file of Joshua Jordon. Counsel for ...
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ORDER This Order addresses four pretrial motions asserted in this patent infringement action. The action was initiated by Salo-mon, S.A., a French manufacturer, and its North American counterpart, claiming that Alpina Sports Corporation, a competitor based in Yugoslavia, is manufacturing alpine ski boots that infringe patents which Salomon holds. Jurisdiction is based on 28 U.S.C. § 1338(...
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MEMORANDUM OPINION The City of Chicago and five of its police officers, Robert McGuire, Thomas Tansey, James Kierse, William Murphy, and James O’Connell, have moved to dismiss many portions of the complaint filed by Paul Hickombottom, an inmate at the Menard Correctional Center. Since Hickombottom is proceeding pro se, this court may dismiss his claims “only ... if it is beyond doubt that...
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MEMORANDUM OPINION AND ORDER Defendants have been indicted for allegedly engaging in various illegal trading practices in the soybean pit of the Chicago Board of Trade. Before the court are the motions of defendants Dempsey, Nowak, Bergstrom, Mittlestadt, Fetchenhier, and Ashman to suppress certain statements made to the FBI or to an Assistant United States Attorney. Defendants seek to suppress...
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*1311 OPINION AND ORDER This is an action brought pursuant to 42 U.S.C. § 1983 alleging that plaintiffs deceased husband was not provided adequate medical care while he was incarcerated at the Green Haven Correctional Facility. Plaintiff contends that her husband received such poor care that his Eighth Amendment rights were violated. Defendants Saul Rosenblum, E. Michael Kalon-ic...
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Various defendants move for an order, pursuant to Fed.R.Civ.P. 12(b)(6), dismissing the complaint on the grounds that the Unsecured Creditors’ Committee (the “Creditors’ Committee”) was not authorized to commence this action and may not pursue it in the name of and on behalf of Crowthers McCall Pattern, Inc. (the “Debt- or”), or, in the alternative, for an order remanding the action to the bank...
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ORDER THIS MATTER is before the Court on a Memorandum and Recommendation (hereinafter “M & R”) filed by United States Magistrate Paul B. Taylor on May 4, 1990. Defendant timely filed objections to the M & R on May 17, 1990. The M & R is in response to Defendant’s motion, filed February 9, 1990, to suppress approximately 847.3 grams of cocaine and 13 grams of crack seized from Defendant's person o...
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ORDER Pending before the Court is the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted. The plaintiffs bring this suit under 42 U.S.C. § 1983, The Education of the Handicapped Act, 20 U.S.C. §§ 1400-1420 (“EHA”), § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the due process and equal protection clauses of the 5th and 14th Ame...
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MEMORANDUM OPINION AND ORDER This action is for the damages suffered by plaintiff Hatzlachh Supply (“Hatzla-chh”) in an international transaction when the defendant Tradewinds Airways, Ltd. (“Tradewinds” “TAL”) purportedly failed-to follow instructions on the airway bills. This Court has written three prior opinions in this case, familiarity with which is assumed.1 Presently before this Court is p...
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ORDER THIS MATTER is before the Court on the Plaintiffs Petition for Fees and Litigation Costs, filed February 26, 1990. On March 12, 1990, the Defendants filed a Brief in Opposition. The Court briefly will summarize the litigation of this case. The Plaintiff, Hickory Neighborhood Defense League (HNDL), originally filed this action seeking to enjoin the proposed widening project of North Carolina ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, OPINION AND ORDER FINDINGS OF FACT 1. That DeBolt Transfer, Inc. was properly a party to the collective bargaining agreement between it and the Teamster’s Locals 249 and 261, (AFL-CIO) and was required by said agreement to make contribution for its employees into the Western Pennsylvania Teamsters and Employers Pension Fund. (Transfer’s obligatio...
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737 F.Supp. 541 (1990) THELMA D., et al., Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF ST. LOUIS, et al., Defendants. No. 89-0010C(6). United States District Court, E.D. Missouri, E.D. May 21, 1990. *542 William Edward Taylor, St. Louis, Mo., for plaintiffs. Kenneth Brostron, Margaret Mooney, Jeffrey Lowe, Lashly, Baer & Hamel, St. Louis, Mo., for Bd. of Educ. of City of St. Louis. Jimmy ...
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MEMORANDUM AND ORDER Plaintiff Charles T. Cerva has filed an *1102 application for allowance of attorney fees. 1 Plaintiff requests this court to enter an order allowing attorney fees from defendant Anthony O’Donnell, pursuant to 42 U.S.C. § 1988, in the amount of $32,812.50. I. BACKGROUND Plaintiff sued Officer Anthony O’Donnell and the City of Allentown...
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OPINION AND ORDER George McMillan, plaintiff pro se, is an inmate confined to Fishkill Correctional Facility. He brings this action pursuant to 42 U.S.C. § 1983, claiming that defendant Healey, a corrections officer at Fishkill, violated his right to due process under the Fourteenth Amendment to the United States Constitution. Defendant moves to dismiss the complaint pursuant to Fed.R. Civ.P....
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*28 MEMORANDUM On March 20, 1990, judgment was entered in the above case consistent with a jury verdict for plaintiff Joseph Templin and against defendants in the amount of $282,779.00, returned on March 16, 1990. Plaintiff now moves pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure for an additional award of delay damages. Plaintiff also moves for an award of pos...
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MEMORANDUM OPINION AND ORDER Paul Hudak has filed this action against Jepsen of Illinois, Inc. (“Jepsen”), his former employer. Hudak alleges that Jepsen has discriminated against him on the basis of his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Jepsen has moved for summary judgment and for sanctions under Rule 11. For the reasons given below, we deny ...
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737 F.Supp. 1070 (1990) Sandra L. CALESHU, Plaintiff, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., et al., Defendants. No. 86-0403 C (5). United States District Court, E.D. Missouri, E.D. March 30, 1990. *1071 *1072 *1073 Juan J. Laureda, Laureda and Bosch, Philadelphia, Pa., José Muniz, New York City, for plaintiff. Armstrong, Teasdale, Schafly, Davis & Dicus, Edwin L. Noel, John Wars...
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MEMORANDUM AND ORDER Plaintiff Tyler Vincent is an infant who suffered severe and permanent brain damage. Plaintiffs Thomas Vincent and Mary Jean Vincent are the parents of Tyler Vincent. Plaintiffs allege that Tyler Vincent’s brain damage was caused by a defective diphtheria, pertussis, and tetanus vaccine (“vaccine”) manufactured by defendants. Defendants, however, claim that Mary Jean Vincent m...
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MEMORANDUM DECISION AND ORDER The plaintiff, D.W.S. Washington Holdings, Inc. (“Landlord”), has filed the instant suit against the defendants, Timothy E. Jackson, June R. Jackson, Yves Courbois and Clelia Courbois (“Guarantors”), who are guarantors of a commercial lease (“Lease”) that was entered into between the plaintiff and Epi d’Or, Inc. (“Epi d’Or” or “Tenant”), a restaurant and District o...
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ORDER This matter is before the Court on the Defendant’s Motion to Transfer, filed December 5, 1990. The Defendant is seeking a transfer to the United- States District Court for the Central District of California. The Plaintiff timely has responded to the Defendant’s Motion. *353 On May 15, 1990, this Court conducted a hearing to listen to counsel’s oral arguments. Ms. Jenni...
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MEMORANDUM ORDER This matter is before the court upon the motion of the plaintiffs West Virginia Association of Community Health Centers, Inc., Women’s Health Center of West Virginia, Inc., Shenandoah Community Health Center of Intercounty Health, Inc., Putnam Birthplace, West Virginia Primary Care Study Group, the West Virginia Section of the American College of Obstetricians and Gynecologists, ...
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MEMORANDUM OPINION AND ORDER This is a putative class action challenging certain practices of the Illinois Department of Children and Family Services (“DCFS”) as being in violation of relevant federal statutes and the federal Constitution. Plaintiffs’ motion for class certification and for preliminary relief for the named class members was referred to a magistrate for a report and rec...
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*875OPINION Presently before the Court is a motion for attorney’s fees originally filed November 7, 1989 in the above captioned case.1 Initially, the attorney attached to his motion itemizations not only for hours spent litigating the case before the district court, but also time spent before the Social Security Administration. See 42 U.S.C. § 406(a). Therefore, on November 21, 1989 the Court orde...
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OPINION AND ORDER In a criminal jury trial held from February 21, 1990 to March 1, 1990, the defendant, J. Michael Morrissey, the former District Attorney of Berks County, was found guilty by the jury of conspiracy to manufacture an ingredient of methamphetamine called phenyl-2-propanone (P-2-P), aiding and abetting the manufacture of P-2-P, and aiding and abetting the manufacture of methamphetam...
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MEMORANDUM OPINION Plaintiff has filed this action challenging the final decision of the Secretary of Health and Human Services denying plaintiff's claim for supplemental security income benefits under the Social Security Act, as amended, 42 U.S.C. § 1381 et seq. Jurisdiction of this court is pursuant to 42 U.S.C. § 1383(c), which incorporates § 205(g) of the Social Security Act, 42 U.S.C. § 405(g...
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MEMORANDUM Plaintiff, a former inmate at the Farmington Correctional Center, filed this action against defendants pursuant to 42 U.S.C. § 1983. Defendant David Young is a probation and parole officer. Defendant William Smull is Young’s unit supervisor. Defendant Cranston Mitchell is the chairman of the Missouri Board of Probation and Parole.1 Plaintiff alleges that his constitutional rights under ...
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OPINION AND ORDER This action, brought under 42 U.S.C. section 1983, challenges the legality of a contempt order issued by defendant Joyce A. Pagán-Nieves, who at all times pertinent to this case was serving as a District Court Judge for the Commonwealth of Puerto Rico. Ms. Pagán-Nieves has moved for dismissal on the grounds that she is entitled to absolute immunity from damages for acts perfor...
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MEMORANDUM AND ORDER This is an employment discrimination case. Plaintiff Mary Lou Pakledinaz (Pak-ledinaz) filed this action in Wayne County, Michigan, Circuit Court, claiming that she was denied promotions and better job positions by defendant Consolidated Rail Corporation (Conrail) because she is a hispanic woman, in violation of the Federal Employers’ Liability Act (FELA), 45 U.S.C. §...
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RULINGS OF LAW, FINDINGS OF FACT AND ORDER FOR PRELIMINARY INJUNCTION Suffolk Construction Company filed this action for damages and preliminary injunctive relief against two unions for alleged unfair labor practices. Suffolk is building a new jail in Dedham, Massachusetts. It is an open shop, employing both union and nonunion workers. The defendant unions have no labor contracts with Suf...
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MEMORANDUM In this “lender liability” suit, the plaintiffs allege that the defendants, First National Bank in Great Bend (First National or Bank) and Thomas Burcham, the bank’s Chief Operating Officer, wrongfully instituted collection actions, forcing plaintiffs into bankruptcy. Plaintiff Mack Sanders is a businessman who at all times material to the suit either owned or controlled five c...
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OPINION AND ORDER Cándido López Carrillo, the plaintiff in this case, was removed from his position as Civil Defense Director of the Municipality of Culebra by order of defendant Anastacio Soto Ayala, Culebra’s mayor. Mr. López seeks reinstatement1 under 42 U.S.C. section 1983, alleging the decision to remove him was politically motivated and violative of his substantive and procedural rights unde...
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MEMORANDUM AND ORDER Plaintiff James Earl, a 66 year-old former tugboat deck hand, brings an action against his employer under the Jones Act, 46 U.S.C.App. § 688, and general maritime law for injuries suffered as a result of two separate accidents in 1984. As a consequence of his injuries he claims he was forced to retire on May 16, 1985, approximately a month before turning 62. He claims...
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DISCOVERY ORDER Plaintiffs’ Motion for Protective Order and Defendants’ Counter-Motion for Production of Documents came on for hearing on May 18, 1990. J. Suzanne Siebert appeared on behalf of plaintiffs, and Ernest M. Anderson appeared on behalf of defendants. After having considered the memoranda submitted in support of and in opposition to this motion, and having heard the argument of counsel ...
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OPINION AND ORDER This case is before us on a motion to dismiss submitted by defendants Miguel A. Lin, Daniel Hernández Sánchez, Félix M. Ortiz Figueroa and Mercedes Otero de Ramos. Their motion responded to a complaint filed by plaintiff Francisco Ortiz González alleging that his transfer from El Zarzal penal camp to the Humacao Regional jail deprived him of his civil rights in violation of 42 U....
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OPINION AND ORDER The matter pends before the court on defendant’s August 11, 1988, motion to dismiss and plaintiffs’ belated opposition thereto. Once before we have treated defendant’s motion to dismiss as one for summary judgment and will do so again today. See Candelaria Cuello-Suárez v. Autoridad de Energía Eléctrica de Puerto Rico, No. 88-133, 1989 WL 5863 (D.P.R. Jan. 20,...
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736 F.Supp. 1527 (1990) Norris L. ROBERTS, et al., Plaintiffs, v. WALMART STORES, INC., Defendant. No. 89-2279-C-5. United States District Court, E.D. Missouri, E.D. May 22, 1990. Louis Gilden and Charles Oldham, St. Louis, Mo., for plaintiffs. James E. Whaley, Brown, James & Rabbitt, St. Louis, Mo., for defendant Walmart Stores. *1528 MEMORANDUM LIMBAUGH, District Judge. Plaintiffs are bla...
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OPINION In July of 1989, the Maryland Department of Human Resources filed a complaint challenging defendants’ use of Program Instruction No. 82-06 (PI 82-06) as arbitrary and capricious. Defendants filed a motion for judgment on the pleadings and for dismissal. Plaintiffs filed a cross-motion for judgment, asking this Court to invalidate PI 82-06, to remand for further proceedings, and to award...
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*795 MEMORANDUM DECISION Plaintiff Harry J. Diduck brought this action to recover monies allegedly owed to certain union employee benefit funds of which Diduck is a beneficiary. Defendants Trump-Equitable Fifth Avenue Company, the Trump Organization, Inc., Donald J. Trump, Donald J. Trump d/b/a The Trump Organization, and the Equitable Life Assurance Society of the United States ...
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS This most unusual habeas corpus case comes before the Court on remand from the United States Court of Appeals for the Eleventh Circuit. 1 Subsequent to the judgment of the Court of Appeals, Petitioner filed a Motion to Amend Petition for Writ of Habeas Corpus, and Respondent filed a Motion to Dismiss. These motions were referred to United State...
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OPINION AND ORDER This is a negligence action, with jurisdiction based on diversity of citizenship. Defendant has moved before the Court to obtain an order compelling discovery of certain materials, and for sanctions pursuant to Fed.R.Civ.P. 37. For the reasons stated below, defendant’s motion for an order compelling discovery is granted, and its motion for sanctions is denied at this time. Furth...
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ORDER Petitioner Douglas Rubins, an inmate incarcerated at the Territorial Correctional Facility in Canon City, Colorado, has filed this action pursuant to 42 U.S.C. § 1985(3) alleging violations of his Eighth Amendment right to be free from cruel and unusual punishment. This case was assigned to Magistrate Abram who reviewed the matter and prepared a recommendation pursuant to Local Rule 605. ...
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MEMORANDUM OPINION AND ORDER The New York City Civil Rights Coalition (NYCCRC) moves to compel discovery in order to explore its concern that defendants may have violated the Guidelines forming a part of the Stipulation of Settlement of this litigation. Handschu v. Special Services Division, 605 F.Supp. 1384 (S.D.N.Y.1985), aff'd, 787 F.2d 828 (2d Cir. 1986). Defendants resist any discovery. They ...
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MEMORANDUM OPINION AND ORDER On January 26, 1990, the twelve defendants in this case were indicted in the District of Colorado on fifty-three counts of criminal wrongdoing, including conspiracy, mail fraud, “pension kickback”, “embezzlement from pension and profit sharing plans”, and bankruptcy fraud. After denying defendants’ motions to declare the case complex in an Order entered March ...
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MEMORANDUM AND ORDER Defendant Ruben Ceballos pleaded guilty to one count of an indictment charging him with possession of cocaine with intent to distribute. 21 U.S.C. § 841(a)(1). Under the Sentencing Reform Act of 1984, defendant’s offense level was determined to be 20 points; the sentencing guidelines suggest a sentence of 33 to 41 months. For the reasons stated below, the court departs down...
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MEMORANDUM DECISION ORDER In this diversity action, plaintiff Gould Investors, L.P. (“Gould”), sued defendant, The General Insurance Company of Trieste and Venice (“General Insurance”), for an alleged breach of an insurance contract. Defendant now moves for summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. Factual Background T...
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MEMORANDUM OPINION The case is before the court on the defendants’ motion to dismiss for lack of person *926 al jurisdiction, or in the alternative, to transfer venue. The court has subject matter jurisdiction of the case pursuant to 28 U.S.C. § 1332. PROCEDURAL BACKGROUND This action stems from a dispute over the financing of mining equipment between the plaintiff,...
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OPINION AND ORDER Before the court is Sauveur Termorius’ pro se motion under Fed.R.Crim.P. 35(a) for correction of sentence. Termorius, a resident alien from Haiti, was arrested on October 20, 1987 and charged with possession with intent to distribute approximately two thousand seven hundred and twenty-seven (2,727) grams of cocaine in violation of 21 U.S.C. section 841(a)(1). After entering a gui...
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OPINION AND ORDER This is a diversity action involving the extent, if any, of the liability of defendant Aetna Casualty and Surety Company (“Aetna”) to plaintiff Ethicon, Inc. (“Ethi-con”), under insurance policies issued by Aetna. Ethicon seeks indemnification for moneys paid in satisfaction of an $18,900,-000 judgment rendered against it in an antitrust action entitled Handgards, ...
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MEMORANDUM OPINION Plaintiff filed this amended complaint under the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.), having previously pursued *39 his administrative appeals. Plaintiff’s decedent, Karen S. Quesinberry, obtained personal accident insurance through her employer, Citicorp Acceptance Corporation. Mrs. Quesinberry was ...
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OPINION Plaintiffs Ellen, Lyle, and Lowell De-frees bring this action under the Federal Tort Claims Act alleging that defendant United States Forest Service negligently failed to suppress a forest fire that damaged their property. The parties agreed to bifurcate trial of liability and damages. The liability phase was tried to the court on March 27 and 28, 1990. I find that defendant is no...
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MEMORANDUM OPINION Introduction In this declaratory judgment action, Media General Cable of Fairfax, Inc. (“Media General”), a cable television franchisee, seeks a declaration that Section 621(a)(2) of the Cable Communications Policy Act of 1984, 47 U.S.C. § 541(a)(2) (the “Act”), entitles it to install its cable wires in compatible easements on the Sequoyah Condominium’s (“Sequo...
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MEMORANDUM AND ORDER Defendant Sharir, under indictment herein, is accused of having directed a money laundering scheme involving hundreds of millions of dollars from drug dealing. He moves for the release of approximately $2 million in cash, goods and real property, some of which the Government first seized in companion civil cases, before trial, as the fruit of criminal conduct, 1...
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ORDER This is a dispute over the meaning of one provision of an accident and sickness disability insurance policy issued to the plaintiff on April 13, 1978, by defendant Time Insurance Company. As amended by a rider attached to the policy, the provision in dispute provides: RELATION OF EARNINGS TO INSURANCE: If the total monthly amount of loss of time benefits promised for the same loss und...
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MEMORANDUM AND ORDER The parties to this action have consented to proceed before a United States Magistrate pursuant to 28 U.S.C. § 636(c). Two motions are currently pending: the plaintiff’s motion for a preliminary injunction and the defendant’s motion to disqualify plaintiff’s counsel. 1 For the reasons that follow, the plaintiff’s motion is granted and the defendant’s motion...
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*281 MEMORANDUM OPINION AND ORDER This matter is before the court on plaintiffs motion to vacate a judgment of dismissal with prejudice and for leave to file a fourth amended complaint. Initially, there is a disagreement between the parties as to whether plaintiff filed a timely motion to vacate the judgment. 1 As plaintiff points out in his brief, this court, by inadvertence, failed to c...
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OPINION AND ORDER Plaintiff Marion T. Gabarczyk brought this action against defendants the Board of Education of the City School District of Poughkeepsie (“the Board”) and the Poughkeepsie Public School Teachers Association (“PPSTA”), alleging that defendants discriminated against her on the basis of her age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA” or “Act”...
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736 F. Supp. 744 (1990) Robert E. PARTLOW and Delores Partlow, Plaintiffs, v. JONES MOTOR CO., INC. and Rickey Nelson Davis, Defendants. No. 90-CV-70747-DT. United States District Court, E.D. Michigan, S.D. April 27, 1990. *745 Michael Bowman, Southfield, Mich., for plaintiffs. James R. Stegman, Southfield, Mich., for defendants. OPINION AND ORDER DENYING PLAINTIFFS' MOTION TO REMAND DUGGAN, Dis...
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ORDER This matter is before the court on defendant’s motion to dismiss plaintiff’s complaint or alternatively to transfer it to a different district. Based on the briefs and arguments of counsel, and the record, file and proceedings herein, defendant’s motion to dismiss will be denied and defendant’s motion to transfer this action to the Northern District of Illinois under both 28 U.S.C. §§ 140...
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MEMORANDUM OPINION Plaintiff in this action is a Sergeant with the Virginia State Police. He alleges that *922his transfer from a duty station in Char-lottesville to one in Richmond, as well as the handling of his grievance of that action, violated his constitutional rights. Defendant has moved to dismiss this action under Fed.R.Civ.P. 12(b)(1), arguing that the court lacks subject matter jurisdic...
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OPINION AND ORDER The Bankruptcy Court, in its August 24, 1989 order [“Order”], determined Comfi-nance’s offer [“Offer”] to purchase assets of the De Laurentiis Entertainment Group, Inc. [“DEG”] to be a competing offer. The Bankruptcy Court also ordered Comfinance to deliver $35 million, in trust, to the Official Committee of Creditors Holding Unsecured Claims of De Laurentiis Entertainment Group,...
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OPINION AND ORDER This cause is before the Court on cross motions of plaintiffs, Equal Employment Opportunity Commission (“EEOC”), Larry A. Dirr (“Dirr”), and defendant, Patrick Henry Education Association, et al., (“PHEA”), for summary judgment, the opposition and replies thereto. Jurisdiction is based upon 42 U.S.C. § 2000e. For the following reasons defendant’s motion is well taken and the s...
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ORDER Following her termination, plaintiff Edel-gard Haussmann filed this § 1983 action against the Chicago Board of Education (the “School Board”). Haussmann contends that she was terminated without notice and a hearing, in violation of her due process rights. Seeking reinstatement to her former teaching position, Haussmann filed a motion for a preliminary injunction on February 27, 1990...
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BACKGROUND Plaintiff Westwood Pharmaceuticals, Inc. (“Westwood”), claims that defendant National Fuel Gas Distribution Corporation (“National Fuel”) is liable for Westwood’s past and future response costs associated with the release of hazardous substances on a parcel of land in Buffalo, New York, purchased by Westwood from National Fuel’s predecessor in interest, Iroquois Gas Corporation ...
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OPINION On April 23, 1990, this Court heard oral argument on the motion of all defendants’ for suppression of certain wiretap evidence on the ground that the Government had failed to satisfy the sealing requirements of 18 U.S.C. § 2518(8)(a). 1 At that point, pursuant to binding precedent in this Circuit, the Court denied the motion with the proviso that defendants might reassert their applic...
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MEMORANDUM DECISION The Court has before it defendants’ motions for summary judgment. The Court has heard oral argument and the motions have been fully briefed. The Court must determine if there are any genuine issues of material fact. See Fed.R.Civ.P. 56(c). In this product liability action, the plaintiffs claim that their child’s birth defects were caused by the mother’s...
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OPINION BACKGROUND Summary of Pacts Eastport Associates (“Eastport”) is a California limited partnership, currently in Chapter 11 bankruptcy, which owns approximately 1,500 acres of undeveloped land in the Santa Monica Mountains area of Los Angeles. In June, 1978, the City of Los Angeles (“the City”) approved a change of zone, Ordinance No. 151,208, to permit a 500-unit sub...
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Before the court are several motions by defendant George R. Madden, Jr. (“Madden”) brought pursuant to Fed.R.Civ.P. 56. These motions include three motions for summary judgment and three motions for partial summary judgment. The motions for summary judgment are based upon Madden’s assertions that 1) plaintiff fails to state a claim; 2) plaintiff made an illegal loan; and 3) plaintiff has failed...
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ORDER THIS MATTER is before the Court on Defendant’s Motion, filed May 7, 1990, for bond pending appeal. On August 15, 1989, Defendant was indicted for conspiracy to possess with intent to distribute in excess of 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Defendant entered a guilty plea on March 26, 1990 which reserved Defendant’s right to appeal the denial of a mot...
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*1105 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS WRONGFUL TERMINATION CLAIMS INTRODUCTION Defendant F.W. Woolworth (“Woolworth”) has brought a motion to dismiss plaintiffs wrongful termination claims. Defendant Dennis Souza (“Souza”) joins in Woolworth’s motion. Defendants bring this motion to dismiss on two grounds: (1) plaintiff’s claim for breach of the duty of good fai...
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736 F. Supp. 1042 (1990) Glenn D. BLACK, Plaintiff, v. Alan B. GOODMAN; William J. Tietz; Carrol Krause, Commissioner of Higher Education; Montana State University; and State of Montana, Defendants. No. CV-89-065-BU. United States District Court, D. Montana, Butte Division. April 10, 1990. *1043 Douglas D. Harris, Snavely & Phillips, Missoula, Mont., Peter Michael Meloy, The Meloy Law Firm, H...
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MEMORANDUM ORDER Defendant was arrested on June 23, 1987, and later was charged in a one-count indictment with the possession of cocaine with the intent to distribute it. Background After a District of Columbia attorney was appointed to represent defendant following his arrest, an appearance was entered on defendant’s behalf by Allen N. Brunwasser, a member of the Pennsylvania bar (but not of th...
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ORDER AFFIRMING MAGISTRATE CONKLIN’S ORDER DENYING PLAINTIFF’S MOTION TO AMEND COMPLAINT AND DENYING DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S JURY DEMAND INTRODUCTION The issue before this court is whether plaintiff has a right to a jury trial where the plaintiff has asserted admiralty and maritime claims in rem as well as a claim under the Jones Act, 46 U.S.C.App. § 688. ...
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MEMORANDUM AND ORDER The petitioner, Dan Nichols, challenges the judgment of conviction entered against him upon a trial by jury in the District Court of the Fifth Judicial District of the State of Montana for the criminal offenses of kidnapping and misdemeanor assault. See State v. Nichols, 222 Mont. 71, 720 P.2d 1157 (1986). Nichols was sentenced to a term of imprisonment of twenty years an...
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*680 MEMORANDUM AND ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION In this action Plaintiffs seek both a preliminary and a permanent injunction requiring Defendant to produce certain information pertinent to a determination of Plaintiffs’ withdrawal liability following their withdrawal from the pension fund. 1 Plaintiffs also seek an extension of ...
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Plaintiff Elby Williams filed the above styled complaint alleging that defendants deprived him of his rights in violation of 42 U.S.C. § 1983 and the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States. All the defendants answered plaintiff’s charges and then a motion for summary judgment was filed on behalf of defendants City of Albany, Nicholas Meiszer, Norman Denne...
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*1176 MEMORANDUM OF DECISION AND ORDER Plaintiff brought this action seeking a declaratory judgment that it did not infringe certain patents held by Defendant and that it has not misappropriated any of Defendant’s trade secrets. Defendant counterclaimed, alleging patent infringement and misappropriation of trade secrets. Plaintiff subsequently moved to dismiss the patent infringe...
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MEMORANDUM OPINION AND ORDER Petitioner Certified Grocers Midwest Inc. (“Certified”) has filed a petition to compel enforcement of two subpoenas duces tecum issued during the course of a grievance arbitration. The subpoenas seek the disclosure of certain patient records maintained at St. Joseph Medical Center in Joliet, Illinois. More precisely, the subpoenas seek the disclosure of inform...
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ORDER After plaintiff initiated this age discrimination suit, the Equal Employment Opportunity Commission (“EEOC”) commenced a separate action on behalf of plaintiff. Arguing that plaintiff's cause of action is preempted by the EEOC suit, defendants have moved to dismiss plaintiff’s complaint. Defendants also argue that certain claims are barred by the applicable statute of limitations. F...
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MEMORANDUM OPINION AND ORDER I. BACKGROUND FACTS Lawline is a non-incorporated association of lawyers, paralegals and laypersons founded in 1978 by plaintiff Thomas O’Con-nell Holstein, an Illinois attorney. According to plaintiffs’ voluminous complaint 1 the purposes of Lawline are fourfold: (1) to use law students, paralegals, and lawyers to answer the legal questio...
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MEMORANDUM OF DECISION AND ORDER GRANTING PLAINTIFF’S CLAIM OF AGE DISCRIMINATION Plaintiff filed suit with this Court pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq.1, alleging that his discharge from a position with the Federal Aviation Administration (FAA) was the result of age discrimination. Defendant maintains that the FAA did not discriminate against P...
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OPINION This matter is before the Court on plaintiffs’ motion for a two-part preliminary injunction (1) requiring defendant to fund the construction of the Redwood Center, and (2) prohibiting Riggs from commencing foreclosure proceedings against the Redwood Center Limited Partnership’s (“Partnership”) interest in the Redwood Center, or legal action against plaintiff Leapley or his wife under certa...
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MEMORANDUM ORDER This matter is before the Court on defendant’s motion to dismiss the case for lack of prosecution. Upon consideration of the motion, plaintiff’s opposition thereto, and the entire record herein, the Court grants defendant’s motion. Background The case was commenced with the filing of the complaint on May 6, 1985, and, despite its relatively simple nature, it has had *13a histor...
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OPINION This matter is before the Court on three intertwined motions for reconsideration of three of Magistrate Dwyer’s discovery rulings. Defendant Commonwealth Land Title Insurance Company (Commonwealth) appeals Magistrate Dwyer’s Order filed August 18,1987, granting in part and denying in part plaintiff’s motion to compel production of documents. Plaintiff Federal Savings and Loan Insurance Co...
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MEMORANDUM AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION TO AMEND Plaintiff in this action was employed in Maine by Adjuster’s Auto Rental, Inc. and was issued health insurance under a group insurance plan issued by Defendant Trans-america.1 While covered by this plan, Plaintiff was seriously injured in an accident. After the accident, Plaintiff’s employ...
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MEMORANDUM ORDER This matter is before the Court on defendants’ motion to dismiss or in the alternative for summary judgment. For the reasons set forth below, defendants’ motion is granted. On August 31, 1986, plaintiff, a prisoner then housed at the District of Columbia Central Detention Facility (D.C. Jail), was involved in an incident in which a group of inmates were throwing lighted paper...
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MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO CORRECT AN INACCURATE PRESENTENCE REPORT AT SENTENCING The above-entitled matters are before the Court on papers entitled “Motion Pursuant to Title 18, U.S.C. Rule 32(c)(3)(D), Federal Rules of Criminal Procedure, to Correct an Inaccurate Presentence Report at Sentencing,” and supporting papers, which have been sent by mail to Judge Conrad ...
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AMENDED OPINION AND ORDER Petitioner Brian Gittens petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises the following four grounds for habeas corpus relief: (1) the trial court improperly amended the indictment in its charge to the jury; (2) the trial court improperly denied the jury’s request to have testimony read back; (3) ineffective assistance of trial counse...
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MEMORANDUM AND ORDER These consolidated personal injury actions have their genesis in a vehicular mishap which occurred on U.S. Highway No. 89, at a location within the exterior boundaries of the Blackfeet Indian Reservation, Montana. Both actions were initially instituted in the district court of the State of Montana. Approximately two and one-half years after the actions were filed in state c...
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MEMORANDUM OPINION AND ORDER Larry Barry (“Barry”) has just filed a Ped.R.Crim.P. (“Rule”) 35(a) motion for the correction of what he characterizes as an illegal sentence imposed on him by this Court September 7, 1988.1 For the reasons stated in this memorandum opinion and order, Barry’s motion (considered as a motion to correct and not simply to vacate the challenged portion of his sentence) is ...
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OPINION AND ORDER Defendants Lotus Development Corporation, Ashton-Tate Inc., Borland International, Inc., Computer Associates International, Inc., Microsoft Corporation and Informix Software, Inc. move to dismiss the complaint of plaintiff Refac Internationa] Ltd. (“REFAC”) pursuant to Fed.R.Civ.P. 12(b)(7) for failure to join a necessary party —namely, FRS, Forward Reference Systems Ltd., the 95...
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OPINION This case is a sad one. Carol MacGui-neas (MacGuineas), a talented journalist, developed nodular sclerosing Hodgkin’s disease in 1984. She was treated for the disease with both radiation and chemotherapy. She agreed to the placement of a Port-A-Cath in order to facilitate the chemotherapy. During the operation in which the Port-A-Cath was being placed, her left innominate vein was...
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TABLE OF CONTENTS I. BACKGROUND. »c] A. Procedural History of the Case. «ci B. The Administrative Review Process. —ci II. DISCUSSION. —d A. Statute of Limitations. -ci B. Non-acquiescence. —ci 1. What Constitutes Non-acquiescence. 2. The Legality of Non-acquiescence. 3. Non-acquiescence in Second Circuit Precedent —ci a. Standing to Challenge Si...
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OPINION RELIEF SOUGHT Defendant Airtemp Corporation (“Air-temp”) moves for summary judgment pursuant to Fed.R.Civ.P. 56(b) dismissing the amended complaint of plaintiff H. Sand & Co. Inc. (Sand) on the grounds that: (a) plaintiff Sand did not initiate litigation until more than four years after tender of delivery of the goods and thus, under New York Uniform Commercial Code (U.C.C.) ...
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*127OPINION AND ORDER Petitioner Jerry McGee moves pro se pursuant to 28 U.S.C. § 2255 to vacate his guilty plea with respect to Count One of the superceding indictment because it was accepted without factual basis therefor or to resentence him to concurrent terms of imprisonment because the imposition of consecutive sentences imposed on Counts One and Two was illegal. McGee further seeks an evide...
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OPINION AND ORDER This matter comes before the court upon the defendant’s motion to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b), and for sanctions, pursuant to Fed.R.Civ.P. 11. For the reasons given below, after a conference with counsel, we shall grant the defendant’s motion as it pertains to dismissal of the complaint and we shall deny it as it pertains to the imposition of sanctions....
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OPINION AND ORDER This is a diversity action sounding in tort and breach of contract brought by plaintiffs, Jesús Dávila-Fermín, Cristina Dávila, and the conjugal partnership constituted between them, against defendant Southeast Bank, N.A. The matter is now before us on the report and recommendation of the U.S. Magistrate (docket entry 10) and the objections and reply to objections filed theret...
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OPINION AND ORDER This matter comes before the Court on plaintiff counsel’s motion for counsel fees and costs pursuant to 42 U.S.C. § 1988 and Fed.R.Civ.P. 68. Defendant’s counsel opposes the fee petition and has also filed a motion for relief from judgment, pursuant to Fed.R.Civ.P. 60, claiming that a settlement agreed to by the parties'precludes the Court from awarding counsel fees. The history...
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MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION Plaintiff 8600 Associates, Ltd. owns the Bel Air Centre, a shopping center in the City of Detroit. Bel Air is the first major shopping center built in Detroit in a number of years. Defendant Wearguard is a national chain of retail stores selling work clothing and uniforms. Defendant currently operates nine...
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DECISION AND ORDER INTRODUCTION Plaintiff Securities and Exchange Commission (the “Commission” or the “SEC”) commenced this action March 29, 1990, with the filing of a complaint alleging various violations of the federal securities laws against the defendants, Thomas James Associates, Inc. (“TJA”), Brian S. Thomas (“Thomas”), James A. Villa (“Villa”), George Salloum (“Salloum”), and ...
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OPINION ON PENDING MOTIONS These consolidated actions arise from the so-called Diamond Mortgage Corporation/ A.J. Obie and Associates (Diamond/ Obie) mortgage-backed securities *76 fraud. The general background of this litigation is set forth in Mercer v. Jaffe, Snider, Raitt and Heuer, P.C., 713 F.Supp. 1019 (W.D.Mich.1989) and Stone v. Mehl-berg, 728 F...
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MEMORANDUM AND ORDER This cause is before the court on two motions: defendant Terry Miller’s motion for partial summary judgment and plaintiff United States’ motion for summary judgment. At a telephonic hearing held on these motions on May 9, 1990, counsel for the United States informed the court that Mr. Miller had paid those tax liabilities assessed by the Internal Revenue Service, thus renderi...
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MEMORANDUM OPINION AND ORDER This is an employment discrimination action alleging violations of Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. Presently before this Court is defendant’s motion to dismiss plaintiffs § 1981 claim pursuant to Fed.R.Civ.P. 12(b)(6). Background The plaintiff Lawrence Otubu, a black male, is a c...
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OPINION AND ORDER Petitioner, a state prisoner, brings this action for a writ of habeas corpus under the provisions of 28 U.S.C. § 2254. This matter is before the Court on the petition, respondent’s return of writ, the trial transcripts in State of Ohio v. Tourlakis, No. CR-2-01520 (Cuyahoga Cty. Com.Pl.), petitioner’s traverse 1 and the briefs and exhib *1129...
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OPINION AND ORDER Raw sewage from the Sherwood Village development in Portsmouth, Rhode Island, has been pouring into the Sakonnet River since at least 1969. This has not been a secret; the stretch of river near the development has been closed for twenty years to shellfishing and swimming due to the sewage; the state has issued orders to stop polluting that have gone unheeded and unenforced; a ...
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OPINION & ORDER BACKGROUND Plaintiff The Ravenswood Group (“Ravenswood”) is a New York general partnership consisting of five individuals: W. Todd Parsons, Jonathan L. Parsons, Nicholas T. Parsons, Brook Parsons and Nathaniel T. Parsons. Ravenswood owned certain real property located in Framingham, Massachusetts. On July 9, 1987, Ravenswood entered into an exchange agreement with Dav...
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ORDER Before the court is the motion of defendant, Local Union No. 9, I.B.E.W. & Outside Contractors Health & Welfare Fund (the “Plan”), to dismiss the complaint of plaintiff, Belmont Community Hospital (the “Hospital”). For the following reasons, the motion is denied. On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This action was filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended, and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 623(a) and (d). Plaintiff, Jesse A. Edwards, claims that the defendant, United States Department of Interior, Minerals Management Service, failed to...
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MEMORANDUM AND ORDER In my Opinion and Order of April 6, 1989,1 set forth the travel of this case as it developed from my order of October 21, 1988 when Governor DiPrete and John J. Moran, Director of the Rhode Island Department of Corrections “were found to be in contempt of court for having failed to comply with certain provisions contained in standing orders of this Court regarding con...
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MEMORANDUM OF DECISION AND ORDER This matter is before the Magistrate1 for ruling on discovery issues pursuant to the Amended Order of Reference by the Honorable William C. Lee, of the District Court entered December 28, 1989. The parties appeared before the Magistate for a hearing on those discovery issues on January 10, 1990 and reported that though cooperative efforts, all issues outlined in t...
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OPINION ON MOTION FOR RECONSIDERATION Facts This is an employment case arising under state law. Plaintiffs initiated this action by filing a complaint in the Manistee County Circuit Court. The complaint alleged that plaintiff Jack Ball had been employed as a foreman by defendant Martin Marietta Magnesia Specialties, Inc. (Martin Marietta) from May 26, 1981, through the time of his layoff on Mar...
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OPINION In a Memorandum Decision filed May 24, 1988, this Court granted the motion of plaintiff Soap Opera Now, Inc. (“SONOW”) for a preliminary injunction requiring defendant Soap Opera Digest and its publisher Network Publishing Corporation (collectively, the “Digest”) to include plaintiffs advertisements in Soap Opera Digest. The parties subsequently completed discovery, and defendant ...
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MEMORANDUM This case is before the Court on motions by the plaintiff and the defendant. The plaintiff, John L. Kelly, originally brought this action against two individual defendants, Robert Stutman and Carlo Boccia, alleging tort claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80. In the complaint, Kelly asserted claims for defamation (counts two and three) and...
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MEMORANDUM OPINION Before the Court is the motion of third-party defendant, Sears, Roebuck and Co. (“Sears”), for summary judgment dismissing the cross-claim of Rowan Companies, Inc. (“Rowan”) for contribution to maintenance and cure. Prior to the trial, the plaintiff settled his seaman’s claims with Rowan and a “Mary Carter” agreement was confected between them. Rowan and the plaintiff t...
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OPINION Civil forfeiture. Not criminal. Pursuant to 21 U.S.C. § 881(a)(6), the United States has filed an ex parte Application for an order disclosing certain tax information pertaining to an individual not named in this suit. We simply lack any statutory authority upon which to enter such an order in these circumstances, and in fact the only statutory authority known to this Court prohibits any s...
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ORDER Plaintiff James D. Montgomery originally filed this case in state court against his former supervisor, Clifford Franklin, and his former employer, Kilsby-Roberts. But defendants removed the case to federal court, arguing that section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, provides the basis for federal jurisdiction. Montgomery now moves to remand the case to stat...
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AMENDED ORDER FOR PUBLICATION INTRODUCTION Defendants, the City of Milpitas (“the City”) and Milpitas Police Chief Frank Acosta (“Chief Acosta”) bring this motion to dismiss, or, alternatively, for summary judgment, based on their allegations that plaintiffs have not stated actionable claims under 42 U.S.C. §§ 1981 and 1983, and that the evidence demonstrates that neither the City nor Chief A...
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738 F.Supp. 917 (1990) Evelyn M. FELTY v. CONAWAY PROCESSING EQUIPMENT CO., Linco Holland Engineering and Lindholst Company A/S. Civ. A. No. 89-4929. United States District Court, E.D. Pennsylvania. May 30, 1990. Mary Ann Knight, Philadelphia, Pa., for Evelyn M. Felty. Edward A. Greenberg, Philadelphia, Pa., for defendant Conaway. Joyce B. Klemmer, Atlanta, Ga., and John J. Murphy, III, Philadelp...
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MEMORANDUM and ORDER The plaintiff, Alexander M. Selkirk, Jr. (“Selkirk” or “plaintiff”), a former Assistant County Attorney for Suffolk County, filed this suit pursuant to 42 U.S.C. Section 1983 against the County of Suffolk (the “County”), Suffolk County Attorney E., Thomas Boyle (“Boyle”) and Deputy Suffolk County Attorney Meg O’Regan (“O’Regan”), seeking injunctive relief and monetary damag...
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MEMORANDUM On February 5, 1990, Crum and Forster, which was brought into this action as the uninsured/underinsured motorist carrier 1 *50 for Larry S. Soren, deceased, filed a motion for partial summary judgment (Docket Entry No. 28), seeking a declaration that its maximum liability in this action is limited to $13,000. Crum and Forster’s uninsured/underinsured mo...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on the Motion of the Defendants for Summary *195 Judgment pursuant to rule 56 of the Federal Rules of Civil Procedure. The Plaintiff has responded to the Motion, and the Court, having considered the Motion and response, together with memoranda of authorities and attachments thereto, makes the following findings of fa...
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MEMORANDUM Plaintiff, William H. Dawe, claims that he was fraudulently persuaded to invest in a failing limited partnership in some Texas real estate. According to plaintiff, several defendants prepared a private placement memorandum containing misleading information and omitting material information regarding the limited partnership. Plaintiff claims that he relied on this misleading mem...
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ORDER This action in negligence for the failure to maintain secure premises is before the court on defendant City of Atlanta’s motion for summary judgment, or in the alternative, motion for partial summary judgment pursuant to Fed.R.Civ.P. 56. I. STATEMENT OF FACTS On December 28, 1986, plaintiff Robert B. Stryker (plaintiff) flew into the William B. Hartsfield Atlanta International Airport (airpo...
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MEMORANDUM OPINION AND ORDER This matter is presently before us for decision following a bench trial we conducted on Counts II and III of the plaintiff’s complaint. 1 These claims were brought by an excess insurance carrier, Ranger Insurance Company (“Ranger”), against a primary carrier, Home Indemnity Company (“Home”), seeking to hold Home liable for allegedly acting negligent...
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MEMORANDUM OPINIOÑ AND ORDER The parties have filed cross-motions for partial summary judgment. Neither party has fully complied with the rules governing the making of motions in this court. The Federal Rules of Civil Procedure provide that a motion “shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” FRCP 7(b). The General Rules of this court...
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MEMORANDUM AND ORDER On March 29, 1989, following a trial encompassing several months, this court imposed significant civil penalties against the defendants for violations of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (“RCRA”), and entered a permanent injunction against the defendants’ operation of the hazardous waste disposal facility known as...
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MEMORANDUM OPINION AND ORDER Before me is Birtcher Electro Medical Systems, Inc. (formerly Bard Electro Medical Systems, Inc.) and The Birtcher Corporations’ (collectively Birtcher) Motion for Preliminary Injunction. In its complaint, Birtcher alleges that Beacon Laboratories, Inc. (Beacon) committed (1) patent infringement, (2) statutory and common law trademark infringement and (3) vari...
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MEMORANDUM This case is before the Court on the defendant’s motion for summary judgment. The plaintiff, Paula Hutton, is the mother of Brian Hutton, a minor, and they are both residents of New York.1 The defendant, Cape Foods, Inc. (“Cape Foods”), owns a Wendy’s restaurant in Hyannis, Massachusetts, where Hutton worked in the summer of 1989. This Court has proper diversity jurisdiction pursuant to...
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OPINION A question of recusal. Habeas corpus (28 U.S.C. § 2254). *60 We asked the parties to submit their views as to the propriety of recusal of the undersigned in this case. The question arises because the undersigned — while serving on the Appellate Court of Illinois— authored the opinion reversing Petitioner’s original conviction in this case, see P...
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ORDER THIS MATTER comes before the court on defendants’ Motion to Dismiss and/or for Transfer. Defendants contend that the United States Court of Claims has exclusive jurisdiction over this matter pursuant to 28 U.S.C. § 1491(a)(3). For reasons stated below, defendants’ motion is granted. 1. Background This action involves a pre-award government contract dispute. The contract is...
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MEMORANDUM OPINION AND ORDER Constantine John Gekas, Trustee of Met-L-Wood Corporation (“Debtor”) and the Official Creditors’ Committee appeal the August 15, 1989 order of Bankruptcy Judge David Coar. 103 B.R. 972. In this order, Judge Coar awarded an interim expense reimbursement of $53,532.38 to the debtor’s counsel, Towbin & Zazove (“T & Z”). For the reasons given below, we ...
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MEMORANDUM AND ORDER Pro se plaintiff James Edgin filed his original complaint in this cause on May 30, 1989 and filed an amended complaint on June 16, 1989. Mr. Edgin alleges a variety of constitutional violations occurring in connection with his arrest in Calumet City, Illinois, his transfer to Lake County, Indiana, and his criminal prosecution in Indiana. He brings his complaint pursuant to 42...
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AMENDED ORDER FOR PUBLICATION RE MOTIONS FOR J.N.O.V. OR FOR NEW TRIAL I. INTRODUCTION Plaintiffs in this action are the estate of Anton Ward, Anton Ward’s parents, his sisters, his putative spouse Delissa Ann Ward, and her daughter Sabrina Prior. Delissa Ann Ward and Anton Ward’s sisters were previously dismissed from this case and are not parties to the present motions. Defendants ...
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MEMORANDUM AND ORDER Plaintiff, Paul W. Martel, sues his former employer, Dean Witter Reynolds, Inc., for alleged age discrimination pursuant to 29 U.S.C. § 621 et seq. (1985 & Supp.1989), the Age Discrimination in Employment Act of 1967. He invokes the court’s pendent jurisdiction to allege analogous violations of the New York Human Rights Law, N.Y. Exec. Law § 290 et se...
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MEMORANDUM AND ORDER Following the entry of a temporary restraining order by this court, and an evi-dentiary hearing, plaintiff Industry City Associates (“Industry City”) seeks a preliminary injunction against defendant union (“Local 917”) under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), to prohibit strikes or work stoppages at its warehouse facilities in Bush Terminal, Br...
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MEMORANDUM OF OPINION This civil action was originally brought in the Circuit Court of Winston County, Alabama by the Alabama Department of Environmental Management, an agency of the State of Alabama. The Commission sought only injunctive relief and the collection of civil penalties against the defendants and based its claims entirely on provisions of state law. The defendants are a clay ...
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MEMORANDUM OPINION AND ORDER NATURE AND PROCEDURAL HISTORY The matter before the Court involves a petition for allowance of attorney's fees in this social security case. This is a case where the Secretary challenges the amount of the fee and not its entitlement. Claimant Tommy A. Goff filed a claim for disability insurance benefits under Title II of the Social Security Act (Act), 42 U.S.C. ...
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MEMORANDUM OPINION AND ORDER The issue in this appeal is whether two creditors of the debtor actually and reason *727 ably relied on financial statements supplied by the debtor in extending credit to him. The creditors, the Chrysler Credit Corporation and the American Motors Leasing Corporation, contend that the bankruptcy court erred in determining that they had not actually...
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738 F. Supp. 334 (1990) Theresa A. PEARCE, Plaintiff, v. RAPID CHECK COLLECTION, INC., Defendant. No. Civ. 89-5058. United States District Court, D. South Dakota, W.D. April 19, 1990. *335 Raymond Degeest, Rapid City, S.D., for plaintiff. Michael J. Williams, Rapid City, S.D., for defendant. MEMORANDUM OPINION BATTEY, District Judge. This case concerns alleged violations of the Fair Debt Collect...
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*722 MEMORANDUM OPINION AND ORDER The central issue in this appeal is whether the bankruptcy court was correct in giving preclusive effect to a state court judgment against the debtor, Constantine Tsamasfyros, in nondischargeability proceedings under § 523 of the Bankruptcy Code. In challenging the bankruptcy court’s ruling on summary judgment, Tsa-masfyros raises two grounds for reversal. Fi...
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Plaintiffs move for an award of reasonable attorney’s fees and costs against defendants pursuant to 42 U.S.C. § 1988 for services rendered in litigating this action from the spring of 1988 through the spring of 1989. In addition, plaintiffs seek attorney’s fees and costs against certain defendants and other individuals and organizations acting in concert with those defendants (collectively “respon...
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ORDER Plaintiff brings the instant action claiming that the defendant terminated his employment in violation of § 510 of the Employee Retirement Income Security Act (hereinafter “ERISA”), 29 U.S.C. § 1140. The case is currently before the Court on the defendant’s motion for summary judgment. For reasons expressed below, this motion will be granted. FACTS Plaintiff began employment with the accoun...
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115 B.R. 365 (1990) In re George CARAPELLA, Debtor. George A. CARAPELLA, Appellant, v. UNITED STATES of America, Appellee. No. 89-1232-CIV-T-17(C), Bankruptcy No. 86-4205-8P7. United States District Court, M.D. Florida, Tampa Division. May 22, 1990. B. Gray Gibbs, James A. Sheehan, St. Petersburg, Fla., for appellant. Hillary B. Burchuk, Dept. of Justice, Washington, D.C., for appellee. ORDER ON...
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ORDER Plaintiff, Realeo Enterprises, Inc. (“Real-eo”), brings the instant action alleging that the defendant securities brokerage company mishandled plaintiff’s account, in violation of both federal securities statutes and the common law of Georgia. The case is currently before the Court on the defendant’s motion to compel arbitration and dismiss the complaint. For reasons expressed below...
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ORDER Reliance Insurance Company (hereinafter “Reliance” or “the insurer”) brings this declaratory judgment action seeking to establish that it has no duty to defend or indemnify defendant, Povia-Ballantine Corporation, in suits brought against it by the above-named codefendants. The case is currently before the Court on the insurer’s motion for summary judgment. For reasons expressed below, th...
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OPINION This opinion resolves defendants’ renewed summary judgment motion arising out of the announcement of a proposed hostile tender offer for Phillips Petroleum (“Phillips”) led by Mesa Partners 1 (the “Partnership”). The Plaintiffs allege violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982) and Rule 10b-5, 17 C.F.R. § 240.10b~5 (1988...
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MEMORANDUM ORDER This matter is before the court on various trial and post-trial motions made by the defendants Arch A. Moore, Jr., former Governor of the State of West Virginia, A.V. Dodrill, former Commissioner of the West Virginia Department of Corrections, and Clarence M. White, former Warden of the Huttonsville Correctional Center. I. Background The Honorable Larry ...
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MEMORANDUM AND ORDER Three weeks after the plaintiff commenced this action, the defendants moved for a stay of the proceedings to allow the filing of their motion under Rule 11. The case is now before the court on the Rule 11 motion, in which the sanctions sought include dismissal of the complaint.1 The plaintiff maintains that the defendants filed their Rule 11 motion solely for purposes of dela...
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MEMORANDUM DECISION AND ORDER The plaintiffs brought this lawsuit on their own behalf and on behalf of similarly situated former members of the U.S. Navy and U.S. Marines challenging the defendant’s interpretation of the Laird Memoran-da which provide for recharacterization of those less than honorable discharges, issued prior to July 7, 1971, that were based solely on personal use or pos...
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ORDER William Kennedy (hereinafter “plaintiff” or “the insured”) brings the instant action seeking a declaratory judgment that the defendant insurance company has a duty to *512 defend and, if necessary, indemnify him in a pending tort action brought against plaintiff by one Earl Metcalf. The case is currently before the Court on the defendant’s motion for summary judgment. F...
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OPINION This action is two consolidated cases filed by plaintiff Eric Games against the United States Department of Education (“ED”) and United Student Aid Funds, Inc. (“USA Funds”), a guarantee agency participating in the federal Guaranteed Student Loan Program (also known as the Robert T. Stafford Student Loan Program). In Civil Action No. 88-516, Games alleges both ED and USA Fund...
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743 F. Supp. 6 (1990) Earlene LOFTON (Burt), Plaintiff, v. Ronald W. ROSKENS, Administrator U.S. Agency for International Development, Defendant. Civ. A. No. 87-3032. United States District Court, District of Columbia. May 30, 1990. *7 Diane Sullivan, Asst. U.S. Atty., Washington, D.C., for defendant. Richard Albright, Albright & Albright, Washington, D.C., for plaintiff. MEMORANDUM OF OPINI...
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MEMORANDUM OPINION This matter is before the Court on defendant Clarence Morris’ motion to suppress statements 1 and physical evidence. Defendant contends that certain statements he made and physical evidence that was seized from him must be suppressed because this evidence was the product of an unconstitutional seizure. The Government argues that the encounter between police o...
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MEMORANDUM OPINION AND ORDER Plaintiffs, Jimmy Dubose and Herman K. Atwood, brought these suits, now consolidated, under 42 U.S.C. § 1983 against defendants, various members of the Mississippi Motor Vehicle Commission (MMVC or Commission) and A1 East III, formerly commission chairman, for denying them a name-clearing hearing after discharging them from their jobs at the Commission. 1 Presentl...
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MEMORANDUM AND ORDER In the afternoon of April 30, 1990, following a one-day trial, the jury returned a verdict for the defendants in this suit under 42 U.S.C. § 1983. The defendants moved for entry of judgment on the verdict, and the court deferred ruling for the purpose of considering the propriety of other dispositions in light of the plaintiff’s conduct at trial. Plaintiff Robert Lee Thompson...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This matter is before the Court on motion of respondent, United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms (ATF) for summary judgment. Petitioner, Al’s Loan Office, Inc., has responded. Having fully reviewed all relevant matter, the Court will address respondent’s motion without entertaining oral argument. BAC...
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OPINION THE PARTIES The Plaintiffs (“Schools” or “Wilfred Academy”) are post-secondary educational institutions providing training in cosmetology. It is stipulated by the parties that the Plaintiffs provide quality education to their students, most of whom are members of socio-economically disadvantaged groups. Except for the Tampa School, each School is accredited exclusively by the...
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ORDER This is a declaratory judgment action in which plaintiff, Laverne Powers, seeks a declaration that defendant, United States of America, acting through the Farmers Home Administration, does not have a security interest in plaintiff’s 1989 crops. The issue is currently before the court on cross-motions for summary judgment. Because the requirements found in the South Carolina Code for...
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■ OPINION Plaintiff, Local 144, Hotel, Hospital, Nursing Home & Allied Service Union, SEIU, AFL-CIO (“Local 144”) and third-party defendants Frank A. McKinney (“McKinney”) and Peter Ottley (“Ottley”) (collectively, “M & 0”) have moved for an order dismissing defendant Marvin Nei-man’s (“Neiman”) Third-Party Complaint and Counterclaims, upon the grounds that the Third-Party Complaint is un...
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MEMORANDUM OPINION AND ORDER On March 7, 1990 plaintiff Kerr-McGee Chemical Corporation (“Kerr-McGee”) filed its Verified Complaint for Declaratory and Injunctive Relief in this case. One day later Kerr-McGee moved for a temporary restraining order (“TRO”) and for a preliminary injunction — the motions at issue here. I. BACKGROUND FACTS This dispute involves Kerr-McGee’s West Chicago Rare E...
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ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter comes before the court on defendant’s motion for summary judgment. Having reviewed the motion, together with all documents filed in support and in opposition, having heard oral argument and being fully advised, the court finds and rules as follows: I. BACKGROUND Burlington Northern Railroad (“BNRR”) has filed suit...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SANCTIONS AND DENYING PLAINTIFF’S CROSS-MOTION FOR ORDER OF CRIMINAL CONTEMPT THIS MATTER comes before the court on defendants’ motion for sanctions for violation of the court’s orders. Having reviewed the motion, together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows: I. FACTUAL BACKGROUN...
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MEMORANDUM AND ORDER The trial of this product liability action for wrongful death and personal injury resulted in a verdict for Mary Kreppein, the widow and personal representative of the estate of Gustave Kreppein, on January 18, 1990, against four asbestos products manufacturers, Owens-Illinois, Inc. (Owens-Illinois), United States Mineral Products Company (U.S. Mineral), Eagle-Picher ...
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OPINION AND ORDER This case arises under the diversity jurisdiction of this court. 28 U.S.C. § 1332. The plaintiff, Nolt & Nolt, Inc., is a Pennsylvania corporation with its principal place of business in Lancaster, Pennsylvania. The defendant, Rio Grande, Inc., is a New Jersey corporation with its principal place of business in Lindenwold, New Jersey. This case arises out of a contract w...
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MEMORANDUM OPINION AND ORDER Oxford Mall Corporation (OMC), a Texas partnership, brought this action against K & B Mississippi Corporation (K & B) seeking recovery of unpaid rent alleged to be owed by K & B pursuant to a lease agreement between OMC and K & B for the lease of space in the Oxford Mall shopping center located in Oxford, Mississippi. In its answer, K & B denied that rent was ...
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MEMORANDUM Robert Birrane has brought this action against The Master Collectors, Inc. and its president, James Bailey. Birrane asserts contract and tort claims arising from the termination of his employment with Master Collectors. Bailey has moved to dismiss for lack of personal jurisdiction, and both defendants have moved to dismiss all of the counts in the complaint for failure to state...
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ORDER Plaintiff brings the instant action seeking to recover from the defendants for intentional infliction of emotional distress. The case is presently before the Court on defendants’ motion to dismiss all claims that are based upon incidents which occurred prior to April 10, 1988. Defendants also move to strike paragraph nine of plaintiff’s complaint. For reasons expressed below, d...
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OPINION The Superseding Indictment (“Indictment”) in this case, which was filed on June 20, 1989, charges twenty-nine defendants with participating in a conspiracy to violate the narcotics laws of the United States. In addition, the Indictment charges certain defendants with other narcotics-related offenses, interstate travel in aid of racketeering, assault with intent to kill, murder, using an...
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OPINION Plaintiffs filed this § 1983 action on November 9, 1989 against the Sussex County Planning and Zoning Commission and the Sussex County Council, and the members thereof. Plaintiffs allege that the defendants’ approval of a conditional use of a parcel of land located near plaintiffs’ property violated plaintiffs’ constitutional rights. By stipulation of counsel, the Delaware Electri...
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OPINION This tax refund suit now comes before this Court after a long and tedious history. 1 Plaintiff Philadelphia & Reading Corporation (“P & R”) filed its complaint on November 22, 1983 to obtain a refund from the United States Internal Revenue Service (the “IRS”) of approximately $10.1 million of assessed taxes plus interest and penalties. 2 After disc...
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MEMORANDUM This is an appeal from the December 14, 1989 order of the bankruptcy court. 108 B.R. 59. European American Bank (EAB) filed a proof of claim (claim) against the debtors’ estate in the amount of $15,700,-818. The bankruptcy court held that EAB had no claim. EAB timely appealed that finding. Jurisdiction to hear an appeal from a bankruptcy court’s final judgment is found in 28 U....
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MEMORANDUM OPINION AND ORDER Plaintiff Joseph Tennes is a former employee of the Commonwealth of Massachusetts at the Chicago regional office of its Department of Revenue (“the Chicago office”). The Chicago office is primarily involved in conducting tax audits and insuring compliance with Massachusetts tax laws by out-of-state corporations doing business in Massachusetts. The Chicago offi...
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AMENDED ORDER GRANTING PARTIAL SUMMARY JUDGMENT THIS CAUSE came before the Court upon Defendant American Honda Motor Company’s motions to dismiss the complaint, 1 for partial summary judgment on Plaintiff's product liability claims, and for partial summary judgment on all negligence claims. 1. BACKGROUND Defendant American Honda Motor Company (“Honda”) is a distributo...
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MEMORANDUM OPINION This matter is before the Court on defendant Bertsfield Smithen’s motion to suppress physical evidence. Co-defendant John Hoffman filed a “motion to adopt” Smithen’s motion to suppress. This motion was granted by the Court. Accordingly, the Court treats the motion before it as a joint motion of the defendants to suppress. Defendants contend that the evidence seized from...
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MEMORANDUM OPINION I. BACKGROUND This matter is a Fair Labor Standards Act suit that arises out of a unique set of circumstances. During the Iran-Iraq war, the United States government permitted eleven Kuwaiti oil and liquefied gas tankers to be re-flagged with the American flag in order to gain the protection of American naval forces in the Persian Gulf. At the time of the re-flaggi...
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This matter concerns the conduct of plaintiffs attorney, Calvin C. Saunders, in representing plaintiff in 80 CY 2638, an appeal from a denial of disability insurance benefits (the “disability” claim), and in 83 CV 0237, an action seeking compensatory and punitive damages against defendant for alleged delay and mishandling of the earlier ease (the “damages” claim). Saunders was appointed from th...
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738 F. Supp. 466 (1990) Frank R. POTUCEK, an individual and ARCO Services, Inc., a Florida corporation, Plaintiffs, v. Charles L. TAYLOR, an individual, Taylor General Construction Co., Inc., a Florida corporation, R. David Gilmore, an individual, and William E. Kickliter, an individual, Defendants. No. 87-505-Civ-T-17A. United States District Court, M.D. Florida, Tampa Division. May 21, 1990. *4...
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ORDER This cause is before the Court on defendant Yamaha Motor Company, Ltd.’s (YMC JAPAN) motion to quash process and service of process, and plaintiffs’ response. Defendant alleges service was ineffective since it failed to meet the requirements of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention); 20 U.S.T. 361, T...
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OPINION This case is before the Court on defendant Michael Sandborn’s December 6, 1989 Motion to Reduce Sentence under Rule 35 of the Federal Rules of Criminal Procedure. The May 9, 1989 indictment in this case charged defendant Sanborn and another with conspiring to distribute and possession with intent to distribute heroin and cocaine in violation of 21 U.S.C. §§ 841, 846. Two other defendants ...
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MEMORANDUM OPINION AND ORDER At the end of the trial in this case brought under 42 U.S.C. § 1983 (“Section 1983”), the jury returned a verdict in favor of plaintiff Kirk Davis (“Davis”) on only a portion of his Section 1983 claims — that charging the individual defendants (Gregory Jones, Glenn Runge and John Theis) *1040with the unconstitutional denial of Davis’ access to adequate medical care. Fo...
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ORDER This matter is before the court on appeal from Bankruptcy Court Judge Gregory F. *175 Kishel’s order granting relief from an automatic stay dated July 22, 1988. Based on the briefs and arguments of counsel, and the record, file and proceedings herein, the bankruptcy court’s order will be affirmed. BACKGROUND On November 21,1985, Gibraltar Savings Association (...
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MEMORANDUM-DECISION AND ORDER The indictment returned in this case charged defendants Gary LaTray and Timothy DeMarc with robbing an armored truck facility in East Syracuse, New York on May 25, 1989. Specifically, they are alleged to have conspired to commit robbery by force and violence or intimidation; they are charged with the substantive crime of bank robbery by force and violence or intimida...
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MEMORANDUM This action arises out of an alleged breach of an insurance contract. After a fire which destroyed some of the plaintiffs’ heavy equipment, the plaintiffs sought compensation for the property loss from the defendant insurers. The defendants denied the claim, however, on the ground that the fire was intentionally set and on the ground that the plaintiffs had fraudulently overval...
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OPINION Presently before the court is plaintiff Leksi, Inc.’s motion for summary judgment as to the law to be applied to comprehensive general liability clauses (hereinafter “CGL” clauses) contained in policies issued by defendants. New Jersey law is more liberal in finding coverage than is the law of Pennsylvania, the place of the contract. 1 Consequently, Leksi, the insured, ...
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This is a criminal case in which pretrial matters have been referred to the undersigned for initial hearing and determination. Pending are motions by the defendants for discovery of materials relating to testing for purposes of DNA analysis of blood taken from one of the defendants (John Ray Bonds) for purposes of comparison with blood found in the vehicle of another of the defendants (Steven Wayn...
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ENTRY ON CHOICE OF LAW ISSUE This cause is before the Court on a choice of law issue. At the Court’s request, the parties filed additional briefs on this issue in light of two opinions handed down recently by the Indiana Supreme Court discussing the open and obvious danger rule. For the reasons set forth herein, the Court finds Indiana law should be applied in this cause. I. FACTUAL ...
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MEMORANDUM OPINION AND ORDER Defendants are charged with engaging in various illegal trading practices in the *1300 soybean pit of the Chicago Board of Trade. Before the Court are the motions of defendants Dempsey, Nowak, Bergstrom, Mittlestadt, and Fetchenhier to suppress certain statements made to the government. Hearings were held on each of the five motions. For the following reasons, the...
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MEMORANDUM OPINION and STATEMENT OF REASONS I. Findings of Fact The Court is called upon to sentence Tina Marie Floyd for a crime to which she has pleaded guilty. The crime took place subsequent to November 1, 1987, the date upon which the United States Sentencing Commission Guidelines (U.S.S.G.), promulgated pursuant to the Sentencing Reform Act of 1984, went into effect. On May 16, 1989...
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ORDER This cause is before the Court on Defendants’ motion for summary judgment, Plaintiff’s response thereto, and Defendants’ reply. I.Facts 1. Plaintiff William Hawkshead commenced probationary employment as an emergency medical services dispatcher with the Sarasota County Fire Department on February 8, 1988, after being interviewed by Defendant Michael Tobias. 2. Plaintiff did not consider hims...
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OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT This lawsuit involves claims of misappropriation of trade secrets, fraud and misrepresentation, and breach of fiduciary duty. This matter is before the Court on two separately filed Motions for Summary Judgment — one filed by Defendants Abatement Technologies, Inc., Haz-Mat Supply Company, Inc. and David Shaggot, and...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT This cause is before the Court on the following: Dkt. 103 Motion for Summary Judgment by Lincoln Defendants Dkt. 104 Memorandum in support Dkt. 109 Motion for Summary Judgment by Defendant Teachers Insurance Dkt. 110 Memorandum in support Dkt. 116 Request for oral argument by Defendants Dkt. 135 Opposition to Motion for S...
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*1530 MEMORANDUM AND ORDER Originally, the court was presented with motions for summary judgment on a wide variety of issues, filed on behalf of the 31 plaintiffs and defendant Vulcan Materials Company. Since that time, the “Fahnholz plaintiffs,” a group representing all but two of the plaintiffs, have reached a settlement agreement with the defendant and have dismissed with prej...
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ORDER OF REMAND THIS CAUSE came before the court upon Plaintiffs Emergency Motion for Remand, file dated May 8, 1990 (DE 4). Despite its emergency posture, all parties have been afforded opportunity to respond to the motion, and therefore this matter comes before the Court fully briefed. This action arises out of the January 25, 1990 crash of Avianca Flight 52, originating in Colombia and sch...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. FACTS & PROCEDURE The above-entitled action arises under the Fair Labor Standards Act of 1938 (FLSA), as amended (29 U.S.C. § 201 et seq.). Plaintiffs, Douglas and Anna Segali, former employees of the Idaho Youth Ranch, commenced this action on October *130320, 1987, principally for the purpose of recovering unpaid overtime compensation un...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT I. FACTS & PROCEDURE The above-entitled action arises out of a motor vehicle accident between an automobile driven by the plaintiffs’ decedent and a tractor-trailer driven by the defendant Stanley Dean Herrington. The accident occurred on May 25, 1988, on State Highway 5, near Plummer, Idaho (Benewah County), when Defendant Herrington’s tractor-trailer f...
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OPINION AND ORDER This matter is before the Court on the Defendant’s motion for a judgment of acquittal pursuant to FED.R.CRIM.P. 29 following the presentation and close of the Government’s proofs. For the reasons set forth below, the Court is of the opinion that the Defendant’s Motion must be GRANTED. I. FACTS The Defendant was indicted on two counts of perjury under 18 U.S.C. Section 1623(a). Th...
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MEMORANDUM AND ORDER The case comes before the court on the defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and the defendants Great Bend Internists’, P.A. and Alderson, Schuckman & Smith’s, P.A. motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), or in the alternative, for summary judgment pursuant to Fed.R. Civ.P. ...
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OPINION This case is now before the Court on third-party defendant E.I. DuPont de Nem-ours and Company’s September 7,1989 Motion to Dismiss. Also before me is a Motion to Dismiss filed on September 21, 1989 by third-party defendant Northwest Coating Corporation. In the principal action, the State of Michigan sued Arco Industries Corporation (“Arco”) under the Comprehensive Environmental R...
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ORDER DENYING MOTION FOR CLASS CERTIFICATION This case presently pends on defendants’ motion to deny class certification and plaintiff’s subsequently filed motion to grant certification of a class action. In addition to oral arguments held on March 22, 1990, the court has reviewed and considered the parties’ briefs submitted on the issue of class certification. For the reasons stated below, we fi...
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ORDER Before this Court is petitioner’s Petition For a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 filed on November 28, 1989. Petitioner’s Petition is based upon the following facts. Petitioner was arrested on December 17, 1987 in Carson City for driving while under the influence of an intoxicating liquor and for driving with .10 percent or more by weight of alcohol in his blood, both i...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The 1988 United States Senate race in Nevada between incumbent United States Senator Chic Hecht and Governor Richard Bryan provides the background for the case now before the Court. As the November 8, 1988, election drew near, various political action committees interceded with political advertisements on various campaign issues which tended to...
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This is an action by Kachal, Inc., (“Ka-chal”), a Nevada corporation, against Yuille Menzie and Christie Grasteit, residents of California. On November 22, 1988, the plaintiff filed a Complaint for Money Due in the Ninth Judicial District Court of the State of Nevada, in and for the County of Douglas. In December, 1988, defendant Grasteit’s petition for removal was granted, and the action was r...
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*210 MEMORANDUM OPINION AND ORDER This matter is before the Court upon the motion of defendant, Western Surety Company [“Western”], for judgment on the pleadings. The plaintiff has filed a response objecting to the motion to which the defendant has filed a reply. The motion concerns liability on a fidelity bond issued by Western. BACKGROUND The plaintiff originally brought this action aga...
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MEMORANDUM This action includes claims for alleged violations of the Federal Rehabilitation Act (Count I), due process (Count II), retaliatory conduct in violation of the First Amendment (Count III), retaliatory discharge under Pennsylvania law (Count IV), and intentional infliction of emotional distress (Count V). Plaintiffs claims in Counts I and II are premised on the assumptions ...
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OPINION I. Introduction This action is presently before this Court upon a motion by third-party defendant, First Atlantic Savings & Loan Ass’n, (“First Atlantic”), for a substitution of par *866 ties and for summary judgment on all counts of defendant/third-party plaintiffs, Thomas M. Tracey’s, (“Tracey’s”), third-party complaint. This suit was originally commenc...
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MEMORANDUM OPINION The parties to this action have entered its penultimate round. See Continental Cas. Co. v. Great American Ins. Co., 732 F.Supp. 929, 930-31 (N.D.Ill.1990) (“Continental Cas. II”) (describing Rounds One through Four). Before the court are two motions. One is from Great American Insurance Company for reconsideration of part of this court’s opinion of April 27, 1989, reported as C...
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MEMORANDUM The plaintiff has sued the defendants for the violation of various federal and state constitutional, statutory, and common-law duties, the violation of which stems from long-running spousal abuse which culminated in a shooting. Defendants Wilson Police Department (“Department”), Borough of Wilson (“Wilson”), and Richard D. Nace, the Chief of Police of the Borough of Wilson, hav...
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MEMORANDUM AND ORDER This case is currently before the Court on defendants’ motions for jury trial and for disqualification of Peper, Martin, Jensen, Maichel and Hetlage, (“Peper, Martin”) the law firm representing plaintiff. Because plaintiff does not oppose defendants’ demand for jury trial, the Court grants that motion. For the reasons more fully set forth below, the Court denies defendants’ mo...
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MEMORANDUM Plaintiff, Trans Pacific Insurance Company, seeks a preliminary injunction against defendant, Trans-Pacific Insurance Company, for trademark infringement and unfair competition under 15 U.S.C. § 1125(a), and for state common law unfair competition. An opportunity for hearing and oral argument was provided on May 9, 1990. The court now makes the following findings of fact and co...
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ORDER Plaintiffs James Sanderson and Musa Ann Sanderson commenced this action on behalf of themselves and their children, Denise Ann Sanderson and Stephanie Dee Sanderson (“the Sandersons”), for breach of contract seeking treble damages (First and Second Claims); for outrageous conduct (Third Claim); and for bad faith seeking punitive damages (Fourth, Fifth, and Seventh Claims). Defendant is Alls...
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MEMORANDUM DECISION AND ORDER This matter is before the court on defendant’s motion for partial summary judgment. Oral argument was held on May 23, 1990. Plaintiffs were represented by E. Craig Smay and defendant was represented by Steven P. Rowe. Prior to the argument, the parties had thoroughly briefed the motion, and the court had carefully read all of the materials filed for and again...
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OPINION I. INTRODUCTION This lawsuit had its genesis in the arrest of plaintiff William Ernst (“Ernst”) by officers of the Borough of Fort Lee on the evening of July 10, 1987. That evening, Ernst was driving with his wife, Lynette, also a plaintiff, when two police officers noted “suspicious materials” in Ernsts’ vehicle and radioed into headquarters for a license plate check. When they were ...
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MEMORANDUM AND ORDER PRIOR PROCEEDINGS A jury convicted defendant of RICO conspiracy, 18 U.S.C. § 1962(d); receiving illegal payments to influence the operations of employee benefit plans, 18 U.S.C. § 1954; conspiracy to defraud the United States, 18 U.S.C § 371; and attempted tax evasion, 26 U.S.C § 7201. Defendant appealed his conviction, arguing that, among other things, he was entitled to a h...
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*846 MEMORANDUM & ORDER This memorandum arises in response to pre-trial motions filed by defendants Santos Valerio, Jose Arias a/k/a “Miguel Flores” (hereinafter “Arias”) and joined by Jesus Reyes a/k/a “Antonio Manuel Lendof” (hereinafter “Reyes”) to compel certain discovery and suppress the introduction of a firearm (collectively, the “defendants”). This memorandum supplements ...
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OPINION AND ORDER Plaintiff CL-Alexanders Laing & Cruick-shank (“Alexanders”), a London investment banker, arranged for certain of its clients to purchase in Great Britain 2 million shares in Container Industries, Inc. (“Container” or “CU”), a Delaware corporation with its principal place of business in New Jersey. The purchase was part of a private placement in June 1986. Plaintiff hired...
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MEMORANDUM OPINION In an opinion dated March 2, 1990, 735 F.Supp. 69, the Court dismissed plaintiff Elaine Nurse’s §§ 1981, 1983 and ADEA claims. In addition, because Nurse had been unable to produce a right-to-sue letter issued by the Equal Employment Opportunity Commission (“EEOC”), the Court ruled that the Title VII claim would be dismissed as well unless Nurse could produce the letter within t...
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ORDER On this date the petitioners, Edwin and Doris Baal, filed a petition for writ of habe-as corpus pursuant to 28 U.S.C. § 2254. The petitioners, who are the parents of Thomas Baal, contend they are the “next friend” of the defendant, Thomas Baal. The court appointed the Federal Public Defender for the District of Nevada to represent the petitioners at the hearing before the court this date. Th...
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MEMORANDUM This matter is before the Court on Petitioner’s Motion for an evidentiary hearing on his habeas petition pursuant to 28 U.S.C. § 2254, and on Respondent’s Motion to Dismiss or for Summary Judgment pursuant to Fed.R.Civ.P. 12(b) and 56(b). The matters have been fully briefed and are ripe for disposition. Jurisdiction is based on 28 U.S.C. § 2254. Petitioner, an inmate in the Nottoway Sta...
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ORDER This matter is before the court on the plaintiff’s Motion to Strike Cross-Complaint/ Counterclaim, filed August 31, 1987, by the plaintiff-counterdefendant, Federal National Mortgage Association (hereinafter referred to as “FNMA”). The following motions are also before this court: The Motion to Dismiss, filed September 21, 1987, by FNMA; the Motion to Strike, filed September 22, 198...
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MEMORANDUM OPINION I. BACKGROUND John A. Ward and Lorraine M. Ward (“Ward”) brought this action under the *130 Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). Ward seeks damages for psychological and physical injuries caused by the allegedly “willful and outrageous” conduct of his employer, the United States Postal Service (“Postal Service”). Docket Item (“D.I.”) ...
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*640 RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS Andrew Sims, former City Engineer of the City of New London, Connecticut (the “City”), brings this action pursuant to 42 U.S.C. Section 1983 against the City and the members of the City Council (the “Council”) in their official capacities (count one). He has also brought suit against Council members Basilica, Massad, Nahas and O...
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MEMORANDUM On April 2, 1990, a federal magistrate issued an arrest warrant for the defendant, Charles Rodgers, on the charge of conspiracy to manufacture methamphetamine and phenyl-2-propanone in violation of 21 U.S.C. §§ 841(a)(1) and 846. Rodgers was placed in custody on April 4th. Two days later, the magistrate held a detention hearing and concluded that the defendant should be held without ba...
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REVISED ORDER MODIFYING IN PART PREVIOUS ORDER OF JULY 12, 1989 American Airlines, Inc. (“American”) filed a motion for modification of this court’s Memorandum Decision and Order of July 12, 1989, 717 F.Supp. 1454, insofar as it applies to AAdvantage awards used to obtain foreign travel. After the parties had a chance to brief the issue, the court heard oral argument on December 27,1989. American ...
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MEMORANDUM AND ORDER Before me is defendant’s motion to dismiss this diversity complaint for lack of in personam jurisdiction pursuant to Fed. R.Civ.P. Rule 12(b)(2). 1 Miekleburgh Machinery Co. Inc., a Pennsylvania citizen, alleges that Pacific Economic Development Co. (“PEDC”) breached a contract providing for an exclusive dealing relationship between the parties, ...
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MEMORANDUM AND ORDER This matter comes before the court on the motions of the United Auto Workers (“UAW”) and the General Motors Corporation (“GM”) for reconsideration of the April 80, 1990 memorandum and order entered in this case. On April 17, 1990, this court entered an order granting plaintiff’s motion to amend and granting summary judgment for defendants with regard to plaintiff’s cl...
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ORDER This matter is before the Court pursuant to the defendants’ motion to dismiss on the ground that the transfer of their case from the Superior Court of the District of Columbia (“Superior Court”) to the United States District Court for the District of Columbia (“District Court”) violates their fifth amendment due process rights and is a result of prosecutorial vindictiveness. A. Backgro...
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ORDER This matter is before the Court pursuant to petitioner’s Petition for Writ of Habeas Corpus and the Respondent’s Response to the Court’s Order to Show Cause. A. Background. Petitioner Donald B. Lewis is currently incarcerated at the Maximum Security Facility, Lorton, Virginia. He is in service of a term of imprisonment pursuant to four Superior Court of the District of Columbia, Judgment and...
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ORDER The plaintiff filed the instant complaint against the defendant pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional rights where the defendant, a detective with the Arlington County Police Department, “caused to be issued a warrant for the arrest” of the plaintiff “notwithstanding the absence of an objectively reasonable basis for the belief that probable cause existed.” ...
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MEMORANDUM OPINION ON MOTION FOR SUMMARY JUDGMENT In Count I of his Complaint, Plaintiff J. Alex Newton, a black male, alleges he was the victim of racial discrimination in violation of Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982).1 Newton alleges that he was demoted from a position as “corporate account manager” and subsequently discharged from defendant A.B. Dick ...
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MEMORANDUM AND ORDER Plaintiffs, Lanny Max Slifer and the Kansas Association of Public Employees (KAPE), seek an order of the court declaring K.S.A. 75-4321(c) of the Public Employer-Employee Relations Act (PERA) unconstitutional. Plaintiffs contend that K.S.A. 75-4321(c), which allows public employers to determine whether they will be governed by the PERA, violates the equal protection provision...
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ORDER This matter is before the Court on the Motion to Suppress, filed by the defendant, Hardy Rivera, on March 12, 1990. On March 19, 1990, after a hearing and arguments on the Motion, the Court orally denied the defendant’s Motion. The ruling denying the Motion to Suppress is VACATED only as to the money seized in the search of the defendant, Hardy Rivera’s pocket; the Motion to Suppres...
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Arthur Andersen & Co. (“Andersen”) moves to dismiss the securities fraud claim of the complaint for failure to plead fraud with particularity pursuant to Fed.R.Civ.P. 9(b), to dismiss the common law claims on the grounds that they are barred by the applicable statutes of limitations, and for a stay of discovery pending determination of the motion to dismiss. This action arises out of vario...
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OPINION AND ORDER Plaintiff, Guardsmark, Inc., and defendant, Pinkerton’s, Inc., are in the business of providing security services. Both companies believe that psychological testing of security guards is important to the provision of effective security services, and both agree that in recent years users of security services have become increasingly interested in the psychological testing...
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MEMORANDUM AND ORDER This matter is presently before the court upon defendant’s motion for summary judgment on plaintiffs’ wrongful levy claim. Plaintiffs contend that the government wrongfully levied on property which belonged to them and not to Pottorf Farms, Inc., the delinquent taxpayer. Having carefully reviewed the materials before the court, we are now prepared to rule. In considering the d...
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OPINION Plaintiff Ossie Smith (“Smith”) brings this motion for award of attorney’s fees pursuant to both Title 28 U.S.C. § 2412 (Equal Access to Justice Act), and Title 42 U.S.C. § 406. For the reasons set forth below, Smith’s motion is denied as to the fees requested under the Equal Access to Justice Act, but the motion for fees under the Social Security Act is granted. Facts ...
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MEMORANDUM AND ORDER This matter is presently before the court upon defendant’s motion for summary judgment on plaintiff’s wrongful levy claim. Plaintiff 1 contends that the government wrongfully levied on property which belonged to her and not to Pottorf Farms, Inc. or to Floyd W. Pottorf, the delinquent taxpayers. Having carefully reviewed the materials before the court, we are now prepared...
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*817 OPINION AND ORDER This is a consolidation of challenges to the urine testing procedures utilized by the New York City Transit Authority (the TA) since January 1, 1984 to test for use of marijuana. 1 The plaintiffs seek both monetary and equitable relief. During the trial of this ease, the Court approved the parties’ agreement to bifurcate the issues of liability a...
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OPINION In the matter before the court, defendant WS, Inc. (WSI) moves for summary judgment (# 13) on the first, second, third and fifth claims for relief of plaintiff, George Raptopolous. UNDISPUTED FACTS Raptopolous is a member of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 72 (Local 72). In July, 1983, Raptopolous was employed ...
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OPINION Neil Steinhorn and Eugene Petasky, who are charged with conspiring to transport stolen gold jewelry in interstate commerce, have filed motions to dismiss the indictment. The indictment also charges Stein-horn with money laundering and related violations. The defendants contend that the government targeted them for a “sting” operation without a “reasonable suspicion” to believe tha...
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*545ORDER The instant complaint was filed by individuals and organizations who were investigated by the Federal Bureau of Investigation (“FBI”) for alleged terrorist activity pursuant to a tip by a paid informant who was later determined to be untrustworthy. The plaintiffs allege that the investigation was a violation of their rights under the first amendment and the Privacy Act of 1974, 5 U.S.C. ...
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MEMORANDUM AND ORDER This is a civil forfeiture action filed pursuant to 21 U.S.C. § 881(a)(4). This statute provides in pertinent part: The following shall be subject to forfeiture to the United States and no property right shall exist in them: (4) All ... vehicles ... which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale...
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SENTENCING MEMORANDUM In October of 1989, defendants were charged in an indictment with a series of drug offenses, including conspiring to possess with intent to distribute cocaine base. After a three-week trial, a jury found the defendants guilty of committing and conspiring to commit certain drug offenses. The court thereafter ordered the United States Probation Office to prepare and fi...
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OPINION Petitioner, Phillip Medley Bates, filed this action under 28 U.S.C. § 2254 attacking the disciplinary order of respondent, R.L. Wright, Superintendent of the Eastern Oregon Correctional Institution, which ordered Bates to be placed in segregation and recommended an extension of the parole release date of Bates. In response to this filing, respondent filed a motion to deny Bates’ petition f...
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ORDER Plaintiff, Susan Sorrells, claims that she and her infant daughter Shanna were injured due to her mother’s ingestion of the drug diethylstilbestrol (“DES”) in 1951-1952 when she was pregnant with Susan. Susan’s daughter, Shanna, was not exposed to DES in any way, but claims that her grandmother’s use of DES affected her mother’s ability to carry her to term, thus causing Shanna’s pr...
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ORDER The plaintiff has sued the defendant alleging legal malpractice in connection with his representation of plaintiff in a criminal proceeding. This matter is before the Court pursuant to defendant’s motion to dismiss. A. Background Pursuant to an indictment filed on February 22, 1982, plaintiff was charged with carrying a pistol without a license, D.C. Code § 22-3204, possession of th...
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MEMORANDUM In the recent case of Hays & Co. v. Merrill Lynch, Pierce, Fenner & Smith, 885 F.2d 1149 (3rd Cir.1989), the Third Circuit Court of Appeals held that federal courts lack discretion to deny enforcement of a contractual arbitration clause invoked in the context of a non-core adversary proceeding brought by a debtor’s trustee. In reaching its holding, the court cited th...
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ORDER This matter is before the Court on the Motion for Summary Judgment of the Defendant Federal Trade Commission (“FTC”), to which motion Plaintiffs TK-7 Corporation and Moshe Tal (hereinafter collectively referred to as “TK-7”) have responded. The facts which gave rise to this case are set forth in this Court’s'January 31, 1990 order, 729 F.Supp. 1313, and will not be repeated here. *447In resi...
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ORDER The defendant, Harvey Lee Wilson, has filed a motion pursuant to 28 U.S.C. § 2255 to vacate or set aside his plea of guilty. *600The record reflects Wilson was charged under a three-count indictment with wire fraud, a violation of 18 U.S.C. § 1343. This indictment was returned on May 8, 1985. On July 1, 1985, under an order to produce prisoner ad prosequendum, Defendant was removed from the ...
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ORDER Hector Leon, currently incarcerated at the Comstock Correctional facility brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for murder in the second degree of his wife. On April 4, 1990, Magistrate James C. Francis IV issued a report and recommendation that Mr. Leon’s application for a writ of habeas corpus be denied and the petition be...
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MEMORANDUM ENTRY DISCUSSING PLAINTIFF’S OBJECTION TO DEFENDANT’S BILL OF COSTS This cause comes before the court on plaintiff’s objection to defendant Cameron Tool Corporation’s bill of costs. After a trial by jury concluded on November 29, 1989, defendant was found not liable for the injuries suffered by the plaintiff when a large metal die fell on his foot, resulting in the amputation of part o...
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OPINION AND ORDER Defendant Commodore International Limited moves for an order declaring § 9(a) of the employment agreement between plaintiff Thomas Rattigan and Commodore to be unenforceable as a penalty. For the reasons set forth below, defendant’s motion is denied. I. The basic facts and contentions in this case have been set forth previously in the opinion and order denying ...
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OPINION The following motions are pending: *391 1. defendant Jen Kuo-Sen’s motion for additional and individual preemptory challenges; 2. Jen Kuo-Sen’s motion to suppress evidence; 3. Jen Kuo-Sen’s motion to dismiss the indictment; 4. Jen Kuo-Sen’s motion for a bill of particulars; and 5. defendant Lee Tai-Hsing’s motion to suppress evidence. BACKGROUND The indictment charges th...
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MEMORANDUM OPINION AND ORDER I. Background This product liability action results from injuries sustained by members of the Bon-die family when the family home burned. The fire was started when three-year-old Amanda Bondie played, unsupervised, with a Bic disposable cigarette lighter that she had taken from her father’s coat pocket, as the coat lay in or near her father’s bedr...
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OPINION This case involves disturbing allegations of excessive and abusive discipline of mentally impaired children at the Pineview School in Palmer, Michigan, during the 1986-87 and 1987-88 school years. Plaintiffs, appearing through their parents and next friends, are six Pineview special education students who allegedly suffered inappropriate discipline ranging from bodily humiliation ...
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MEMORANDUM OPINION On October 10, 1989 the parties jointly filed a letter which raised the issue of this court’s jurisdiction in light of an amendment to the “amount in controversy” requirement to 28 U.S.C. § 1332. Background The pertinent facts for this opinion are quite simple. On May 4, 1989, the plaintiff filed suit in the Circuit Court for the City of Roanoke. On May 30...
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ORDER THIS CAUSE has come before the Court upon Defendant Herb Alberto Ortiz’s (“Ortiz”) Motion to Dismiss Count I of a two-count Indictment. The motion is based largely on the contention that Title 18 U.S.C. § 1956(a)(2)(B)(ii) (“Money Laundering Control Act”) is unconstitutionally vague and violates the Fifth Amendment Due Process Clause of the Constitution and therefore that Count I is fatal...
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Plaintiff J. Alex Newton, a black male, alleges he was the victim of racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982), and of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1982). Newton alleges that he was demoted from a position as “corporate account manager” and subsequently discharged from defendant A.B. Dick Company (“A.B. D...
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MEMORANDUM OPINION This case is before me a second time, once on Dominion Bank’s (“Bank”) appeal from the bankruptcy court and now on the Bank’s motion for rehearing (sic) [Motion to Reconsider] on the issue of nondis-chargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(B). On October 16, 1989, this Court filed an Order and Memorandum Opinion in which I held that the bankruptcy court’s fin...
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This is an age discrimination case involving a reduction in work force at defendant Westinghouse Electric Corporation’s (“Westinghouse”) facilities at Baltimore-Washington International Airport (“BWI”) and in Hunt Valley, Maryland. Westinghouse hired plaintiff, Robert Douglas Conkwright (“Conkwright”) in 1967 at the age of 42 to fill a series of marketing positions within the company until 1981...
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MEMORANDUM AND ORDER This is an appeal from the bankruptcy court. Debtors/appellants Robert and Jane Lacy appeal from the bankruptcy court’s decision denying their objection to a claim for payment of certain taxes asserted by creditors/appellees Thomas P. Blackburn, trustee of the Thomas P. Blackburn Trust, and Ruth Z. Blackburn, trustee of the Ruth Z. Blackburn Trust. Having carefully reviewed...
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ORDER The Plaintiff filed his complaint December 22, 1989. The Defendants filed a Motion for Judgment on the Pleadings February 6, 1990. The Defendants’ motion is granted in part. The Court issued an Order April 12, 1990 which dismissed several of the Plaintiff’s claims. The remaining claims are: Count One against Arter Johnson and Audrey Burke in their individual capacities under 42 U.S.C. §§ 19...
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OPINION This matter is before the Court upon a motion by Defendant for clarification of whether he can offer an “exculpatory no” defense to charges contained in Counts 6 through 17 of an indictment against him brought under 26 U.S.C. § 7207. In the counts, Defendant is charged with submitting false and ficti*226tious invoices to an IRS agent, who was auditing Defendant’s returns. There is no judic...
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*582 FINAL ORDER This is a case between two ancient enemies: Anything Goes and Enough Already. Justice Oliver Wendell Holmes, Jr. observed in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919), that the First Amendment is not absolute and that it does not permit one to yell “Fire” in a crowded theater. Today, this court decides whether the Fi...
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MEMORANDUM AND ORDER Defendant Medical Components, Inc. (“MedComp”) and defendant American Hospital Supply Corp. (“AHS”) have moved for a stay of the injunction issued on May 7, 1990. For the reasons set forth below, I shall deny both motions. I. Plaintiffs filed this patent infringement suit against defendants on September 14, 1985. The patented device is a triple-lumen cathete...
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MEMORANDUM This matter is before the Court to determine the merits of the parties’ claims after a two-day trial before the Court (the Honorable George F. Gunn, Jr., presiding) sitting without a jury. Each party alleges the other party is liable for breach of contract (Count I of plaintiff’s complaint; Counts I — III of defendant’s counterclaim), and for fraud (Counts II and III of plaintiffs comp...
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ORDER ON MOTIONS The cause is before the Court on the following motions, responses, and other pleadings: 1. Defendants’ motion for summary judgment and memorandum in support thereof, filed June 12, 1989. 2. Defendant Alfred J. Leiser's motion for summary judgment, in his individual capacity, on the grounds of qualified immunity and memorandum in support thereof, filed June 12, 1989. 3. Index of d...
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OPINION BACKGROUND Plaintiffs Pauly and Pena filed a complaint for breach of contract, fraud and declaratory judgment. The breach of contract claim involves oral and written promises allegedly made by defendants to the effect that if plaintiffs would move to Oregon and start up a company (Micro Systems Engineering — “MSE”) to design, develop and fabricate hybrid circuits for pace mak...
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MEMORANDUM In this action, plaintiffs, the Red Lake Band of Chippewa Indians (“RLB”) and the Mescalero Apache Tribe (“MAT”), sue the Department of the Interior to prevent the implementation of the Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701-2721 (“Gaming Act” or “Act”). The Act would regulate gaming that occurs on Indian tribal land by dividing games into one of three differen...
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*1373MEMORANDUM AND ORDER This matter is before the court on cross motions for summary judgment filed by plaintiff Frank S. Schmidt and defendant Farm Credit Services. Plaintiff, a resident of California, is a minority shareholder in Schmidt C & R Co., Inc. (“defendant corporation”). Plaintiff brings this derivative shareholder’s action to have the court set aside and declare void an assignment a...
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ORDER By Order of February 11, 1990, this Court affirmed the administrative decision of the Secretary to exclude plaintiff Jack W. Greene from participation in the Medicare program for a period of five years, pursuant to 42 U.S.C. § 1320a-7(a)(l), on every issue pursued through the administrative appeal. This Order did not reach the plaintiff’s due process challenge to the administrative proced...
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MEMORANDUM OPINION On December 26,1989, Harbor Insurance Company moved for judgment in its favor on the pleadings of Chicago Board of Options Exchange, Inc. (“CBOE”). See Rule 12(c), Fed.R.Civ.Pro. After reviewing the parties’ briefs on the motion, 1 the court converted Harbor’s motion to one for summary judgment under Rule 56. The parties have filed statements in accordance wi...
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MEMORANDUM ORDER This matter is before the Court on Energy Conversion Devices, Inc.’s (ECD) petition for a writ of mandamus or in the alternative for review of the denial of a petition submitted to defendant seeking to remove a specific patent examiner. Upon consideration of the petition, respondent’s opposition, a hearing held on May 17, 1990, and post-hearing memoranda filed by both par...
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ORDER THIS CAUSE comes before the Court on an Appeal by the Internal Revenue Service (“IRS”) on behalf of the United States of America, Appellant, from a Final Judgment of the United States Bankruptcy Court for the Southern District of Florida entered March 21, 1989. The Bankruptcy Court granted the Trustee’s (Appellee’s) Motion for Summary Judgment holding that the IRS’s claim for taxes ...
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RULING GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND ORDER FOR DISMISSAL The court has before it defendant United States of America’s motion for summary judgment. Plaintiffs have resisted the motion but do not dispute defendant’s statement of facts. The court heard oral arguments on February 21, 1990. Plaintiffs are husband and wife. Plaintiff Jim Connell was a civilian employee of the...
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ORDER Before this Court is a Certification of Facts Constituting Civil Contempt from the bankruptcy court entered on March 6,1990. An order is sought from this Court declaring debtor in civil contempt of court for debtor’s violation of the bankruptcy court’s orders. The Certification is based upon the following findings of fact. The bankruptcy case was initiated by the filing of an involuntary ...
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ORDER This case is before the court on: (1) plaintiffs’ Motion for Summary Judgment; and (2) defendant’s Cross Motion for Summary Judgment. The court GRANTS plaintiffs’ Motion and DENIES defendant’s Cross Motion. BACKGROUND Plaintiffs are engaged in the outdoor advertising business in metropolitan Atlanta. They own off-premise signs, commonly known as billboards, located through...
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MEMORANDUM The United States of America brought this action seeking an order pursuant to *250 the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1963, restraining the transfer, liquidation and dissipation of funds held in Account No. 9902-93316 at the Fulton Bank in Lancaster. The United States contends that these funds are forfeitable proceeds of ra...
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Plaintiff is a manufacturer of air pollution equipment. In late 1984, pursuant to a bid it wished to submit to the State of Colorado, plaintiff was required to obtain a surety bond to guarantee its payment and performance. Plaintiffs Vice President of Operations, John B. Hamblin, contacted Bruce Allen to seek his assistance in obtaining the bond. Allen was “an insurance producer” who advised cl...
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MEMORANDUM OPINION This cause comes on yet again for consideration of the plaintiffs claim brought under 42 U.S.C. § 1981, as well as the plaintiffs demand for a trial by jury, in the wake of another intervening Supreme Court decision. 1 The court now must consider whether the plaintiffs assertions that he was discharged because of his race and that his employer failed to offer...
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ORDER This matter is before the court on the cross-motions of the plaintiff and the defendant for summary judgment. Plaintiff, the United States of America, has brought *178 this action to require removal of barriers on two tidal watercourses in the Waeca-maw and Pee Dee River areas of Georgetown County, South Carolina. Each watercourse is blocked by barriers owned and maintained by the defen...
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Before the court is defendants’ motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff Langley Land Company (hereinafter “Langley”), which owns property located in Monroe County, filed suit against Monroe County and its Board of Commissioners pursua...
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OPINION AND ORDER The Palestine Liberation Organization (the “PLO”) moves pursuant to Fed.R. Civ.P. 12(b)(1), (2), (5), (6) and 17(b) to dismiss the complaints and third-party complaints against it on the grounds of lack of subject matter or personal jurisdiction, insufficiency of' service of process, failure to state a claim and lack of capacity to be sued. The motion was argued on March...
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*31 MEMORANDUM AND ORDER I. Summary This case presents the question whether the lease of the St. Thomas Aquinas Parish Center from the Archbishop of Boston, and the manner of its use as a public elementary school violates the Establishment Clause of the First Amendment of the United States Constitution. The parties have submitted a proposed settlement that they have ...
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MEMORANDUM OPINION AND ORDER Before the Court are Plaintiffs Motion for Partial Summary Judgment, filed April 20, 1990, and Defendant’s response, filed May 10, 1990. Plaintiff moves for a judgment that the liquidated damages provision in the contract between the parties providing for $500 per day of delay is an unenforceable penalty clause. Under Texas law, a liquidated damages provi...
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MEMORANDUM OPINION On October 31, 1989, Robert Moore was operating an electric Powermatie table saw owned by Mobile Office, Inc., his employer. Unfortunately for Moore, the saw allegedly hit a defect in a piece of wood which he was cutting, causing the fingers of his left hand to come in contact with the saw’s spinning blade. Moore suffered traumatic injury. Within two weeks, Moore sued t...
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MEMORANDUM AND ORDER Pending are the motions of each defendant, made at the' close of the government’s case,, for judgments of acquittal as to all counts, pursuant to Federal Rule of Criminal Procedure 29. For the reasons set forth below the motions are denied. I. In ruling on a motion for acquittal pursuant to Rule 29, the Court “must view the evidence and all reasonable infere...
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*1209 MEMORANDUM OPINION The matter is before the Court on a Motion to Quash two subpoenas duces tecum. The first was served on movant corporation. The second was served on a corporation now independently owned, but formerly a wholly-owned subsidiary of movant corporation. Documents sought in the subpoenas span a six-year period (1983— 89) during which the subsidiary c...
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FURTHER ORDER Reference is made to the Order issued yesterday afternoon wherein I sealed the indictment in the above-styled case pending a decision as to whether the indictment should be sealed for any longer period. The Government has requested that I seal the indictment pursuant to Rule 6(e)(4), Fed.R.Crim.P., for reasons which do not appear on the face of that rule. It is evident that the reque...
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MEMORANDUM/ORDER Plaintiff, Nicholas A. Borsello, Jr., is currently incarcerated in Rockview Prison, a state facility located in Bellefonte, Pennsylvania.1 Mr. Borsello has submitted a pro se complaint against his state appointed counsel, Stephen Leach, Esq., pursuant to 42 U.S.C. § 1983. *26In his complaint, plaintiff alleges that he was denied due process of law, in violation of the Fourteenth A...
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ORDER Before the Court is a Motion to Dismiss filed by defendants Scott Craigie, Jo Ann Kelly, Michael Pitlock, Stephen Wiel, Thomas Stephens, and the Public Service Commission of the State of Nevada (document # 4). Oral argument on the issues presented herein was conducted on March 12, 1990. After full consideration of all the relevant arguments, the Court has determined that defendants’ motion ...
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ORDER This Cause has come before the Court upon Defendants’ Motion to Suppress Statements filed on February 7, 1990. For the reasons set forth below, Defendants’ Motion is GRANTED in part and DENIED in part. I. The Defendants Pablo Camacho, Charlie Haynes, Ronald Sinclair, Thomas Trujillo, Nathaniel Veal, Jr. and Andy Watson, members of the Street Narcotics Unit of the Miami Police Departme...
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*679 MEMORANDUM AND ORDER REGARDING DEFENDANT’S MOTION TO DISMISS On December 12, 1981, plaintiff Lowell P. McKinney, a marine electrician, was injured on board the S.S. ROBERT E. LEE, a vessel owned by the defendant Waterman Steamship Corporation (“Waterman”). In 1984, McKinney filed a maritime tort action against Waterman in the Southern District of New York, but, in 1985, he v...
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MEMORANDUM OPINION AND ORDER Currently pending before the Court are two motions to compel discovery, one by the Government and one by General Dynamics. The parties have had a series of discovery disputes in this complex and protracted action. The Government, claiming fraud and mistake of fact, has sued General Dynamics for rescission or reformation of subsidy contracts between General Dynamics an...
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MEMORANDUM Defendant, along with three other indi-' viduals, is charged with possession with intent to distribute a mixture of 50 grams or more containing a detectable amount of cocaine base. See 21 U.S.C. §§ 841(a), 841(b)(l)(A)(iii). He allegedly resided in premises where the illegal drugs were found during "a police search. The Magistrate, having determined that there was probable cause to beli...
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MEMORANDUM OPINION AND ORDER In this case, the law firm of Jones, Day, Reavis & Pogue (Jones, Day) represents plaintiff Gould, Inc. (Gould), in an action by Gould against, among others, defendants Pechiney and Trefimetaux (Pechiney). The issue before the court is defendants’ motion to disqualify plaintiff’s counsel. Defendants claim that Jones, Day’s representation of Gould involves a con...
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OPINION Plaintiff General Electric (“GE”) seeks an order declaring invalid New York’s prevailing wage law, N.Y.Lab.Law § 220 (McKinney 1986 & Supp.1990), on various grounds, and enjoining the statute’s enforcement or incorporation into state contracts. Presently before the court are motions for summary judgment by both GE and defendants, New York State’s Department of Labor (the “Department”), In...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This is a civil rights action in which two former Indiana University Assistant Professors seek relief for the defendants’ actions in not reappointing them for continued employment, not promoting them to the rank of Associate Professor, and not awarding them tenure. The cause comes *1272 before the Court on the' defendants’ motion for summa...
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ORDER This Order addresses a motion seeking dismissal of Anthony Mesiti’s action to recover costs related to removing hazardous waste from his Keene, New Hampshire, property. A brief summary of the relevant facts, drawn primarily from the complaint, follows. In 1947 the Central Screw Company of Chicago, Illinois, began manufacturing *59 metal screws and fasteners in Keen...
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738 F.Supp. 1269 (1990) ST. LOUIS TRADE DIVERTERS, INC., et al., Plaintiffs, v. CONSTITUTION STATE INSURANCE COMPANY, Defendant. No. 89-1556C(1). United States District Court, E.D. Missouri, E.D. June 7, 1990. Russell Watters, Brown, James & Rabbitt, St. Louis, Mo., for plaintiffs. Sanford Goffstein, St. Louis, Mo., Jefferson McConnaughey, McKenzie & McPhail, Atlanta, Ga., for Constitutio...
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MEMORANDUM AND ORDER This matter is before the court on the cross-motions of the parties for summary judgment on Count II of plaintiff’s complaint. This case arises out of a dispute concerning interest charges in connection with defendant Gifford-Hill-American, Inc.’s (“G-H-A”) sale of pipe to plaintiff Shawnee Construction, Inc. (“Shawnee”) for use in a construction project. On October 4, 1989, ...
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MEMORANDUM ORDER Over the course of the past decade, advances in technology and growing respect and acceptance for the powers of computers have created a true explosion in the computer industry. Quite naturally, the growth of computer availability and application has spawned a host of new legal issues. This case requires the court to wrestle with some of these novel legal issues which are...
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ORDER Hector Castellón, an inmate formerly held at the Nevada State Prison and currently at the Ely State Prison, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition sets forth six separate grounds in support of his claim for relief from his murder, kidnapping and robbery convictions in state court. I. INEFFECTIVE ASSISTANCE OF COUNSEL Petitioner’s first gr...
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ORDER This is an action for judicial review of the final decision of the Secretary to impose upon plaintiff Jack W. Greene a mandatory five-year exclusion from participation in the Medicare program and from certain other state health care programs as defined by Section 1128(h) of the Social Security Act, 42 U.S.C. § 1320a-7(h). Plaintiff also challenges the imposition of the civil sanction on d...
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MEMORANDUM OPINION This appeal questions the extent to which a citizen, stopped for suspicion of driving while under the influence of alcohol, has the right to choose, pursuant to 18 U.S.C. *182 § 3117, the form of chemical test to be administered by a police officer. 1 I On January 14, 1990, the defendant, Jeffrey Jerge (“Jerge”), was arrested for driving under the influence of alcohol...
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MEMORANDUM AND ORDER Gerald T. Tesar, an Ohio resident, brings this defamation action against Clark Hal-las, a resident of Pennsylvania. The Court has jurisdiction pursuant to 28 U.S.C. § 1332. Pending is Hallas’ motion for judgment on the pleadings on the ground that the suit was untimely filed. For the reasons that follow, the Court grants the motion, and dismisses Tesar’s complaint. ...
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ORDER The Report and Recommendation of Magistrate Tyler, dated March 12, 1990, is hereby adopted and made the order of this Court. Judgment shall be entered in favor of defendant George “Jerry” Gallagher, as against plaintiffs, Fred Harb, Mildred Harb and Robert R. Ranni, Esq., jointly and severally, for attorneys' fees and costs, in the sum of $19,943.40. Any purported indemnification agreement ...
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MEMORANDUM AND ORDER In this action plaintiff claimed he suffered personal injury when a container of extract leaked and caught fire. The third party defendant brought a motion for summary judgment against the defendant (third party plaintiff). The facts appear beyond dispute. Third party defendant manufactured the extract, putting it in fifty-five gallon drums and sold the product t...
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MEMORANDUM AND ORDER Plaintiff Kristin Goree (“Goree”) brings this civil rights case against the Town of Southampton and two of its police officers alleging violations of his civil rights based on false arrest and use of excessive force. Previously before the Court was Goree’s motion for leave to amend the complaint to add civil rights and state law claims based upon the alleged malicious prose...
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MEMORANDUM AND ORDER This case arises from a citizen’s action by Plaintiff Natural Resources Defense Council, Inc., against Defendant Gould, Inc., for violations of the Clean Water Act, 86 Stat. 816, 33 U.S.C. § 1251 et seq. (1986 Ed.). The Court granted plaintiff’s motion for summary judgment on the issue of defendant’s liability. The Court also ruled as a *9 matter of law that the trial o...
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ORDER This case represents an appeal from a November 6, 1989 order confirming a plan of reorganization. Judge William Green-dyke entered the confirmation order in bankruptcy proceedings styled In re San Felipe @ Voss, Ltd., Bankruptcy No. 87-11013-H5-11. Appellant Metropolitan Life Insurance Company (“Metropolitan”) has a first priority lien on the chapter 11 debtor’s prin...
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OPINION AND ORDER By Opinion and Order dated February 26, 1990, 731 F.Supp. 143, the Court granted plaintiffs’ motion for a rehearing and reconsideration of the Court’s grant of summary judgment in favor of defendant The Travelers Indemnity Company (“Travelers”). 1 The parties appeared for reargument on March 7, 1990. The Court is asked to reconsider its holding, following ...
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ORDER Before this Court are two motions to dismiss, one filed by defendant Federal Savings and Loan Insurance Corporation (“FSLIC”) (document # 3), and the other filed by defendant Western Title Company (“Western”) (document # 4). Both defendants seek dismissal of the complaint, originally filed in state court, which was removed to this Court on September 19, 1989 (document # 1). The...
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MEMORANDUM OPINION AND ORDER This is a declaratory judgment action filed by RLI Insurance Company (“RLI”) against the United States Aviation Underwriters, Inc. (“USAU”) as Aviation Manager for the United States Aircraft Insurance Group (“USAIG”). During a status conference, USAU expressed doubt as to whether the action could be maintained in federal court. We asked the parties to submit m...
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*265 MEMORANDUM OPINION Plaintiff Alma M. Turner brings this action seeking review of a final decision of the defendant, Secretary of Health and Human Services, denying plaintiffs request for reconsideration of a determination of overpayment of disability benefits under Title II of the Social Security Act, 42 U.S.C. 401 et seq. or, in the alternative, plaintiffs reques...
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AMENDED ORDER In this class action litigation, plaintiffs successfully challenged a policy and regulation of the Secretary of Health and Human Service by which he counted garnished monies as income in making eligibility and benefits determinations under the Supplemental Security Income (SSI) provisions of Title XVI of the Social Security Act. 20 C.F.R. § 416.1123(b)(2). Finding this pract...
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MEMORANDUM OPINION AND ORDER Defendants US Sprint Communications (“US Sprint”), Gary Nelson, Richard Smith and David Dorman have moved this court for entry of summary judgment in their favor. For the reasons stated in this memorandum opinion defendants’ motion must be granted. I. BACKGROUND FACTS The following facts are undisputed. Defendant US Sprint is a partnership engaged in...
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR FORUM NON CONVENIENS Defendant Treasure Cay Services, Inc. moves the court for summary judgment or for dismissal of this action on grounds of forum non conveniens. Because the court grants defendant’s motion to dismiss for forum non conveniens, it does not address defendant’s motion for summary judgment. I. BACKGROUND Plaintiff Joanne Chi...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion to dismiss for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1).1 Plaintiff filed this action to obtain review of the constitutionality of K.S.A. 44-801 and the January 9, 1990 decision of defendant Ray D. Siehndel, Secretary of the Department of Human Resources, rejecting plaintiffs application for bargaining uni...
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MEMORANDUM-DECISION & ORDER This is a motion to dismiss a third-party complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, or, in the alternative, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The main suit is a diversity action predicated upon a breach of contract between Aetna Casualty & Surety Company (“...
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MEMORANDUM AND ORDER Pending before this court is defendant’s motion for partial summary judgment. Defendant contends that plaintiffs claim under 42 U.S.C. § 1981 (“section 1981”) is barred by the Supreme Court decision in Patterson v. McLean Credit Union, — U.S.-, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). For the reasons set forth below, I shall grant defendant’s motion. I. STANDARD OF REVIEW Summ...
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MEMORANDUM AND ORDER Defendant Federal Insurance Company and Plaintiff J.I. Corporation, formerly known as New England Rare Coin Galleries, Inc. (NERCG), filed cross motions for summary judgment. The motions arise out of a dispute concerning the interpretation of a fidelity insurance policy (“the policy”) 1 which insured plaintiff against losses sustained as a result of employe...
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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT GRANTED IN PART AND DENIED IN PART Plaintiff Charles L. Jones (Jones) brought this action for civil rights violations pursuant to Title 42 U.S.C. §§ 1981, 1985, and 2000a, and for state law violations under Massachusetts General Laws c. 272, § 98 and c. 12, § 111, as well as for common law offenses. Jones alleges that while a patron at the Copley Square H...
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MEMORANDUM DECISION AND ORDER This matter came on regularly on January 22, 1990 for hearing on Plaintiffs’ Motion for Partial Summary Judgment against defendant Strong. Plaintiffs were .represented by Steve Russell and Kathryn Collard. Defendants were represented by Patricia J. Marlowe. After briefing by the parties and oral argument, the court took plaintiffs’ motion under advisement. No...
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MEMORANDUM OPINION AND ORDER Presently before the court is plaintiffs’ motion pursuant to 28 U.S.C. § 1447(c) to remand these related cases to the state court from which they were removed. For the reasons set forth below, plaintiffs’ motion will be granted. Background Facts Plaintiff Jeffrey M. Goldberg & Associates, Ltd. is a professional corporation engaged in the practice...
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ORDER The plaintiffs instituted this desegregation action on January 9, 1981, alleging, basically, that the 1967 Act of the South Carolina General Assembly, under which the Charleston County school system operates today, violates the Equal Protection Clause of the Fourteenth Amendment. After very lengthy discovery, due to the nature of the case, and after deciding to bifurcate the liability and...
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ORDER Before this Court is a Motion for Summary Judgment (# 14) filed by defendant Carson City School District on October 16, 1989. On January 11, 1989, plaintiff filed his Complaint against defendants pursuant to 28 U.S.C. § 1332. In his Complaint, plaintiff alleges that Carlos Mendeguia, the son of Serapio and Maria Mendeguia, battered plaintiff in a high school basketball game in 1987....
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*1058ORDER This civil case is before the court on the defendants’ motions to dismiss the third amended complaint for failure to state a claim upon which relief can be granted. These motions were referenced to a United States Magistrate, who heard this matter in accordance with 28 U.S.C. § 636. In the course of those proceedings the parties submitted materials outside the scope of the pleadings; t...
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MEMORANDUM Plaintiff, Coastal Cement Corporation, is the owner and operator of a bulk cement storage and distribution terminal in South Boston. Defendants are members of a union currently picketing plaintiffs terminal because of a labor dispute between the parties. On May 16, 1990, plaintiff filed a complaint, pursuant to Sections 8(b)(4) and 303 of the Labor Management Relations Act (“LMRA”) and ...
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OPINION AND ORDER This case concerns a dispute over a residential and tourist development project in an area known as Vacia Talega in Loiza, Puerto Rico. Plaintiff PFZ Properties, Inc. (“PFZ”) brought the present action claiming that the Puerto Rico Regulations and Permits Administration (hereinafter called by its Spanish acronym “ARPE”) and its former administrator, René Alberto Rodriguez 1 ...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion for partial summary judgment against all defendants herein, except Dwight J. Martinek and Beverly J. Marti-nek. 1 A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., ...
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OPINION AND ORDER Defendant Geraldo Hernandez was arrested by Deputy U.S. Marshals on December 11, 1989 pursuant to a probation violation warrant issued in the Southern District of Florida based, inter alia, on his possession of a 12 gauge shotgun and a .357 magnum revolver. The arrest was effected in an apartment in which were present also two unidentified males and Betty Barrow, a friend of...
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MEMORANDUM AND ORDER Plaintiff Shell Oil Company (Shell) brought this action against defendant Hillary Farmer Service Station, Inc. (the Station), seeking, among other things, a declaration that the franchise agreement between the parties has been properly terminated and an injunction requiring the Station to return to Shell all its fixtures and personal property. The complaint asserts ju...
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OPINION AND ORDER These are motions by plaintiffs, pursuant to Federal Rule of Civil Procedure 55(b)(2), for the entry of a default judgment, and by defendants, pursuant to Federal Rule of Civil Procedure 55(c), to set aside entry of a default judgment for good cause. Background This is an action for damages brought pursuant to Sections 10(b) and 20 of the Securities Exchange Act, as well as RICO...
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MEMORANDUM-DECISION AND ORDER INTRODUCTION Defendant has moved for an order of this court (1) waiving the provisions of Local Rule 10(m) with respect to motions for reconsideration; and (2) reinstating Paragraph “21” of defendant’s answer and ordering that the underlying action for contract damages be stayed pending arbitration pursuant to a written agreement between the parties. ...
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MEMORANDUM This diversity action was initiated in December of 1988. Plaintiff, a member of the armed forces reserves, seeks recovery' from Overhead Door Corporation (“Overhead”) and General Motors Corporation (“GM”), for injuries sustained while working at the Willow Grove Naval Air Station. According to the complaint, plaintiff was attempting to repair a door manufactured by Overhead, which had ...
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OPINION Defendant Adnan M. Khashoggi moves, pursuant to Rule 60(b)(4), Fed.R.Civ.P., to vacate two default judgments entered against him. Khashoggi claims that the Court lacked personal jurisdiction over him in the action and consequently that the default judgments were void and should be vacated. The Court ordered that an evidentiary hearing be held. For the reasons stated below, the default jud...
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MEMORANDUM OPINION David and Diane Kahn have moved to dismiss the third-party complaint of Belmont National Bank of Chicago under Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.Pro. In its complaint, Belmont hopes to recover on a guarantee signed by the Kahns, who are alleged to be the principals of C and A Currency Exchange, Inc., in the event that Belmont is liable to Fidelity and Deposit Compa...
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MEMORANDUM AND ORDER Plaintiff Wheelabrator Frackville Energy Company, Inc. (“plaintiff”) commenced this *537 civil action against defendants 1 based upon diversity of citizenship. See Plaintiffs Complaint at 11 5. Specifically, plaintiff alleges that it is a citizen of Delaware and New Hampshire and all defendants are citizens of Pennsylvania. Id....
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ORDER Before the Court is the Motion to Dismiss filed on behalf of Honda R & D Co., Ltd. The relevant facts for purposes of the motion are as follows: Plaintiff, Dora Hawes, Special Adminis-tratrix of the Estate of Brian K. Hawes, filed a complaint against Honda R & D Co., Ltd., and others setting forth various theories of liability and seeking damages allegedly resulting from an acc...
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MEMORANDUM OPINION AND ORDER Pending before the Court is the Defendants’ motion for summary judgment. The issues raised therein have been fully briefed. The Plaintiff M & M Medical Supplies and Service, Inc. (M & M) is in the business of selling and renting durable medical equipment (DME). The Defendant Pleasant Valley Hospital, Inc. (the Hospital) operates an acute care hospital fac...
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MEMORANDUM AND ORDER This matter is before the court on the separate summary judgment motions of plaintiff United States of America (“United States”), defendant Jerry Pritchard (“Pritchard”), and defendant/intervenor Sellers Tractor Company, Inc. (“Sellers”). Plaintiff commenced this action in an attempt to recover collateral pledged as security for a note executed by Eugene O. Abies (“Ab...
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ORDER At a 7:45 a.m. telephone status conference on March 28, 1990 the Court heard and granted a motion for entry of the consent decree filed by the United States on March 27, 1990. Later that day a motion to intervene was filed by American Seating Company, Primerica Corp. and Wick Building Systems, Inc. (“Intervenors”). Intervenors argue that they intended their motion be filed prior to the entry...
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MEMORANDUM OPINION AND ORDER In the wake of the Supreme Court’s decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), defendants Irving L. Gottlieb (“Gottlieb”) and J. Howard Segal (“Segal”) filed motions to vacate their respective convictions under the mail fraud statute, 18 U.S.C. § 1341. The mail fraud statute contains two elements: the e...
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*216 OPINION This action arises from a dispute concerning two policies for directors and officers liability insurance which obligated an insurance company to pay certain losses for which an insured corporation indemnified its officers and directors. The defendant insurance company moves to dismiss on the grounds that plaintiffs’ single claim for a declaratory judgment that the po...
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MEMORANDUM The litigation between these parties was initiated by Howard L. Schambelan, Esq., with the filing of a motion for arbitration in the Philadelphia Court of Common Pleas. Mr. Schambelan’s dispute with State Farm Mutual Automobile Insurance Company (“State Farm”) arises out of a traffic accident which occurred on Kelly Drive in August of 1987. According to Mr. Schambe-lan, while d...
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MEMORANDUM In this diversity action, plaintiffs, John and Eileen Smith, seek recovery for an alleged work related injury sustained by Mr. Smith in the summer of 1987. In the complaint the Smiths allege that Mr. Smith, a business invitee of the defendants, The Southland Corporation of Texas and Harbi-son’s Dairies, injured his back when he slipped and fell while loading a dairy truck owned and c...
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MEMORANDUM AND ORDER The Village of Palatine (Palatine) has filed a five-count complaint asking that we enjoin the United States Postal Service (Postal Service) from proceeding with its plans to construct a major regional mail distribution center, truck terminal and vehicle maintenance facility on a 43-acre site in Palatine. The complaint alleges that the Postal Service violated the Natio...
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MEMORANDUM This action, an appeal of a denial of Social Security Disability Benefits, was filed in June of 1988. On October 12, 1988, this matter was referred to Magistrate William F. Hall, Jr., for the preparation of a report and recommendation on cross-motions for summary judgment.2 On December 5, 1989, a report and recommendation was filed, recommending that plaintiff’s motion for summary judgm...
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MEMORANDUM OPINION AND ORDER Plaintiff John D’Agnillo commenced this ;pro se action to enjoin defendants from complying with this Court’s consent decrees and related orders in the “Yonkers case,” United States v. Yonkers, 80 Civ. 6761 (LBS), until the federal defendants and the FHIO had performed environmental studies which plaintiff claimed were mandated by federal ...
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MEMORANDUM-DECISION AND ORDER I. Introduction Plaintiff claims that she was the victim of discrimination and harassment on the basis of gender which adversely impacted upon the conditions of her employment and ultimately led to her dismissal as a staff member of the New York State — Council 82/AFSCME Joint Committee on Quality of Working Life (the “QWL Committee”). Moreover, plaintiff asserts t...
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OPINION Both the government and petitioner have moved for summary judgment on this 28 U.S.C. § 2255 petition. Petitioner Robert Angelo Guippone seeks to vacate his sentences in United States v. Agueci, 61 Cr. 527 (WBH), and United States v. Guippone, 61 Cr. 260 (RHL), pursuant to 28 U.S.C. § 2255, and to strike certain information from his presentence report. On February 13, 1962, the Honorable Wi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This massive contract-based dispute between a construction management firm and a contractor found its way into federal court solely because of the contractor’s allegations that the management firm and others had violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”). After plaintiff then voluntarily dismissed those ...
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OPINION An application has been presented for entry of a judgment on the Award of arbitrators. The losing party objects on the ground of irregularity in respect to the composition of the panel and seeks a ruling setting aside the Award and that the arbitration be recommenced. For the reasons shown hereafter, judgment will be ordered to be entered on the Award. Background ...
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MEMORANDUM OPINION AND ORDER Plaintiff Suneil Gurwara (“Gurwara”) brought an action under federal securities laws against his former employer, Ly-phoMed, Inc. (“LyphoMed”). Gurwara also filed pendent state law claims for fraud and breach of contract against LyphoMed. LyphoMed moves to dismiss the federal claim pursuant to Fed.R.Civ.P. 12(b)(6). Assuming the federal claim is dismissed, Lyp...
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ORDER AND REASONS Randall Detro is the former Director of the Library at Nicholls State University. After an audit of the library revealed some problems with the cataloging and purchasing of library acquisitions, he was discharged. He now brings this civil rights action against Governor Buddy Roemer, Bill Lynch, the former Inspector General, and three former employees of the Office of the...
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ORDER Plaintiff Fred M. Kennedy, as Guardian Ad Litem of Anthony Glover, brings this action against first defendant, Georgia-Carolina Refuse and Waste Company, Inc., and second defendant, American States Insurance Company (American States), for injuries sustained by Anthony Glover in an automobile accident. Subject matter jurisdiction for this action is founded on diversity of citizenship. 28 U.S...
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OPINION AND ORDER I. INTRODUCTION This diversity case concerns multiple motor vehicle fatalities and injuries which occurred in Pennsylvania on Friday, September 13, 1985. We have before us a number *355 of motions, many of which were resolved in a pre-trial conference of all counsel held on Friday, June 1, 1990. Some of the motions were deferred until time of trial. In ...
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ORDER In this cause of action the Plaintiff has sued officials of his labor union for discharging him from his union job, allegedly in retaliation for Plaintiffs support of an opposing slate of candidates in a union election. Pending before the Court is the Defendants’ Motion for Summary Judgment, which has been fully briefed and argued. For the reasons stated below, that Motion is granted. FACTS ...
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MEMORANDUM-DECISION AND ORDER Plaintiffs bring this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), (“F.T.C.A.”) alleging that the United States (“the defendant” or “the government”) failed to obtain plaintiff Bri-giatta Avakian’s (“Mrs. Avakian’s”) informed consent prior to the performance of a myelogram at the Plattsburgh Air Force Base Hospital in Plattsburgh, New York. Plaint...
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MEMORANDUM DECISION AND ORDER This action, before me on the parties’ cross motions for summary judgment, is *136 brought by the son of a former Kodak employee alleging violation of a section of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1022. This section requires dissemination of a summary description of an employee benefit plan, to apprise part...
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OPINION Plaintiffs, Far West Federal Bank (Far West) and a number of its investors (Investors), bring this action against the Director of the Office of Thrift Supervision (OTS), the Federal Home Loan Bank Board (FHLBB), the Federal Home Loan Bank of Seattle (FHLB-Seattle), the Federal Deposit Insurance Corporation (FDIC), and the Federal Savings and Loan Insurance Corporation (FSLIC), for...
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OPINION The plaintiff, Educational Testing Service, Inc. (“ETS”), seeks a preliminary injunction against defendant Touchstone Applied Science Associates, Inc. (“TASA”) enjoining it from using an allegedly infringing trademark pending a trial on the merits of the plaintiff’s trademark infringe *849 ment action. The relevant facts are as follows. I.FACTS Prior to 1987...
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FINDINGS AND RECOMMENDATION The instant matter has been referred to the United States Magistrate for Findings and Recommendation pursuant to 28 U.S.C. Section 636. Presently before the Court is the motion for change of venue filed by claimant, Elizabeth Czajkowski, pursuant to 28 U.S.C. Section 1404. The facts are as follows. Statement of Facts The United States filed a complaint for forfeiture...
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MEMORANDUM AND ORDER On May 25, 1990, plaintiff appeared before this court seeking a Temporary Restraining Order (“TRO”). The defendant, the F.D.I.C., exclusive manager of the Resolution Trust Corporation, as conservator for Horizon Financial, F.A. (“Horizon”) opposed the granting of the TRO on essentially two grounds, which form the issues to be decided. They are: 1. Is this co...
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*77 MEMORANDUM and ORDER Plaintiff Paul Feuerverger (“Feuerver-ger”) brought this suit to recover damages for personal injuries allegedly sustained while he was feeding vegetables into a commercial food mixer manufactured by the defendant Hobart Corporation (“Hobart”). At the time of the accident Feuer-verger was employed by River Manor Health Related Facilities (“River Manor”), ...
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MEMORANDUM AND ORDER Plaintiff, a former employee of defendant National Labor Relations Board (“NLRB”), brings this discrimination action under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e, et seq. Plaintiff, a Hispanic male, alleges that his discharge was based, at least in part, upon his race and color. 1 Specifically, he a...
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OPINION AND ORDER Plaintiff Allen Hodge, an inmate at the Auburn Correctional Facility in Auburn, New York, brings this action pursuant to 42 U.S.C. § 1983 alleging deprivations of his eighth and fourteenth amendment rights. Plaintiff seeks compensatory and punitive damages against defendants Officers Israel Colon and Madeline Ruperto, Sergeant Thomas Punell of the 43rd precinct, unnamed ...
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ORDER State Automobile Mutual Insurance Company (State Auto) moves the Court to reconsider its decision denying summary judgment against Bartow County Bank, the loss payee of the Alipours’ insurance contract. In that order, the Court entered judgment against the Alipours because they failed to respond to discovery requests or to the motion for summary judgment, with the legal consequence that mat...
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ORDER On September 1, 1988 this case was remanded for further consideration of Plain *306 tiff’s allegations of pain and for a determination of how that pain might limit Plaintiffs ability to perform the full range of light work. On March 22, 1990, the Appeals Council found that Plaintiff was entitled to disability insurance benefits and to supplemental security benefits. The Appeals Council ...
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OPINION INTRODUCTION This matter comes before the Court on appeal from the United States Bankruptcy Court, Western District of Michigan, pursuant to Federal Rule of Bankruptcy Procedure 8001(a). In the proceedings below, the bankruptcy court granted the debtor’s motion to extend the time period in which it had the exclusive right to file a reorganization plan pursuant to Section 1121...
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FINDINGS AND RECOMMENDATION The instant matter has been referred to the United States Magistrate for Report and Recommendation pursuant to 28 U.S.C. Section 636. Presently before the Court is defendant First Interstate Bank of Washington’s (First Interstate) motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2). Statement of Facts This action was commenced in this Court pursuant to 28 U.S.C. Sect...
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MEMORANDUM AND ORDER This action came on to be heard on the plaintiffs request for preliminary injunc-tive relief. Plaintiff is a patient at the Dana-Farber Cancer Institute and the Beth Israel Hospital. He is thirty-two years of age, married, a father. He suffers from a refractory testicular cancer, and without further treatment than that which he has already received, he will die within a mat...
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OPINION AND ORDER This is an action for breach of a sales contract and for replevin, with jurisdiction of this Court based on diversity of citizenship. Defendant has counterclaimed, alleging breach of warranty, and other counterclaims. Plaintiff has now moved for judgment on the pleadings on the first, third, sixth, and ninth causes of action pursuant to Fed.R.Civ.P. 12(c), or, in the alt...
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OPINION AND ORDER The matter pends before the Court pursuant to defendant Luis A. Torres Chapar-ro’s petition for removal filed under §§ 1442(a)(1) and 1446 of Title 28 of the United States Code. Mr. Torres Chaparro is an officer of the United States who is presently being charged in the District Court of Puerto Rico, Fajardo Part, with six violations of the local Traffic Law which allegedly oc...
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FINDINGS AND RECOMMENDATION The instant matter has been referred to the United States Magistrate for Findings and Recommendation pursuant to 28 U.S.C. Section 636. Presently before the Court is defendant Gallone’s motion for attorney’s fees pursuant to 42 U.S.C. Section 1988. Statement of Facts Plaintiff Helen Farone was one of two co-administratrices of Rose DeMarco’s estate appointed by the d...
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OPINION Plaintiffs, Far West Federal Bank (Far West) and a number of investors (Investors), bring this action against the Director of the Office of Thrift Supervision (OTS), the Federal Home Loan Bank Board (FHLBB), the Federal Home Loan Bank of Seattle (FHLB-Seattle), the Federal Deposit Insurance Corporation (FDIC), and the Federal Savings and Loan Insurance Corporation (FSLIC). The legal iss...
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DECISION AND ORDER This is a civil forfeiture action brought against the defendant premises under 21 U.S.C. § 881(a)(7). Claimant Robert C. Saurini, the record owner of the premises, has filed a claim asserting his interest in the property. Before me is the Government’s motion for summary judgment, which, for the reasons stated below, is granted. FACTS On August 31, 1988, agents...
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MEMORANDUM AND ORDER Defendant was charged in a one-count indictment with possessing with intent to distribute approximately 3 pounds of processed marijuana and over 1,000 marijuana plants, in violation of 21 U.S.C. § 841(a)(1). The defendant entered a conditional plea of guilty pursuant to Fed.R.Crim.P. 11(a)(2). The defendant’s conditional plea did not encompass pleading guilty to the specific n...
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OPINION AND ORDER This matter is before the Court on defendant Government of the Virgin Islands’ (“GVI”) motion to dismiss plaintiffs’ complaints for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) 1 and for failure to join indispensable parties to the action pursuant to Fed.R.Civ.P. 12(b)(7). 2 *785 BACKGROUND This action arises...
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ORDER PARTIALLY GRANTING MOTIONS FOR PARTIAL SUMMARY JUDGMENT I. BACKGROUND FACTS AND PROCEDURE The above-entitled action arises under the Fair Labor Standards Act of 1938 (FLSA), as amended, 29 U.S.C. § 201, et seq. Plaintiff, the Secretary of Labor for the United States Department of Labor (hereinafter the “Secretary”), commenced this action on December 9, 1986, to enjoi...
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MEMORANDUM OPINION AND ORDER The issue in this appeal is whether a debtor’s waiver of dischargeability of a debt, made in settlement of a creditor’s adversary action in state court, is enforceable in bankruptcy court. The debtor, Bruce Kenneth Minor, argues that the bankruptcy court erred in finding that his waiver was effective under § 727(a)(10) of the Bankruptcy Code. He contends that ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION On October 25,1988, plaintiff, the United States of America (“Government”), filed the complaint at bar. Its complaint was predicated upon the following claims: 1. This is a civil action for violations of the Clean Air Act (the Act), 42 U.S.C. § 7401, et seq., and EPA regulations promulgated pursuant to the Act concerning asbestos emissions, by the...
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MEMORANDUM OPINION Defendants move to dismiss counts I, III, V, and VI of plaintiffs’ complaint. Plaintiffs resist, and oral arguments were heard. Plaintiff Gerald Theus, who is black, is a Michigan citizen who currently resides in Abidjan, Ivory Coast. He is the president and sole stockholder of plaintiff Poulet d’Or, an Ivory Coast corporation. Defendants Pioneer Hi-Bred International, Inc....
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MEMORANDUM Plaintiff Michael McCrery has filed this pro se civil rights complaint on behalf of himself, his daughter and his stepson. Plaintiff alleges that employees of Community Youth Services (“CYS”) of Delaware County, Pennsylvania, have taken his children from him without due process of law.1 The complaint is grounded in sections 1983, 1985(2) and 1986 of Title 42 of the United States Code. W...
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OPINION & ORDER BACKGROUND An Order to Show Cause was brought before this court requesting a Temporary Restraining Order and a Preliminary Injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. The Order to Show Cause was returned unsigned and instead, the court held a hearing on the Preliminary Injunction issue. Defendant seeks to preliminarily enjoin plaintiff from...
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MEMORANDUM OPINION AND ORDER This is an appeal from a bankruptcy court order granting the creditor’s petition for involuntary bankruptcy against the debtor under § 303(h)(1) of the Bankruptcy Code. The debtor, H.I.J.R. Properties, argues that the petition was granted in error. It raises two issues: whether the evidence demonstrated that it was not generally paying its debts as they came d...
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MEMORANDUM On December 21, 1989, we entered summary judgment in favor of defendant, Susquehanna Broadcasting Co. (SBC), concluding that plaintiff, Federal Insurance Co. (Federal), was liable under its comprehensive general liability insurance for response costs incurred by SBC in cleaning up environmental pollution at certain sites in the Gettysburg, Pennsylvania area. See 727 ...
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MEMORANDUM The defendants, John Galinac, Roberta Pisle, and the Township of Swatara, have moved to dismiss plaintiffs’ complaint pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff, Todd M. Grier, instituted this action on behalf of himself and his minor daughter, Jocelyn E. Grier, after he was allegedly stopped and detained at gunpoint by defendants Galinac and Pisle, police officers for the de...
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FINDINGS AND RECOMMENDATION The instant matter has been referred to the United States Magistrate for Findings and Recommendation pursuant to 28 U.S.C. Section 636. Presently before the Court is defendant Green Island Construction Co., Inc. (Green Island) and defendant Reliance Insurance Company’s (Reliance) motion for remand of this action pursuant to 28 U.S.C. Section 1447(c) to the Providence C...
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ORDER Plaintiff, a black male, filed an amended complaint seeking relief under Title VII, 42 U.S.C. § 2000e et seq., for alleged racially and sexually discriminatory employment practices of defendants. In addition, plaintiffs amended complaint prays for general and punitive damages for defendants’ intentional violation of the Privacy Act, 5 U.S.C. § 552a(g)(4). Prior to his rem...
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MEMORANDUM At a bench trial in July of 1983, John DiSalvo was convicted on one count of conspiracy to distribute methamphetamine and three counts of unlawful use of a communications facility. I sentenced Mr. DiSalvo to 5 years of incarceration on the conspiracy count; and 4 years and 2 years, respectively, on two of the counts of unlawful use of a communications facility; and 4 years of probation ...
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MEMORANDUM AND ORDER This matter is before the Court on plaintiff’s objections to the Magistrate’s proposed memorandum opinion, which held (1) that plaintiff was not entitled to attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A) (1982 & Supp. V 1987), and (2) that plaintiff was entitled to attorney’s fees and expenses under the Social Security Act, 42 ...
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MEMORANDUM OPINION Dimitrios Kladouris first appeared before this court on November 3,1989. He was to enter a guilty plea that day to a charge of interfering with a federal agent. This court declined to take the plea, because on its examination of Mr. Kladouris, it appeared that he had a valid defense to the charge, of which he was not aware. The case was tried on November 28 and 29, 1989. The ...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This case involves the claims of 2,336 Plaintiffs, all alleging that they contracted a disease or injury as a result of exposure to the Defendants’ asbestos-containing products while employed at a number of refineries and other worksites in the Beaumont-Port Arthur-Orange area. The case proceeded to trial as a class action on the issues of...
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738 F.Supp. 1272 (1990) McKEE BAKING COMPANY, Plaintiff, v. INTERSTATE BRANDS CORPORATION, Defendant. No. 90-0450C(6). United States District Court, E.D. Missouri, E.D. June 14, 1990. *1273 Thomas M. Carney, Husch, Eppenberger, Donohue, Cornfeld & Jenkins, St. Louis, Mo., James C. Rubinger & Kimla Wilkins, (co-counsel), Donald A. Kaul, Washington, D.C., for plaintiff. Robert Hartzog, Clay...
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MEMORANDUM DECISION Defendant Icahn & Co., Inc. (“Icahn”) has moved, pursuant to Rule 56, Fed.R.Civ. P., for partial summary judgment dismissing count III of the complaint, which alleges a violation of the federal securities laws. In addition, Icahn seeks an order compelling arbitration of the remaining claims, all of which are based upon state law, and of the federal claim in the event i...
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ORDER This action was brought under the Federal Tort Claims Act and was tried without a jury. The court enters its Order pursuant to Federal Rule of Civil Procedure 52(a). I. FINDINGS OF FACT A. Claims and Defenses Kenneth M. Hunter brought this lawsuit to recover damages for injuries he claims were proximately caused by an automobile collision. Mr. Hunter seeks past and future medical, hospita...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS Defendants City of Key West, Tom Sawyer, George Halloran, Sally Lewis and Jimmy Weekley move this court to dismiss the complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff claims a violation of 42 U.S.C. § 1983 — for deprivation of a constitutionally protected property right without due process ...
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MEMORANDUM OPINION Petitioner Swindler shot and killed Officer Randy Basnett of the Fort Smith, Arkansas police department on September 2, 1976. At the time, Swindler, a federal parolee, was wanted for the murder of a teenaged couple in South Carolina, a crime for which he was subsequently convicted. Swindler’s guilt is not open to question. Two eyewitnesses saw him gun down the officer, who did n...
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MEMORANDUM OPINION The issue before us is whether defendant properly removed this case. For the reason stated below, we hold that removal was improper. BACKGROUND Plaintiffs Clinton Kennedy (“Kennedy”), Dale Long (“Long”), Kenneth Chandler (“Chandler”), and Harold Sutphin (“Sut-phin”) filed this purported class action, for breach of contract and an accounting, in the Circuit Cou...
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MEMORANDUM This case is before the Court on the plaintiffs motion to dismiss the defendants’ counterclaim. The plaintiff, Ales-sandro Cecconi, has brought this action for payment and interest on two promissory demand notes executed by the defendant corporations, Ceceo, Inc. (“Ceceo”), Beppe, Inc. (“Beppe”), and Marcene's, Inc. (“Mar-cene’s). The defendant has counterclaimed for violation of Mas...
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MEMORANDUM OPINION AND ORDER Defendants City of Allen Park (“Allen Park”) and Ecorse Creek Pollution Abatement Drain No. 1 (“Ecorse Abatement Drainage District”) bring this motion to compel the Michigan Department of Natural Resources (“MDNR”) and the United States Environmental Protection Agency (“EPA”) to fund its share of a Sewer System Evaluation Survey (“SSES”). Defendants argue that the m...
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ORDER AND OPINION Plaintiff class filed a complaint alleging violations of the federal securities laws, the Racketeer Influenced and Corrupt Organizations Act, and state law in connection with the offering and sale of shares in limited partnerships involved in the development of shopping malls. On July 27, 1989, the Court approved a settlement of the class action, and set August 10,1989 a...
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MEMORANDUM OPINION AND ORDER This case is before the court on a motion by the defendants to have the court reduce their sentences pursuant to Rule 35 of the Federal Rules of Criminal Procedure. FACTUAL AND PROCEDURAL BACKGROUND On November 18, 1987, the defendants were convicted of conspiring to distribute cocaine and aiding and abetting the distribution of cocaine. Those offens...
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ORDER AND REASONS This matter comes before the Court on motion to dismiss filed by Sears, Roebuck & Co. (“Sears”), seeking the dismissal of two claims made by the plaintiff, Newport Limited (“Newport”), including Newport’s seventh cause of action under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c). Sears argues that Newport has failed to allege facts...
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OPINION (sitting by designation). This is a class action by employees of Jewel Food Stores, the grocery chain, against the chain, charging that it reduced their wages below the level fixed in the collective bargaining agreement between the company and the union representing the employees. Jewel contends that at the same time it signed the collective bargaining agreement it made an or...
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On June 6, 1990, this court entered an order granting defendants’ motion to dismiss. 738 F.Supp. 1571. Plaintiff filed a motion pursuant to Federal Rules of Civil Procedure 59(e)1 for reconsideration and amendment of dismissal order, and for a stay. Plaintiff first seeks the opportunity to amend its complaint to assert an equal protection claim. Plaintiff also asks the court to amend its June 6, 1...
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ORDER In this action plaintiff seeks injunctive relief for alleged violations of the Sherman Antitrust Act, 15 U.S.C. § 2 (1976), the First and Fourteenth Amendments to the United States Constitution- as well as the laws of the State of Arkansas. At issue before the Court are defendant City of Paragould and its Light and Water Commission’s Motions to Dismiss pursuant to Fed.R.Civ.P. 12(b)...
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MEMORANDUM OPINION Introduction This Railway Labor Act (“RLA”) dispute, brought by fourteen labor unions and the Railway Labor Executives’ Association (“RLEA”) against a group of railroads, grows out of the railroads’ sale, lease, and abandonment of various of the railroads’ spur lines. Plaintiffs contend that defendants violated their duties under the RLA (i) to exert every reas...
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MEMORANDUM OPINION AND ORDER In this civil rights case involving a fatal shooting at the time of arrest, plaintiff sought to call an expert witness on the topics of police procedure and the use of force as part of her case-in-chief. Defendant objected on the grounds that plaintiff’s answers to the expert witness interrogatories were both inadequate and untimely. Plaintiff was precluded from calli...
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ORDER The above entitled matter came on for hearing on May 25, 1990 on defendants Green Tree and RTC/Midwest’s 1 motions *1344 for summary judgment against Security Savings and on defendant RTC/Midwest’s motion for summary judgment on Green Tree’s cross claim. In addition, plaintiff appeals Magistrate Bernard P. Becker’s March 22, 1990 order denying its motion for ...
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MEMORANDUM AND ORDER Census-taking has never been easy, and has rarely received favorable press. King David learned this the hard way. In First Samuel, the King directed his Census Bureau, one Joab, to “go through all the tribes of Israel From Dan to Bersabee, and number ye the people that I may know the number of them.” When Joab had reluctantly counted as far as 800,000, David realized ...
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ORDER DENYING DEFENDANT’S MOTION TO DISMISS OR FOR A MORE DEFINITE STATEMENT I. INTRODUCTION THIS MATTER is before the court on the motion of defendant World Time Corporation (“World Time”) to dismiss the complaint pursuant to Rule 17 of the Federal Rules of Civil Procedure, filed August 25, 1989;1 and, in the alternative, its motion for a more definite statement. Plaintiff Johannes Mentink (“Men...
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ORDER Plaintiff John-Tyronne Martin, an inmate at Pontiac Correctional Center, claims that he was deprived of his constitutional rights by government officials acting under color of state law. The alleged official misconduct occurred in December 1987, when Martin appeared in state court as a criminal defendant. Martin alleges that Cook County Deputy Sheriff Flood, who was the court securi...
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MEMORANDUM AND ORDER Plaintiff appeals from an order of the Bankruptcy Court granting summary judgment in favor of defendant. For the reasons stated below, that order is affirmed. On January 26, 1983, Ideal Wire, the eventual debtor corporation, closed on a $500,000 loan from the Money Store. This loan was secured by property known as 155 The Helm, East Islip, Long Island (the “Property”), ow...
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*1406 MEMORANDUM ORDER I. INTRODUCTION THIS MATTER is before the court pursuant to section 6(a) of the Classified Information Procedures Act (“CIPA”), for a determination “concerning the use, relevance, or admissibility of classified information” that defendant Reinaldo Juan Lopez-Lima seeks to use at trial. 18 U.S.C. app. § 6(a) (1988). The court conducted a hearing as provided by CIPA on ...
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MEMORANDUM^ This matter is before the Court on plaintiff’s motion to remand. The plaintiff filed this action when her- application to be a retail participant in the federal food stamp program was denied. The United States removed this action from the Bell Circuit Court pursuant to 28 U.S.C. § 1441. An aggrieved party may obtain judicial review of Food and Nutrition Service (FNS) deci...
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OPINION The matters before the court are: 1. the motion (# 5) of defendant, Trime-ter Technologies Corporation (Trimeter), to dismiss or stay this action pending the outcome of an action in the Western District of Pennsylvania; and 2. the motion (# 8) of plaintiff, Mentor Graphics Corporation (Mentor), to enjoin Trimeter from proceeding with the action filed in the Western District of Pennsylvania...
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OPINION The matters before the court are the motions of defendant, Michael S. Washington, to suppress physical evidence and statements. The indictment alleges that on May 3, 1989, Washington was a felon in possession of a firearm in violation of 18 U.S.C. § 922(n). FACTS On the evening of May 3, 1989, Allen Cardwell and Becky Wooten, police officers of the City of Portland, were on patrol. Officer...
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Before the Court is Defendant Barry Cashin’s Motion for Revocation of Detention Order. In this motion, Cashin seeks his release pending trial. In support of the motion, Cashin attached the affidavits of N.C. Deday La Rene, his attorney in a previous criminal matter, Harold Cashin, his father, Bernice Cashin, his mother, Brian Cashin, his brother, and the affidavits of several acquaintances and fa...
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Sitting by Designation: The District Attorney of Orleans Parish and the Louisiana Attorney General (collectively, the state) moved under Fed.R.Civ.P. 60(b)(5) to dissolve the 1976 injunction against enforcement of Louisiana’s criminal abortion statutes. For the reasons set out below we deny the motion. I. Background The four actions in which this court entered its 1976 injunc...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came before the court for trial on October 31,1989 and was continued to November 9, 1989. The court, having considered the evidence and legal arguments of the parties, enters the following Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a). FINDINGS OF FACT Plaintiffs, Paul N. Kuderer and La-Vaughn Kuderer, seek quiet title to...
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JUDGMENT NOTWITHSTANDING THE VERDICT On this day came on to be considered the defendants’ Motion for Judgment Notwithstanding the Verdict or, in the Alternative, Motion for New Trial. 1 After careful consideration, the Court is of the opinion that the following disposition is appropriate. I. SUMMARY OF THE EVIDENCE A. The Investigation The facts in this case show that on June 28, 1985...
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MEMORANDUM On September 29, 1987, the Governor of the Commonwealth of Pennsylvania issued *892 Executive Order 1987-18, 4 Pa.Code Section 1.451-1.459, creating the Office of Minority and Women Business Enterprises. On October 29, 1988, the Department of General Services of the Commonwealth of Pennsylvania (DGS) published a “Statement of Policy” in the Pennsylvania Bulletin, Vol. 18, No. 44, a...
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OPINION The matters before the court are the following motions of plaintiff, Kevin Carlton McClaflin: 1. a motion for a temporary restraining order (# 23-1) or a preliminary injunction (# 23-2) directing defendant Robert L. Wright to return legal materials to McClaf-lin; 2. a motion for relief from order (# 24); and 3. a motion for a preliminary injunction directing that the defendants provide McC...
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ORDER AND REASONS This matter is before the Court on (1) the motion of Stotler and Company to withdraw funds from the registry of the Court; (2) the motion of the trustees of the William Loring Ferguson III trust to withdraw funds from the registry of the Court; and (3) the motion of Ogg for creditors to be paid in order of rank. For the following reasons, the Court now determines that half of th...
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OPINION In the matter before the court, plaintiffs, Byron W. Horton and Helen Horton, move the court (# 32) for summary judgment in their favor on the grounds that there is no issue of material fact and they are entitled to judgment in their favor as a matter of law. The Hortons seek to recover the remaining balance due on a promissory note, together with interest and reasonable attorney fees. UN...
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OPINION OF THE COURT On April 1, 1988, plaintiffs filed suit in this Court alleging that the rates charged plaintiffs by defendants were unreasonable and in violation of federal and state law. Plaintiffs are commercial airlines which use the Kent County International Airport (Airport). Defendants are Kent County, the Kent County Department of Aeronautics and the Kent County Aeronautics Bo...
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OPINION Defendants American Motorist Insurance Company (“Amico”) and C.A. Shea & Company, Inc. (“Shea”) have moved for reconsideration of the opinion issued on June 13, 1989 in which Amico was granted summary judgment dismissing Counts Two and Three and granted time to submit further information. 715 F.Supp. 1221. Plaintiff, Pittston Warehouse Corporation (“Pitt-ston”), who was granted summary ju...
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*224 OPINION AND ORDER This motion for summary judgment relates to 37 unconsolidated cases 1 brought by Fidelity Bank, against each defaulting investor in a limited partnership, to collect sums due under promissory notes executed in connection with the partnership. Defendants contend that these notes were procured by fraud, and that plaintiffs notice of this fraud bars...
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APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORDER ON APPEAL This cause is before the court on appeal from the Order on Objection to Claim in Adversary Proceeding No. 880-480, entered September 29, 1989, by Chief Bankruptcy Judge Alexander L. Paskay. 105 B.R. 708. FACTS This is a Chapter 7 case and the matter under consideration is the dischargeability vel non...
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MEMORANDUM OPINION Robert Alley, U.S. Plating Corporation, and Pioneer Plating Company, Inc., have moved under Rule 12(b)(2), Fed.R.Crim. Pro., to dismiss the superseding indictment 1 against them for failing to state any offense on their part, or alternatively for failing to allege all of the necessary elements of an offense. 2 See United States v. Gironda, ...
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ORDER REGARDING REPORT AND RECOMMENDATION This cause is before the Court on a report and recommendation issued by Magistrate Thomas G. Wilson, on December 5, 1989. The Court, specifically referred the motion for preliminary injunction to the assigned magistrate. The Magistrate recommended the motion be denied. FACTS On December 5, 1989, Magistrate Wilson issued a report and recommendation w...
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ORDER ON PLAINTIFF’S MOTION TO COMPEL AND ORDER ON DEFENDANT’S MOTION FOR PROTECTIVE ORDER This personal injury action comes before the Court on a discovery dispute concern*562ing a request for production. The issues raised have been briefed and are ready for resolution. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART both the Motion to Compel and the Motion for Prote...
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OPINION AND ORDER This is an action brought pursuant to Section 510 of the Employee’s Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140, with pendant common law claims. Plaintiff alleges that he was fired from his position in order to limit his accrual of pension benefits and contractual commissions. Defendants have brought the instant motion to dismiss plaintiff’s complaint on a...
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MEMORANDUM OPINION AND ORDER One day in July 1987, Kevin Ross, a former college basketball player, barricaded himself in a high-rise hotel room in downtown Chicago and threw assorted pieces of furniture out the window. As Ross currently recalls it, the defenestrated furniture “symbolized” the employees of Creighton University, whose alleged misdeeds he blames for the onset of this “major ...
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MEMORANDUM AND ORDER This is an appeal by defendant below, Private Line, Inc., (“appellant”) from a decision of the Bankruptcy Court in favor of debtor and plaintiff below, Samar Fashions, Inc., (“appellee”) and against appellant in the amount of $15,240 plus interest at six percent (6%) per annum from August 18, 1989, to the date of judgment, and costs. The decision of the Bankruptcy Court was...
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MEMORANDUM OPINION This matter is before the court on Defendant Sherman Hospital Association’s motion to dismiss Count I of Plaintiff Veronica Deberry’s two-count complaint as failing to state a claim upon which relief can be granted. As Count II of the complaint is in this court solely on the basis of pendent jurisdiction, the defendant also asks that we dismiss it without prejudice so t...
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*838 MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT BEFORE THE COURT are the plaintiff’s Motion for Summary Judgment (Ct.Rec. 9) and the defendants’ Cross-Motion for Summary Judgment (Ct.Rec. 19), heard with telephonic oral argument on May 18, 1990. Richard B. Price appeared on behalf of the ...
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OPINION Defendant moves, and plaintiff cross-moves, for partial summary judgment on the issue whether a clause in defendant’s bill of lading limiting its liability to $500 applies in this case. Plaintiff also cross-moves for summary judgment regarding defendant’s liability. For the reasons stated below, the Court holds that the liability limitation applies. The Court denies plaintiff’s mo...
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MEMORANDUM OF DECISION This is an appeal from an order of the Bankruptcy Court imposing sanctions on an attorney for contempt by reason of his failure to comply with previous orders of the court. Review by this court is de novo. 1 *466 On March 25, 1986, Charles F. Volz, Jr., Esquire filed a joint Chapter 13 bankruptcy case on behalf of the above named debtors. A plan of Reorganizatio...
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MEMORANDUM & ORDER Plaintiff Eligió Castro, a former probationary High School Spanish teacher employed by defendant New York City Board of Education (the “Board”), brings this pro se action challenging the termination of his employment as being in violation of the Fifth and Fourteenth Amendments of the United States Constitution. Castro seeks compensatory and punitive damages, ...
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ORDER This matter is before the court on the motion of the plaintiffs to remand this case to the Court of Common Pleas of Jasper County, South Carolina. The motion was filed on March 29, 1990, and the defendant filed an opposing brief on April 12, 1990. This “bad faith” insurance action was initiated by the filing of a summons and complaint in the Court of Common Pleas for Jasper County on Ja...
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OPINION Sportswriter Sam Donnellon (“Donnellon”) and his employer National American Sports Communications L.P. (“National American”), the publisher of The National Sports Daily (“The National”), seek by order to show cause to quash a subpoena served by defendants James “Buster” Douglas (“Douglas”) and John P. Johnson (“Johnson”) upon Donnellon on June 4, 1990, to obtain evidence in a civil action ...
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OPINION AND ORDER Plaintiff Wellesley Hood brings this action pursuant to 42 U.S.C. § 1983 alleging deprivations of his eighth and fourteenth amendment rights. This action is currently before the Court on the motion of certain defendants to dismiss the amended com *198 plaint as barred by the statute of limitations and failing to meet the relation-back requirements of Rule 15...
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MEMORANDUM OPINION Plaintiff filed this action pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51, et seq., alleging that he was publicly harassed on the job and that this alleged harassment constitutes intentional infliction of emotional distress. Defendants moved to dismiss or, in the alternative, for summary judgment arguing that claims for intentional...
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OPINION AND ORDER BACKGROUND This order is issued pursuant to defendants’ motion to dismiss two of plaintiffs’ seven claims for failure to state a claim upon which relief may be granted (Fed.R. Civ.P. 12(b)(6)) and defendants’ motion to dismiss the entire action for lack of subject matter jurisdiction (Fed.R.Civ.P. 12(b)(1)). These motions were filed prior to any discovery, and for t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW BEFORE THIS COURT came to be heard the above-numbered, consolidated actions for trial to the Bench. Plaintiffs filed their respective actions pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Having heard the testimony adduced by the witnesses and having considered the evidence submitted b...
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MEMORANDUM AND ORDER The defendants’ unopposed summary judgment motion and the plaintiff’s motion for appointment of counsel are before the Court. I. PROCEDURAL BACKGROUND On November 9, 1989, this Court granted plaintiff’s petition for leave to proceed in forma pauperis on a complaint that alleged the defendants-employers violated his civil rights when plaintiff’s salary was reduced by 30%. He a...
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OPINION AND ORDER In a Decision dated April 12, 1990, as amended April 16, 1990, this Court ordered that judgment be entered for the defendants, with costs and attorneys’ fees of the defendants and third-party defendants to be paid by plaintiff. 734 F.Supp. 644 Plaintiff now moves for an order vacating and setting aside the Court’s findings of fact and conclusions of law and granting a new tria...
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ORDER Before the Court are plaintiff the Federal Deposit Insurance Corporation’s (FDIC) motions for summary judgment on defendant Cherry, Bekaert & Holland’s (Cherry Bekaert) third, fourth and eleventh affirmative defenses, and the respective responses. In February, 1986 the FDIC was appointed receiver of Park Bank. As receiver, the FDIC subsequently sold particular assets to the FDI...
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ORDER Before the Court is the Motion to Dismiss or Change Venue Pursuant to Fed.R. Civ.P. 12(b)(3) filed by Defendants Mitech Corporation and James E. Long in the above-styled and numbered cause. After careful review of the motions, the briefs, and the applicable law, the Court is of the opinion that Defendants’ Motion should be granted and this case should be transferred to the court of ...
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MEMORANDUM OPINION AND ORDER The case of Group Health Inc. v. Blue Cross Ass’n, et al., 83 Civ. 7567 (CSH) is now before the Court on the motion of the defendants and the intervenor-defendant for summary judgment pursuant to Fed.R. Civ.P. 56(b). Background The history of the captioned litigation is both extensive and complicated. While basic familiarity with the u...
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*967 MEMORANDUM AND ORDER Presently before the court are the parties’ cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56, and defendants’ motion for sanctions pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. For the reasons set forth herein, plaintiff’s motion for summary judgment will be denied, defendants’ motion for summary judgment will be granted, and defendants...
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MEMORANDUM OPINION AND ORDER I. BACKGROUND The plaintiffs in this case are various Driving Under the Influence Evaluators (Evaluators), motorist/driving under the influence defendants (DUI defendants) ordered by defendants to be evaluated by the Northern Illinois Council on Alcoholism and Substance Abuse (NICASA), and an attorney who represents individuals charged with DUI violations in the N...
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OPINION AND ORDER These are motions by the plaintiff for an order holding defendants in contempt, to amend the complaint, and for injunctive relief. BACKGROUND Plaintiff, the New York Times Company (Times), filed this action on September 14, 1989 against the Newspaper and Mail Deliverers’ Union óf New York and Vicinity (NMDU); Michael Alvino (Alvino), individually and as Preside...
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MEMORANDUM OPINION I. Facts' Debtor Paul Gianakas appeals an order of the United States Bankruptcy Court for the Western District of Pennsylvania determining that a claim of his ex-wife, Karen Gianakas, is exempt from automatic stay and nondischargeable because it is in the nature of alimony, maintenance or support. Paul and Karen Gianakas were divorced in March, 1983. A settlement agreem...
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OPINION Before me now are the fee applications of the court-appointed trustee, Edwin H. Stier, and counsel for the Trustee, the law firm of Reitman, Parsonnet, Maisel & Dug-gan. BACKGROUND After finding that certain individuals connected with Local 560 violated provisions of the federal RICO law, I ordered Local 560 to be placed in a Trusteeship. United States v. Local 560...
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MEMORANDUM This is an action to recover on a bond issued by defendant The Aetna Casualty & Surety Company (Aetna) to ensure the faithful performance of defendant Irwin A. Deutseher 1 as trustee of the estate in bankruptcy of H & S Transportation Company, Inc. (H & S). On September 4, 1981, H & S commenced a voluntary case in the Bankruptcy Court for the Middle Distri...
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OPINION This is an action on an insurance policy. Plaintiffs, Larry Kenneth Ashworth (“Mr. Ashworth”) and Dena Willis Ashworth (“Mrs. Ashworth”), have filed suit against State Farm Fire and Casualty Company (“State Farm”) seeking to recover under their homeowner’s policy for the loss of their home and its contents by fire. State Farm has asserted the affirmative defense of arson and has f...
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OPINION and ORDER This is a motion by plaintiff to vacate its default for failure to defend on defendants’ counterclaims and failure to prosecute its complaint. BACKGROUND In March 1990, the parties submitted a joint pretrial order. On April 6,1990, counsel for both parties appeared at a pretrial conference, where the Court informed the parties that it was placing the case on the ready trial calen...
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MEMORANDUM DECISION AND ORDER This is an action for breaches of warranties in connection with the sale of computer hardware and software to be used for processing voluminous seismic exploration data. The court’s jurisdiction rests on diversity of citizenship; plaintiff’s principal place of business is in California; defendant’s is in Oklahoma. The action is governed by Oklahoma law ...
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OPINION A contract case. This cause is currently before the Court following remand by the Seventh Circuit Court of Appeals for the purpose of further factual findings and conclusions of law regarding Count I of the complaint alleging breach of contract. (Our judgment on Count II of the complaint seeking injunctive relief was affirmed). This opinion and order constitutes our find...
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MEMORANDUM AND ORDER In March, 1988, plaintiff Barbara Kump, a New York resident, commenced this action in New York State Supreme Court, Nassau County. Defendant Xyvision, a Delaware corporation with its principal office in Massachusetts, removed the suit to this Court on diversity grounds in April, 1988. Plaintiff’s complaint alleges four causes of action: 1) breach of employment ag...
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MEMORANDUM OPINION AND ORDER Initially, in a one-count indictment, the government charged Sherman Nichols with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial before a jury, two police officers testified that they saw Nichols standing in front of an apartment building with the butt of a gun protruding from the waistband of his pants. When the officers ap...
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OPINION Plaintiff Rollins Environmental Services (FS) Inc. (“Rollins”), brings this breach of contract action against the trustees (“the trustees”) of the Ehlco Liquidating Trust (“Ehlco”), a trust formed in January, 1989 for the purpose of winding up the affairs of Edward Hines Lumber Co. (“Hines”). Rollins’s claim is based on an agreement it entered into with Hines in 1988. The action w...
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*275 MEMORANDUM OPINION I. Introduction Plaintiff Joan C. O’Callaghan brings this action for declaratory relief and damages under 42 U.S.C. § 1983 (1982). She alleges that defendants, the District of Columbia (“the District”), Maurice T. Turner, Jr., Charles Samarra, and Edward J. Spurlock, 1 approved and implemented an undercover “sting” operation that re...
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MEMORANDUM Plaintiff, Olivia J. Featherson, has instituted this action against the Montgomery County Board of Education and the individual members of the board under Title VII. 42 U.S.C. § 2000e-5 (1982). 1 Featherson, who is black, claims that she was unlawfully discriminated against because of her race in connection with her unsuccessful efforts to become an elementary school...
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OPINION Habeas corpus under 28 U.S.C. § 2254. Petitioner complains that law enforcement officials improperly questioned him after he had asserted his right to counsel at his arraignment, thus violating his sixth amendment right to counsel as defined in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Respondent answers that Petitioner did not request counsel within the me...
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ORDER Plaintiff Daniel O. Hydrick seeks a declaratory judgment concerning the enforceability of restrictive covenants in his employment contract with Management Recruiters International, Inc., which is a personnel placement company. After a rule nisi hearing on April 19, 1990, the Court temporarily stayed arbitration proceedings in the case. The Court granted the stay so that t...
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MEMORANDUM The Internal Revenue Service (“IRS”) petitions for the enforcement of its summons issued on October 13,1989 to the Church of Scientology of Boston, Inc. (“CSB”). In support, the IRS asserts that “[t]he books, records, papers and other data described and demanded by the summons are relevant and necessary to ... determine whether it is entitled to exempt status under Code Secs. 501(a) ...
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ORDER Plaintiff filed this lawsuit seeking review of the defendant’s decision denying him *333 social security disability benefits (disability benefits) and supplemental security income (SSI) benefits. This court has remanded this case on two separate occasions to the administrative law judge (ALJ) for further proceedings consistent with the Eighth Circuit’s decision in Polaski v. Heckler, ...
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MEMORANDUM OPINION AND ORDER This is an action in diversity for allegedly negligent advice given by the defendant union and two of its representatives. Presently before this Court is the union’s motion to transfer to the United States District Court for the Eastern District of Michigan, pursuant to 28 U.S.C. § 1404(a). Background Plaintiff Austin is a domiciliary of New York. De...
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MEMORANDUM AND ORDER This matter is before the court on the motions of plaintiff for discovery expenses and for an order to compel discovery. *197Plaintiff’s first motion relates to the failure of a witness to appear at a deposition to be taken in Austin, Texas. Plaintiff incurred certain expenses in travelling to Austin, but the witness failed to appear. Plaintiff submits that expenses are warran...
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*1450MEMORANDUM AND ORDER This matter is before the court on the following motions: the motion of the State of Oklahoma and the Oklahoma Tax Commission to dismiss Mobil Oil Corporation’s complaint for lack of subject matter jurisdiction (Doc. 1538); Mobil Oil Corporation’s motion for summary judgment against the State of Oklahoma and the Oklahoma Tax Commission (Doc. 1599); and the motion of the ...
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ORDER THIS MATTER is before the Court on the Defendant’s Motion to Transfer Venue, filed March 5, 1990, pursuant to 28 U.S.C. § 1404(a). The Defendant, Barclay Furniture Co. (hereafter “Barclay”), is seeking a transfer of this ease to the United States District Court for the Northern District of Mississippi, arguably because of the interests of justice and the convenience of the parties a...
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MEMORANDUM AND ORDER DENYING INTERVENOR’S APPLICATION FOR ATTORNEY’S FEES Intervenor Marvin S. Antelman brings this action for attorney’s fees pursuant to the Equal Access to Justice Act, Title 28 U.S.C.A. § 2412(b) and (d)(1)(A). Prior to July 1981, the Internal Revenue Service initiated an income tax investigation into the potential civil and criminal tax liabilities of Tilaco Chemicals, Ltd. (T...
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ORDER THIS MATTER is before the Court on motions to sever filed by Defendant Leola Marsh on May 30, 1990 and Defendant Mary Springs Ragin on June 7, 1990. Additionally, Defendant Leroy Ragin filed on June 4, 1990 a motion to quash the subpoena of his attorney, Mr. James H. Carson. *891The Government filed a response to Defendant Leola Ragin Marsh’s motion on June 1, 1990. The Court conducted a hea...
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MEMORANDUM Defendants, Alfred Maroun and Maroun Bros., Inc., were charged in a four-count indictment with “structuring” deposits so as to evade federal reporting requirements that attach to currency transactions in excess of $10,000. Defendants are alleged to have taken $75,000 from a confidential informant and an undercover government agent in May, 1987 for the purpose of laundering thes...
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MEMORANDUM The parties in this action stipulated, in the Final Pretrial Order entered April 6, 1990, to all of the facts relied upon in reaching a decision on this case. These stipulations are recited below. FACTS I. The Plaintiffs, Robert N. Taylor and Marion P. Taylor are husband and wife, who own real property located at 908 Cavalier Drive, Virginia Beach, Virginia, as tenant...
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MEMORANDUM OPINION Presently pending before the Court is plaintiffs’ motion for preliminary injunction. Oral argument on the motion was heard on June 11, 1990. Having carefully considered the motion, defendants’ opposition, plaintiffs’ reply, the administrative record, the argument of counsel, and the entire record in this case, plaintiffs’ motion shall be granted in part and denied in pa...
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MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This action is brought under the Petroleum Marketing Practices Act (PMPA), Title 15 U.S.C. § 2802 et seq. In 1986, Chevron U.S.A., Inc. sold its petroleum product marketing assets to defendant Cumberland Farms. Prior to the closing of the deal on May 31, 1986, Chevron sent out formal notices of nonrenewal unde...
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*1447MEMORANDUM AND ORDER This matter is before the court on the motion of Mobil Oil Corporation (Mobil) for reconsideration of the court’s prior opinion, Doc. 1679, which granted the Department of Energy’s (DOE) motion for summary judgment. 722 F.Supp. 649. The court ordered Mobil to deposit the sum of $10,-214,510, plus interest accruing after March 31, 1989 through the date of payment, into the...
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ORDER On June 5, 1990 this court held a conference to discuss the parameters of a hearing scheduled for August 14, 1990 at which the court plans to take the proffered testimony of defendant Gilbert Dowdy. Defendants Samuel Dowdy, Vicky Nixon, and Sheri Ellison seek to offer this testimony in support of their motions for severance. They argue that their codefendant will provide exculpatory informat...
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ORDER THIS MATTER is before the Court on Defendant’s motion, filed May 10, 1990, to be granted credit for time served while on bond prior to trial. *173The record in this case indicates Defendant was indicted on December 3, 1986 for his participation in a conspiracy to possess with intent to distribute in excess of two kilograms of cocaine in violation of 21 U.S.C. § 846. After being arrested, Uni...
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MEMORANDUM AND ORDER Rosa Sprouse, the plaintiff, filed this action seeking review of the final decision of the Secretary of Health and Human Services reducing her Supplemental Security Income benefits. Jurisdiction is appropriate pursuant to 42 U.S.C. § 405(g). The United States magistrate, to whom this case was referred pursuant to 28 U.S.C. § 636(b)(1)(B), filed a proposed memorandum opinion on...
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MEMORANDUM AND ORDER This matter is before the court upon defendants’ motion to amend judgment by remittitur. After a jury trial in this case, judgment was entered on May 3, 1990 in the amount of $256,795.33 actual damages and $500,000.00 punitive damages against both defendants. Defendants move for a remittitur only as to the punitive damage award. This action arises from a highway ...
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OPINION AND ORDER This is a motion to suppress certain evidence on the grounds that defendant Nelson Omar Tabar-Laro (Tabar-Laro) was arrested on December 26, 1989 by special agents of the Federal Bureau of Investigation (FBI) without probable cause. The Court resolves this motion without a hearing because the parties do not dispute any material facts. Tabar-Laro’s affidavit states that on De...
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MEMORANDUM This is a contract and unfair trade practices action brought by Chestnut Hill Development Corporation (“Chestnut Hill”) against Otis Elevator Company (“Otis”) for the alleged delayed installation and defective functioning of five elevators in a condominium complex owned by Chestnut Hill. The matter is now before the Court on defendant Otis’ motion for summary judgment or partia...
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*196MEMORANDUM AND ORDER This matter is before the court on the motion of defendants for extension of time in which to produce an expert report. Plaintiffs do not object, and the motion will be granted. Plaintiffs have filed a cross-motion, however, requesting that the court issue a protective order enjoining any further medical examination of the plaintiff by defendants’ medical expert. Plaintiff...
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MEMORANDUM AND ORDER Pursuant to an order of this court, Phyllis Kappen (Phyllis) has filed a showing of cause why her motion to intervene should not be barred under Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims. (Filing 35). The United States has filed a “request for determination,” filing 39, which is essentially a series of allegations that Phyllis’ showing is n...
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ORDER This matter is before the Court upon defendants’ D.D.B. Needham Worldwide, Inc. and Omnicon Group, Inc.’s Motion for Summary Judgment (doc. no. 53) and Renewed Motion for Summary Judgment (doc. no. 73). Memoranda in opposition to and in support of such Motions have been filed by the parties (doc. nos. 59, 76, 77). On Friday, January 19, 1990, a hearing was held on such Motions at wh...
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ORDER Before this Court are several motions: (1) Defendant’s Motion to Dismiss, or in the alternative, Motion for Summary Judgment; (2) Plaintiff’s Motion to Defer Pursuant to Rule 56(f) Consideration of Defendant’s Motion for Summary Judgment to Permit Discovery; (3) Plaintiff’s Cross-Motion for Partial Summary Judgment; and (4) Plaintiff’s Motion to Strike Defendant’s Exhibits. ...
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MEMORANDUM AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This matter arises under the notice provisions of the Miller Act, Title 40 U.S.C. § 270b(a). Defendant Praught Construction Corporation (Praught), the general contractor, entered into a contract with the United States for the demolition of the former Naval Annex in South Boston. In compliance with the Miller Act, a performanc...
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ORDER This matter is before the Court on the Government’s Application, filed March 2, 1990, for an Order to Show Cause why Lee T. Jessen should not be held in criminal contempt by the Court. On March 2, 1990, the Government filed an application for an Order for Lee T. Jessen to Show Cause why he should not be held in contempt. The application stated that Jessen failed to produce documents r...
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MEMORANDUM-DECISION AND ORDER Plaintiff John A. Burks, Sr. (“Burks”), individually and as trustee for Malone Trust, commenced this $30,000,000.00 lawsuit against defendants Eagan Real Estate Inc. (“Eagan, Inc.”), Richard S. Maestri (“Maestri”), Earl Rathbun (“Rathbun”), and Thomas Swan (“Swan”) on August 31, 1988. Burks’ complaint alleges that the defendants refused to negotiate or sell, ...
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MEMORANDUM On March 5, 1990, defendant, Robert Pa-leo, pleaded guilty to the charge of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The government had previously notified defendant that it would seek an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). For the following reasons, this court concludes that such an enhancemen...
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ORDER THIS MATTER is before the Court on Defendant D.R. Allen & Son’s (hereinafter “Defendant”) motion to dismiss on the ground of statute of limitations and/or *896laches brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The record in this matter indicates Plaintiff I R Construction Products Company (hereinafter “Plaintiff”) filed a complaint on January 23, 1990. The gis...
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MEMORANDUM This matter involves the death of plaintiffs’ son, Valion Jordan, IV, a severely retarded 10-year-old boy who was a resident at Clover Bottom Developméntal Center ("Clover Bottom”). Valion was born on April 2, 1977. For most of his early childhood, Valion required the continuous care and attention of his parents. As a result of his condition, Valion would often walk on his toes...
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ORDER This matter comes before the Court on the plaintiff’s petition for judicial review of a decision by the Secretary of Health and Human Services denying her claim for period of disability and disability insurance benefits. Both parties have moved for summary judgment. Background The plaintiff, Doris M. Jones, filed a claim for disability insurance benefits pursuant to Title II of the Social...
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ORDER This matter is before the Court on defendant’s misnamed Motion for Return of Seized Property. Presented for decision is the apparently novel question whether the government must return to defendant the money defendant voluntarily paid to government officials as a gratuity in violation of 18 U.S.C. § 201(c)(1). For the reasons that follow, the Court concludes that sound public policy consi...
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MEMORANDUM OPINION This matter is before the Court on defendants’ motion to dismiss, or in the alternative, for summary judgment. After reviewing defendants’ motion, the plaintiff’s response thereto, and after having heard oral argument from the parties, this Court is prepared to rule on the motion. *18 I. BACKGROUND This action stems from events which took place on the...
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ORDER Before the court is the motion of defendants, Richard C. Hogan, Jeanne D. Hogan, Shelly Latoria, Joseph Latoria, Shawn Sterne, Juli Sterne, Peter Sorensen, Nancy Sorensen, Dennis Bomberek, and Vicki Bomberek, to dismiss plaintiff’s complaint. For the following reasons, defendants’ motion is granted. On a motion to dismiss, the allegations of the complaint as well as the reasona...
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MEMORANDUM OPINION AND ORDER Plaintiff Patrick Munnelly, formerly an administrator of defendant Sloan Kettering Memorial Cancer Center (“Memorial” or “the Hospital”), brought this action against defendant pursuant to the Age Discrimination in Employment Act (“ADEA” or “the Act”), 29 U.S.C. §§ 621 et seq., alleging wrongful discharge based on age discrimination. By Order of June...
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MEMORANDUM AND ORDER On October 30, 1983, Joan Short Vicinan-zo, an employee of defendant Brunschwig & Fils, Inc. (B & F), was seriously injured in an off-duty automobile accident. For more than seven years, she was a valued employee and wallpaper designer. Now, nearly seven years later, she is completely, but perhaps not permanently disabled, and requires round-the-clock medical care at ...
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*1142 MEMORANDUM This matter is before the Court on remand from the Sixth Circuit Court of Appeals. The Sixth Circuit reversed this court’s holding that it did not have subject matter jurisdiction to determine the merits of Federal Express’ claim. See Federal Express Corp. v. Tennessee Public Service Comm’n, 693 F.Supp. 598 (M.D.Tenn.1988), aff'd 878 F.2d 38...
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*1547 ORDER In the above-numbered cases, the plaintiffs, Joel Duck, Timothy Hollingsworth, Ronald Muchison and Robert Mastroianni each separately sued the City of Nahunta, Georgia, and its various officials, alleging that their terminations from employment as city police officers and police chiefs violated their rights under the United States Constitution. These cases are current...
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MEMORANDUM ORDER Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., Congress established a fund, commonly known as the “Superfund,” for the purpose of removing hazardous materials. The facts underlying this case, which was brought by the government to recover costs it incurred in cleaning up such materials, are set...
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DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTIONS TO STRIKE AFFIRMATIVE DEFENSES I. BACKGROUND Plaintiff Federal Deposit Insurance Corporation, in its capacity as managing agent for the Resolution Trust Corporation acting in its corporate capacity (RTC), instituted this action on June 9, 1989, asserting jurisdiction under 28 U.S.Code sections 1345, 1331, 12 ...
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ORDER 1. Introduction Plaintiff, Loren D. Miller, sells motor fuels and groceries at a retail service station in Darlington County, South Carolina. The property is owned by Ruth Borders and was leased to Bekms Corporation on February 1, 1983. Bekms assigned the lease to defendant W.H. Bristow, Inc. (Bris-tow) who then subleased the property to plaintiff. Bristow is a petroleu...
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MEMORANDUM & ORDER Plaintiff, Adrienne J. Sweeney, wife of the late James Joseph Sweeney (“Sweer ney”) and executrix of his estate, brings this medical malpractice and wrongful death action against James R. Malm, Sweeney’s former doctor. Dr. Malm moves to dismiss the complaint as time-barred. For reasons which follow, we grant the motion. BACKGROUND 1 On July 3,1984, Dr....
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MEMORANDUM AND ORDER This matter is before the court for the purposes of issuing a written decision explaining the court’s upward departure from the Sentencing Guidelines. 18 U.S.C. § 3553(c). The defendant pleaded guilty to a two count indictment charging him with preparation of false immigration documents, in violation of 18 U.S.C. § 1001. The Guideline range was 18-24 months. The court sente...
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MEMORANDUM Currently pending before the court are a motion for summary judgment and a motion to strike the counterclaim and dismiss the third party complaint. After appropriate briefing by the parties, these matters are now ripe for disposition. For the reasons that follow, the motion for summary judgment shall be granted, and the motion to strike the counterclaim and dismiss the third party co...
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OPINION AND ORDER This is a diversity breach of contract action, with jurisdiction alternatively based on 12 U.S.C. § 632. Plaintiff Bank of America National Trust and Savings Association (“Bank of America”) is suing to recover over $3 million plus interest and costs allegedly due and owing from defendants under a loan restructuring agreement dated September 15, 1988 (the “Restructuring A...
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OPINION In this suit upon a disability policy the parties cross-move for summary judgment, stating that there are no material facts in controversy. The following facts do not appear to be disputed. I. FACTS The plaintiff is a physician licensed to practice medicine in the state of New York whose practice, until the events giving rise to this cause of action, was almost exclusively limited t...
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Plaintiff United States of America (“plaintiff”), commenced the above-referenced civil forfeiture action pursuant to the Comprehensive Crime Control Act of 1984, 21 U.S.C. § 881(a)(7) (“§ 881”) against defendant-in-rem. Currently before the Court is plaintiffs motion for specific jury instructions regarding the “innocent owner” defense. Claimant of defendant property, Josephine A. Counihan (“cl...
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*1075 OPINION Defendant Steven Saroff (“Saroff”) has moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment or in the alternative, partial summary judgment to dismiss the claims of either plaintiff Wallie Cooper Simpson (“Simpson”) or plaintiff Lower East Side International Community School, Inc. (“LESICS”) separately. For the reasons set forth bel...
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MEMORANDUM AND ORDER The factual and procedural history of this ERISA lawsuit has been set forth in three previous opinions and requires little further discussion. The case involves plaintiffs’ continuing rights, if any, under an employee benefit plan sponsored by Brunschwig & Fils, Inc. (“B & F”) and issued by New England Mutual Life Insurance Company (“New England”). Defendants assert v...
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MEMORANDUM AND ORDER John Reany (“plaintiff”), brings this action for injuries sustained in August, 1987, when his arm was burned by steam emanating from a pipe at the Brookhaven National Laboratory (“Brookhaven”). Named as defendant is the United States (“defendant”). Although Brookhaven is owned by defendant, it is operated by Associated Universities, Inc., an independent contractor. Currentl...
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MEMORANDUM OPINION AND ORDER The subject of this Order is defendants’ Motion For Summary Judgment filed December 6, 1989. Having considered the motion and accompanying memorandum, the statement of uncontroverted material facts and accompanying exhibits, and the plaintiffs’ exhibits and responses thereto, and having consulted the applicable authorities, I find that the motion should be denied. ...
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MEMORANDUM We are currently considering the motion for preliminary injunction filed by plaintiffs, Nationwide Mutual Insurance Company, Nationwide Mutual Fire Insurance Company, and Nationwide General Insurance Company (hereinafter collectively referred to in the singular as “Nationwide”). The complaint was filed on February 26, 1990, challenging certain provisions of Pennsylvania’s new automobil...
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MEMORANDUM Currently before the court is the motion of the defendants to dismiss this action for failure to state a claim upon which relief can be granted filed pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)). See document 4 of record. This court’s jurisdiction over the present action is predicated upon 42 U.S.C. § 1983 (§ 1983) and the doctrine of pendent jurisdiction. F...
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OPINION Defendants move pursuant to Rule 12(b)(1), Fed.R.Civ.P., to dismiss plaintiff’s claims brought under the Age Discrimination in Employment Act (“ADEA”) for lack of subject matter jurisdiction. For the reasons set forth below, the motion is denied. Parties Pro se plaintiff Mary Goulding (“Gould-ing”) filed this action for age discrimination under ADEA, 29 U.S.C. § 621 et seq.1 She was emplo...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on the Defendants’ Motion for Summary Judgment, filed February 12, 1990. After the Defendants filed the Motion for Summary Judgment, the Plaintiffs filed a Brief in Opposition to the Defendants’ Motion. The Defendants responded by filing a Reply Brief. The Plaintiffs then filed a Surreply Brief. Both the Plaintiffs and the Defendant...
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MEMORANDUM AND ORDER Michael Alexander has moved, pursuant to Federal Rules of Criminal Procedure 12(b)(3) and 41(e), for the suppression of evidence seized incident to his arrest and upon search of his home, and for the return of certain of this evidence. The government opposes this motion. A hearing was held on May 10 and May 11, 1990, at which the Court received evidence and heard the ...
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MEMORANDUM Petitioner, an inmate at United States Penitentiary-Lewisburg, Pennsylvania, filed this habeas corpus petition under 28 U.S.C. § 2241. His petition was based upon three distinct due process claims, asserting that Respondent abridged his rights by (1) considering information in his presentence report which the sentencing court found to be inaccurate; (2) basing their decision to increase...
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MEMORANDUM AND ORDER Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2554. On June 24, 1987, petitioner pled guilty in County Court of Suffolk County to one count of aggravated assault on a police officer, New York Penal Law § 120.11, and was sentenced on July 27,1987 to eight and one-third years to twenty-five years imprisonment, and a mandatory surcharge of $100.00. The County C...
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MEMORANDUM DECISION AND ORDER I. INTRODUCTION In order to rule on this appeal from a decision of the bankruptcy court, this court must determine under what circumstances a trustee in bankruptcy may appoint a law firm of which the trustee is a member to provide legal services for the bankruptcy estate the trustee is administering. Appellant, Herbert Wolas, is the trustee for an e...
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MEMORANDUM OPINION AND ORDER The government appeals from an order, 106 B.R. 236, confirming a Chapter 13 Plan over the objection that the plan did not provide for payment of a proof of claim filed by the Internal Revenue Service as a priority claim. The bankruptcy judge apparently concluded that the claim was not entitled to priority because it claimed taxes which were not assessed within 240 d...
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MEMORANDUM AND ORDER Plaintiff brought this action under the Internal Revenue Code, 26 U.S.C. § 7422, seeking the refund of income taxes, interest and penalties erroneously and illegally assessed. The court has jurisdiction pursuant to 28 U.S.C. § 1346(a)(1). Plaintiff now moves for summary judgment. I. The parties have stipulated to the facts, as follows. Plaintiff, Phyllis Altman, is th...
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MEMORANDUM AND ORDER This matter is before the Court on plaintiff’s motion for a declaration of choice of law. Plaintiff, CPC International, Inc. (CPC), contends that New Jersey law should govern this insurance contract dispute involving environmental contamination in Rhode Island. Defendant, North-brook Excess & Surplus Insurance Co. (Northbrook), opposes plaintiff’s motion, contending t...
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RULING ON OBJECTIONS TO MAGISTRATE’S RECOMMENDED RULING ON A PETITION FOR A WRIT OF HABEAS CORPUS On October 31, 1978, petitioner was indicted, under C.G.S. § 53a-54a(a), 1 for the murder of Michael Aranow. After a twenty-six day trial and a week of deliberation, on August 13,1979, the jury acquitted petitioner of murder under C.G.S. § 53a-54a(a) and convicted him of manslaught...
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MEMORANDUM Presently before the court is defendants’ motion for reconsideration of this court’s order of February 26, 1990 dismissing plaintiffs’ habeas corpus action and staying their other claims under 42 U.S.C. § 1983 (Section 1983). See documents 27 & 28 of record. For the reasons that follow, the motion to reconsider will be denied. I. BACKGROUND Plaintiffs filed...
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MEMORANDUM AND ORDER This is an action brought under section 205(g) of the Social Security Act, as amended (the “Act”), 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services (the “Secretary”), denying plaintiff’s application for disability insurance benefits. Plaintiff seeks reversal of the Secretary’s decision and an award of disability benefits. The S...
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There is before the Court the Plaintiffs’ Motion for Summary Judgment. During 1980, Jim S. and Agnes B. Angle-myer (who were husband and wife at all times here relevant) operated Anglemyer Construction Company, Inc. The corporation did not comply with its withholding tax obligations. Unfortunately, this resulted because the corporation found itself in financial difficulties and those in co...
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*1027ORDER This matter is before the court on a complaint filed pursuant to 28 U.S.C. § 1331. Plaintiff, a former inmate at the United States Penitentiary in Leavenworth, Kansas, claims he was beaten by prison officials on August 28, 1984. Plaintiff asserts this alleged beating was a violation of his rights under the Eighth Amendment to the United States Constitution and seeks compensatory and pun...
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ORDER This matter is before the court on defendants’ motion to dismiss. Having reviewed the motion, the response thereto, and the pleadings filed in this matter, the court makes the following findings and order. Plaintiff filed this complaint claiming that the defendants violated his constitutional rights by requiring him to participate in a “religiously oriented” substance abuse program at t...
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OPINION ON FINAL JUDGMENT This case, which has pended before both this court and the court of appeals several times during the last seven years, is now once again before this court for final judgment. In dispute is whether prejudgment interest should be awarded on the principal, and if it is awarded, from what date, at what rate, and simply or compounded daily. As discussed below, there i...
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ORDER This action is currently before the court on defendants’ motions for summary judgment. For the reasons stated below, the court GRANTS defendants’ motions for summary judgment. FACTS The tragic circumstances that account for the filing of the above-styled action were triggered by the arrest of Robert Wadley. Armed with an arrest warrant, City of Atlanta police officers appr...
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MEMORANDUM OPINION AND ORDER Plaintiffs filed this diversity action against Entre Computer Centers, Inc., Steven B. Heller and James J. Edgette, individually, claiming fraud, fraudulent inducement, breach of contract, violation of 18 U.S.C. § 1961 et seq., breach of fiduciary duty, and violation of the Texas Deceptive Trade Practices Act; TEX.BUS. & COMM. CODE ANN. §§ 17.46, 17...
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ORDER This cause is before the Court on plaintiff’s motion for remand to the Circuit Court of Mobile County, and for an award of attorney’s fees and costs incurred as a result of the removal. (Doc. # 7). As grounds for the motion, plaintiff states that the action was not removed within the time limits set out in 28 U.S.C. § 1446(b). Defendant contends that the action was timely removed. ...
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MEMORANDUM OPINION M. Nahas & Co., Inc. (Plaintiff) originally filed this action in the Garland County Circuit Court on February 26, 1990, alleging First National Bank of Hot Springs (Defendant) violated the Arkansas usury law, specifically Amendment 60 to the Arkansas Constitution. The complaint alleges that defendant loaned the plaintiff a sum of $400,000, evidenced by a note dated November 19,...
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DECISION AND ORDER FACTS On February 10, 1989, the debtors, Oilman and Janet Carter (“the Carters”), filed a voluntary bankruptcy petition with the United States Bankruptcy Court in the Eastern District of Wisconsin under the provisions of Title 11 of the United States Code. On February 28, 1989, the Carters filed an application and proposed order with the bankruptcy court requesting...
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ORDER This action is currently before the court on (1) defendants’ objection to the affidavit of Chiqita Boswell and (2) defendants’ motion for summary judgment. For the reasons stated below, the court does not consider the Boswell Affidavit in ruling on defendants’ motion for summary judgment. The court PARTIALLY GRANTS and PARTIALLY DENIES defendants’ motion for summary judgment. FACTS On Decemb...
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OPINION ON SUPPRESSION OF EVIDENCE The question in this case is whether the evidence seized during a warrantless search should be suppressed. The search had two distinct phases: an initial sweep and later searches of the building while agents were in the process of obtaining a warrant. Because the evidence was seized through an unjustified search, it must be suppressed. 1. Background. Agents of th...
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DECISION and ORDER The petitioner, Tony Hanif Lee, currently incarcerated at Waupun Correctional Institution, filed a petition for a writ of habeas corpus on May 12, 1988. Mr. Lee asserted two grounds for relief: first, that his rights under the confrontation clause of the sixth amendment were violated by the admission of incriminating out of court statements offered for the nonhearsay purpose of ...
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MEMORANDUM OF OPINION RE: GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The Plaintiff, Catherine Tanks, filed a Complaint with this Court against her former employer, the Greater Cleveland Regional Transit Authority (“RTA”). In her Complaint, Plaintiff, a former bus driver, alleges that the RTA, a governmental entity, violated her constitutional right to privacy, under the Fourth Amendment, ...
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MEMORANDUM OPINION AND ORDER Before me are two motions for summary judgment; the first filed by defendants Walt Knorpp d/b/a/ Knorpp Insurance Agency, Inc., Assurances Generales de France I.A.R.T., and Bishopsgate Insurance PLC (insurance companies) and the second filed by defendants H.D. Hall (Hall) and Guy W. Watters (Guy). The motions have been briefed adequately and oral argument would not as...
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MEMORANDUM In this diversity action, defendant seeks to recover costs and attorney fees pursuant to Federal Rule of Civil Procedure 68. For the reasons set forth below, recovery will be denied. DISCUSSION This case arose out of an accident that occurred at a K-Mart store in Northeast Philadelphia. Plaintiff claimed that while he was shopping at K-Mart, a box fell on him causing serious injury.1 Pr...
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MEMORANDUM OF OPINION RE: GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The Plaintiff, Anthony M. Holloman, filed a Complaint with this Court against his former employer, the Greater Cleveland Regional Transit Authority (“GCRTA”) and against his collective bargaining representative, the Amalgamated Transit Union, Local 286 (“Union”) and its president, Ronald iW. Jackson. In the Co...
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DECISION AND ORDER On May 5, 1989, plaintiff Northwestern National Insurance Company (“NN”) commenced these actions to recover money paid out under a surety bond. On March 9, *1305 1990, the court consolidated the above cases for all pretrial purposes. In the March 9, 1990 order, the court denied defendants’ motions to dismiss or in the alternative to change venue. The following opinion con...
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MEMORANDUM AND ORDER This consolidated action was the subject of a Memorandum and Order, dated December 30, 1988, published Bernstein v. Crazy Eddie, Inc., 702 F.Supp. 962 (E.D.N.Y.1988), vacated in part on other grounds, 714 F.Supp. 1285 (E.D.N.Y.1989), familiarity with which is assumed. The present matter concerns the claims of the shareholder plaintiffs (plai...
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MEMORANDUM AND ORDER Guillermo Bareno-Burgos has been charged in a two-count indictment with violating the currency reporting requirements of 31 U.S.C. § 5316 and with having made a false statement to a U.S. Customs Inspector in violation of 18 U.S.C. § 1001. Defendant moves to dismiss the § 5316 count claiming that he was under no duty to file a currency report at the time of his arrest ...
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DECISION AND ORDER On August 3, 1989, plaintiff Northwestern National Insurance Company (“NN”) commenced these actions to recover money paid out under a surety bond. The defendants in each of the three cases have moved for dismissal or in the alternative for transfer of these cases to Texas. The *1309 relevant factual background of the three cases is virtually identical and the legal issues t...
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FINAL JUDGMENT Following a bungled, violent but brief attempted jailbreak, this action was brought under Title 42 U.S.C. § 1983 by the plaintiff Bobby Smith, for money damages against H.R. “Mike” Holzapfel, Sheriff of Hardin County, Texas, and three of his deputies, Jimmy Butler, Gary Schofield and Randy Martin, individually, and not in their official capacities. A companion suit was filed by Paul...
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MEMORANDUM OPINION On May 30, 1989, Judge Richard Schell rendered an opinion in this case, finding the defendant Beaumont Independent School District (BISD) liable to the plaintiffs for racially discriminatory actions taken in violation of the plaintiffs’ fourteenth amendment rights to equal protection. Covington v. Beaumont Independent School District, 714 F.Supp. 1402 (E.D. Tex.1989). At th...
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OMNIBUS ORDER THIS CAUSE comes before the Court on the several motions of Defendants General Manuel Antonio Noriega and Lt. Col. Luis Del Cid to dismiss for lack of jurisdiction the indictment which charges them with various narcotics-related offenses. *1510 The case at bar presents the Court with a drama of international proportions, considering the status of the principal ...
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MEMORANDUM OPINION AND ORDER This cause is before the court on separate motions by defendants Osbie L. Booth and John A. Shoemaker for severance pursuant to Rule 14 of the Federal Rules of Criminal Procedure and to dismiss count III of the indictment. The government has responded to defendants’ motions and upon consideration of the motions together with the responses, the court concludes that coun...
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MEMORANDUM AND ORDER The Plaintiffs, Don W. and Linda Felton (“Feltons”) filed suit against the Defendants alleging breach of contract, wrongful termination and violation of Arizona Revised Statute (“A.R.S.”), § 41-1463 (Employment discrimination). Defendants, The Unisource Corporation, Paper Corporation of America and Aleo Standard Corporation (collectively referred to as “Unisource”) fi...
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DECISION AND ORDER BACKGROUND On August 23, 1989, the Judicial Panel on Multidistrict Litigation ordered, pursuant to Title 28 U.S.C. § 1407, the case of Robert Eckstein, et al. v. Balcor Film Investors, et al. (“Eckstein”) to be transferred from the Central District of California to this court for consolidated pretrial proceedings with Ralph Majeski, et al. v. Balco...
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OPINION Plaintiff, Saverio Senape (“plaintiff” or “Senape”), brings this ease pursuant to 42 U.S.C. § 1983, seeking injunctive relief and damages against defendants Joann A. Constantino, Deputy Commissioner of the Division of Medical Assistance for the New York State Department of Social Services; Cesar A. Perales, Commissioner of the *251 New York State Department of Social ...
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MEMORANDUM This consolidated action is before the Court upon the following motions: 1. Government’s motion to dismiss the declaratory judgment action of Provident Life and Accident Insurance Company (“Provident”) (CIV-1-89-190, Court File No. 5); 2. Government’s motion for partial summary judgment as to the liability of Provident (CIV-1-89-316, Court File No. 32); *495 ...
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MEMORANDUM OPINION In the wake of this court’s refusal to grant summary judgment to either party, see Three D Departments, Inc. v. K Mart Corp., 732 F.Supp. 901 (N.D.Ill.1990), the court now has before it K Mart Corporation’s supplemental motion for summary judgment and Three D Departments, Inc.’s motion for reconsideration of the court’s prior order. 1 Between these two motions the court c...
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MEMORANDUM OPINION Harold Hemstreet owns two patents for a device which is capable of automatically reading and sorting written documents. Various companies manufacture such optical character readers, or OCR’s; Mr. Hem-street has licensed some of those companies, among them International Business Machines, Inc. (IBM) and Recognition Equipment, Inc. (REI). Others, such as Computer Entry Sy...
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OMNIBUS MEMORANDUM ORDER This cause comes before the Court upon several Claimants’ Motions to Dismiss, sup *844 ported by an omnibus memorandum of law filed on May 30, 1990. A hearing on the issues raised in the omnibus memorandum was held on Friday, June 8, 1990, at which the United States, lead counsel for various Claimants, and other counsel were present and were heard the...
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MEMORANDUM OPINION AND ORDER INTRODUCTION Plaintiff, the Secretary of Labor, brought this action pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (FLSA or Act), alleging violations of the Act’s minimum wage, overtime, child labor and recordkeeping provisions. The cause was tried to the court. Based on the *1224 evidence adduced at trial, the c...
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DECISION AND ORDER BACKGROUND On February 10, 1989, plaintiffs Robert and Sylvia Eckstein (“the Ecksteins”) filed a complaint, on behalf of themselves and the class they seek to represent, in the Central District of California. The Ecksteins allege that the defendants (1) violated section 10(b) of the Securities Exchange Act of 1934 (“§ 10(b)”) and Rule 10b-5 promulgated thereunder b...
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OPINION Arie E. David (“David”) and the Law Offices of Arie E. David (“David Law Offices”) move for an order granting leave to appeal the Opinion and Order of the Court dated April 12, 1990, which left unaltered a prior opinion of the court sanctioning these movants. The application for leave, which is opposed by defendant, is granted. The Facts The opinion and order of this court dated April 1...
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OPINION This case arises out of the 1988 elections for Governor and Lieutenant Governor of the State of Delaware. Gary E. Hindes (“Hindes”), the Democratic candidate for Lieutenant Governor, contends that Governor Michael N. Castle (“Castle”), Lieutenant Governor Dale E. Wolf (“Wolf”) and their respective campaign committees violated the Racketeer Influenced and Corrupt Organizations Act ...
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MEMORANDUM OPINION AND ORDER This case is before the Court on a Motion to Remand filed by Plaintiff. For the reasons contained in this Opinion, the Motion will be granted and the case will be remanded to state court. On October 10, 1989 Plaintiff filed her complaint in Rio Arriba County District Court against her former employer, Defendant Mason and Hanger-Silas Mason Company, Inc. (...
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SENTENCING MEMORANDUM Edward Landaw has been found guilty of possessing a firearm as a felon. 18 U.S.C. § 922(g)(1). On October 21, 1988, two semi-automatic handguns were found during the execution of a search warrant at Mr. Landaw’s residence; a jury concluded that Mr. Landaw knowingly possessed those guns. Because the offense occurred after November 1, 1987, the Sentencing Guidelines promulga...
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MEMORANDUM Before the court is an appeal and two responding motions arising out of the January 8, 1990, Order and Opinion of the bankruptcy court in the above captioned matter. The related motions stem from Midlantic National Bank’s (a secured creditor in the bankruptcy action) appeal of the bankruptcy court’s decision regarding the scope of permissible discovery. Midlantic claims that the bankrup...
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OPINION This action is before the court on the motion of plaintiff Leonard Grossman (“Grossman”) for a preliminary injunction and on cross-motions to dismiss brought by defendants Harry B. and Leona M. Helmsley (“Helmsley”), Supervisory Management Corp. (“SMC”), Helmsley Enterprises, Inc., *203 John J. Reynolds, Inc., Brown, Harris, Stevens, Inc., Deco Purchasing and Distribu...
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729 F. Supp. 398 (1990) Gary Lee ROCK, Petitioner, v. Leroy S. ZIMMERMAN, and Franklin County District Attorney, Respondents. Civ. No. 88-2011. United States District Court, M.D. Pennsylvania. January 22, 1990. *399 *400 David Rudovsky, Kairys & Rudovsky, Philadelphia, Pa., for petitioner. John F. Nelson, Dist. Atty., Office of the Dist. Atty. for Franklin County, Pa., Chambersburg, Pa., for ...
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MEMORANDUM Plaintiff filed a two-count complaint against defendant. In Count I plaintiff alleges that she was discharged due to her *648 age in violation of the Age Discrimination in Employment Act (“the ADEA”), 29 U.S.C. § 621 et seq. In Count II plaintiff alleges that she was discharged due to her sex in violation of Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT The Court heard the parties’ cross-motions for summary judgment on April 4, 1990. Appearing for plaintiff was Vincent J. Chiarello of Morrison & Foerster. Appearing for defendant Department of Insurance (“Department”) was Deputy Attorney General Miles Washington. Appearing for defendant The Workers’ Compensation Insurance Rating Bureau (“Bure...
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MEMORANDUM AND ORDER Plaintiff’s motion for reargument is granted. Local Civil Rule 3(j); Fed.R. Civ.P. 59(e). Upon reconsideration, the judgment is vacated and defendants’ motion for summary judgment is denied. Fed. R.Civ.P. 56. BACKGROUND Plaintiff, The Travelers Insurance Company [“Travelers”], commenced the instant action for a declaration of rights under certain facultative...
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OPINION AND ORDER Plaintiff, a New York corporation with principal place of business in New Jersey, brings this diversity action to recover losses allegedly caused by the rejection of its bid for construction contracts with the City of New York because bid bonds issued by defendant South American Insurance Company (SAIC) “did not comply with the IPB [Information for Bidders prepared by the City...
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MEMORANDUM AND ORDER This case is before the undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73(b), Federal Rules of Civil Procedure, for all further proceedings, including entry of judgment [see Doc. 19]. The defendants’ supplemental motion for summary judgment and motion to dismiss are currently pending before this court [see Docs. 35, 41], This is a civil rights action brought pursuant to ...
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MEMORANDUM Plaintiffs commenced this action on February 3, 1989 against the Southeastern Pennsylvania Transportation Authority (“SEPTA”) and various other defendants pursuant to the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, et seq., the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. §§ 1983,1985,1986 and 1988. Presently...
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OPINION Defendants Michael Parrot, Gary Bezio and Dale LaBombard, all officers at the Clinton County Correctional Facility, have filed a motion to dismiss the complaint filed by pro se plaintiff Nache Afrika, who has alleged that these defendants violated his right to due process under 42 U.S.C. § 1983 during a 1986 disciplinary hearing. Defendant Andrew Ryan, former district attorney of Cl...
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ORDER & OPINION Plaintiffs filed this action against more than sixty defendants, claiming that their investments in four limited partnerships were fraudulently induced. Plaintiffs have alleged violations of § 10(b) of the Securities Exchange Act of 1934, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”), and state law in connection with t...
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DECISION AND ORDER INTRODUCTION This action for a declaratory judgment, pursuant to 28 U.S.C.A. § 2201 (West 1982 & Supp.1990), is before us on diversity jurisdiction, 28 U.S.C.A. § 1332 (West 1966 & Supp.1990). Plaintiff Federal Kemper Insurance Company (“Federal Kemper”) seeks a declaration concerning a certain Automobile Insurance Policy issued to defendant Jay W. Charles, coverin...
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MEMORANDUM This antitrust case is before the Court on motions of all defendants to dismiss the Amended Complaint pursuant to Federal Civil Procedure Rule 12(b)(6). There has been thorough briefing by all parties, and the motion will be decided without oral argument, as permitted by Local Rule 105(6), D.Md. FACTUAL BACKGROUND Plaintiff, Sun Dun, Inc., is in the business of market...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER was tried before the undersigned, sitting without a jury, on January 22, 23, and 24, 1990. The Plaintiff is seeking to recover a fee for allegedly acting as a financial advisor to the Defendants. In this Memorandum of Decision and Order, the Court will set forth its Findings of Fact and Conclusions of Law based upon the evidence introduced at t...
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*656 ORDER This matter is before the court on the defendant’s motion for summary judgment. Plaintiffs’ claim defendant has violated plaintiffs’ constitutional rights to freedom of speech, freedom of association, due process, equal protection and the free exercise of religion. For the reasons set forth herein, defendant’s motion will be granted. FACTUAL BACKGROUND A. ...
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OPINION General Electric Company (“GE”) filed this action alleging infringement of U.S. Patent No. 3,953,394 (“the GE patent”) against Hoechst Celanese Corporation (“HCC”) and Celanese Engineering Resins, Inc. (“CER”). HCC and CER have each counterclaimed for a declaration of non-infringement, invalidity and unenforceability of the GE patent. On November 9, 1988, the Court ruled on t...
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FINDINGS OF FACT and CONCLUSIONS OF LAW Pursuant to a Mandate of the United States Court of Appeals for the Second Circuit, docketed in the Southern District of New York on February 23, 1989, which vacated and remanded a prior order of this Court (Judge Lowe), reported at 698 F.Supp. 1109 sub nom United States v. Salerno (SDNY 1988), denying a new trial to defendants Matthew Ia...
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MEMORANDUM OF OPINION ON DISQUALIFICATION ISSUE Plaintiff Willie Brown, a black man, initially filed this action solely against the State of Alabama complaining that he was discharged by the state department of revenue because of his race, sex, and age. The race claim is predicated only on 42 U.S.C. § 1983, while the age and sex claims rest on 42 U.S.C. § 2000e. The Court granted the State’s motio...
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ORDER Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for review of a final decision of the Secretary of Health and Human Services denying his claim for a period of disability and for disability insurance benefits under §§ 216(i) and 223 of Title II of the Act, 42 U.S.c. §§ 416(i) and 423. Plaintiff filed an application for disability insurance b...
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Plaintiffs are five Filipino seamen who were discharged from Defendant Spiliada Maritime Corporation’s (“Spiliada”) vessel, M/V SPILIADA, in New Orleans on July 7, 1989. Plaintiffs assert wage and penalty wage claims pursuant to U.S. Penalty Wage Statute, 46 U.S.C. 10313.1 Spiliada filed a Motion for Summary Judgment, or Alternatively, Motion to Stay Proceedings, contending that plaintiffs entered...
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ORDER AWARDING ATTORNEYS’ FEES This matter is before the Court on Plaintiff’s Application For Attorneys’ Fees And Expenses. The Court has read the Application and its attachments, the supplemental applications, and the responses, and now determines that oral argument would not *1349 be of material assistance in rendering a decision. Plaintiff is seeking attorneys’ fees a...
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MEMORANDUM OPINION The matter is before the court on defendant’s motion for summary judgment or, in the alternative, motion for partial summary judgment on the claim for punitive damages and plaintiff's motion for partial summary judgment that plaintiff is entitled to $10,000 under the insurance policy and punitive damages. After reviewing the motions, briefs, and evidence submitted by bo...
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740 F. Supp. 1535 (1990) FRANKLIN SAVINGS ASSOCIATION and Franklin Savings Corporation, Plaintiffs, v. DIRECTOR OF the OFFICE OF THRIFT SUPERVISION, Defendant, and United States of America, Defendant-Intervenor. No. 90-4054-S. United States District Court, D. Kansas. June 22, 1990. *1536 *1537 Charles W. German, David E. Everson, Jr., Brant M. Laue, Richard F. Hunter, Stinson, Mag & Fizzell, ...
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MEMORANDUM Plaintiffs, an insurance company and its affiliates, originally brought this declaratory judgment action under 28 U.S.C. §§ 2201 and 2202 against Pierce Waste Oil Service, Inc. (“Pierce Waste”) and Pierce Waste’s directors, Jack Pierce, Martin Pierce and Mary Lynn Giacomini1. Plaintiffs seek a declaration of their rights and obligations under Manufacturers and Contractors liability ins...
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The expression of an idea is copyrightable. The idea itself is not. When applying these two settled rules of law, how can a decisionmaker distinguish between an idea and its expression? Answering this riddle is the first step— but only the first — toward disposition of this case in which the court must decide, among other issues, (1) whether and to what extent plaintiff’s computer spreadsh...
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MEMORANDUM This matter is now before the Court on the motion of Pierce Waste Oil Service, Inc. (“Pierce Waste”), Jack L. Pierce, Martin J. Pierce and Mary Lynn Giacomini1 to dismiss plaintiff’s complaint against them for failure to state a claim upon which relief can be granted and/or for lack of personal jurisdiction. Plaintiff insurance company filed this declaratory judgment action pursuant to...
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OPINION INTRODUCTION In this action, the United States seeks to reduce to judgment federal income tax assessments for the tax years 1977, 1978 and 1980 against the defendants Jay and Judith Rode. 1 The government also seeks to set aside, as a fraudulent conveyance, the transfer of a farm located at 1566 Ten Mile Road, Sparta, Michigan from Jay and Judith Rode to their sons, defendants Jay R...
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MEMORANDUM AND ORDER I. This is the fourth motion to dismiss or motion for summary judgment that defendants have filed in this Privacy Act case. Plaintiff, Donald Kostyu (Kostyu), alleges that the Internal Revenue Service (IRS) incorrectly named him as the leader of a violent tax protest group in an internal IRS publication entitled the Illegal Tax Protester Information Book ...
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ORDER At a hearing held in open court on June 21, 1990 the court announced its decision to deny the severance motion filed by defendant Cassandra Miller. The court explained that the motion was denied because the marital privilege asserted by Cassandra Miller does not apply in cases where the husband and wife are alleged to be joint participants in a crime. Because of the dearth of Eighth Circu...
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*1277MEMORANDUM This case is currently before the Court for frivolity review of plaintiffs amended complaint. For the following reasons, the Court withholds summons and process and dismisses plaintiffs case as frivolous. Plaintiff, a Missouri state prisoner currently confined at Algoa Correctional Center in Jefferson City, Missouri, brings this action against his state parole officer, Ruth Nance; ...
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MEMORANDUM AND ORDER This matter is before the court on the motions of defendant Director of Office of Thrift Supervision (“OTS”) to dismiss plaintiff Franklin Savings Corporation (“FSC”) as a party to this litigation and of defendant David Douglass, Commissioner of the Kansas Savings and Loan Department, for summary judgment on the amended complaint and the supplemental complaint. Plaint...
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ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT. This cause is before the court on the defendants’ motion for partial summary judgment. Fed.R.Civ.P. 56. The motion addresses those counts in which the plaintiffs seek to recover damages from the defendants based on claims of restitution and indemnity. A hearing on the motion was held December 11, 1989, after at least ten days notice of such he...
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MEMORANDUM OPINION AND ORDER The matter is before me on cross-motions for summary judgment. Plaintiff, Dr. Marie Wirsing (Dr. Wirsing) argues in her motion that, as a matter of law, the University of Colorado at Denver’s (the University) standardized student evaluation policy interferes with her right to academic freedom under the First and Fourteenth Amendments to the United States Constitution. ...
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MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on Claimant Carl Allen Ridgeway’s motion to dismiss the United States’ First Amended Complaint for forfeiture of Property, for again failing to meet the specific pleading requirements of Rule E(2)(a) of the Supplemental Rules for Certain Admiralty and Maritime Claims, and the United States’ response thereto. Having reviewed the pleadings...
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MEMORANDUM-DECISION AND ORDER Introduction The plaintiff is the owner of a United States patent for certain design aspects of dome-shaped storage structures. The plaintiff has commenced suit against numerous corporate and individual defendants, alleging that they willfully infringed on his patent and contributed to its infringement by others, and that the defendant Storex Systems...
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Plaintiffs, Nicholas P. Giambelluca arid Michael J. Giambelluca, commenced the instant action after discovering that defendant, Dravo Basic Materials Company, Inc. (“Dravo”), was moving trucks and other heavy equipment along a road that runs through plaintiffs’ batture property in Hahnville, Louisiana. Dravo had been using the road to move materials to and from its dredging operation situated on t...
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ORDER DENYING REQUEST FOR ATTORNEY FEES This cause is before the Court on defendants’ Motion for Attorneys’ Fees and Costs, filed herein on April 9, 1990. Plaintiffs responded with a memorandum in opposition to the motion, filed herein on April 20, 1990. The Court will deny the motion for the reasons stated herein. Defendants seek fees and costs pursuant to 29 U.S.C. § 1132(g) follow...
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MEMORANDUM OPINION I. INTRODUCTION. THIS CAUSE comes before the court pursuant to the Order and Preliminary Injunction entered March 1, 1990. By that order, the court granted in part the motion for preliminary injunction filed August 31, 1989 (Docket No. 2) by plaintiffs Stein et al., denied the motion to dismiss filed September 1, 1989 (Docket No. 7) by intervenor defendant Ketchikan Pulp Co...
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ORDER THIS CAUSE has come before the court upon the motion of the defendants to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiffs have filed an opposing response and the defendants replied. The court has also heard oral argument of able counsel at the hearing held on May 11, 1990. The plaintiffs are general and subcontractors who have and intend in the...
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OPINION AND ORDER This is another civil rights case brought by employees of La Fortaleza (the Governor’s mansion in Puerto Rico) who were dismissed from their positions following the gubernatorial election in 1984. At least three other cases involving dismissed La Fortaleza employees have already served as a basis for First Circuit decisions. See Rosario-Torres v. Hernández-Colón, 889 F.2d 314 (1...
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MEMORANDUM AND ORDER I. INTRODUCTION. THIS CAUSE comes before the court pursuant to the court’s minute order filed June 28, 1989 (Docket No. 4), directing plaintiff to show cause, if any, why his demand for jury trial should not be stricken. II. BACKGROUND. On May 30, 1989 (Docket No. 1), plaintiff Don Kathriner filed a verified complaint seeking recovery for injuries alleg...
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ORDER This Cause has come before the court upon the defendants’ motion for determination of amount of fee award. The plaintiffs filed an opposing response and the defendants replied. Accordingly, the motion is ripe for decision. By order dated January 31, 1990, this court found that the plaintiffs’ prosecution of this action against the individual members of the Martin County Board o...
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OPINION AND ORDER Plaintiff John W. Kluge (Kluge) moves for summary judgment, pursuant to Federal Rule of Civil Procedure 56, in this action seeking recovery on an indemnification agreement executed in his favor by individual defendant William D. Fugazy (Fugazy) on behalf of himself and the corporate defendants, all of which are owned by Fuga-zy. Defendants concede that said indemnification agree...
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AMENDED MEMORANDUM OPINION AND ORDER THIS MATTER is now before the Court on the plaintiffs’ Motion for Partial Summary Judgment for Violations of the Federal Consumer Leasing Act, filed October 31, 1989. Having reviewed the memoranda *807 of the parties, and being otherwise fully advised in the premises, the Court finds that the motion is well-taken and will be granted. ...
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*581 MEMORANDUM OF DECISION GRANTING CLAIMANTS’ MOTION TO DISMISS The United States filed a Verified Complaint for Forfeiture alleging that Defendants constitute proceeds traceable to the transportation, sale, receipt, possession or concealment of controlled substances in violation of 21 U.S.C. §§ 881(a)(4) and (a)(6). Claimants Paul and Donna Spencer have moved to dismiss the Verified Compla...
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MEMORANDUM AND ORDER Plaintiff Robert Belton, originally pro se, began this action in April of 1988, alleging that the United States Postal Service (“USPS”) discriminated against him because of his race and physical handicap when it terminated him from his employment. By Memorandum Endorsement dated December 15, 1989, this Court denied the USPS’s motion to dismiss for lack of subject matter juris...
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MEMORANDUM DECISION AND ORDER The defendant Julio Larracuente (“Larracuente”), moves for an order seeking the following relief: (1) a bill of particulars pursuant to Fed.R.Crim.P. 7(f); (2) severance from his co-defendants pursuant to Fed.R.Crim.P. 12(b)(5) and 14; and, (3) suppression of physical evidence pursuant to Fed.R.Crim.P. 41(f). For the following reasons, branch (1) is denied, b...
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MEMORANDUM OPINION AND ORDER The plaintiff, Zurich Insurance Company, has instituted this action for a declaratory judgment, pursuant to West Virginia Code §§ 55-13-1 to -16 (Repl.Vol.1981), regarding coverage under a comprehensive general business liability policy. Jurisdiction of this court is properly invoked under 28 U.S.C.A. § 1332 (West 1966 & Supp.1990), as the parties are of diver...
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ORDER Pursuant to 28 U.S.C. § 1404(a), defendants have moved to transfer this diversity case to the United States District Court for the District of Massachusetts. For the reasons stated herein, defendants’ motion to transfer is denied. I. FACTS Defendant L.T. Laboratories, also known as L.T. Corporation (“LT”), is a Massachusetts corporation which markets and distributes health...
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MEMORANDUM-DECISION AND ORDER Defendants brought on a motion for summary judgment on plaintiffs complaint alleging that there are no genuine issues of material fact concerning plaintiff’s causes of action based upon tort, misrepresentation and breach of contract. Plaintiff claims that the instant motion is barred by the doctrine of law of the case, and that, in any event, defendants’ motion shoul...
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MEMORANDUM OPINION AND ORDER In 1982, pursuant to Fed.R.Crim.P. 20, defendant Peter Makres pleaded guilty to a five-count indictment alleging transportation of forged checks in violation of 18 U.S.C. § 2314. Each count involved a separate check, but the checks involved in the first four counts were all drawn on the same account and cashed on May 21, 1982 in Greensboro, North Carolina. Pre...
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MEMORANDUM OF DECISION AND ORDER GRANTING THIRD-PARTY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiffs brought this diversity action to recover damages allegedly caused by Defendant’s negligence. Defendant and Third-Party Plaintiff (Boise) brought a third-party claim against both I.M.C. of Virginia (I.M.C.) and Commercial Union Insurance Company (CUIC). Boise alleges that the indemnity ...
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OPINION The plaintiff, Orient Atlantic Parco, Inc. (“Orient”) as consignee, contracted with the defendant Maersk Lines, as shipper, to ship 3600 cartons of frozen mushrooms from Shanghai to Philadelphia. The bill of lading designates that the cargo was to be shipped on a freight collect basis. The shipment arrived in Philadelphia on February 17,1988. Before the goods arrived, the plaintif...
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OPINION Defendant I.T.I. Shipping, S.A. (“I.T.I.”) moves for reargument of this court’s dismissal of its third-party complaint against Petróleos Mexicanos (“Pemex”) under the Foreign Sovereign Immunities Act of 1976 (“FSIA”), Title 28 U.S.C. § 1605(a)(2) and, in the alternative, for an order dismissing the complaint of plaintiff Marathon International Petroleum Supply Company (“Marathon”)...
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MEMORANDUM The plaintiff in this case, an attorney, alleges that representatives of defendant NCR Corporation tortiously interfered with a contingency fee contract into which he *934 and a client had entered. His theory is that NCR personnel demanded, as a condition precedent to a settlement agreement between NCR and his client, that the client fire the plaintiff. Subject mat...
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MEMORANDUM OPINION AND ORDER Pending in this case are a second motion for class certification; several motions by various defendants to be dismissed from this case; and a motion by various defendants to stay discovery pending this court’s ruling on the motions to dismiss. Before the court is also a Notice of Dismissal Under Rule 41(a)(1) filed by plaintiff, which affects most of the motions to di...
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Plaintiff, McGraw-Hill, Inc., has brought this action alleging trademark infringement against defendants Comstock Partners, Inc., Comstock Partners Strategy Fund, Inc., and Comstock One, L.P. I In 1983 Commodity Quotations, Inc. (CQI) started to develop a system for electronically delivering “real time” price quotations from various exchanges. “Real time” is the transmission practical...
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MEMORANDUM, OPINION AND ORDER On September 23, 1987, Michigan Bell Telephone Company (“Michigan Bell” or “MBT”) and Pacific Ideas, Inc., (“Pacific”) entered into a Billing Service Agreement (“BSA”), in connection with Pacific’s recorded telephone message service. This message service is also known as a Sponsored Program Service (“SPS”) or SPS program. This Sponsored Program Service allows...
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MEMORANDUM OPINION AND ORDER The defendant, Board of Education of the Consolidated High School District 230 (“District 230”), has for a number of years entered into collective bargaining agreements (“CBA”) with the defendant, Illinois Education Association, Consolidated High School District 230 Teachers’ Association (“Association”). Among the subjects covered by the CBAs was maternity leave, si...
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ORDER Plaintiff Dr. Paul L. Craig filed this action alleging that a securities brokerage firm, defendant First American Capital Resources, Inc. (“First American”), and two of its employees, defendants Mark Anthony and Carl Bitler, committed fraud and engaged in other misconduct in handling various securities transactions on his behalf. Bitler now moves to dismiss all of the claims asserte...
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MEMORANDUM AND ORDER I. Introduction The defendant, H. William Johns, was employed by Acme Markets, Inc., between May of 1979 and November of 1984, as director of packaging, equipment, and supplies procurement. Before May of 1979, he worked for Acme first as a quality control supervisor, and later as a packaging buyer. As director of packaging, equipment, and supplies procure...
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ORDER This matter is before the Court on defendant’s second motion for summary judgment, pursuant to Rule 56, Federal Rules of Civil Procedure (Fed.R.Civ.P.). A hearing was held on February 12, 1990, at Hamline Law School. Based upon the files, records, and proceedings herein, and for the reasons set forth below, defendant’s motion is granted and the plaintiffs cause is dismissed. ...
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This is a citizen suit brought under the Clean Air Act, 42 U.S.C. § 7604(a) (1982), to enforce air quality standards in the area surrounding the Atlantic Terminal and Brooklyn Center Projects (collectively the “Atlantic Terminal Project” or “Project”), a proposed development in downtown Brook *990 lyn. 1 The plaintiffs (collectively “ATU-RA”) claim that the Project will ...
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MEMORANDUM-DECISION AND ORDER I. Introduction The plaintiff, Giles Wanamaker, has filed a second amended complaint by leave of the court in which he alleges that he was *130 terminated from his employment by the defendants in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the New York State Human Rights Law...
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ORDER Defendant FBI seeks an order which would “withdraw, modify, reconsider, or grant reargument of” an April 3, 1990 order which denied the FBI’s application to keep confidential the name of the person who had supplied the FBI with plaintiff’s address book. It was undisputed that the address book had been taken from plaintiff’s prison cell, copied and then returned to the cell, in plaintiff’s ab...
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MEMORANDUM AND ORDER DENYING DEFENDANT’S OBJECTIONS TO THE ORDER OF THE MAGISTRATE Defendant has filed objections to an order of attachment issued by the Magistrate after hearing. Plaintiff has moved to strike the objections as untimely filed and in the alternative opposes Defendants’ objections. The Court hereby denies both Plaintiff’s motion to strike and Defendant’s 'objections to the ...
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ORDER Petitioner, proceeding pro se, has brought the present action seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. The matter is currently before the court upon cross-motions for summary judgment. The court has concluded that respondents’ motion for summary judgment should be granted. Rule 56, Fed.R.Civ.Proc. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 19.02(b)(2)(C), D...
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MEMORANDUM DECISION AND ORDER This matter is before the court for a decision on the merits following a bench trial. Having examined the entire record and having determined the credibility of witnesses; after viewing their demeanor and considering their interests, this court enters the following Findings of Fact and Conclusions of Law pursuant to Fed.R. Civ.P. 52(a). *555 FIN...
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OPINION A pro se prison inmate brings this action under 42 U.S.C. § 1983, claiming that two prison officials engaged in a pattern of harassment in retaliation for his commencement of law suits. The prison officials move for summary judgment, claiming that their actions were undertaken at least in part for valid institutional reasons, that they are entitled to qualified immunity, and that plai...
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MEMORANDUM AND ORDER Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied. FACTS Petitioner and two codefendants, Luis Maldonaldo and Anderson Garcia, were charged with the murders of Victor Martinez and Robert Toro. According to the two-count indictment, petitioner was an accessory to the Martinez murder and fired th...
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MEMORANDUM-DECISION AND ORDER Introduction The plaintiff, George A. Mayes, brought suit against his union, Local 106, International Union of Operating Engineers, AFL-CIO (“Local 106” or “Union”), and three of its officers, alleging that the defendants discriminated against him in job referrals and denied him certain rights guaranteed under the Labor-Management Reporting and Discl...
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ORDER Before the Court are motions filed by both plaintiffs and defendants in this putative class action. Plaintiffs move for class certification, and defendants seek summary judgment and attorney’s fees. Based on the files, records, proceedings, and oral ar *682 guments herein, and for the reasons set forth below, defendants’ motion for summary judgment is granted and defend...
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MEMORANDUM OPINION AND ORDER Upon retiring in 1983, Benjamin C. Homola became disquieted that, whatever advantages his sex were thought to have given him in life, his monthly pension payments would not be among them. His employer of thirty years, the First National Bank of Chicago (“the Bank”), like many employers of a bygone era, had once permitted women to retire at a younger age— and s...
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This matter is before the Court on Roy E. Jacobs' (debtor) appeal from separate orders of the Honorable Dennis D. O’Brien, United States Bankruptcy Judge, filed July 21,1989, and, October 3, 1989, setting forth findings of fact and conclusions of law. The July 21, 1989, order found that the debtor’s interest in his pension plan was the property of the bankruptcy estate. The October 3, 1989, ord...
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MEMORANDUM Plaintiffs in this action are three independent local legal aid organizations participating in programs to assist the poor. Each receives funds from the defendant, Legal Services Corporation (“LSC”), a non-profit District of Columbia corporation created by the Legal Services Corporation Act of 1974, as amended, 42 U.S.C. § 2996 et seq. (the “LSC Act”). Plaintiffs seek to set as...
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ORDER Defendant moves to dismiss this cause, pursuant to Rule 12(b), Federal Rules of Civil Procedure (Fed.R.Civ.P.) or, in the alternative, for summary judgment pursuant to Rule 56, Fed.R.Civ.P. The Court has considered affidavits and documents outside the pleadings and, therefore, treats defendant’s motion as one for summary judgment pursuant to Rule 56. Having considered these items an...
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OPINION Why is this case before a federal court? We can find no good answer to that question. Accordingly, the case is dismissed. We visit the pleadings in this case to consider the Defendants’ motions to dismiss, each brought pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure; by virtue of this posture, we take each and every one of Plaintiff’s allegations to be true, ...
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ORDER AND REASONS Before the Court is the motion in limine of the plaintiff to limit the testimony of certain individuals on the defendant State Farm’s will-call witness list. After reviewing the motion, memoranda of counsel, the record, and the law, the Court grants the motion insofar as it relates to the defendant’s allegation of fraud. However, should the plaintiffs pursue their case for puniti...
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ORDER I PROCEDURAL HISTORY On September 8, 1989, plaintiffs filed this action in the Superior Court of the State of California for the County of Sacramento. They named as defendants in that suit the State of California, various divisions thereof, various individuals employed by the State (hereinafter referred to as “the State defendants”), a joint venture and certain of its empl...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on the Application of Defendant for Review of an Order of the Magistrate. Defendant brings the Application pursuant to Rule 72(a) of the Federal Rules of Civil Procedure. I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff filed this action in August 1989 to recover uninsured motorist benefits for injuries sustained as the result of a motor ve...
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OPINION Don King Productions, Inc, (“DKP”) moves for partial summary judgment against defendants James “Buster” Douglas (“Douglas”) and John P. Johnson (“Johnson”) striking these defendants’ affirmative defense of unconscionability and dismissing their counterclaims for slander and intentional infliction of emotional distress. The motion is granted for the reasons set forth below. ...
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ORDER ON PETITIONER’S MOTION TO VACATE SENTENCE Petitioner was convicted by a jury of distribution of cocaine and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and sentenced to 300 months imprisonment and six years supervised release. The First Circuit Court of Appeals affirmed the conviction. Petitioner now seeks to vacate or set aside his sentence under 28...
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Before the court is the Motion of Defendant, Chevron, U.S.A., Inc., for Summary Judgment. Plaintiff, Stephen T. , opposes this Motion, and submitted a Cross-Motion for Summary Judgment for his claim under La. Civ.Code Ann. art. 2317 (West 1990). The Motions, set to be heard on Wednesday, March 21, 1990, are before the court on briefs, without oral argument. Plaintiff, an employee of Bama Contracto...
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MEMORANDUM OPINION AND JUDGMENT The plaintiff, Furtis Doffoney, who is black, brought suit under 42 U.S.C. §§ 1981 and 1983, and 42 U.S.C. § 2000e, et seq. (“Title VII”). Doffoney alleged he was racially discriminated against when he was discharged by the Beaumont Independent School District (“BISD”). He named as defendants BISD, its Board of Trustees, and two of its employees, former superin...
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MEMORANDUM AND ORDER The plaintiff has noticed an appeal from this Court’s Order dated October 10, 1989 1 and seeks leave of this Court to proceed in forma pauperis before the appellate court. Additionally, his attorney, who had been granted the right to receive attorney’s fees for his representation at trial — Order, dated October 10,1989 — has submitted an affidavit in detailing his rea...
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OPINION AND ORDER The United States instituted forfeiture proceedings, pursuant to 21 U.S.C. sec. 881, against a restaurant known as “La Puesta Del Sol” and a residence, both located in *76 Salmas, Puerto Rico, on the ground that these properties were used or intended to be used to commit or to facilitate the commission of various illegal drug transactions. Pending before the...
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MEMORANDUM AND ORDER This is an action for employment discrimination. Mildred McKenzie, pro se, was formerly employed as a coach cleaner for defendant Amtrak. She alleges that, as a result of her race and national origin, she was wrongfully denied the opportunity to work on holidays in April and July 1984, despite a “bumping rights” policy which allegedly permits employees to substitute for others...
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MEMORANDUM DECISION On December 6, 1989, upon the conclusion of plaintiffs case-in-chief in a nonjury trial before this court, this court granted the motion (the “December 6th Decision”) of defendants Goldman, Del Rossi & Co., Maynard Goldman, and Paul Del Rossi (collectively “Goldman and Del Rossi”) for dismissal of the above-captioned action pursuant to Fed.R.Civ.P. 41(b). 1 ...
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MEMORANDUM AND ORDER I. INTRODUCTION This case is before the Court pursuant to section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), which provides for judicial review of any final decision by the Secretary of Health and Human Services (“the Secretary”) with regard to an individual’s entitlement to benefits. In March 1984, plaintiff Edward Brown filed for disabil...
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OPINION AND ORDER In our system of laws, lawyers, like every other citizen, must learn to abide by the rules. Every so often, however, a case comes along where counsel, for whatever reasons, seems to depart from the salutary application of that principle, and in the process stretches the Court’s forbearance to its outermost limits. This is just that rare case. On December 5, 1988, the complaint in...
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MEMORANDUM OPINION Plaintiffs are government employees and groups representing government employees who do not want to fill out a government questionnaire (known as SF86). The government, specifically the United States Railroad Retirement Board (the Board) wants to make completion of the questionnaire a condition of employment. Plaintiffs are seeking a preliminary injunction to prevent the Board ...
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ORDER DENYING MOTION TO DISMISS AND GRANTING PETITION FOR SUMMARY ENFORCEMENT OF ADMINISTRATIVE SUBPOENA Before the Court is a motion filed February 20, 1990 to dismiss the petition for summary enforcement of an administrative subpoena by respondent, Custodian of Records of the Southwestern Fertility Center (“SFC”). Fed.R.Civ.P. 12(b). Petitioner, the Inspector General for the Department of Defen...
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MEMORANDUM OPINION AND ORDER Defendants, City of Chicago, Leroy Martin, Charles Ford, Edward Brooks, Hubert Holton, Jr., and Glenn Carr, have moved to dismiss the two-count complaint of plaintiffs, Carol Majeske, Julie P. Johnson, Carol Zancha, Marie Jacobson, Nancy Bringe, and John Gargul. Plaintiffs have moved for class certification. The court now rules on both of these motions. T...
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MEMORANDUM AND ORDER I. Summary of Facts and Claims. This case centers upon a local land-use planning dispute in Marin County, California. Plaintiff alleges that he is attempting to build a home on property in Belvedere and that the City of Belvedere recently denied his application for “a floor area ratio exception, and revocable license and variance to front and side yard setbac...
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ENTRY AND ORDER This cause is before the Court for a determination of whether principles of eq *1378 uity or the doctrine of laches bar the plaintiffs’ claim. The plaintiffs brought 'this action pursuant to § 2 et seq. of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq., alleging the 1981 reapportionment of Indiana by the Indiana General Assembly, establish...
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MEMORANDUM OPINION AND ORDER This matter is before the court on defendant’s, Dean Witter Reynolds, Inc. (“Dean Witter”), motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927. Plaintiffs, Hudson T. Harrison (“Harrison”) and Harrison Construction, Inc., filed a twelve count complaint against Dean Witter and two former employees of Dean Witter, John G. Kenn...
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MEMORANDUM This matter is before the Court on cross motions to alter or amend the Court’s April 30, 1990 Judgment. 735 F.Supp. 435. In its April opinion and order, the court granted plaintiff Michael E. Hubbard’s complaint for equitable relief, ordering that he be instated in a position as a criminal investigator at the Environmental Protection Agency (“EPA”). The Court also held that Hubbard w...
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MEMORANDUM Defendants request reconsideration of their motions to grant judgment notwithstanding the verdict, originally submitted after these cases were tried to verdict in January and February, 1987. Pursuant to our order of January 31, 1990, the parties have provided us with supplemental briefs discussing the relevance of the evidence admitted at the original trial before Judge Teitelb...
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*639 ORDER Before the court are the parties’ joint motions to dismiss this action on the basis of mootness, and plaintiffs’ renewed motion for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. For the reasons discussed below, the court awards plaintiffs’ counsel $276,163.09 in attorneys’ fees and costs, and dismisses this action. Plaintiffs commenced this case on Febru...
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OPINION Defendants Mirage Casino-Hotel and Golden Nugget, Inc. (together “Mirage”), James “Buster” Douglas (“Douglas”) and John Johnson (“Johnson”) have moved pursuant to Rule 3(j) of the Local Civil Rules of the United States District Court, Southern District of New York, for reargument of the opinion of the court dated May 18, 1990, 742 F.Supp. 741 (S.D.N.Y.1990) denying summary judgmen...
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ENTRY This cause is before the Court on cross-motions for summary judgment regarding the rate of prejudgment interest payable on life insurance proceeds. For the following reasons, the plaintiff’s motion is granted and the defendants’ motion is denied. Background The decedent, Ronald Edward Pierson (Mr. Pierson), was an employee of the General Motors Corporation (GM). As such, he had coverage u...
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740 F.Supp. 724 (1990) John H. ERNSTER, et al., Plaintiffs, v. RALSTON PURINA COMPANY, et al., Defendants. No. 87-1662C(6). United States District Court, E.D. Missouri, E.D. June 28, 1990. *725 David Helfrey, Gino Battisti, Patricia N. McCloskey, Guilfoil, Petzall and Shoemake, for John H. Ernster. Paul M. Denk, St. Louis, Mo., for plaintiffs. Randall G. Litton, Richard C. Cooper, Price, Heneveld...
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OPINION AND ORDER PRELIMINARY STATEMENT The issue presented by these cross-motions for summary judgment is whether the refusal of the United States Department of the Treasury (“Treasury Department”) to license an agreement for the exclusive live broadcasting rights of the 1991 Pan American Games is consistent with the Trading With The Enemy Act and the First Amendment. STATEMENT...
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OPINION AND ORDER Plaintiffs Journal Publishing Company and Albuquerque Publishing Company (collectively referred to as “Journal Publishing”) commenced this action against defendants American Home Assurance Company and National Union Fire Insurance Company (collectively referred to as “American Home”), 1 seeking recovery under two insurance policies issued by defendants for att...
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MEMORANDUM In Barry v. United States, 865 F.2d 1317 (D.C.Cir.1989), the Court of Appeals remanded this case for a determination whether defendants unlawfully disclosed grand jury secrets as alleged by plaintiff. Reversing this Court’s finding that plaintiff had not made out a prima facie case of such disclosures, the court above ordered an evidentiary hearing, at which defendants “may respo...
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MEMORANDUM AND ORDER Plaintiff James E. Zechman (“Zechman”), a former employee of defendant Merrill Lynch, Pierce, Fenner & Smith (“Merrill Lynch”), brings this action seeking relief on a variety of theories for injuries he allegedly suffered incident to his discharge from Merrill Lynch in August, 1988. Before this court are two motions of the defendant: the first seeking dismissal of fiv...
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*1040 OPINION These are two consolidated actions involving claims of patent invalidity and patent infringement. In the first action Carl Zeiss Stiftung, a West German company, sues Renishaw pic, a British company. In the second action Renishaw is suing Zeiss Stiftung as well as Carl Zeiss, Inc., a United States subsidiary. For purposes of this opinion, the parties will be referre...
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ORDER This case arises out of a search of the farm of plaintiff David Hartzler, the seizure of his Morgan horses, and his arrest and prosecution on a charge of cruelty to animals. In March and April, 1987 defendant Judith A. Jones, an employee of the Licking County Humane Society, received complaints from two of plaintiff’s neighbors that he was neglecting the horses he kept at his farm n...
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ORDER Plaintiff, Luis A. Peñaranda, brings this case pursuant to the Court’s civil rights jurisdiction under 28 U.S.C. § 1343. Plaintiff was formally the licensed operator of a day care center in Waynesboro, Georgia. Within months of the opening of plaintiff’s day care center, a parent reported to local authorities that plaintiff had sexually molested her child who was enrolled at plaintiff’s day...
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MEMORANDUM Petitioner George Koskotas seeks a writ of habeas corpus as relief from Magistrate Alexander’s Certification of Extraditability and Order on Extradition, which would return him to the Hellenic Republic of Greece for criminal prosecution. Koskotas argues, inter alia, that Greece has not adequately supported the offenses charged, that Greece seeks to prosecute him for political off...
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OPINION AND ORDER This diversity case comes before us by way of the motion of the third-party defendant City of Pottsville for summary judgment. The City claims that suit may not be brought against it because of governmental immunity under the Political Subdivision Tort Claims Act, 42 Pa.Cons.Stat.Ann. § 8541 et seq. (Purdon 1982). The standards for granting summary judgment are well-known. Fed.R...
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MEMORANDUM This case is before the Court on appeal from the United States Bankruptcy Court. On April 6, 1989, the creditors of David W. Murray, the debtor, filed an involuntary petition initiating this bankruptcy case. On September 6, 1989, Murray moved to extend the time period in which he had the exclusive right to file a reorganization plan under Chapter 11 of the Bankruptcy Code. ...
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MEMORANDUM-DECISION AND ORDER In this in rem forfeiture action arising under 31 U.S.C. §§ 5316 and 5317, the United States has moved, and intervenor-claimants of the defendant currency have cross-moved, for summary judgment under Fed. R.Civ.P. 56. In addition, the claimants have moved for a change of venue under 28 U.S.C. § 1404(a) claiming forum non conveniens, and for dismiss...
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In an order dated March 23, 1990, the court granted the motions to suppress *1288 brought by codefendants Archibald Mac-Kenzie and Eldon Head. See United States v. MacKenzie, 733 F.Supp. 585 (W.D.N.Y.1990). The government has now moved for reconsideration of that decision with regard to Head’s motion, arguing that Head did not demonstrate that he had a legitimate expectation of privacy in the...
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*40MEMORANDUM AND ORDER DISMISSING PETITION FOR HABEAS RELIEF Petitioner seeks habeas corpus relief pursuant to Title 28 U.S.C. § 2254. He was convicted on September 28, 1982 for first degree murder, armed robbery, and larceny of a motor vehicle. In February of 1985, the petitioner appealed his convictions to the Supreme Judicial Court of Massachusetts. On April 10, 1985, that court affirmed the c...
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MEMORANDUM AND ORDER DENYING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION This action came on to be heard on the plaintiffs’ request for preliminary injunc-tive relief. Plaintiffs in the Stuart, et al. v. Roache, et al. action are Boston police officers who, since 1988, have been on an eligibility list for a promotion to the rank of sergeant. Robert Guiney, named plaintiff in the second action ...
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OPINION Plaintiffs Lisa Marie Mazur and her parents, Anthony and Edna Mazur, claim that Lisa contracted subacute sclerosing panen-cephalitis (“SSPE”), a debilitating, terminal disease of the central nervous system, as a result of an inoculation with a measles, mumps, and rubella vaccine manufactured by defendant Merck & Co., Inc. Before me is defendant’s motion for summary judgment and to...
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MEMORANDUM AND ORDER Defendant Penn Nutrients, Inc. filed a motion for an award of attorneys fees pursuant to Rule 11 of the Federal Rules of Civil Procedure and 35 U.S.C. § 285.1 In response, plaintiffs argue that this court lacks jurisdiction over defendant’s motion because the motion was filed after this action was dismissed pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. Th...
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MEMORANDUM This action is now before the Court on defendant Robyn DiPietro’s motion to dismiss the indictment against her. The indictment in this case charged the defendant with credit card fraud. Trial of the defendant on this indictment commenced on February 20, 1990. The following morning, both counsel gave closing arguments and the government argued in rebuttal, after which the Court recessed....
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ORDER GRANTING SUMMARY JUDGMENT AND DENYING MOTION TO DISMISS THIS MATTER comes before the. Court upon plaintiff’s motion for summary judgment and defendant’s motion to dismiss for lack of personal jurisdiction. This Court took both motions under advisement following oral argument on May 4, 1990. The Court now being fully advised hereby GRANTS plaintiff’s motion for summary judgment (dock...
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OPINION AND ORDER I. INTRODUCTION This is an action for declaratory and in-junctive relief under the Education For All Handicapped Children Act (EAHCA), 20 U.S.C. §§ 1400 et seq.; Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. § 794; and 42 U.S.C. § 1983. The parties to the case include Timmy H., a blind child suffering from other handicaps, including mental reta...
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MEMORANDUM AND ORDER By an indictment filed on April 5, 1990, defendant Richard Milani, Jr. is charged with one count of “Establishment of Manufacturing Operations” in violation of 21 U.S.C. § 856. Specifically defendant is charged with knowingly and intentionally making available an apartment for the “purpose of distributing and using” cocaine and with managing and controlling the basement apa...
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741 F.Supp. 1179 (1990) FEDERAL INSURANCE COMPANY v. Randy AYERS, Joseph Geltz, and Thomas N. Petro. Civ. A. No. 89-8831. United States District Court, E.D. Pennsylvania. June 26, 1990. *1180 *1181 J. Charles Sheak, Pennington, N.J., for plaintiff. Thomas Colas Carroll, Philadelphia, Pa., for defendant. MEMORANDUM AND ORDER HUYETT, District Judge. In Count I of its amended complaint, plaintiff F...
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MEMORANDUM Third-party plaintiff The Kroger Company (“Kroger”) initiated this third-party complaint against third-party defendant Schnuck Markets, Incorporated (“Schnucks”). Kroger alleges that Schnucks breached the terms of a Lease Assignment and Assumption Agreement entered into between Kroger and Schnucks. Schnucks counterclaimed alleging that Kroger breached the terms of the Agreement, and see...
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*89 MEMORANDUM AND ORDER Plaintiff, a Maryland resident, filed this action to recover for injuries sustained through the negligence of the defendant, a Pennsylvania resident, the owner and operator of a pleasure boat, the M/V The Sand Crab II, licensed and docked in Delaware. Plaintiff, a passenger, alleges that defendant negligently operated his boat causing her to be thrown to ...
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741 F.Supp. 906 (1990) Allan C. ALDRIDGE, Dennis W. Peterson and Henry A. Sieron, Plaintiffs, v. LILY-TULIP, INC. SALARY RETIREMENT PLAN BENEFITS COMMITTEE and Fort Howard Cup Corporation, Defendants. Civ. A. No. CV187-084. United States District Court, S.D. Georgia, Augusta Division. June 12, 1990. *907 *908 David E. Hudson, William F. Hammond, Augusta, Ga., for plaintiffs. Ted H. Clarkson, Augu...
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MEMORANDUM OPINION The dispute currently before the Court most assuredly represents the prelude to a war in the coffee maker industry. At stake is the relatively new and potentially lucrative market for microwave coffee makers. In this case, the two parties are rival manufacturers of so-called “high tech,” drip-type microwave coffee makers. The plaintiff seeks a preliminary injunction to ...
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MEMORANDUM OPINION AND ORDER Stanton Toubus was convicted of conspiracy, arson and mail fraud. On November 25, 1986, he was sentenced to six years imprisonment, a five year parole term to run consecutively with this sentence, and $23,000 in fines. Toubus has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2255, and for findings of fact under Fed.R.Crim.P. 32. For the reasons stated ...
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MEMORANDUM AND ORDER GRANTING THIRD-PARTY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff Brendan English (English), a resident of Massachusetts, was injured when he fell off staging or scaffolding, erected by defendant Larry Hartford (Hartford), while working on a house in Dover, New Hampshire. At the time, English was employed by Sean Scott, doing business as B & M Contract Carpentry (Scott),...
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MEMORANDUM AND ORDER GRANTING PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT This action arises out of section 901(a)(1) of the Federal Aviation Act of 1958, Title 49 U.S.C.App. § 1471(a)(1). Pursuant to federal aviation regulations, 14 C.F.R. § 108.9(c), all commercial airlines, including defendant American Airlines (American), are requi...
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The Defendants seek a protective order pursuant to Rule 26(c)(6) of the Federal Rules of Civil Procedure. Specifically, the Defendants protective order would include: 1. An order that any deposition that has been taken or that will be taken of any party or person in this matter be transcribed, sealed and filed with the Clerk of this Court, who shall keep the deposition under seal until further ord...
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OPINION Plaintiff Nancy Ebker (“Ebker”), a designer and merchandiser of women’s apparel, commenced this action against defendants Peter J. Nygard (“Nygard”) and Tan Jay International Ltd. (“Tan Jay”), alleging that defendants wrongfully repudiated an oral joint venture agreement entered into between Ebker and Nygard. Tan Jay is a corporation involved in the manufacture of women’s sportswe...
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MEMORANDUM OPINION AND ORDER Plaintiffs Marion M. Winstead, Howard McDougall, R.V. Pulliam, Sr., Arthur H. Bunte, Jr., R. Jerry Cook, Robert C. Sansone, Robert J. Baker and Harold D. Leu (the “Trustees”) are the trustees and fiduciaries of the Central States, Southeast and Southwest Area Health and Welfare Fund (“CSS Fund”). The CSS Fund is a multiemployer trust fund and an employee wel*1359fare ...
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MEMORANDUM AND ORDER This is an appeal from the bankruptcy court. The debtor/appellant Jerome G. Beery appeals from an order denying his objections to the estate’s tax returns. 1 Specifically, he argues that the bankruptcy court erred in allowing the trustee to use loss carryforwards on the estate returns. Having carefully reviewed the materials before the court, we are now prepared to rule. ...
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ORDER The above-captioned matter is before this court by virtue of a declaratory judgment action filed by plaintiff Southern Guaranty. 1 On March 22, 1989, this court issued an order denying plaintiff’s motion for summary judgment and granting defendants' motion for summary judgment. 708 F.Supp. 1314. The court ruled that Southern Guaranty must pay no fault benefits and defend and indemnify i...
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*927 MEMORANDUM AND ORDER This matter is presently before the Court on the motion of both defendants for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The instant action arises as a result of a discussion between representatives of plaintiff, Ralston Drywall Company, Inc. (Ralston), and defendant, United States Gypsum Company (USG), regarding the purchase of ...
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ORDER On May 14, 1986, plaintiff was struck by a white pick-up truck while jogging on the shoulder of Yorktown Boulevard, Marine Corps Depot, Parris Island, South Carolina. The truck was driven by Michael R. Fenn, Jr., a United States Marine. Fenn was arrested by military authorities and court martialed on August 5-6, 1988. At this court martial, Fenn pleaded guilty to two offenses: leaving the...
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MEMORANDUM AND ORDER This matter is before the court on several related motions. First, Larry Rolfe and Carol Bringhurst, presently plaintiffs in an action against defendants pending in the United States District Court for the Dis*589trict of Utah, move to intervene in this action, concluded by a Final Protective Order on February 13, 1989, for purposes of gaining access to information produced i...
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OPINION AND ORDER Defendant Scandinavian Airlines System (“SAS”) moves this Court pursuant to Fed. R.Civ.P. 56 for summary judgment of plaintiffs’ claim for liability under the Warsaw Convention on the ground that plaintiff Tova Rabinowitz was not “in the course of embarking or disembarking” within the meaning of Article 17 of the Warsaw Convention when she allegedly sustained the injuries for ...
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MEMORANDUM AND ORDER These three related actions concern the disaffiliation of the local unions named as defendants from their previous parent, the Tile, Marble, Terrazzo, Finishers, Shop-workers and Granite Cutters International Union (AFL-CIO) (hereinafter the “Tile Workers”). After the defendant locals disaffiliated, the Tile Workers merged into plaintiff United Brotherhood of Carpenters and Jo...
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MEMORANDUM AND ORDER Plaintiff Sandra Rooks brings claims of race and age discrimination against the Electric Power Board of Chattanooga (“EPB”) under the Tennessee Human Rights Act (“THRA”); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); 42 U.S.C. § 1981 (“Section 1981”); and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (“...
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ORDER This matter is before the court on the remaining parties’ cross-motions for summary judgment. Based on the briefs and arguments of counsel, and the record, file and proceedings herein, defendants’ motion will be granted in part and denied in part and plaintiff Richard Mans’ motion will be denied. 1 BACKGROUND Plaintiff brings this action as a taxpayer challenging t...
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MEMORANDUM AND ORDERS ON MOTIONS FOR SUMMARY JUDGMENT This action came on to be heard on cross motions for summary judgment. The plaintiff’s motion bears docket document number 13, and that of the defendant number 08. After hearing, we allow the defendant’s motion and deny that of plaintiff. In 1968 Edward N. Sibley entered active duty with the Marine Corps. In 1985 he was discharged under other t...
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743 F. Supp. 1144 (1990) UNITED STATES of America, Plaintiff, v. UNION GAS COMPANY, et al., Defendants, v. COMMONWEALTH of PENNSYLVANIA, and the Borough of Stroudsburg, Third Party Defendants. Civ. A. No. 83-2456. United States District Court, E.D. Pennsylvania. July 3, 1990. *1145 *1146 Michael M. Baylson, U.S. Atty., James G. Sheehan, Asst. U.S. Atty., Joseph J.C. Donovan, U.S.E.P.A., Philadelp...
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ORDER The plaintiff, Mary Ellen Byrne, is a former school teacher; she alleges that the defendant, the school district, violated § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and 42 U.S.C. § 1983 when the school district dismissed her on August 3, 1987. The defendant has filed a motion for summary judgment on the § 504 claim asserting that while the plaintiff is an individual with a ...
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MEMORANDUM In this diversity suit, the plaintiffs allege that the defendants, by providing inadequate medical care which resulted in the death of a fetus carried by Gemma Akl, committed several common-law torts, including some actionable under the Pennsylvania Wrongful Death and Survival Acts, 42 Pa.Cons.Stat.Ann. §§ 8301-8302 (Pur-don 1982 & Supp.1990). Gemma and Antoine Akl sue on their...
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MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT The defendant Bernard Stone brought a motion for summary judgment, which was heard by the Court. After hearing and consideration, the motion for summary judgment is denied. The Securities and Exchange Commission alleged that Stone violated § 10(b) of the Securities Exchange Act of 1934 and Rule 10(b)(5) promulgated ...
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MEMORANDUM AND ORDER I. BACKGROUND Wang Laboratories, Inc. (“Wang”), a Massachusetts corporation, here moves for summary judgment against Applied Computer Sciences, Inc. (“Applied”), a Washington corporation, to enforce what it claims — and Applied denies — is a fully effective, albeit unsigned, settlement agreement (the “April agreement”) dated April 22, 1988, the day on which it is...
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MEMORANDUM OPINION AND ORDER NATURE AND PROCEDURAL HISTORY On January 19, 1989, an amended judgment was entered against defendants and in favor of plaintiff in the amount of $24,-600,000, plus costs. On December 2, 1988, defendants had moved the Court for an order dispensing with the supersedeas bond securing the payment of the judgment, asserting, inter alia, that the bond would cost $600,00...
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ORDER AND REASONS Before the Court is the motion of plaintiff, First National Bank of Louisville (“FNBL”), to suppress the deposition of Joseph R. Gathright, Jr. The substance of this motion is virtually identical to portions of the motions for sanctions and contempt recently transferred to this Court from the Western District of Kentucky. After reviewing the motion, memoranda of counsel, the rec...
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ORDER Plaintiffs, Keith Jordan (Jordan) and Paul Robinson (Robinson) are two non-union firefighters employed by the defendant, the city of Bucyrus (the City), Ohio. They filed this civil rights action challenging the constitutionality of the defendant City’s collection of union agency fees from them without providing or ensuring that the nonunion employees are provided the required pre-co...
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OPINION The matters before the court are the motions for summary judgment filed by defendants, Pay ’N Pak Stores, Inc. (Pay ’N Pak) (# 67) and Roger Hatch (# 70). Pay ’N Pak is incorporated in the State of Washington, but operates retail home improvement centers in fourteen western states, including the State of Oregon. UNDISPUTED FACTS In June, 1984, Pay ’N Pak hired plaintiff,...
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MEMORANDUM AND ORDER This declaratory judgment action raises issues regarding an insurer’s (1) responsibility to indemnify for costs arising out of a hazardous waste cleanup and (2) duty to defend its insured during the dispute related to that cleanup. Plaintiffs A. Johnson & Co., Inc. and its subsidiary A. Johnson Energy Marketing, Inc. (collectively “Johnson”) incurred substantial costs...
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MEMORANDUM AND ORDER Once again, this court is asked to resolve a dispute between insured and insurer concerning Pennsylvania law governing uninsured motorist coverage. 1 In this civil action, plaintiff Bette L. Groff (“Bette Groff”), administratrix of the estate of Thomas Eric Zimmerman (“Eric”), deceased, and in her own right, seeks a declaration that defendant The Continenta...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion for summary judgment. In this action, filed March 21, 1989, plaintiff alleges that the Kansas Animal Dealers Act, K.S.A. 47-1701, et seq. (Supp.1989), violates the Commerce and Supremacy Clauses of the United States Constitution, the Fourteenth Amendment guarantee of equal protection under the law, and the Fourth Amend...
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MEMORANDUM AND ORDER The case comes before the court on motions for summary judgment filed by both sides. Plaintiff, Harry G. Gust, Jr., brings this action under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B), to recover certain disability pension benefits under The Coleman Company, Inc. Pension Plan for Weekly Salaried and Hourly Paid Employees (Pl...
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MEMORANDUM AND ORDER This matter is before the court upon the motion of defendant Goad for judgment of acquittal. After the court granted a motion to sever in this case, defendant Goad proceeded individually to trial. At the close of the evidence, defendant made a motion for acquittal, which was granted by the court. The court provides this memorandum order to specify the basis for its decision. ...
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MEMORANDUM OPINION AND ORDER The case is before the Court on cross-motions for summary judgment by Plaintiffs and the FDIC. *1245 I. FACTUAL BACKGROUND Stipulated Facts The following facts are taken from the Stipulation of Undisputed Facts, filed October 5, 1989 (“Stipulated Facts”). 1. Plaintiff Texas American Bancshares, Inc. (“TAB Holding”) is a bank ho...
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743 F. Supp. 544 (1990) Howard GRAFMAN, personally and as a shareholder derivative action on behalf of Century Broadcasting Corporation, Plaintiff, v. CENTURY BROADCASTING CORPORATION, a Delaware corporation; George A. Collias; Anthony C. Karlos; James S. Soter; and Richard J. Bonick, Jr., Defendants. No. 89 C 5372. United States District Court, N.D. Illinois, E.D. July 3, 1990. *545 *546 Louis R...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on the separate Motions of the Third-Party Defendants to Dismiss pursuant to Fed.R. Civ.P. 12(b)(1) and 12(b)(6) or in the alternative for summary judgment pursuant to Fed.R. Civ.P. 56. The Defendant-Third-Party Plaintiff Reed has responded to the Motions, and the Court, having considered the Motions together with memoranda of au...
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MEMORANDUM AND ORDER This matter is before the court on cross-appeals of Leonard Love, Sr. and Bessie Mae Love from a May 25, 1989, order of the bankruptcy court determining that $285.00 per month — one-half of the monthly sum awarded in a divorce proceeding by a state district court to Ms. Love as “maintenance” — was nondischargeable under 11 U.S.C. § 523(a)(5). In his appeal, Mr. Love contends t...
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MEMORANDUM OPINION AND ORDER William Robinson (“Robinson”), a prisoner at the Sandstone, Minnesota Federal Correctional Institution (“Sandstone”), brings this action in the nature of mandamus under 28 U.S.C. § 1361 (“Section 1361”). Robinson seeks to compel the State of Illinois to respond to a motion that he has filed in his state court criminal case in the Circuit Court of Cook County, asking...
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MEMORANDUM AND ORDER The case comes before the court for ruling on two dispositive motions. Plaintiff, Jones Mason (Mason), was employed as an *881 elementary principal and high school counselor at Moscow, Kansas, for Unified School District No. 209 from the spring of 1983 through the spring of 1988. Defendant, the Board of Education, Unified School District No. 209 (Board), ...
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MEMORANDUM OPINION AND ORDER Harriet Cohen (“Cohen”) has sued the City of Des Plaines and numerous City officials (collectively “City”) under 42 U.S.C. § 1983 (“Section 1983”), claiming that City’s rejection of her application for a special use permit to operate a day care center in a neighborhood otherwise zoned for single-family residential use violated her rights under the First 1 and Four...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs’ motion for reconsideration of this court’s Memorandum and Order of June 30, 1989, reported at 128 F.R.D. 118 (D.Kan. 1989), which denied plaintiffs’ motion to remand. This case arises out of a car/train collision that occurred on July 29, 1987, near Williamstown, Kansas. This case was originally filed in the District Court of Morr...
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ORDER Plaintiff Chicago and North Western Transportation Company (“CNW”) filed this diversity action seeking to prevent defendant Soo Line Railroad Company (“Soo”) from breaching five separate agreements between CNW and Soo. Those five agreements govern the use of certain railroad lines located in the Midwest. CNW’s complaint, which seeks both declaratory and injunctive relief, alleges th...
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MEMORANDUM OPINION Jacques Dory and EDAP, S.A., (referred to collectively as “EDAP”), and intervenor *546Diasonics, Inc., have moved for modification of the Amended Protective Order entered in this matter on April 5, 1988. While the lawsuit to which EDAP was a party before this court thankfully settled in October 1989, the protective order is still in effect. EDAP also remains involved in a lawsui...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on Motion of Plaintiffs to Strike and for Partial Summary Judgment and on Motion of Defendant for Summary Judgment or, in the Alternative, Partial Summary Judgment. In addition, Defendant has requested sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. Having reviewed these Motions together with supporting and...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion for summary judgment on each of plaintiffs claims. This case arises out of plaintiffs experiences with the baseball program while attending defendant Neosho County Community College (“NCCC”) and with defendant Steve Murry (“Murry”), coach of the NCCC baseball program. Plaintiff asserts claims of deprivation of liberty an...
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OPINION Defendant, United States of America, has made the instant motion for reargument of this court’s denial of defendant’s motion for judgment on the pleadings. Because this case is complex and raises new issues of law, the court has decided to entertain defendant’s motion. As this court has issued a recent ruling in this matter, it is not necessary to review the facts of the case in d...
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ORDER We are in receipt of General Dynamics’ motion to reconsider a portion of our Memorandum Opinion and Order (the “Order”) dated June 6, 1990, 131 F.R.D. 391, and the opposition thereto by the Government. We are acutely aware of the delays that have occurred in this case and are not unsympathetic to. the Government’s distress at the prospect of further protraction of the case. We observe that t...
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MEMORANDUM OPINION AND ORDER All four defendants in this case are charged in a one-count indictment with conspiring to violate the Foreign Corrupt Practices Act of 1977 (“FCPA”), 15 U.S.C. §§ 78dd-l, 78dd-2. Defendants Castle and Lowry have moved to dismiss the indictment against them on the grounds that as Canadian officials, they cannot be convicted of the offense charged against them. ...
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MEMORANDUM OPINION AND ORDER Plaintiff, United States of America, has submitted a document entitled “Memorandum of Judgment” for this court’s signature. That document reads: (Judgment was initially entered in the United States District Court, Western District of Louisiana on November 2, 1989.) On May 25, 1990, the judgment was registered in the United States District Court, Northern District of Il...
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MEMORANDUM AND ORDER This matter is before the court upon the motion of defendants to strike certain deposition testimony, and a motion for psychological examination of plaintiff. The nature of the case is a personal injury diversity action involving allegedly negligent dental and anesthetic surgical care that resulted in complications to plaintiff. The admission of deposition testimony is a matte...
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*1477 OPINION AND ORDER DENYING DEFENDANT’S POST TRIAL MOTION This matter is before the court on the motion of defendant Texaco for judgment notwithstanding the verdict, or alternatively, for a new trial. After the reversal and remand by the Tenth Circuit, 862 F.2d 242, the second trial in this case commenced on September 27, 1989 and lasted through closing arguments on January 3...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This action arises out of the alleged breach of express and implied warranties in connection with plaintiffs purchase of computer equipment. Plaintiff Norman Security Systems, Inc. (“Norman”) is an Illinois corporation with its principal place of business in Illinois. Defendant Monitor Dynamics, Inc. (“Monitor”) is a California corporation with its...
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MEMORANDUM AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter is before the Court on defendant Pan American World Airways’ (Pan *56Am) motion for summary judgment. Arkwright Mutual Insurance Company (Arkwright) as subrogee of Crouse-Hinds Navigation Aids (Crouse-Hinds) brought suit in Suffolk Superior Court alleging damages for failure to deliver air cargo shipped by defendant....
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ORDER CONDITIONALLY DENYING MOTION TO REMAND This complaint was initially filed in the Circuit Court of Tennessee where plaintiff sought to recover $45,000.00 in compensatory damages. Punitive damages were not requested. Later, the plaintiff answered interrogatories stating that he was seeking to recover punitive damages, in addition to compensatory damages. The defendant then filed a notice of re...
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743 F. Supp. 353 (1990) TOWN SOUND AND CUSTOM TOPS, INC., Suburban Auto Sound & Communications, Inc., Northeast Electronics, Inc. and Dominion Radio Supply, Inc., on Behalf of Themselves and all others Similarly Situated v. CHRYSLER MOTOR CORP. Civ. A. No. 88-0083. United States District Court, E.D. Pennsylvania. July 3, 1990. *354 Donald B. Lewis, Philadelphia, Pa., Dickstein Shapiro & M...
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MEMORANDUM AT & T has moved to require a Regional Company which intends to acquire a conditional interest in an entity that is engaged in activities prohibited by Section 11(D) of the decree to give interested parties advance notice of the proposed acquisition in order to provide an opportunity for a challenge thereto. The Regional Companies and the Department of Justice oppose the motion, and se...
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MEMORANDUM AND ORDER ADOPTING THE MAGISTRATE’S REPORT AND OVERRULING MOVANTS’ OBJECTIONS Petitioner, Thomas E. Ladner, filed this petition for writ of habeas corpus under 28 U.S.C. § 22411, contending that a pending state prosecution for murder violates his Fifth Amendment guarantee against being twice placed in jeopardy. Petitioner also filed a motion for a temporary stay of pending state court c...
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MEMORANDUM This is an action for copyright infringement under the federal Copyright Act of 1976, as amended, 17 U.S.C. §§ 101 et seq. The matter is before the Court on a motion for summary judgment by defendants Dean Dillon, Larry Butler Music Co., Inc., and Kim Espy, d/b/a Hear No Evil and Duck Soup Music Group, Inc. (“defendants”). For the reasons stated below, the Court now ...
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ORDER Before the Court is plaintiffs’ motion for a preliminary injunction. The matter has been fully briefed and, after a review of the record, we are satisfied that the motion may be ruled upon without a hearing. Defendant, in addition to opposing plaintiffs’ motion, has filed a motion to dismiss, and that motion is also ripe. For the reasons set forth herein, we deny plaintiffs’ motion for a pr...
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MEMORANDUM AND ORDER This matter is before this Court on inmate Louis W. Melucci’s motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Melucci, as petitioner, challenges the sentence imposed on him by this Court. He contends that his sentence was illegal because the Court wrongfully used his prior state court felony conviction to increase his sentence pursuant to 21 U...
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MEMORANDUM OPINION Before the Court is the Petition for Writ of Habeas Corpus of Bobby Ray Fretwell, petitioner herein, to which respondent has fully responded. After numerous and lengthy delays, the Court has carefully reviewed all pleadings and submissions of both parties and the petition is ripe for consideration on its merits. *1335 Early on the morning of December 14, 1984, petitioner ...
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ORDER This matter comes before the court on the motion of Defendant, United States of America (“Government”), to dismiss the above-entitled action on two separate grounds. First, the government argues that Plaintiffs’ complaint fails to satisfy the jurisdictional prerequisites of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671 et seq. In addition, the government c...
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OPINION AND ORDER The Court has before it the parties’ summary judgment motions on the issue of liability. This civil rights case arises under 42 U.S.C. § 1983. Plaintiffs allege that on November 17, 1986, representatives of Au-toridad de Eneergía Eléctrica (“PREPA”) climbed atop their home located in Barrio Rincón, Gurabo, to determine whether there was an illegal, unmetered electrical hookup. Th...
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MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The above appeal of an administrative decision denying plaintiff’s request for acceptance into HUD’s Assignment Program is before the court on cross-motions for summary judgment (Ct.Rec. 22 and 26). A hearing on said nutter was held on June 25, 1990. Norman R. ...
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Before the court is defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively, a motion for summary judgment as provided by Rule 56 of the Federal Rules of Civil Procedure. Because the court will consider the briefs, affidavits and depositions on file, the court will treat the motions as one for summary judgment. Plaintiff Ca...
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ORDER This case comes before the Court on defendants’ motion to dismiss, or in the alternative, for summary judgment. For the reasons stated below, defendants’ motion to dismiss is granted. I. BACKGROUND On March 25, 1988, pro se plaintiff Yo-chanan John Carberry, a former state and federal prisoner, was transferred from the United States to the United Kingdom at his own request, pursuant to the R...
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OPINION AND ORDER This diversity case involves a claim under a Directors’ and Officers’ Insurance Policy (the “Policy”). Defendant Federal Insurance Company (“Federal”) moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff Macmillan’s complaint for failure to state a claim upon which relief may be granted. I. Facts For purposes of this motion to dismiss, the Court assumes...
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OPINION & ORDER This opinion emanates from the voluntary settlement in the action commenced by plaintiff United States of America (the “Government”) against the defendants International Brotherhood of Teamsters (the “IBT”) and the IBT’s General Executive Board (the “GEB”). The settlement is embodied in the voluntary consent order entered March 14, 1989 (the “Consent Decree”). The remedial...
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*112 MEMORANDUM AND ORDER Defendants, The City of New York (“the City”) and Police Officer Jose Hernandez, move for partial summary judgment dismissing plaintiff’s claims against Hernandez for civil rights violations under 42 U.S.C. §§ 1983 and 1985, and dismissing plaintiff’s state law claims against both defendants for malicious prosecution and wrongful arrest and imprisonment....
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Merrill Lynch, Pierce, Fenner & Smith (“Merrill Lynch”), and Prudential-Bache Securities, Inc. and Prudential Securities Group (collectively “Bache”) move to dismiss the RICO and antitrust claims asserted by Camotex, S.R.L. (“Camotex”) on the grounds that they are time-barred. Camo-tex alleges that the defendants conspired to monopolize and fix prices in the silver and silver futures markets in...
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MEMORANDUM AND ORDER In an adversary proceeding filed in the United States Bankruptcy Court, plaintiff-appellee, Matthew J. McGowan, trustee in bankruptcy for National Office Products, Inc. (Trustee), sought to recover $35,000.00 as a preference from Global Industries, Inc. After the bankruptcy court denied Global’s motion to dismiss for failure to state a claim, the judge ordered entry o...
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*337 RULING ON PENDING MOTIONS On October 6, 1989, a grand jury charged the defendants in a three count indict-ment 1 . Count One charges Young & Rubi-cam (“Y & R”), Arthur R. Klein (“Klein”), and Thomas Spangenberg (“Spangenberg”) with conspiracy to use the mails and other instrumentalities of interstate and foreign commerce to pay money to, or give things of value to...
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OPINION AND ORDER This action is presently before the Court on the motion of plaintiff Kerr-McGee Refining Corp. (“Kerr-McGee”) to confirm the Partial Final and Final Arbitration Awards, and the cross motion of defendant Triumph Tankers, Ltd. (“Triumph”) to vacate such awards. Triumph moves to vacate the partial award as time-barred and *289 the final award on the grounds that the arbitration...
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OPINION Dr. Nercy Jafari (“Jafari”) has moved under Rule 15, Fed.R.Civ.P., to amend his complaint to name additional defendants in his breach of contract action against Dennis DiLorenzo (“DiLorenzo”). DiLorenzo has moved for summary judgment on Jaf-ari’s contract claim and opposes his motion to amend. For the reasons set forth below, DiLorenzo’s motion for summary judgment is granted, and...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the court on defendant-petitioner’s (“petitioner”) Motion to Reconsider and Vacate Order re: Coram Nobis. Petitioner Michael Haga moves this court to vacate its order of December 14, 1989 denying Mr. Haga’s motion for a writ of coram nobis, and to assign this matter to the Hon. John L. Kane, Jr. for further procee...
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ORDER Came on to be considered defendant’s motion to dismiss for lack of diversity jurisdiction, and the court, having reviewed the motion and response, hereby denies the motion to dismiss for lack of diversity jurisdiction. The defendants argue that for purposes of diversity, citizenship of a limited partnership must be determined by examining the citizenship of the individual limited partners. ...
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MEMORANDUM AND ORDER Came on to be considered plaintiff’s motion to remand, and the court having reviewed the motion, defendant’s response to plaintiff’s motion to remand, and plaintiff’s brief in response to defendant’s response, grants the plaintiff’s motion to remand. This case was removed from the 172nd District Court, Jefferson County, Texas. The plaintiff had originally filed suit the...
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ORDER RE SUBJECT MATTER JURISDICTION Cross-claim defendant Touche Ross & Co. moves to dismiss the cross-complaint for indemnification. One of the grounds asserted in the motion is that the Court lacks subject matter jurisdiction over the claims. Other third-party cross-claim defendants have joined in the motion to dismiss. On February 28, 1990, this Court issued an order for further brief...
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OPINION AND ORDER The Court has before it plaintiff’s motion for certification and/or reconsideration of its evidentiary ruling denying plaintiff’s motion to qualify two witnesses, Ms. Karen Wagner and Ms. Mercedes Rodriguez, as experts in sexual harassment pursuant to Federal Rule of Evidence 702. 1 In making the following decision, the Court is mindful of the opinion in the c...
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ORDER This bankruptcy appeal is before the court on the merits of the appeal. The parties have presented the court with a single issue: whether a trustee's abandonment of property is an event taxable to the bánkruptcy estate, or to the debtors individually. The trustee, the Internal Revenue Service, and Iowa Department of Revenue and Finance have argued that the event is taxable to the debtors....
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Currently before the court is the government’s motion for reconsideration of the court’s decision granting suppression of evidence seized from the defendants in this case (Item 19). 733 F.Supp. 579. In its memorandum in support of motion for reconsideration (Item 22), the government suggests that there is no difference between the government’s view of the facts, as set forth in their original memo...
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OPINION Defendant Schoeller Technical Papers, Inc. (“Schoeller”) has moved pursuant to Rule 12(b)(6), Fed.R.Civ.P. to dismiss the amended complaint of plaintiff Paper Corporation of the United States (“Paper Corporation”). This is yet another round in the litigation between the sales representative, Paper Corporation, and the manufacturer, Schoeller, arising out of an alteration in the re...
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MEMORANDUM OPINION This is a case filed under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., after exhaustion of administrative claims remedies. The plaintiff Jami Sue Gay was an inpatient at a federal health care facility, where she was the victim of an indecent assault by one Cibrian, then an enlisted member of the Navy assigned as a health care worker to the f...
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MEMORANDUM OPINION AND ORDER Plaintiff has filed this action against his former employer, the Department of Energy (“DOE”), asserting claims under the “whistle blower” provision of the False Claims Act, 31 U.S.C. § 3729 et seq. Defendant DOE has filed a motion to dismiss supported by an extensive brief accompanied by exhibits. Plaintiff has responded in a brief opposing the mot...
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OPINION This matter is before the Court on defendant’s “Motion to Dismiss or Transfer Presenting Defenses of Lack of Personal Jurisdiction over the Defendant and Improper Venue Under Rule 12(b)”. Defendant makes its motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and 28 U.S.C. § 1391(a) and (c), and its motion to transfer pursuant to 28 U.S.C. § 1404(a) or 1406(a). FACTS Pla...
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ORDER In S.A. Auto Lube, Inc. v. Jiffy Lube Int’l, Inc., 842 F.2d 946, 949 (7th Cir.1988), the Seventh Circuit held that counsel for defendants had violated Fed.R.Civ.P. 11. The Seventh Circuit then remanded the case to this court for a determination of the amount of sanctions to be imposed. Subsequently, this court referred plaintiffs petition for fees and costs to Magistrate Joan B. Gottschall ...
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I. BACKGROUND Plaintiff William Golden brought this action under the Social Security Act, 42 U.S.C. Sec. 405(g) (“Act”), challenging the final determination of the Secretary of Health and Human Services that he was disabled under the Act as of November, 1985. The plaintiff last met the insured status requirements of the Act on March 31, 1982. Currently pending before the court are the Secr...
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OPINION AND ORDER Plaintiff Saul Shapiro (“Shapiro”) moves and defendants Peter C. Alexanderson and the County of Putnam (“the County”) cross-move for summary judgment, pursuant to Federal Rule of Civil Procedure 56. Defendant Emil Landau (“Landau”) moves to amend his answer, pursuant to Federal Rule of Civil Procedure 15. Background In December 1968, Shapiro and Landau purchase...
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MEMORANDUM AND ORDER This matter comes before the court on plaintiff’s motion for leave to amend the complaint. Plaintiff James H. Little (hereinafter “Little”) seeks to add a claim for punitive damages. Little lost his fingers and part of the thumb on his left hand as a result of the allegedly defective and unreasonably dangerous condition of a molding machine designed, manufactured, and sold by ...
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MEMORANDUM AND ORDER I. On April 11, 1990, pro se petitioner, James Allen Chatfield, an inmate at Indiana’s Westville Correctional Center, filed a petition seeking relief under 28 U.S.C. § 2254. The return filed on May 14, 1990, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The petitioner entered a plea of guilty in the Huntington Circuit Court, Hunting...
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MEMORANDUM AND ORDER This matter comes before the court on the dismissal and summary judgment motions of defendant Michael Gretencord (hereinafter “Gretencord”). Gretencord contends in his motion to dismiss that the court does not have subject matter jurisdiction over the claim asserted against him. The plaintiff, James Tersiner (hereinafter “Tersiner”), claims that the court has pendent ...
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MEMORANDUM OPINION AND ORDER I. On June 19, 1989,' defendants Richard Murphy and the City of Lafayette, Indiana, were dismissed. Thus, the amended complaint remains pending as to the defendant, James Napier, and the Tippecanoe County Indiana Sheriffs Department. (There is a serious question as to whether the suit against Tippecanoe County, Indiana, has been brought in precisely the correct po...
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MEMORANDUM OPINION AND ORDER Plaintiffs brought this action (the “Federal Action”) for preliminary and permanent injunction against two Justices of the New York Supreme Court (the “Surrogates”) pursuant to, inter alia, 42 U.S.C. § 1983 (1982), the Fifth and Fourteenth Amendments of the United States Constitution. Currently before the Court is plaintiffs’ application for a preliminary injunction. T...
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OPINION AND ORDER Plaintiff, Serge B. Rameau, brings this action for racial discrimination in connection with his employment pursuant to 42 U.S.C. §§ 1981 & 1983 (1982), Title VII, see 42 U.S.C. §§ 2000e et seq. (1982), and the Fifth and Fourteenth Amendments of the United States Constitution. The defendants are, inter alia, the New York State Department o...
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OPINION Defendants SRC Hotels, Inc. (“SRC Hotels”), SRC Inns, Inc. (“SRC Inns”), Shelton Holdings, Inc. (“Shelton Holdings”) and Fronie K. Shelton (“F. Shelton”) (the “12(b) defendants”) have moved pursuant to Federal Rule 12(b)(2) of the Federal Rules of Civil Procedure to dismiss the complaint for lack of personal jurisdiction. Defendants Robert R. Shelton (“Shelton”), Shelton Ranches C...
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ORDER THIS MATTER is before the Court on Plaintiff Thomas A. Wilkinson, Ill’s (hereinafter “Plaintiff”) motion, filed February 14, 1990, for summary judgment. Defendant, The United States of America (hereinafter “Defendant”), filed a response on March 14, 1990 in opposition to the motion. I. PROCEDURAL BACKGROUND. Plaintiff filed a complaint on July 12, 1989 in the Mecklenburg C...
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MEMORANDUM OPINION AND ORDER Petitioner Donald Lee Young, Jr., brings this petition pursuant to Fed.R.Crim.P. 32(b)(1) to amend the Judgment and Commitment Order issued by this Court on September 25, 1985. Petitioner requests that the Court explicitly state that his sen*944tence commenced on September 25, 1985, so that he may be given credit for jail time served between September 25, 1985 and Apri...
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MEMORANDUM & ORDER This memorandum arises out of plaintiff’s July 10,1990 motion for a preliminary injunction in the instant suit, an action related to United States v. International Brotherhood of Teamsters et al., 88 Civ. 4486 (the “underlying suit”). For the reasons to be discussed, plaintiff’s motion is denied. I. Background The underlying suit was brought on ...
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*1041ORDER THIS MATTER is before the Court on the Government’s motion, filed June 22, 1990, to consolidate these matters for trial. Defendant was charged in a five count bill of indictment in case number C-CR-89-125, filed September 5, 1989, for committing armed bank robbery in violation of 18 U.S.C. §§ 924 and 2113. Thereafter, during a pretrial hearing before United States Magistrate Paul B. Tay...
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OPINION AND ORDER These cross-motions for summary judgment present the question of whether it is a defense to a claim of unjust enrichment that the plaintiff was indebted to the defendant for more than the amount of the enrichment. The Court concludes that in the present case it is not and accordingly, plaintiffs’ David E.W. Lines and Gerry A. Weiss, joint liquidators of Cambridge Reinsur...
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OPINION AND ORDER Plaintiffs, an organization and residents of the Lower East Side of Manhattan, 1 move for a preliminary injunction to enjoin the funding of clearance and construction on a site located at 9th Street and Avenue C in the Lower East Side of Manhattan. Plaintiffs seek review of the decision of the Department of Housing and Urban Development (“HUD”) to fund a proje...
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MEMORANDUM ENTRY REGARDING APPROVAL OF STIPULATION OF SETTLEMENT AS TO ALL ISSUES EXCEPT ATTORNEYS’ FEES I. Introduction The difficulty that people of lower economic means in this country have in obtaining adequate housing is not a new problem. Many solutions to this dilemma have been offered and attempted through the years, both through private and public efforts. The subject of this case ...
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OPINION On November 3, 1989, plaintiffs filed a motion for partial summary judgment on the issue of the liability of Harvard Industries, Inc. (“Harvard”) for Clean Water Act (“Act”) violations at its Elastic Stop Nut of America plant (“ESNA”) in Union, New Jersey. Specifically, plaintiffs seek summary judgment on the issue of Harvard’s liability for alleged violations of effluent discharg...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on the Defendant’s Motion for Summary Judgment, filed February 12, 1990. The Plaintiff has filed its Response to the Defendant’s Motion. On May 15, 1990, the Court conducted a hearing in Charlotte, North Carolina to listen to the parties’ oral arguments on the Plaintiff’s Motion for Summary Judgment. At the hearing, the...
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ORDER Plaintiff D. Brown (“Plaintiff”) seeks judicial review of the Secretary of Health and Human Services (“Secretary” ’s) denial of her application for supplemental security income benefits pursuant to the Social Security Act 42 U.S.C. §§ 1381a, 1382 (“Act”). In considering Plaintiffs motion for remand and the Secretary’s motion for summary judgment, Magistrate Streepy has urged in his Report an...
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*73 MEMORANDUM & ORDER This action arises out of the dishonor of a draft made payable to plaintiff Philip Papadopoulos. Defendant National Westminster Bank, PLC (“NatWest”) moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) for want of subject matter jurisdiction. Defendant Chase Manhattan Bank, N.A. (“Chase”) moves for summary judgment on plaintiff’s claims against it. For re...
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MEMORANDUM ORDER I. INTRODUCTION THIS MATTER is before the court on the parties’ motions. Plaintiff Ocean Bio-Chem, Inc. (“Ocean”) moved for a preliminary injunction, pursuant to Federal Rule of Civil Procedure 65, and defendants Turner Network Television, Inc., Turner Broadcasting System, Inc., and Farrell/Minoff Productions oppose that motion. Defendants moved to dismiss Ocean’s co...
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ORDER Petitioner, Andre Deavin Lindsey, the defendant in a State criminal prosecution for public disorderly conduct instituted in Rich-land County, South Carolina, seeks removal under 28 U.S.C. §§ 1443(1) and (2). The court has concluded that the petition for removal should be denied. On August 20, 1989, the petitioner was arrested for allegedly unlawful conduct at Columbia Mall, a shopping mall ...
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MEMORANDUM-DECISION & ORDER In general, United States extradition law imposes several substantive requirements on all requests for extradition before they may be granted. Three of these requirements are that: (1) the offense be “extraditable” under the applicable treaty; (2) the offense satisfy so-called “dual criminality;” and (3) there be probable cause that the relator committed the cr...
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OPINION Among the host of motions now before me is plaintiff Stryker Corporation’s motion for partial summary judgment holding *511 defendant Zimmer, Inc.’s patent infringement counterclaim barred under the doctrines of laches and equitable estoppel. I note that while the parties have once again inundated the court with papers, this opinion will be brief because the facts mat...
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OPINION I. INTRODUCTION Plaintiffs American Cyanamid Company (“American Cyanamid”) and Shulton, Inc. *1152 (“Shulton”) filed this action on April 12, 1990 seeking declaratory, injunctive and monetary relief against Pieaso-Anstalt (“Picaso”) and Pierre Cardin (“Cardin”) for their allegedly improper termination of a 1977 licensing agreement (“Licensing Agreement”) and guar...
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ORDER This matter is before the court on defendant Stuart-James’s motion to compel plaintiff to arbitrate, Stuart-James’s motion to dismiss for failure to state a claim, and defendant Michael J. Whalen’s motion to dismiss pursuant to Fed.R.Civ.P. 4(j). This complaint was filed September 11, 1989, and amended December 5, 1989, against the Stuart-James Company and Michael J. Whalen. Claims ...
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ORDER This matter is again before the Court after the United States Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part the Court’s order denying a motion to intervene filed by several individual consumers. Federal Trade Commission v. American Legal Distributors, Inc., 890 F.2d 363 (1989). The Eleventh Circuit held that intervention should have been allowed for the lim...
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MEMORANDUM AND ORDER This is an action for violations of the Labor Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 401, et seq., and for breach of the duty of fair representation. Defendant International Organization of Masters, Mates and Pilots (IOMM & P) moves for summary judgment. *563BACKGROUND Defendant IOMM & P is a labor union headquartered in Maryland. This suit concerns th...
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Carlyle Piermont Corporation (“Carlyle”) instituted this action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq. (Supp.1987) (“CERCLA” or “Superfund”), and under New York common law for consequential damages, punitive damages and response costs incurred during the discovery, investigation and ultimate clean-up by excav...
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MEMORANDUM OPINION AND ORDER This cause is before • the court on the motion of defendant Groen Division, Dover Corporation (Groen) for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) or alternatively for summary judgment pursuant to rule 56. Plaintiff Lee Roy Windfield has responded to the motion and the court, in determining the motion, has considered the memo...
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741 F.Supp. 1094 (1990) In re GAS RECLAMATION, INC. SECURITIES LITIGATION. MDL No. 665 (LBS). No. M-21-41. United States District Court, S.D. New York. July 11, 1990. *1095 Sylvor, Schneer, Gold & Morelli, New York City, for Abish Investors, Bard Investors, Herbert W. Katz and Manuel L. Katz; Richard L. Gold, Iris S. Richman, of counsel. Page & Addison, Dallas, Tex., for Breese Investors;...
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MEMORANDUM OPINION AND ORDER Plaintiffs current motion requires the Court to determine the following: (1) the postjudgment interest rate applicable to the plaintiffs judgment obtained under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216; (2) the date from which post-judgment interest accrues; and (3) whether the plaintiff is entitled to postjudgment interest on costs and attorney’s fees awa...
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*1131 MEMORANDUM AND ORDER Currently pending before the Court are two motions by the defendants, the Insurance Company of the State of Pennsylvania (“ICSP”), National Union Fire Insurance Company of Pittsburgh (“NUFI”), and American International Underwriters Corporation (“AIU”). First, the defendants seek to dismiss pursuant to Rules 12(b)(7) and 19 of the Federal Rules of Civil...
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OPINION AND ORDER Plaintiffs move pursuant to Federal Rules of Civil Procedure 39(b) and 81(c) for leave to demand a trial by jury. BACKGROUND This product liability action was filed in New York State Supreme Court on July 28, 1987. On August 25, 1987, defendant Dreis & Krump Manufacturing Co. (“Dreis”) removed the action, pursuant to this Court’s diversity jurisdiction, and simultaneously filed ...
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OPINION AND ORDER This matter comes before the court on plaintiff’s motion, pursuant to 28 U.S.C. § 1447(c), to remand this action to the Circuit Court of the City of Norfolk, Virginia. Plaintiff originally filed suit in state court challenging the Norfolk City Council’s passage of Ordinance No. 36,026 (hereinafter referred to as “Ordinance”), which amended and reordained subsection (E) o...
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ORDER In my years as district judge in this difficult case involving the three school districts in Pulaski County, I have attempted to oversee the implementation of positive desegregation plans which would benefit all children in the public schools. To that end, I have sought the help of the most progressive and able persons in this country. I appointed Mr. Aubrey V. McCutcheon, Jr. as Specia...
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ORDER This matter is before the court on the plaintiff’s motion for fees and costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The record includes the report and recommendation of a United States Magistrate in which the magistrate recommends that the plaintiff be awarded $9,684.66 in attorney’s fees and costs. The parties were given proper notice of their right t...
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MEMORANDUM-DECISION AND ORDER On February 10, 1990 Judge Thomas J. McAvoy signed an Order granting defendant Joseph Donahue’s request for a hearing to test the veracity of a search warrant application as permitted by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Pursuant to Judge McAvoy’s Order the matter was transferred to this court for a hearing. Th...
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MEMORANDUM AND ORDER This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied in its entirety. Petitioner was convicted, after a jury trial, of Murder in the Second Degree. He was sentenced by the Supreme Court, Queens County, to 25 years to life in prison. Petitioner appealed his conviction, and the Appellate Division rev...
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OPINION Defendant Sergeant Culbert (“Culbert”) has moved this court pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment against plaintiff, pro se, Peter Daniel Thomas (“Thomas”). Parties Thomas is the father of David Thomas. Culbert is a sergeant with the New York City Police Department, Shield # 1572. *79 Prior Pro...
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ORDER Plaintiffs filed this declaratory judgment action challenging the constitutionality of the 1987 Amendments to the Higher Education Act of 1965 (the “Amendments”) which require the transfer of excess reserves held by guarantors participating in the Guaranteed Student Loan Program to the United States Department of Education (“DOE”). Plaintiffs also allege that defendants have breached thei...
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MEMORANDUM AND ORDER Petitioner, pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255 to vacate an illegal sentence. For the reasons discussed below, the motion is granted in part and denied in part. FACTS On September 30, 1987 petitioner pled guilty to a one-count superseding criminal information charging him with importing more than one hundred grams of heroin. 21 U.S.C. §§ 952(a),...
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RULING ON MOTIONS FOR SUMMARY JUDGMENT Plaintiff seeks damages resulting from a fire which destroyed plaintiff’s chicken farm. Defendant Lexington Insurance Company (“Lexington”) allegedly breached its contract of insurance by paying only $1,000,000 rather than the $1,285,000 in fire coverage and $200,000 in business interruption coverage allegedly provided by the policy. Plaintiff claims...
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MEMORANDUM This action is before the Court on defendant’s motion to exclude evidence of an out-of-court, showup identification of the defendant and any in-court identification which may be made at trial. The defendant is charged in a one-count indictment as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). This charge arose out of an alleged armed robbery of a bookstore wit...
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MEMORANDUM AND ORDER Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied. *40 FACTS On July 25,1985, two police officers spotted petitioner leaving a renovated building carrying pipes to a truck parked across the street. It soon became apparent, at least to the officers, that petitioner was stealing the pipes. Peti...
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ORDER The above entitled matter came before the court on June 22, 1990, on defendant’s motion for summary judgment pursuant to Fed.R.Civ.P. 56(b). I. STANDARD OF REVIEW The Supreme Court held that summary judgment is to be used as a tool to isolate and dispose of claims or defenses which are either factually unsupported or which are based on undisputed facts. Celotex Corp. v. Catrett, 477...
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ORDER & OPINION Plaintiffs Coliseum Park Apartments Company (the “Developer”) and Professional Office Leasing Associates (the “Tenant”) (collectively, “plaintiffs”) bring this action for injunctive and declaratory relief seeking to prevent defendant Coliseum Tenants Corporation (the “Association”) from terminating a lease (the “Commercial Lease” or the “Lease”) pursuant to the Condominium...
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MEMORANDUM OPINION On August 3, 1987, Rebecca Owens, a sixteen year old indigent resident of Nacog-doches County whose pregnancy was full term, began to experience labor pains. She went to the emergency room at Memorial Hospital in Nacogdoches at approximately 3:00 p.m. After initial processing, she was taken to the Labor and Delivery room, where she was examined by Dr. Bruce Thompson, who was ...
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MEMORANDUM OPINION ON MOTION FOR NEW TRIAL This case was tried to a jury and judgment was entered November 2, 1989. The court granted an instructed verdict for the defendant at the close of all the evidence. One of the claims plaintiff alleged was violation of Deceptive Trade Practices Act. VERNON’S ANN.CIV.STAT., BUS & COMM.CODE § 17.505(a) of the Act provides plaintiff must serve notice in the ...
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MEMORANDUM AND ORDER Third-party defendant moves to dismiss the third-party complaint for failure to state a claim and, in the alternative, for summary judgment. For the reasons discussed below, the motion to dismiss is granted. FACTS On March 16, 1987 plaintiff Ronald Kramer allegedly sustained disabling injuries while picking up and positioning a hose on the defendant’s barge ...
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OPINION Plaintiff William J. Stokes filed this action pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1383(c)(3), seeking review of the final decision of defendant Secretary of Health and Human Services denying him Supplemental Security Income. Presently .before the Court are plaintiff’s and defendant’s cross-motions for summary judgment. For the reasons set forth below, we ...
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ORDER On 15 May 1990 Magistrate Wallace W. Dixon filed his memorandum with regard to the motions by defendants to dismiss. On 4 June 1990 defendants filed objections to the recommendations. On 15 June 1990 plaintiff filed a response to the objections by the defendants but did not file any objection to that part of the recommendation which was in defendants’ favor. Upon a full review ...
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AMENDED OPINION This Amended Opinion1 resolves two motions for intervention or, in the alternative, consolidation, brought by seventeen defendants in a related action, United States v. Armstrong World Industries, Inc., Civil No. 89-4363 (the “Armstrong defendants”).2 Both this case and the Armstrong litigation involve the cleanup of the Lone Pine Landfill site in Freehold Township, New Jersey, pur...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is an action for writ of habeas corpus. Its labyrinthine progression through the successive mazes of the state and federal court systems gives one pause to wonder whether the Great Writ is able to serve its true function when it takes four years for a case to wind its way to the conclusion, as the court concludes here, that petitioner is being...
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OPINION I have now had an opportunity to read the briefs. The following constitutes the opinion and order of the court. On the order to show cause for preliminary injunction brought by the plaintiffs, who are proponents of certain revisions to the By-Laws for Local 1-2, Utility Workers Union of America, AFL-CIO, this application must be put in the context of this court’s prior determination with r...
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MEMORANDUM AND ORDER I. Plaintiff WXON-TV, Inc. (WXON) operates a television station in Oakland County, Michigan. In 1983, plaintiff entered into a contract with defendant A.C. Nielsen Co., (Nielsen) under which Nielsen was to provide statistical estimates of projected viewing audiences which would be used for the purposes of marketing advertising time. WXON alleges that over a thirt...
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ORDER This matter is before the court on defendant’s motion to dismiss for lack of personal jurisdiction. Plaintiffs oppose defendant’s motion and, in the alternative, request that if the court grants defendant’s motion that they be permitted to amend their complaint to allege an alternative basis for jurisdiction. For the reasons stated below, both defendant’s and plaintiffs’ motions wil...
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ORDER The frequency with which issues relating to the currency reporting statutes get litigated these days, including the frequency in this very court, reminds one, upon seeing yet another such prosecution and motion to dismiss, of the saying attributed to Yogi Berra: this is deja vu all over again. The decision in this case, in major respects, plows familiar ground. A federal grand jury indi...
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ORDER On July 9, 1990 this cause came before the Court for a hearing on the merits of Wallace Norrell Thomas’ second petition for writ of habeas corpus, filed in this Court on July 5, 1990, and on Thomas’ motion for a stay of his execution, scheduled for July 13, 1990. At the close of the hearing, the Court orally dismissed the petition, and denied the motion for a stay of execution. Thom...
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MEMORANDUM OPINION This motion to suppress presents yet another version of the classic regret, “If I’d only known....” 1 In this case, if he had only known the charges were serious, the defendant would not have surrendered and confessed and would have instead eluded U.S. authorities by fleeing to Peru. Need *500 less to say, there is no law that requires this Court...
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MEMORANDUM OPINION AND ORDER The plaintiff, Brian J. Flowers filed this suit subsequent to an arrest conducted by members of the City of Harvey Police Department. Flowers alleges that the individual defendants, Police Officers Wells, Porter, Overton and Sampson (collectively “individual defendants”) used excessive and unreasonable physical force, unlawfully struck, and otherwise injured Flowers w...
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MEMORANDUM OPINION AND ORDER Richard Albert Will appeals a bankruptcy court ruling which held nondischargeable his debt to his former wife for the attorney fees she incurred during their marriage dissolution proceedings. Will raises three issues in this appeal: (1) whether his wife’s attorneys, Miller & Sax-ton, P.C., had standing to challenge the dischargeability of Will’s debt to his fo...
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OPINION By order of the New York County Surrogate’s Court, defendant Victor M. Castela-zo, Sr. (“guardian”) was appointed guardian of the property of Victor M. Castelazo, III and Laura C. Castelazo, his infant grandchildren (“infants”). Pursuant to the Surrogate Court’s order, all moneys and properties of the infants were paid over and delivered to defendant Manufacturers Hanover Trust Co...
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MEMORANDUM OPINION This is the latest chapter in what may justly be called the Norfolk Southern System (“NS”) spur line sale/lease saga. It is occasioned by the desire of the labor plaintiffs to put squarely in issue before the Fourth Circuit Court of Appeals the novel question whether the National Labor Relations Act’s 1 (“NLRA”) successorship doc-trine 2 applies in...
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MEMORANDUM Plaintiff brought this two count action alleging that defendant discriminated against her on account of her race in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and in violation of Title 42 U.S.C. § 1981. Plaintiff contends that defendant racially discriminated against her by failing to promote her even though she was qualified for the position. Immediately prior t...
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MEMORANDUM OPINION AND ORDER The issue in this appeal is whether Michelle E. Thompson’s plan for reorganization under Chapter 13 of the Bankruptcy Code was proposed in good faith pursuant to 11 U.S.C. § 1325(a)(3). The Colorado Student Obligation Bond Authority (CSO-BA) argues that the bankruptcy court erred in confirming the plan because it was designed solely to avoid repayment of Thompson’s ...
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MEMORANDUM OPINION AND ORDER Debtor Richard C. Peterson appeals from a bankruptcy court order granting Richard L. Cundy, M.D. and several other individuals (collectively, Cundy) relief from the automatic stay in bankruptcy to pursue a legal malpractice action against Peterson; who argues that the bankruptcy court erred in applying a two-pronged test for determining whether relief from the...
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ORDER In this action the Court must determine whether claims for substantial demotion and constructive discharge under 42 U.S.C. § 1981 remain viable after Patterson v. McLean Credit Union, — U.S.-, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). The Court declines to adopt the narrow construction of 42 U.S.C. § 1981 recommended by the magistrate and therefore denies defendants’ motion...
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DECISION AND ORDER On April 9, 1990, this court awarded plaintiff Tyrone Hearn (“Hearn”) prejudgment interest on the back pay he was entitled to from defendant United States Veterans Administration (“the VA”). This court awarded prejudgment interest because the Seventh Circuit Court of Appeals decision which the VA argued was controlling, Donnelly v. Yellow Freight System, Inc., permitted gra...
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OPINION Defendants Montefiore Medical Center (“Montefiore”) and Dr. Michael Scimeca (“Scimeca”) have moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons set forth below the motion is granted with respect to the federal cause of action, and jurisdiction of the four pendent state claims is declined. Parties Montefiore is a vol...
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MEMORANDUM The plaintiff is a prisoner who brings two claims for damages under 42 U.S.C. § 1983 against prison officials at the Montgomery County Correctional Facility, where he was incarcerated from March 14, 1989 through March 12, 1990. The plaintiff alleges that he was denied his right to the free exercise of his Islamic faith while being held in administrative segregation, and that his medi...
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MEMORANDUM OPINION This case presents a coverage question under a group health plan. As such, it is hardly novel. But the novelty here is the factual context. Plaintiff seeks a declaratory judgment that her group health plan, administered by defendant Blue Cross-Blue Shield of Virginia (“Blue Cross”), covers high dose chemotherapy with autolo-gous bone marrow transplant (“HDCT-ABMT”) for ...
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MEMORANDUM OPINION The defendants Beaumont Independent School District (BISD), O.C. Taylor, Superintendent, and Bill Christian, President of the Board of Trustees of BISD, have moved this court under FED.R.CIV.P. 12(b)(6) and FED.R.CIV.P. 56 for partial dismissal. The defendants seek dismissal of the plaintiffs claims under 42 U.S.C. §§ 1981 and 1985, and the Fourteenth Amendment of the United Sta...
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MEMORANDUM OPINION AND ORDER The matter before the court is plaintiff’s motion for a preliminary injunction. The motion seeks to litigate the question of whether the federal Hazardous Materials Transportation Act, and regulations promulgated by the Department of Transportation thereunder, preempt certain parts of Colorado legislation regulating the sale and discharge of fireworks. Subject...
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ORDER This action was filed in 1986 to challenge the 1983 Amendment of a Farmers Home Administration (“FmHA”) regulation. The Amendment abolished a tenant’s right to an administrative hearing prior to eviction from FmHA-financed housing. Plaintiffs allege that the agency eliminated the grievance and appeals procedure in violation of the Administrative Procedure Act (“APA”). The action als...
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REVISED OPINION This proceeding and determination are expected to bring this prolonged controversy to a final termination. The history of this case is set forth in detail in the court’s prior opinions — 602 F.Supp. 511 (1984); 603 F.Supp. 370 (1985); 629 F.Supp. 860 (1986); No. 83 Civ. 6291, slip op. (June 2, 1988) (as amended, 1988 WL 49056, 1988 U.S. Dist. Lexis 5059); 709 F.Supp. 70 (1989); 10...
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MEMORANDUM OPINION AND ORDER W.A. Taylor & Co. (“Taylor”) has sued Griswold and Bateman Warehouse Co. (“Griswold”), Quality Distribution Systems (“Quality”) and three of Quality’s officers (collectively with Quality termed “Quality Defendants”), asserting claims arising from damage to Taylor’s products stored at Quality’s Copenhagen Warehouse in Franklin Park, Illinois (the “Warehouse”). Now both...
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ORDER On December 15, 1989, plaintiff filed a motion under FED.R.CIV.P. 60(b) to vacate an order entered February 8,1989, dismissing plaintiff’s suit for failure to timely serve defendant a summons and complaint under FED.R.CIV.P. JO).1 Having reviewed the motion and defendant’s response, the motion to vacate is hereby DENIED. Plaintiff brought an action under 42 U.S.C. § 2000e(f) for violation of...
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*24ORDER This matter is before the Court pursuant to the defendant’s motion to disqualify James W. Lawson as attorney of record. A. Facts James W. Lawson has filed the instant suit in order to recover legal fees for services that he allegedly performed for the defendant, Nevada Power Company, from October 1988 until March 1989. The plaintiff intends to represent himself. B. Discussion The defendan...
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ORDER IT IS HEREBY ORDERED that defendant’s motion for an award of prejudgment interest is DENIED. IT IS FURTHER ORDERED that plaintiff’s motion to reconsider is DENIED. Although the Court did not address the public policy issue in its order, it did fully consider the issue and found plaintiff’s public policy grounds to be insufficient to change this Court’s ultimate determination that the Public ...
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OPINION Defendants Dr. Martin Bruetman (“Bruetman”), Ronald Tash (“Tash”), Mauricio Agudelo (“Agudelo”), High Tech Medical Parks Development Corporation (“High Tech”), Douglas Kiell (“Kiell”), and Alta Tecnología Medica S.A. (“Altec”) (collectively, the “Bruetman defendants”) have moved to dismiss plaintiff Dr. Diego Herb-stein’s (“Herbstein”) case on the grounds of comity or forum non co...
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740 F.Supp. 736 (1990) FERCOM AQUACULTURE CORPORATION, Plaintiff, v. UNITED STATES of America, et al., Defendants. No. N89-0116C. United States District Court, E.D. Missouri, N.D. July 13, 1990. *737 Cobrun, Croft & Putzell, Richard A. Mueller, Edwin G. Harvey, John F. Medler, Jr., St. Louis, Mo., for plaintiff. Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., for defendants. MEMORANDUM GU...
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ORDER The plaintiff’s claim, in its entirety, states: On several occasions a written complaint alleging that my previous employ *29 er (i.e. Archer Daniels Midland Milling Co.) is in violation of law in their management of the pension and welfare plan, as the authority holds that: “[T]he Secretary [of Labor] shall investigate the complaint and ... bring civil action...
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*138 OPINION AND ORDER Vernon Bagby (“Petitioner”) petitions for a writ of habeas corpus. Petitioner was convicted on October 31, 1979, at a bench trial, of possession of a controlled substance in the First, Third, Fifth, and Eighth Degrees, and two counts of criminal use of drug paraphernalia, before the Supreme Court of Westchester County. Petitioner was sentenced to a term of fifteen years...
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OPINION AND ORDER Midwest Knitting Mills, Inc., a Wisconsin manufacturer of knitted goods, is suing the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671-80, for compensatory damages in the amount of $3,113,637.20, for injuries to its business. The plaintiff alleges that the Small Business Administration (SBA), an agency of the United States, ca...
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*10MEMORANDUM OF OPINION AND ORDER This action involves the June 1988 drowning death of Mitchell Spergel, a thirteen year old boy, at the Econo Lodge motel swimming pool. Plaintiffs initially sued the motel and its owners1 and the company that provided both the lifeguard and the pool maintenance services, Dolphin Pools. The motel defendants settled the case before trial. Plaintiffs’ theory at tri...
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MEMORANDUM OF OPINION AND ORDER This is an action for declaratory relief as to plaintiff Nautilus Insurance Company’s (“Nautilus”) obligations to its insured, Dolphin Pools Corporation (“Dolphin Pools”), in Spergel v. Econo Lodges of America, Inc., et al., a survival action involving the drowning death of Mitchell Spergel at the Econo Lodge swimming pool. The Spergel plaintiffs originally sued th...
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MEMORANDUM OPINION AND ORDER Plaintiff brought this Title VII action for employment discrimination stemming from the denial of a partnership in the defendant accounting firm, Coopers & Lybrand (“C & L”), in 1985, 1986, and 1987, as well as defendant’s refusal, in 1987, to transfer her to a C & L office outside of New York City. Plaintiff’s claims also include an Equal Pay Act claim, as we...
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MEMORANDUM OPINION AND ORDER On April 13, 1978, petitioner Hernando Williams pled guilty to armed robbery, aggravated kidnapping, rape and murder. A jury later sentenced Williams to death. Williams now seeks habeas relief under 28 U.S.C. § 2254, challenging the voluntariness of his guilty plea, various aspects of his capital sentencing hearing and the constitutionality of the Illinois death pen...
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ORDER Plaintiff Richard T. Dorman is a prisoner currently incarcerated at the Federal Correctional Institution (F.C.I.) in Butner, North Carolina. Plaintiff Joannie Roberts also resides in North Carolina. The defendants include: Richard Thornburgh (United States Attorney General), the Bureau of Prisons (BOP), Michael Quinlan (BOP Director), G.L. Ingram (BOP Assistant Di *877 rector), K.M. Haw...
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OPINION AND ORDER This is a copyright infringement action brought by Minoru Morita against Omni Publications International, Ltd., Kan Photography Inc. and Kan Nakai. The complaint also asserts claims under Section 43(a) of the Lanham Act and Section 14.03 of the New York Arts and Cultural Affairs Law. The parties have cross-moved for summary judgment on liability. For the reasons discusse...
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*297MEMORANDUM OPINION AND ORDER This matter is before the Court sitting as a court of appeals pursuant to 28 U.S.C. section 636(c)(4) on an appeal by the plaintiff/husband from a final judgment of the United States Magistrate granting summary judgment in favor of the defendant/wife. The plaintiffs action seeks damages resulting from the defendant’s alleged breach of an oral separation agreement....
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MEMORANDUM OPINION AND ORDER The plaintiff, a detective for the Hampton Police Division, brought this suit pursuant to 42 U.S.C. section 1983 alleging that the defendants have deprived him of his constitutional rights to due process and equal protection by promulgating and enforcing Regulation 5.12 of the Hampton Police Division Rules and Regulations. Regulation 5.12 places limits on the ...
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ORDER This action arises out of a criminal assault that occurred at approximately 3:00 a.m. on September 15, 1988. Plaintiff was asleep in her apartment at The Park apartment complex in Richland County, South Carolina when an intruder entered her apartment through the sliding glass door to the balcony. Plaintiff alleges that the attacker was able to reach the balcony of her second floor a...
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MEMORANDUM OPINION The government brings this forfeiture action for $5,743.00 which it seized from a safety deposit box at Jefferson Bank and Trust on April 27, 1988. Ocelia Blackmon has filed a claim for the money. Pursuant to Fed.R.Civ.P. 52, the Court makes the following findings of fact and conclusions of law. Findings of Fact At the trial of this matter, government witness Peter Gober, a S...
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MEMORANDUM AND ORDER This case is before the Court on Ruth Morin’s objection to a Magistrate’s Report and Recommendation that her petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.1 For reasons hereinafter stated, the Court accepts the Magistrate’s Report and Recommendatio...
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MEMORANDUM OF OPINION AND ORDER This action arises out of the lease and possible sale of The Grand Hotel by Joseph Kaempfer and his various real estate partnerships to Joseph Yazbeck and his business (“Yazbeck defendants”). Plaintiff Richard Kassatly, a former confidant of Joseph Yazbeck, brings this action alleging *652that he is entitled to a “finder’s fee” for the transaction. By Memorandum and...
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ORDER DENYING MOTION FOR LEAVE TO APPEAL This matter is before me on Nucor, Inc.’s motion for leave to appeal, filed by the law firm of Bell & Pollock, P.C. For the following reasons, the motion is denied. *247 The motion requests leave to appeal the bankruptcy court’s February 6, 1990 order clarifying issues relating to Nucor, Inc.’s right to a jury trial in certain adversa...
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Defendant Grant Thornton (“Thornton”) moves for reconsideration of the portion of the court’s April 5, 1990 opinion and order that denies Thornton’s motion to dismiss plaintiffs’ pendent state law claim for negligent misrepresentation. See Steiner v. Southmark Corp., 734 F.Supp. 269, 279-80 (N.D.Tex.1990). The court declined to accept at the motion to dismiss stage the proposition th...
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ORDER CONFIRMING ARBITRATION AWARD Applicant Merrill Lynch, Pierce, Fenner & Smith, Inc. has filed a motion to vacate, alter or modify an arbitration award of the Pacific Coast Stock Exchange. Respondent Florence R. Burke opposes that motion, and moves for confirmation of the award and for sanctions. The motions raise some difficult questions about the role of a federal court in reviewing...
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MEMORANDUM AND ORDER This is a personal injury suit that arises out of a collision between two automobiles. The only issue is whether the vehicle driven by Randy A. Sczapa (“Randy”) was being operated with the consent of its owner, Saybrook Ford, Inc. (“Saybrook”), within the meaning of R.I.Gen.Laws § 31-33-6 (1956) (1982 Restatement). I. FACTS This case was previously tried before another judge o...
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MEMORANDUM AND ORDER This is a diversity of citizenship action brought by plaintiff Composite Marine Propellers, Inc., a Kansas corporation, seeking to recover damages for breach of contract and to enjoin defendants from further misappropriation and misuse of certain trade secrets. The matter now comes before the court on defendants’ motion to dismiss for lack of personal jurisdiction and...
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OPINION PacifiCorp Capital, Inc. commenced this diversity action against the City of New York and City official Joseph A. Messina to *483 enjoin payment on a contract for the purchase of computer equipment from the International Business Machines Corporation (“IBM”). PacifiCorp seeks both a preliminary and a permanent injunction against the award of the contract to IBM, and a...
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*1116 OPINION AND ORDER Caroline Davis, owner of twenty-five percent of the shares of The Connaught Group, Ltd., brings this diversity action for a preliminary injunction, a permanent injunction, declaratory relief and damages. She alleges that she is being irreparably harmed by the conduct of William Rondina, the owner of the other seventy-five percent of the shares of Connaught, who breache...
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ORDER The plaintiff is a civilian employee of the Department of the Army at the United States Military Community Activity in Bremerhaven, West Germany. He is employed as Chief of the Transportation Division of Headquarters 543d Area Support Group, Transportation Division, Logistics Department. The defendants had classified the plaintiff’s position as a GS-11 and denied the plaintiff’s petition ...
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*1389 OPINION AND ORDER Plaintiffs, resident California state and federal taxpayers, filed a declaratory relief action against defendants 2 alleging that the manner in which remedial educational services are provided to students attending sectarian schools in the San Francisco Unified School District, pursuant to Chapters 1 and 2 of the Education Consolidation and Impr...
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OPINION This action was tried to the court, sitting without a jury, and was briefed, argued and submitted for decision. The court has heard and reviewed the testimony of the witnesses, and has reviewed the record, the exhibits admitted into evidence, the deposition transcripts admitted into evidence, the answers to interrogatories, the applicable authorities, and the arguments of counsel. This ...
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MEMORANDUM OPINION Pending before the Court is the Motion for Preliminary Injunction filed by the Plaintiffs. After careful consideration of the respective briefs and the applicable law, it is the opinion of this Court that the Motion should be denied. I. FACTS The Fort Worth Division of General Dynamics (the Defendant) is currently attempting to establish a preventative drug testing program for ...
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OPINION AND ORDER I. BACKGROUND OF THE LITIGATION This is an action for patent infringement involving devices known as nonintrusive Coriolis' mass flowmeters, which measure the mass flow rate of fluids. Plaintiff, Micro Motion, Incorporated (“Micro Motion”), is a Colorado corporation with its principal place of business in Boulder, Colorado. Since 1977, Micro Motion has manufactured ...
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MEMORANDUM OPINION AND ORDER Elijah Baptist (“Baptist”) has sued State-ville Correctional Center (“Stateville”) Warden Michael O’Leary (“O’Leary”) and other officials of the Illinois Department of Corrections (“Department”) under 42 U.S.C. § 1983 (“Section 1983”), seeking damages for alleged violations of Baptist’s Fourteenth Amendment right to due process in connection with Baptist’s reassignm...
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OPINION This action arises out of an accident which occurred on Interstate 10 near Welsh, Louisiana. An 18 wheel tractor-trailer wrecked and strew its cargo along the interstate. ■ Defendant, Independent Wrecker and Towing, Inc. (“Independent”), was called by the Welsh Police Department to clear the interstate. The truck involved belonged to Action Delivery Services, Inc. (“Action”). Action is in...
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OPINION AND ORDER Defendants move and plaintiffs cross-move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff is an African American woman who was 62 years of age when this lawsuit was filed on February 23,1988. She brings this suit against defendants City School District ...of the City of New York and three of its employees, seeking monetary damages and equit...
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Plaintiff Hassard, Bonnington, Rogers & Huber (“Hassard”) and Gray, Cary, Ames & Frye filed the instant complaint in the Superior Court of San Diego County on December 13, 1989, against The Home Insurance Company (“Home”). On January 11, 1990, Home removed the action to this court. In the complaint, the plaintiffs allege that in 1984 Hassard was served with a summons and complaint and tend...
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MEMORANDUM AND ORDER Plaintiff’s motion for the entry of final judgment dismissing its claim against defendant and third-party plaintiff is denied. Fed.R.Civ.P. 54(b). BACKGROUND Plaintiff, The United Bank of Kuwait PLC [“UBK”], commenced the instant action to recover amounts allegedly due under a $2,050,000 commercial installment loan to defendant Enventure Energy Enhanced Oil Recovery Associate...
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ORDER The plaintiff has filed a voluminous pro se complaint against the president of CBS. *364In her complaint she alleges that the defendant has “televis[ed] the plaintiff in her house on a candid camera for ten years and wherever she went____” As a result of the defendant’s continuous camera surveillance over the ten-year period the plaintiff contends that she has been exposed to persecution and...
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*824 OPINION Plaintiff Georgianna Johnson (“Johnson”) and certain other members of Local 1199, Drug, Hospital and Health Care Employees Union RWDSU AFI^CIO (the “Union” or “1199”) (collectively “Johnson”) have moved for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The defendants Edward Kay and certain officers of the Union and members of t...
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743 F. Supp. 551 (1990) ESTATE OF Todd C. WARNER, etc., Plaintiff, v. UNITED STATES of America, et al., Defendants. No. 85 C 3200. United States District Court, N.D. Illinois, E.D. July 3, 1990. Larry R. Wikoff, Chicago, Ill., for plaintiff. Ann L. Wallace, Asst. U.S. Atty., Chicago, Ill., for defendants. MEMORANDUM OPINION AND ORDER SHADUR, District Judge. This District Court has established a ...
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MEMORANDUM DECISION AND ORDER The motions to suppress evidence and statements filed by defendants Michael Werner Franzenberg and Manuel Mac Bo-jorquez came on for hearing on April 30, 1990, at 2:00 p.m., before the Honorable J. Lawrence Irving, District Court Judge. Assistant United States Attorney Patrick K. O’Toole appeared on behalf of the government. Merle Schneidewind appeared for defendan...
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*56 MEMORANDUM AND ORDER This is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the court grants the petition in its entirety. PROCEDURAL BACKGROUND Petitioner was convicted following a jury trial of murder in the second degree, attempted robbery in the first degree, and criminal use of a firearm in the second degree. On May 2...
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ORDER The plaintiff filed the instant complaint against the United States pursuant to the Federal Tort Claims Act after he fell down an airshaft in which he was working at the Federal Bureau of Investigation Headquarters. In Count I plaintiff contends that the United States breached its duty “to maintain adequate lighting in and around the airshaft, to ensure that there was adequate barrier pro...
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742 F.Supp. 1043 (1990) Oliver BURT, Jr. on Behalf of McDONNELL DOUGLAS CORP., Plaintiff, v. William H. DANFORTH, et al., Defendants. No. 89-1276C(1). United States District Court, E.D. Missouri, E.D. July 12, 1990. *1044 *1045 Michael McCabe, Alan Schulman, William Lerach, Milberg, Weiss, Bershad, Specthrie & Lerach, San Diego, Cal., Richard Kilsheimer, Kaplan & Kilsheimer, New York City...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter is presently before the court on defendant’s May 25, 1990, motion for summary judgment. Plaintiff has filed a response. Pursuant to Local Rule 17(i)(2) of the United States District Court for the Eastern District of Michigan, the court shall decide this motion without a hearing. Plaintiff worked...
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MEMORANDUM AND ORDER Defendant’s motion to dismiss is denied. Fed.R.Civ.P. 12(b)(2). Defendant’s motion to transfer is granted. 28 U.S.C. § 1406(a). BACKGROUND On October 9, 1989, Patricia Schenck, a New York resident visiting Walt Disney World in Orlando, Florida, was killed when the small rental boat she was piloting collided with a 500-person ferry boat. Brian Schenck, the de...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Findings of Fact This cause came on to be heard at a bench trial. After considering the facts suggested by the parties, objections thereto, and the court’s own copious notes, the court finds the following facts: Plaintiff The Church of Jesus Christ of Latter-Day Saints (“LDS”) entered into a contract to purchase from plaintiffs Finley E...
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OPINION Plaintiffs filed this action in the Circuit Court for the County of Kalamazoo, Michigan on July 27, 1989. Pursuant to Defendant’s Petition for Removal, the case was removed to the United States District Court for the Western District of Michigan on August 16, 1989. Presently before the Court is Plaintiffs’ Motion for Summary Judgment. STANDARD Motion for Summary Judgment In considering ...
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MEMORANDUM OPINION AND ORDER Pending before the Court are the following motions: 1) a motion to dismiss plaintiffs’ complaint filed by defendants Federal Deposit Insurance Corporation (“FDIC”) and Blue Valley Federal Savings and Loan Association (the “Association”);1 2) a motion to intervene pursuant to Rule 24, Fed. R.Civ.P., filed by Dr. Peter C. Boylan and Carroll J. Boylan; 3) a motion to joi...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND VACATING ARBITRATION AWARD AGAINST PLAINTIFF Plaintiff Elrod & Sons, Inc. brings this action under § 301 of the Labor Management Relations Act (LMRA), as amended, 29 U.S.C. § 185, to vacate an arbitration award entered on October 4, 1988. Defendant District Council No. 3 of the Internationa...
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MEMORANDUM DECISION AND ORDER The plaintiff, Gwendolyn Coates, alleges that on December 14, 1988, she was a passenger on one of defendant’s 1 buses and sustained and incurred certain personal injuries and other damages when a Washing*11ton Gas Light truck rear ended the bus as a result of the sole negligence of an unidentified driver of an unknown motor vehicle. This matter is before the Court pur...
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743 F. Supp. 894 (1990) Creed PATRICK, John Braxton, Jerry Gaimari, J. Anthony Smith, and Lou Woodward, Plaintiffs, v. William J. McCARTHY and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Defendants. Civ. A. 90-1524 SSH. United States District Court, District of Columbia. July 12, 1990. Paul Alan Levy, Alan Butler Morrison, Public Citizen Litig...
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MEMORANDUM DECISION AND ORDER RE CONSTITUTIONALITY OF 18 U.S.C. § 2518(11) The defendants’ motion to suppress the fruits of wiretap surveillance on the basis of the unconstitutionality of 18 U.S.C. § 2518(11) came on for hearing on February 6, 1990, at 9:00 a.m., before the Honorable J. Lawrence Irving, United States District Court Judge. Assistant United States Attorneys Charles Gorder a...
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MEMORANDUM OPINION This is an action by employees of the Bedford County Ambulance Service alleging violations of §§ 7 and 8 of the Fair Labor Standards Act (the “Act”), 29 U.S.C. §§ 207, 208; Pub.L.No. 99-150, § 8, 99 Stat. 787, 791 (1985). Currently pending is the motion for partial summary judgment of plaintiffs and the cross motion for summary judgment of defendant, Bedford County, Tennessee...
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MEMORANDUM OPINION AND ORDER Defendant, Association of American Railroads, has moved for partial summary judgment and to strike plaintiffs jury demand. Defendant seeks summary judgment on Count IV of plaintiff, Ellanoyes Montgomery’s, amended complaint. According to defendant, that count is the only one on which plaintiff is entitled to a jury trial, so defendant requests that plaintiff’s jury ...
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ORDER GRANTING SUMMARY JUDGMENT This matter comes before the court upon the Defendant’s Motion for Summary Judgment. STANDARD OF REVIEW ON SUMMARY JUDGMENT Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party i...
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MEMORANDUM OPINION AND ORDER This matter arises from an alleged fraud in the investment of certain police pension fund money and it is before the court on the motion to dismiss of third party defendant, Village of Bolingbrook (Village). Ancillary jurisdiction enables a federal court to adjudicate claims by third parties arising from the same transaction or occurrence as federal quest...
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ORDER On June 24, 1988, this court entered a final judgment against defendant Carl Porto and in favor of plaintiff Securities and Exchange Commission (“SEC”). The judgment, which was entered pursuant to Porto’s consent and stipulation, required Porto to pay the SEC $150,000 in eighteen separate installments of $8333.33. As of January 1989, Porto had made none of the required payments, so the SEC —...
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MEMORANDUM US West, one of the Regional Companies, has filed a motion for a declaratory ruling, or in the alternative, for a waiver of the decree restrictions, to permit it to provide common channel signaling intercon*649nection on a centralized basis in lieu of installing the requisite interconnection in every LATA. The other Regional Companies not only support the US West request, but each of t...
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MEMORANDUM OPINION AND ORDER Plaintiff, the Avon Group, Inc. (“Avon”), brings this admiralty action against the Department of Insurance of the State of New York and the acting Superintendent of the Department (collectively the “State”), seeking an order enjoining the State from assessing against Avon a tax discussed more fully herein. Currently before the Court is the State’s motion to di...
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MEMORANDUM OPINION AND ORDER This Court has been provided with the United States’ newly-filed Verified Complaint for Forfeiture of a leasehold interest in Chicago Housing Authority (“CHA”) property, coupled with the United States’ ex parte motions: 1. for a finding of probable cause before service of the warrant of seizure and monition and 2. for leave to file the case under sea...
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MEMORANDUM OPINION This action was brought by the plaintiffs, David H. Smith and his wife, Louise Smith, seeking compensatory and punitive damages for injuries sustained by Mr. Smith as a result of exposure to silica sand allegedly sold by the defendants, Walter C. - Best, Inc., Pennsylvania Glass Sand Corporation and Combustion Engineering, Inc., and third-party defendants, Manley Brothe...
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PRELIMINARY INJUNCTION Plaintiff is an Indian Reorganization Act Council for the Native Village of Kwethluk, Alaska. Plaintiff seeks a temporary restraining order and preliminary injunction pursuant to this court’s jurisdiction and authority under the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. § 3117. By its complaint and the instant motions, plaintiff seeks ...
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ORDER Eugene Beavers has filed a Motion under 18 U.S.C. § 3585 requesting that the Court credit his sentence with the time he spent on bond between his arrest and sentencing from November 22, 1988 through October 16, 1989. Beavers argues that the term “in custody” in § 3585 should be ascribed a meaning identical to that phrase under the habeas corpus statutes, 28 U.S.C. §§ 2254 and 2255. By refusi...
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OPINION The matter before the court is an appeal by plaintiffs, James P. Harper and Hutch-ings & Harper Enterprises, Inc. (collectively, Harper), from an order of the United States Bankruptcy Court granting partial summary judgment in favor of defendants Atlantic Richfield Company (Arco) and Partners Preferred Yield (Partners). The bankruptcy court denied foreclosure of the construction lien whic...
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OPINION The matters before the court are the cross-motions of the parties for summary judgment. INTRODUCTION Plaintiffs, Gifford Pinchot Alliance, SDS Lumber Co., Southern Oregon Timber Industries Association, and Northwest Forest Resource Council (the plaintiffs), are associations of forest products companies and two individual companies that operate sawmills and other wood pro...
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MEMORANDUM OPINION AND ORDER Plaintiffs, Richard J. White and William I. Muraski, filed an amended complaint pursuant to 42 U.S.C. § 1983 alleging that defendants, various employees of the Illinois Department of Corrections (“DOC”) and a Illinois state police officer, violated their Fourth Amendment and Illinois constitutional rights when defendants arrested plaintiffs, searched their vehicle and ...
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MEMORANDUM OPINION AND ORDER Defendant J.E. Baker Company (“Baker”) has moved to transfer this action to the United States District Court for the Southern District of Illinois at Alton pursuant to 28 U.S.C. Section 1404(a) (“Section 1404(a)”). Baker’s motion to transfer must be granted. Plaintiff Lumbermens Mutual Casualty Company (“Lumbermens”) is an Illinois insurance company with its primary pl...
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742 F. Supp. 670 (1990) Tracy L. WALKER, Plaintiff, v. SECRETARY OF THE TREASURY, INTERNAL REVENUE SERVICE, Defendant. No. 1:87-cv-1789-CAM. United States District Court, N.D. Georgia, Atlanta Division. July 16, 1990. Tracy L. Walker, Union City, Ga., pro se. Sylvia Lark Ingram, Office of U.S. Atty., Atlanta, Ga., for defendant. ORDER MOYE, District Judge. Plaintiff filed a formal complaint with...
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*96 MEMORANDUM ORDER Plaintiff, incarcerated now at F.C.I. Dan-bury, has filed this civil rights action based on alleged abuses of his constitutional rights by a corrections officer, J. McCarthy, while plaintiff was being held at F.C.I. Loretto, PA. Because plaintiff appears to be indigent, we grant his motion to proceed in forma pauperis and direct the Clerk to file the complaint without...
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MEMORANDUM OPINION Plaintiffs are 11 supervisory housing inspectors who work for the municipal government of the District of Columbia. The Court must decide whether or not they are employed in a bona fide executive or administrative capacity under Section 13 of the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201 et seq. Plaintiffs brought this action against the District government to r...
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ORDER A non-jury trial was held in the above-captioned matter on February 6, 1990, and both parties have since submitted their post trial briefs; therefore, the court will now decide the issues before it. The first issue the court will address is whether claimant Zobie Hill has standing to contest the forfeiture at issue in this case. Although the government concedes that claimant has satisfied th...
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OPINION The Plaintiff Gloria Helman commenced this action individually and as a personal representative of the estate of her deceased mother, Sandra J. Mendelson, seeking damages against Murry’s Steaks, Inc. (“MSI”), her uncle, Murry Mendelson, her cousin, Ira Mendelson (the “MSI Defendants”) and the Rymer Company (“Rymer”) for violations of Section 10(b) of the Securities Exchange Act of...
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MEMORANDUM AND ORDER Petitioner, pro se, moves pursuant to 28 U.S.C. § 2256 to vacate his sentence on the ground that he was denied effective assist-anee of counsel. For the reasons set forth below, the motion is denied. FACTS On September 20, 1988, petitioner met with a confidential informant and agreed to find him a supply of cocaine for purchase. Petitioner then introduced the informant to his ...
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*140OPINION Defendants A.J. Stratton Syndicate (No. 782) and Lloyd’s London Syndicate (together, the “Syndicates”) move pursuant to Rule 15(a), F.R.Civ.P., for leave to file an amended answer, counterclaims and jury demand in which they add two counterclaims for rescission based on the alleged misrepresentation and fraud of plaintiff The Manhattan Life Insurance Company (“Manhattan Life”). Manhatt...
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ORDER Motions to Dismiss Limitation Complaint Kee, Mathiasen’s, GBTC, and Trinidad jointly filed a complaint for exoneration from or limitation of liability on September 7, 1989. At a pre-trial conference held on November 21, 1989, the court agreed to the parties’ request that the lodged monition not be signed until after the motions to dismiss the limitation complaint were decid...
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RULING GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND ORDER OF DISMISSAL The court has before it defendants’ motion for summary judgment. Plaintiffs have resisted and oral arguments have been heard. Plaintiff Ralph J. Bell is the conservator and guardian for Sam H. Bell, as well as his father, and plaintiff Rose Ann Bell is Sam’s mother. Defendant County of W...
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OPINION AND ORDER Plaintiffs’ class counsel seeks an order to disburse the settlement fund and to award *85 certain fees and expenses to class counsel and to the Settlement Administrator. BACKGROUND Plaintiffs James K. Genden and Alma Koppedraijer brought this securities class action against Merrill, Lynch, Pierce, Fen-ner & Smith (“Merrill Lynch”), alleging that Me...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTIONS TO DISMISS The plaintiff, a black woman, filed this action alleging racial discrimination in employment. The amended complaint pleads two counts under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and one count each under 42 U.S.C. § 1981, M.G.L. c. 12, § 111, and M.G.L. c. 93, § 102. The defendant has moved to...
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MEMORANDUM OPINION AND ORDER This Court’s detailed May 2, 1990 Findings of Fact (“Findings”) and Conclusions of Law (“Conclusions”), collectively referred to as “Opinion II” 131 F.R.D. 485:1 (a) held that Schal Defendants are entitled to receive the sum of $351,664.96 (that figure was held to be the total amount of reasonable attorneys’ fees and expenses incurred by Schal Defendants as a direct r...
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743 F. Supp. 422 (1990) TRUSTEES OF THE WASHINGTON AREA CARPENTERS' PENSION AND RETIREMENT FUND, et al. v. MERGENTIME CORPORATION, et al. No. WN-89-1420. United States District Court, D. Maryland. July 17, 1990. Louis P. Malone, III, O'Donoghue & O'Donoghue, Washington, D.C., for plaintiffs. Frank S. Astroth, Frank, Bernstein, Conaway & Goldman, Baltimore, Md., for defendants. NICKERSON, ...
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MEMORANDUM OPINION Introduction Not yet decided in this Circuit is whether an employee terminated for threatening to expose, or refusing to participate in, his employer’s allegedly unlawful racketeering practices has standing to sue his employer under RICO 1 to recover for the termination. Defendants’ threshold dismissal motions in this case present this question. And ...
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743 F. Supp. 828 (1990) Ricardo ELORTEGUI, Petitioner, v. UNITED STATES of America, Respondent. No. 88-2435-CIV-NESBITT. United States District Court, S.D. Florida. June 25, 1990. Bruce Rogow, Miami, Fla., for petitioner. U.S. Atty's. Office, for defendant. MEMORANDUM OPINION NESBITT, District Judge. This case presents the novel question of whether the Eleventh Circuit's decision in United State...
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ORDER This case is before the court on: (1) plaintiffs’ Motion for Partial Summary Judgment; (2) defendant Joseph A. Thompson’s Motion for Summary Judgment and for Award of Attorneys’ Fees; (3) defendants’ Motion for Leave to Supplement the Record in Further Opposition to Plaintiffs’ Motion for Partial Summary Judgment; and (4) plaintiffs’ Motion for Leave to Supplement the Record in Conn...
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743 F. Supp. 820 (1990) UNITED STATES of America, Plaintiff, v. METROPOLITAN PETROLEUM CO., INC. and Metropolitan Fuel Oil Co., Defendants. No. 89-0802-CIV. United States District Court, S.D. Florida. March 30, 1990. *821 Robert K. Senior, Asst. U.S. Atty., Miami, Fla., for plaintiff. Jerry K. Kern, Delray Beach, Fla., William L. Taylor, Alexandria, Va., for defendants. ORDER GRANTING SUMMARY JU...
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OPINION Defendant was charged with six counts of mail fraud for his part in a scheme to defraud an insurance company. Following a two-day trial, the jury in this case returned a verdict of guilty on all six counts. We now consider Defendant’s post-trial motion. The lion’s share of the motion can be disposed of with little discussion. Defendant variously complains of a couple of evidentiary rulings...
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FINAL ORDER GRANTING MOTION FOR ATTORNEYS FEES This cause comes before the Court upon Plaintiffs’ Motion for Attorney’s Fees, pursuant to 28 U.S.C. § 2412(a)-(b) and 2412(d) (“Equal Access to Justice Act”). After due consideration, it is hereby ORDERED and ADJUDGED that Plaintiff’s Motion for Attorney’s Fees is GRANTED in PART. PROCEDURAL HISTORY The facts underlying this case a...
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ORDER SETTING SENTENCING GUIDELINES’ BASE OFFENSE LEVEL This cause comes before the court on defendants’ objections to their sentencing guidelines score as calculated by the United States Probation Department, and the Government’s response thereto. The court will herein determine the base offense level *217to apply to defendants’ conduct of which the jury found them guilty in Count I. For the rea...
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OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW sitting by designation: FINDINGS OF FACT Plaintiff Novelty Textile Mills, Inc. (“Novelty”) is a Connecticut Corporation with an office and place of business located at 1440 Broadway, New York, New York. Novelty is engaged in the business of manufacturing and selling specialty textiles. Defendant Central Transport (“Central”) is a ...
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743 F. Supp. 281 (1990) In re ENGLISH SEAFOOD (USA) INC., Petitioner. Civ. A. No. 89-599-JRR. United States District Court, D. Delaware. July 9, 1990. *282 Edward P. Welch, Cathy J. Testa and Peggy L. Kerr, Skadden, Arps, Slate, Meagher & Flom, Wilmington, Del., and New York City, for petitioner Wheeler's Restaurants PLC. Henry A. Heiman of Heiman, Aber & Goldlust, Wilmington, Del., and J...
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MEMORANDUM OPINION AND ORDER Appellants, Eric J. McCann and Eric J. McCann, P.C., appeal the Bankruptcy Court’s imposition of sanctions against them pursuant to Fed.R.Civ.P. 11 (Rule 11). For the reasons that follow, this Court will affirm. I. BACKGROUND On December 18, 1981, Studio Camera Supply, Inc. (Studio) filed suit against Com-puware Corporation (Compuware) in the Oakland...
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STATEMENT OF REASONS FOR DEPARTURE FROM THE SENTENCING GUIDELINES On June 29, 1989, a jury found Kelvin Harrington guilty of distribution of cocaine base and possession with intent to distribute cocaine and cocaine base. On September 14, 1989, the Court imposed a guideline sentence of 97 months incarceration, but vacated that sentence a few hours later that day. See Transcript ...
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MEMORANDUM OPINION AND ORDER Fred Bee and William Tucker claim that Local 719 of the United Auto Workers (“Union”) violated their rights under the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411 (“LMRDA”). The Union has filed and a motion to strike certain of the plaintiffs’ factual exhibits *836 and a motion for summary judgment. For the reasons given below, w...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiffs Calvin McLin and Joseph Weaver, both of whom are young black *996 men, allege that they were waiting for a bus when two white members of the Chicago Police Department ordered them into a squad car, drove them around, verbally abused them, and ultimately dropped them off in a neighborhood which the officers knew to b...
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MEMORANDUM AND ORDER Presently before the court is an appeal from the bankruptcy court’s imposition of a wage order with respect to the debtors’ payments to the standing trustee and to two mortgagees. Appellants contend the bankruptcy court should have considered their payment record and financial history before imposing the wage order. For the following reasons, the court affirms the order of ...
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Has the Board of Education of Prince George’s County, Maryland (the Board), operating under an order to eliminate all vestiges of past, de jure discrimination, violated either the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution or Title VII of the 1964 Civil Rights Act 1 by the assignment of teachers in order to achieve certain degrees...
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MEMORANDUM The United States seeks to reduce federal personal income tax assessments for the years 1983,1984, and 1985 to judgment and to foreclose federal tax liens on property which the defendant taxpayer, Marie Carson, deeded to her daughter, defendant Raeann Carson Rapucci. For the reasons which follow the United States’ motion for partial summary judgment is granted. I. Taxes Owed Mr...
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ORDER Defendant filed a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6) and a motion for partial judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c). Plaintiff responded and filed two motions to remand. The Court heard oral argument on April 9, 1990. After careful review of the parties written and oral arguments, the Court now rules. I. FACTS Plaintiffs filed a pro pe...
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OPINION This action involves a vitriolic dispute between members of a religious community in the Town of Pound Ridge (the “Town”), which is located in Westchester County, New York, and the Town itself, including numerous Town officials. In a nutshell, plaintiffs, who are Zen Buddhists engaged in the practice of their religion at the Wellspring Zendo in the Town, complain that the Town and its o...
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728 F. Supp. 66 (1990) UNITED STATES of America v. Edmund M. HURLEY, David T. Gorwitz, Salvatore M. Caruana, Charles R. Burnett, Rubie M. Nottage, Kendal W. Nottage, Joseph J. Balliro. Cr. No. 89-0068-H. United States District Court, D. Massachusetts. January 4, 1990. *67 Robert L. Ullmann, for U.S. Albert F. Cullen, Jr., Cullen & Butters, Boston, Mass., for Edmund Hurley. George F. Gormley, ...
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MEMORANDUM OPINION AND ORDER Plaintiff Jeary K. Smith has filed a motion to reconsider both our order issued January 27, 1989, granting partial summary judgment for defendants as to damages, and the entry of judgment against defendants on February 28, 1989. For the reasons set forth below, both of Smith’s motions for reconsideration are denied. On November 7, 1984, Jeary K. Smith bought a Navista...
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*504 MEMORANDUM OPINION This matter comes before the court on defendant’s motion for abstention or a stay of this action. For the reasons set forth below, defendant’s motion is denied. BACKGROUND On January 12, 1989, defendant Warren Olsen executed a guaranty of indebtedness to plaintiff Harris Trust and Savings Bank on a loan issued to Highland Partners, Inc. At the sa...
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MEMORANDUM OPINION AND ORDER Fifty-six-year-old Raymond G. Lackhouse (“Lackhouse”) has sued Treasury Secretary Nicholas F. Brady (“Brady”), charging that the Internal Revenue Service (“IRS”) violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”) 1 by repeatedly failing to hire Lackhouse as a revenue officer despite his being qualified for the position. Lack-house’s A...
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743 F. Supp. 582 (1990) UNITED STATES of America, Plaintiff, v. Myles Joseph CONNOR, Jr., Defendant. Nos. 89-30097, 89-30101. United States District Court, C.D. Illinois, Springfield Division. July 20, 1990. Byron G. Cudmore, First Asst. U.S. Atty., Springfield, Ill., for plaintiff. Gregory D. Collins, Springfield, Ill., for defendant. OPINION RICHARD MILLS, District Judge: "We should understand...
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MEMORANDUM ORDER This cause is before this Court on a Motion for Summary Judgment by the plaintiff, Karl Wiesenburg, Executor of the Estate of Forrest J. Johnson, and a Cross-Motion for Summary Judgment by the defendant, United States of America. Pacts The plaintiff, Karl Wiesenburg, handled the legal affairs of the decedent, Forrest J. Johnson, from 1952 to the date of his death. In the ...
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The Federal Deposit Insurance Corporation (“FDIC”) moves to change its designation from “FDIC, as manager of the FSLIC Resolution Fund, in its capacity as statutory successor to the Federal Savings and Loan Insurance Corporation as receiver for Empire Savings and Loan Association” to “FDIC as receiver for Empire Savings and Loan Association.” Defendants oppose the FDIC’s motion, contending ther...
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MEMORANDUM-DECISION AND ORDER Introduction This action arises out of a contract entered into in 1984 by the Town of Saugerties and a contractor, D’Annunzio Constructors Corp. (“D’Annunzio” or “contractor”), for the construction of a sewer project in the town. Disputes over performance of the contract developed between the town, D’Annunzio, and Employers Insurance of Wausau (“Wausau”), the h...
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MEMORANDUM OF DECISION AND ORDER Plaintiff is a teenaged mother who resides in Maine and who has received public assistance under the Aid to Families with Dependent Children (AFDC) and Food Stamp programs. The Commissioner counted Plaintiff’s part-time earnings from an after-school job when calculating her eligibility for Food Stamp and AFDC benefits. Plaintiff challenges the Commissioner’s inclu...
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MEMORANDUM OPINION AND ORDER Plaintiff, Vardon Golf Company, Inc., has moved to amend its complaint to add *153Mizuno Golf Company (Mizuno) as an additional defendant and to add additional golf clubs whose sale by defendant, Supreme Golf Sales, Inc., allegedly infringed plaintiffs United States Patent No. 3,847,399. There are two separate issues which will be discussed separately. As a preliminar...
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MEMORANDUM OF OPINION This cause is before the court on motion of the defendant Shearson Lehman Hutton Inc. (Shearson) to stay the proceedings as to it and to compel the plaintiffs to submit their dispute to arbitration and the plaintiffs’ demand for trial by jury on issues relating to the arbitrability of the dispute. The individual plaintiffs and defendant Janus entered into an agre...
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MEMORANDUM & ORDER Petitioners the Ludlow Park Homeowners Association, Henry Spallone and G. Oliver Koppell seek a judgment pursuant to C.P.L.R. Article 78 and the State Environmental Quality Review Act (“SEQRA”) reversing a determination by respondents the County of Westchester and the West-chester County Board of Legislators. For reasons which follow, we deny the petition. *1128...
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MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANT’S MOTION TO WITHDRAW PLEA OF GUILTY PURSUANT TO Fed.R. Crim.P. 32(d) I. Defendant herein was charged by criminal complaint with the offense of conspiracy to possess with intent to distribute in excess of five hundred (500) grams of cocaine in violation of title 21 U.S.C. sections 841(a)(1) and 846. Defendant was arrested on the complaint and appea...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW BACKGROUND In 1985, Faucher and the Maine Right to Life Committee (MRLC) sued the Federal Election Commission (FEC) and the United States Attorney General in this Court, challenging FEC regulations governing the publication of voter guides by corporations. That suit was stayed pending the outcome of a United States Supreme Court decision ultima...
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MEMORANDUM-DECISION AND ORDER BACKGROUND Plaintiffs, Amersi Enterprises, Inc., (“the corporation”), and Salim Amersi, its president and chief executive officer, filed an action on March 22, 1988, seeking a declaratory judgment pursuant to 28 U.S.C. § 2202, which would reverse the INS’ denial of plaintiff Amersi’s nonimmigrant visa petition and application for change of non-immigrant status. Addit...
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MEMORANDUM OF DECISION On July 15, 1985, the plaintiff, Danny M. Williams sustained a severe head injury in a motorcycle accident. His wife, Donna Williams, made application for disability benefits on July 28, 1985. (Tr. p. 39-42). In a letter dated August 26, 1985, Dr. Benjamin R. Gelber reported that Williams should be considered completely disabled and unable to manage his own affairs. The leng...
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OPINION AND ORDER Before this Court is Ewart Mark Holder’s motion to reopen a Petition for Writ of Audita Querela, for relief from his 1974 conviction under 21 U.S.C. 952(a) for the importation of marihuana. After careful consideration of the petition, and the government’s opposition, we deny the motion. After having been dismissed for lack of jurisdiction in the District Court for the U.S. V...
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MEMORANDUM OPINION AND ORDER This case is now before the Court on defendant’s motion to dismiss pursuant to *845Fed.R.Civ.P. 12(b)(6) and 9(b) and for sanctions pursuant to Rule 11. Background Familiarity with the background of the captioned litigation and this Court's prior Opinions in the case is assumed, but a summary is useful here. Factual Background Plaintiff Gerald Grossman, d/b/a Comm...
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OPINION AND ORDER Paul G. Eden was terminated in November 1986 by Amoco Oil Company as a franchised gasoline station operator when Amoco refused to renew the franchise agreement with Eden. Eden filed suit against Amoco and included a claim that the termination violated the Petroleum Marketing Practices Act (PMPA), 15 U.S.C. § 2801 et seq. (1988). After a two-week trial the jury...
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OPINION Currently before the court is defendant’s motion to dismiss for lack of in personam jurisdiction and, in the alternative, his motion to dismiss based on forum non conve-niens. For the reasons stated herein, defendant’s motion will be denied. I. FACTS AND PROCEDURE On March 30, 1989, plaintiff filed a complaint in this court as a result of an automob...
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743 F. Supp. 400 (1990) UNITED STATES of America v. Alvin Sylvester SCOTT. Crim. No. K-90-0161. United States District Court, D. Maryland. July 11, 1990. Breckinridge L. Willcox, U.S. Atty., and Jamie M. Bennett, Asst. U.S. Atty., Baltimore, Md., for U.S. Fred Warren Bennett, Federal Public Defender, and Mary French, Asst. Federal Public Defender, Baltimore, Md., for defendant. FRANK A. KAUFMAN, ...
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743 F. Supp. 525 (1990) AM INTERNATIONAL, INC., Plaintiff, v. INTERNATIONAL FORGING EQUIPMENT, et al., Defendants. No. C88-2037. United States District Court, N.D. Ohio, E.D. June 29, 1990. John Watson, Gardner Carton & Douglas, Chicago, Ill., Ronald S. Okada, Baker & Hostetler, Cleveland, Ohio, for plaintiff. Robert W. McIntyre, Cleveland, Ohio, for defendants. MEMORANDUM OPINION AND OR...
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743 F. Supp. 434 (1990) Judith R. SWADER, Administratrix of the Estate of Billie Jo Dickens, Deceased, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants. Civ. A. No. 90-1111-N. United States District Court, E.D. Virginia, Norfolk Division. July 19, 1990. William D. Breit, Breit, Drescher & Breit, Norfolk, Steven J. Marsey, Glasser & Macon, P.C., Chesapeake, Va., for plaintiff. Pe...
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ORDER The above-styled action was tried before the court between March 5 and March 13, 1990. Plaintiff claims that defendants infringed plaintiff’s U.S. Patent No. 3,998,-180 (the T80 patent). Plaintiff asserts that the infringement was willful, entitling plaintiff to an award of attorney fees under 35 U.S.C. § 285. Plaintiff also brings state law claims for misappropriation of trade secr...
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743 F. Supp. 765 (1990) William C. HASKELL, Jr., d/b/a Haskell Brothers Grocery, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant. Civ. A. No. 90-2004-S. United States District Court, D. Kansas. July 13, 1990. *766 William C. Haskell, Jr., Kansas City, Kan., pro se. Lee Thompson, U.S. Atty., Karen Arnold-Burger, Asst. U.S. Atty., Kansas City, Kan., for defendant. MEMORANDUM AND O...
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MEMORANDUM OPINION AND ORDER INTRODUCTION Plaintiff filed this action pursuant to 42 U.S.C. § 1983 seeking declaratory and equitable relief. Presently before the Court are cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. 1 This case presents a constitutional and statutory challenge to a provision of a contract entered into between defendant County of Wayne...
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OPINION AND ORDER This is a civil action for injunctive and declaratory relief and monetary damages brought by plaintiff under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. Plaintiff alleges that defendants have failed to negotiate in good faith a compact governing the conduct of certain gaming activity on plaintiff’s reservation. Jurisdiction is asserted under 25 U.S.C. § 2710 o...
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In this civil action the court decides that the Federal Deposit Insurance Corporation (“FDIC”) cannot be held liable for Texas state law penalty and interest obligations arising from nonpayment of ad valorem taxes. I Plaintiff Irving Independent School District (“Irving”) initiated this action in Texas state court against defendants Packard Properties, Ltd., Montfort Savings, and ...
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FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT In this action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (FTCA), the plaintiff Gladys Pierre seeks recovery on behalf of her minor daughter Nathania Lescouflair for personal injuries and on her own behalf for medical and other expenses incurred as a result of a sale to her by the defendant of a residence...
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MEMORANDUM AND ORDER GRANTING PLAINTIFFS’ MOTION FOR JUDGMENT ON STIPULATED FACTS In this action, Plaintiffs challenge a federal regulation limiting the definition of “essential person” for purposes of determining benefits under the Aid to Families with Dependent Children [AFDC] program. Plaintiffs allege that the regulation, 45 C.F.R. 233.20(a)(2)(vii), is contrary to two sections of the Socia...
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ORDER Before this Court are defendant’s Motion for Summary Judgment, or in the alternative, Motion for Partial Summary Judgment and Motion to Strike (# 9), and plaintiff’s Cross-Motion for Partial Summary Judgment (# 16). These Motions are directed towards plaintiff’s Complaint (# 1) which was filed in this Court on June 20, 1989. Plaintiff’s Complaint is on behalf of Donald Pilot (Pilot) and...
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ORDER Plaintiff filed a civil rights action pursuant to 42 U.S.C. § 1983 in which he challenged the constitutionality of a state statute mandating a moment of silence for prayer in public schools. See § 388.075, Nev.Rev.Stat. At the conclusion of an evidentiary hearing on December 4, 1989, the court determined that Plaintiff lacked the necessary standing to challenge the constitutionality of the ...
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*1185 OPINION This case pits two important societal interests against one another: the interest in maintaining an effective and efficient fire department against the free speech interests of allowing government employees to criticize the workings of that department without fear of punishment. The Washington, D.C. Fire Fighters Association and five individual District of Columbia ...
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MEMORANDUM AND ORDER In the wake of an alleged failure on the part of defendant Lep Transport (“Lep”) to deliver a folder-gluer machine to Chicago, plaintiff Capitol Converting Equipment (“Capitol”) brought this action, asserting originally a state law breach of contract claim. Memoranda submitted by the parties in the course of a motion for partial summary judgment raised the possibility...
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ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND TO DISMISS REMAINING PORTION OF THE SUIT Defendant United States of America brings this motion for partial summary judgment and to dismiss the remaining portion of the suit against it. Defendant’s motion came on for hearing before this court on April 9, 1990. Carroll S. Taylor appeared on behalf of plaintiff, and Kurt Kawafuehi ...
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MEMORANDUM OPINION AND ORDER This appeal involves the relationship among §§ 327, 328, 329 and 330 of the Bankruptcy Code. The debtors, James and Lois Land, and their attorney, Thomas Ker-win, contest a bankruptcy court order denying their motion for nunc pro tunc approval of Kerwin’s application for employment as the debtors’ attorney and requiring his disgorgement of attorney fees collec...
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ORDER This is an action for declaratory judgment brought by an insurance company against its insureds who in turn have brought a counterclaim seeking the same relief. The central question is whether plaintiff’s insurance policy provides coverage for defendants against claims by environmental authorities arising out of contamination at a hazardous waste site. Before the Court are cross mot...
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MEMORANDUM Plaintiff brought this action against the defendants for breach of contract and fraud. Plaintiff contends that this Court has jurisdiction pursuant to 28 U.S.C. § 1332, in that there is diversity of citizenship among the parties and the amount in controversy exceeds Fifty Thousand Dollars ($50,000.00). This matter is before the Court on defendants’ motion to dismiss the second ...
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MEMORANDUM Plaintiffs, Gilbert and Ruby Quigley, brought this action for compensatory damages against the defendant, Speedy Muffler King a.k.a. Bloor Automotive, Inc. (“Speedy Muffler”). Plaintiffs contend that Mrs. Quigley sustained serious and permanent injuries when the vehicle she was driving was involved in a motor vehicle accident on November 6, 1986. Plaintiffs contend that the accident occ...
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OPINION Currently before the court is the motion of defendants for summary judgment. For the reasons stated herein, this motion will be granted in part and denied in part. I. FACTS AND PROCEDURE Plaintiff was employed by defendant Navistar International Transportation Corporation (“Navistar”) from November 3, 1952 to June 30, 1986. He moved through a series of positions, from Re...
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Appellant Aloma Square, Inc. is not challenging any of the Bankruptcy Court’s findings of fact in this proceeding. Accordingly, the Court adopts the facts as set forth by the bankruptcy court in the opinion below. See In re Aloma Square, Inc., 85 B.R. 623 (Bankr.M.D.Fla.1988). Appellant does dispute, however, the bankruptcy court’s conclusions of law. This Court may freely examine “the applicab...
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MEMORANDUM OPINION AND ORDER Plaintiff, Fruitiere Vinicole D’Arbois (“Fruitiere”), brings this action pursuant to 28 U.S.C. § 1332 (1988) on its own behalf and on behalf of its partial subrogee, Com-pagnie Francaise D’assurance Pour Le Commerce Exterieur, a credit insurance company, for monies owed by the defendants Jean Jacques Bovineau and the Sommelier’s Cellars, an unincorporated business e...
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ORDER SETTING CAUSE FOR HEARING ON DEFENDANT’S FROZEN ASSETS THIS CAUSE is before the Court on the several motions of counsel for Defendant Manuel Noriega relating to the freezing of his assets either by or at the request of the United States government. The precise issue before the Court is whether the government may deprive a criminal defendant of his only assets available for atto...
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ORDER DENYING DEFENDANT’S MOTION IN OPPOSITION TO SECRET PROCEEDINGS THIS CAUSE is before the Court on Defendant Miranda’s Motion in Opposition to Secret Proceedings. Defendant' Miranda, through, his counsel, moves the Court to refrain from entertaining secret proceedings in the case at bar and to hold all further proceedings in open court. Counsel for Defendant does not point to any proceedi...
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MEMORANDUM AND ORDER Plaintiff filed this action, related to United States v. International Brotherhood of Teamsters, 88 Civ. 4486 (DNE) (the “underlying suit”) seeking injunctive and declaratory relief. Defendant Carberry moved to dismiss the complaint pursuant to Fed.R. Civ.Pro. 12(b)(6). For reasons to be discussed below, defendant’s motion is granted. *492 I. Background The United...
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MEMORANDUM AND ORDER Defendant moves to dismiss the one-count indictment against him, arguing that the judicially created “exculpatory no” exception protects him from prosecution under 18 U.S.C. § 1001. For the reasons discussed below, that motion is denied. FACTS Defendant is charged with knowingly and willfully making a false, fictitious and fraudulent statement in a matter wi...
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MEMORANDUM OPINION AND ORDER Previously the Court granted summary judgment in favor of defendants and against plaintiffs on plaintiffs’ ERISA and securities claims. Associates in Adolescent Psychiatry, S.C. v. Home Life Ins. Co., 729 F.Supp. 1162 (N.D.Ill.1989). The parties have since filed supplemental briefs concerning the defendants’ motion for summary judgment on plaintiffs...
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*565MEMORANDUM On July 8, 1981, after a bench trial before the Honorable Juanita Kidd Stout, of the Philadelphia Court of Common Pleas, petitioner was found guilty of second degree murder, attempted murder, two counts of robbery, criminal conspiracy, and possession of an instrument of crime for his participation in a November 12, 1980 gun-point robbery of Tyrone Moses Fulton and Peggy Graham in Ph...
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MEMORANDUM AND ORDER Plaintiffs Bonita Spinka (“Spinka”) and Karl Halperin (“Halperin”) bring this action under 42 U.S.C. § 1983 alleging that their civil rights were violated when defendants Judith Brill, Robert Schlossberg, John Alden, and Berle Schwartz failed to hold elections for the position of drainage commissioner. We have before us plaintiffs’ motion to certify a class, as well as the ...
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MEMORANDUM OPINION AND ORDER This purported class action arises out of the issuance of stock and the subsequent Chapter 11 bankruptcy petition by Computer Depot, Inc. (“CDI”). Robert D. Phillips, the named plaintiff, claims that the activities of defendant Kidder, Peabody & Co. (“Kidder”) and a defendant class of underwriters for CDI stock, relating to the initial offering and subsequent ...
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MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS AND FOR SANCTIONS The plaintiffs, W. Robert Curtis (“Robert”) and Talitha A. Curtis (“Talitha”), allege that defendants participated and conspired in the violation of the federal anti-racketeering statute and contravened several Massachusetts state laws by virtue of their role in a fraudulent scheme instituted by the General Accident ...
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MEMORANDUM OPINION This matter came before the court for trial without a jury on April 5 and 6, 1990 at the United States Courthouse in Winston-Salem. After considering the testimony, the evidence, the trial briefs, and arguments of counsel, the court finds that three of the plaintiffs shall prevail on their claims; however, one plaintiff cannot prevail having failed to establish a ...
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OPINION This case arises out of the disappearance of a container of umbrellas en route from the port of Keelung, Taiwan to the port of New York. Plaintiff Berkshire Fashions, Inc. (“Berkshire”) has invoked the admiralty jurisdiction of this court pursuant to 28 U.S.C. § 1333.1 Presently before the court is the motion of defendant Global Traffic Systems (“Global”) to dismiss the Complaint for lack...
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OPINION These cases arise out of an alleged bid rigging/market allocation scheme in the New York City market for reinforced-concrete superstructure construction work. The State of New York seeks to amend its complaint to include claims for damages under New York’s antitrust statute on behalf of government entities which were apparently indirect purchasers of the concrete work. Back...
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MEMORANDUM OPINION AND ORDER Plaintiffs Lucyle Kalish and Sol Joseph Kamen brought this derivative action on behalf of defendant Franklin Custodian Funds, Inc. (U.S. Government Securities Series) (the "Fund”) under the Investment Company Act of 1940, as amended, 15 U.S.C. § 80a-1 et seq. (the “Act”), to recoup allegedly excessive advisory fees paid by the Fund to its investment...
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ORDER On July 2, 1990, the plaintiffs commenced this action in the State District Court, in and for the County of Arapahoe, Colorado, seeking a temporary restraining order, a preliminary injunction and a permanent injunction. On December 9, 1988, the defendant Silverado Banking, Savings and Loan (“Silverado”), was declared insolvent, and the Federal Savings and Loan Insurance Corporation ...
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OPINION AND ORDER Pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure, defendant P&S Sanitation (“P & S”) has moved for relief from this Court’s Order of March 7, 1990 on the grounds of mistake, inadvertence, surprise, or excusable neglect. In opposition, plaintiff Local 945, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“the Union”), conte...
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MEMORANDUM OPINION AND ORDER On November 30, 1989 the court dismissed this case for lack of in personam jurisdiction over defendants Essex Financial Services, Inc. (“Essex”) and Raymond R. Kramer. (See Opinion at 8-9; 1989 WL 152664, 1989 U.S.Dist. LEXIS 14361.) The court deferred ruling on defendants’ request for sanctions under Federal Rule of Civil Procedure 11. (...
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743 F. Supp. 834 (1990) Susan A. MALLOY, Plaintiff, v. UNITED STATES of America, Defendant, v. Susan A. MALLOY, John E. Malloy, Jr., Moralmar Kitchen Cabinets, Sun Bank, Brod Moore Development, Inc., Standard Concrete Corp., Boynton Builders Supply, Inc., South Florida Air Condition Service, Inc., Doby Builders Supply, Inc., Florida Power & Light Co., Work World, Inc., and Drywall Interiors, ...
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743 F. Supp. 713 (1990) UNITED STATES, Plaintiff, v. Stephen FISHMAN, Defendant. No. CR-88-0616 DLJ. United States District Court, N.D. California. April 13, 1990. *714 Robert L. Dondero, Asst. U.S. Atty., N.D. Cal., San Francisco, Cal., for plaintiff. Marc S. Nurik with the law firm of Nurik & Kyle, Miami, Fla., for defendant. MEMORANDUM OPINION JENSEN, District Judge. On December 27, 1989,...
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ORDER GRANTING MOTIONS FOR RECONSIDERATION OF SANCTIONS ORDER THIS MATTER comes before the court on plaintiffs’ motion for reconsideration of the court’s order granting sanctions. Having reviewed the motion, together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows: I. BACKGROUND The law firms Betts Patterson & Mines and Milberg ...
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743 F. Supp. 645 (1990) LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS; and the Sokaogon Chippewa Community, Plaintiffs, v. STATE OF WISCONSIN; Tommy G. Thompson, Governor of the State of Wisconsin; Donald J. Hanaway, Attorney General of the State of Wisconsin; David Vernon Penn, District Attorney of Vilas County, Wisconsin; and Janet L. Marvin, District Attorney of Forest County, Wiscons...
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MEMORANDUM AND ORDER The Court has carefully considered the motion for approval of the settlements between the plaintiff class and the settling defendants, namely the Gallop, Johnson defendants, Hospital Management Associates, Inc. and H.M.A., Inc. (collectively referred to as HMA), and Peter Orr. By separate order, the Court has ruled on the fairness of those settlements. This order addresses ...
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MEMORANDUM AND ORDER THIS CAUSE comes before the court on the motion for preliminary injunction filed by plaintiffs Hanlon et al. in Hanlon v. Barton, No. J86-024 Civ. (consolidated) on March 6, 1990 (Docket No. 50), on the Hanlon plaintiffs’ motions to supplement filed May 18, 1990 (Docket No. 219), and on the Hanlon plaintiffs’ renewed motion to expedite filed July 5, 1990. I. Motion...
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MEMORANDUM AND ORDER Before the Court, for final resolution of the instant action, is a STIPULATION AND ORDER, stating that this action is “dismissed with prejudice and with costs awarded to the Defendant.” This STIPULATION AND ORDER is attached hereto and is incorporated as if fully rewritten herein. Before approval, however, a brief explanatory statement seems necessary. Since the Memorandum an...
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MEMORANDUM OPINION This removed diversity case, involving the discharge of a retail employee who refused to work in a Sears store on Sundays and setting forth causes of action for wrongful discharge and intentional infliction of emotional distress, is before the Court on the defendant’s motion for summary judgment. That motion raises, inter alia the issue of the constitutionality vel non of Md.Ann...
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MEMORANDUM OPINION These proceedings present various claims for an exoneration or limitation of liability pursuant to the Limitation of Liability Act. 1 46 U.S.C.App. § 181-188 (1958) (originally enacted as Act of Mar. 3, 1851 ch. 43, sec. 3, 9 stat. 635). The Petitioners Roscioli Yachting Center, Inc. (“Roscioli”) and Guy Gannett Publishing Co. (“Guy Gannett”) are bareboat cha...
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In one of these consolidated employment discrimination cases, Case No. 89-1558, Defendant Leroy Melton (“Melton”) has filed a Motion for Summary Judgment. Fed.R. Civ.P. 56. Plaintiff David P. Wohl (“Wohl”) has opposed this Motion. For the following reasons, the Motion for Summary Judgment must be DENIED. The relevant facts, briefly stated, show that Wohl, an English teacher at John Hay Hig...
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MEMORANDUM OPINION This Cause has come before the Court upon consideration of the probationary status of Osvaldo Cardenas-Yanez (“Cardenas-Yanez”). It is alleged that Cardenas-Yanez has violated several conditions of probation previously imposed by this Court. As a result, the Government requests that his term of probation be revoked. Having carefully reviewed the record and applicable ca...
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MEMORANDUM OPINION Plaintiff, Standard Office Systems of Fort Smith, Inc. (hereinafter SOS), initiated this action in an Arkansas state court against defendants, Ricoh Corporation (Ri-coh), and Modern Business Systems, Inc. (MBS), alleging that SOS marketed Ricoh copiers and products until Ricoh tortiously ceased doing business with SOS and began dealing instead with MBS. To make a long s...
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743 F. Supp. 662 (1990) PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Plaintiff, v. Thomas LINTHICUM, et al., Defendants. Civ. No. 89-5152. United States District Court, W.D. Arkansas, Fayetteville Division. June 6, 1990. *663 Timothy Davis Fox, Holiman, Fox & Goodman, Little Rock, Ark., for plaintiff. Truman H. Smith, Fayetteville, Ark., for defendants. MEMORANDUM OPINION H. FRANKLIN WATER...
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ORDER This matter is before the Court on a Memorandum and Recommendation (here *102 inafter “M & R”) filed by United States Magistrate Paul B. Taylor on June 22, 1990. The M & R is in response to Defendant's motion, filed on May 25, 1990, to suppress approximately 211 grams of cocaine base and 35 grams of powdered cocaine that was seized from Defendant’s person at the Ch...
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MEMORANDUM OF DECISION On July 10, 1990, this Court, by Minute Entry, ruled in favor of plaintiffs on the issue presented for judicial review. The following memorandum explains the reasons for the Court’s order. INTRODUCTION Procedural Background This is a judicial review of an administrative decision of the Arizona Department of Education (ADOE), pursuant to the Education of the Handicapped Act...
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*149 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Plaintiff James Norman commenced this action against his former employer M.S. Carriers, Inc. (“M.S. Carriers”), two of his former supervisors, Bud Self and Claude Watkins, the President of M.S. Carriers, Michael S. Starnes, as well as certain unknown members of M.S. Carriers’ Safety Department. The complaint alleges violations of ...
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MEMORANDUM The complaint will be dismissed for failure to state a claim on which relief may be granted, Fed.R.Civ.P. 12(b)(6), with leave to amend as set forth in the accompanying order. This is a civil rights action. According to the complaint, plaintiff Michael J. Vassallo, on May 5, 1987, was attacked and beaten by the three individual defendants, who are private security officers...
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743 F. Supp. 327 (1990) Joseph SAN FILIPPO, Jr., Plaintiff, v. Michael BONGIOVANNI, Anthony S. Cicatiello, Adrienne S. Anderson, Donald M. Dickerson, Floyd H. Bragg, Norman Reitman, individually and as members of the Board of Governors of Rutgers University, and Rutgers, the State University, Defendants. Civ. A. No. 88-2575. United States District Court, D. New Jersey. July 25, 1990. *328 Leon Fr...
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742 F. Supp. 1535 (1990) George DANIEL, Petitioner, v. Morris L. THIGPEN, et al., Respondents. Civ. A. No. 87-D-1334-E. United States District Court, M.D. Alabama, E.D. July 25, 1990. *1536 *1537 Malcolm R. Newman, Newman & Newman, Dothan, Ala., Bryan A. Stevenson, Atlanta, Ga., William J. Barker, Stradley, Ronen, Stevens & Young, Philadelphia, Pa., for petitioner. Don Siegelman, Atty. Ge...
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MEMORANDUM OPINION AND ORDER Plaintiff, Johnnie Earl Flowers, a former employee of Leake County, Mississippi, brought this action pursuant to 42 U.S.C. § 1983 against defendants, Darrell Dickens and Leake County, Mississippi, alleging that his termination from employment was in violation of his first amendment rights. Presently before the court is defendants’ motion for summary judgment. ...
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743 F. Supp. 616 (1990) Ron PAUL, Andre Marrou, Stephen W. Dillon, Steve Dasbach, Barbara Bourland, Steve Springer, Rex F. May, Kenneth A. Bisson, Karen D. Benson, J. Nadine Dillon, David Benson, Andrew C. Maternowski, and all other Indiana registered voters similarly situated, Plaintiffs, v. The STATE OF INDIANA ELECTION BOARD, and its members, Governor Robert D. Orr, Donald B. Cox, Kevin J. But...
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ORDER THIS MATTER is before the Court on Defendant’s motion, filed June 26, 1990, to correct an illegal sentence pursuant to the former Rule 35(a) of the Federal Rules of Criminal Procedure. The record in this case indicates Defendant was charged with co-Defendant Arthur Jacoby in a twenty-five (25) count bill of indictment for mail fraud in violation of 18 U.S.C. § 1341 and making false claims in...
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743 F. Supp. 298 (1990) Juanita MARTINEZ, Marisol Martinez and Caroline Martinez by her guardian-ad-litem Juanita Martinez, Plaintiffs, v. UNITED STATES of America, Defendant. Civ. A. No. 89-4603. United States District Court, D. New Jersey. May 31, 1990. *299 Larry A. Chamish, P.A. by Dalwyn T. Dean, Newark, N.J., for plaintiffs. Samuel A. Alito, Jr., U.S. Atty. by Susan Handler-Menahem, Asst. U...
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MEMORANDUM This matter is before the Court on Defendant Josephine Cherry Mark’s Motion to Suppress Evidence and Statements. The sole witness at the suppression hearing was Detective Vance Beard, of the Metropolitan Police Department, who testified on behalf of the government. For the reasons stated below, the Court grants defendant Alston’s motion to suppress evidence and statements. Facts ...
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ORDER THIS MATTER is before the Court on the Government’s motion, filed on June 20, 1990, to reduce Defendant’s sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. The Government has requested a hearing be conducted by the Court to consider arguments by the parties in support of the motion. The Government has also filed a petition for a writ of habeas corpus ad prosequendum...
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743 F. Supp. 839 (1990) Noel MOLAIRE, Petitioner, v. Richard SMITH, Acting District Director, Immigration and Naturalization Service, District No. 6, Respondent. No. 89-2019-CIV-EPS. United States District Court, S.D. Florida. July 16, 1990. *840 Cheryl Little, Esther Cruz, Ira J. Kurzban, Miami, Fla., for petitioner. Dexter Lee, Asst. U.S. Atty., Miami, Fla., for respondent. MEMORANDUM OPINION ...
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755 F.Supp. 199 (1990) Nancine DAVIS, Plaintiff, v. Debra KIRBY and John Doe, unknown Chicago Police Officer, Defendants. No. 90 C 1747. United States District Court, N.D. Illinois, E.D. July 24, 1990. *200 Nancy Carper, Diana Kenney, Carper and Rubesh, Chicago, Ill., for plaintiff. Matthew E. Van Tine, James P. McCarthy, Asst. Corp. Counsel, City of Chicago Law Dept., Chicago, Ill., for defendan...
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MEMORANDUM OPINION This Cause is before the Court upon the parties’ cross-motions for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. The petitioner, Anheuser-Busch Incorporated (“ANHEUSER-BUSCH”), has' instituted this action pursuant to the Limitation of Liability Act. 46 U.S.C.App. 181-188 (1958) (originally enacted as Act of Mar. 3, 1851 ch. 43, sec....
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OPINION ON CAL DIVE’S MOTION FOR RECONSIDERATION AND STAY PENDING MANDAMUS TO ELEVENTH CIRCUIT AND CAL DIVE’S SUPERSEDEAS BOND, AMOUNT TO BE RETAINED IN AND RELEASE OF FUNDS FROM REGISTRY The Court at the hearing June 13-14, *8141990 fixed the amounts1 later reduced to two separate orders for taxable costs of the District Court and probable costs on the appeal, the amount of the supersedeas bond ...
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743 F. Supp. 723 (1990) ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Plaintiff, v. Joy MILLER, Mildred R. Merlino, Defendants. No. C-89-3496 SC. United States District Court, N.D. California. July 19, 1990. *724 Paul E.B. Glad, Sonnenschein, Nath & Resenthal, San Francisco, Cal., for plaintiff. Jonathan C. Jackel, Silver & Katz, San Jose, Cal., for defendants. AMENDED ORDER RE: M...
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ORDER DENYING ALLERGAN’S MOTION TO DISMISS OR IN THE ALTERNATIVE TO STAY OR TRANSFER The present case is a declaratory judgment action brought by plaintiff Plough, Inc. (“Plough”) against Allergan, Inc. and its subsidiary Herbert Laboratories (collectively referred to herein as “Allergan”) pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. The complaint seeks a judgment declaring...
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MEMORANDUM This matter is before the Court on Defendant Brenda Alston’s Motion to Suppress Evidence and Statements. The sole witness at the suppression hearing was Detective Kimberly K. Oxendine, of the Metropolitan Police Department, who testified on behalf of the government. For the reasons stated below, the Court grants defendant Alston’s motion to suppress evidence and statements. I. FACT...
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MEMORANDUM AND ORDER Patricia Knight works as an insurance sales agent for the defendants, United Farm Bureau Mutual Insurance Company and United Farm Bureau Family Life Insurance Company (collectively referred to as “Farm Bureau”); her status with Farm Bureau is at issue in this case. Ms. Knight brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ...
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MEMORANDUM DECISION AND ORDER The motion by National Steel and Shipbuilding Company (NASSCO) for summary judgment came on for hearing in Courtroom 7 before the Honorable Earl B. Gilliam on June 4, 1990 at 10:30 a.m. Stutz, Gallagher & Artiano (Sidney Stutz and Mark Schwartz of counsel) appeared for NASSCO, the moving party. Gray, Cary, Ames & Frye (Regina Petty of counsel) and Adams & Ree...
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743 F. Supp. 556 (1990) UNITED STATES of America, Plaintiff, v. Robert J. RIGGS, also known as Robert Johnson, also known as Prophet, and Craig Neidorf, also known as Knight Lightning, Defendants. No. 90 CR 0070. United States District Court, N.D. Illinois, E.D. July 23, 1990. *557 Ira H. Raphaelson, U.S. Atty. by William J. Cook, Colleen D. Coughlin, David Glockner, Asst. U.S. Attys., Chicago, I...
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MEMORANDUM AND ORDER I. INTRODUCTION. THIS CAUSE comes before the court on the following motions filed in City of Tenakee Springs v. Clough (No. J86-024 Civ.): 1 the motion to amend complaint filed January 8, 1990 (Docket No. 144) by plaintiffs City of Tenakee Springs et al.; plaintiffs’ motion for leave to file a second amended complaint filed February 2, 1990 ...
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743 F. Supp. 1553 (1990) Daniel Neal HELLER, Plaintiff, v. Lawrence S. PLAVE, Doreen H. Kaplan and Thomas A. Lopez, Defendants. No. 89-0639-CIV. United States District Court, S.D. Florida. July 18, 1990. *1554 *1555 *1556 *1557 Gilbert Haddad, Coral Gables, Fla., Joseph C. Brock and Lisa Heller Green, Miami, Fla., for plaintiff. Robert Senior, Asst. U.S. Atty., Miami, Fla., Jose F. DeLeon, Tax Di...
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MEMORANDUM OPINION This is a motion for attorney fees. (Docket Item [“D.I.”] 56.) The plaintiff, William Perez, obtained a jury verdict in his favor in the Fair Debt Collection Practices Act (“the Act” or “Fair Debt”), 15 U.S.C. § 1692 et seq., lawsuit he brought against the defendants, Gary M. Perkiss, Esquire, and Pozzuolo & Perkiss, P.C. (D.I. 47.) Mr. Perez now seeks fees p...
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This appeal from an order of the bankruptcy court confirming a plan of reorganization primarily presents the questions whether the bankruptcy court approved the plan without adequate notice to appellant and whether the bankruptcy court exceeded, its jurisdiction by requiring the release of certain claims. *232 I This appeal is the subject of two prior published opinions of th...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION TO AMEND COMPLAINT On May 21, 1990, a hearing was held on defendants’ motions to dismiss and for summary judgment and on plaintiff’s motion for preliminary injunction, cross-motion for summary ...
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MEMORANDUM In 1974, a jury in the United States District Court for the Western District of Kentucky convicted petitioner Terry of armed robbery, a federal crime under 18 U.S.C. § 2113 (1988). After several years he was paroled. During his parole, Terry was arrested, again in Kentucky, and convicted of state criminal offenses. Respondent United States Parole Commission revoked his parole. Currentl...
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MEMORANDUM OPINION This case is before the court on the issue of whether the court should grant the plaintiff, Amvest Funding Company (“Am-vest”), possession of horses which are collateral to promissory notes on which the defendant, John G. Bowen (“Bowen”), has defaulted. In December of 1987, Bowen borrowed a total of $490,000.00 from Am-vest. Under four separate security agreements, Bowe...
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OPINION AND ORDER On September 19, 1974, the Court issued an opinion and order approving the settlement of this case and incorporating the settlement agreement (the “Agreement”) in a consent decree, familiarity with which is presumed. See Patterson v. Newspaper & Mail Deliverers’ Union, 384 F.Supp. 585 (S.D.N.Y.1974), aff'd, 514 F.2d 767 (2d Cir.1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3198, 4...
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MEMORANDUM OPINION Before the court is an order entered by United States Bankruptcy Judge James G. Mixon holding Art Dodrill guilty of crimi *431 nal contempt on two separate occasions during a hearing held on February 12, 1990. Dodrill was summarily assessed a total fine of $100.00 payable by 6:00 p.m. on February 12, 1990. When Dodrill refused to pay the fine alleging he di...
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MEMORANDUM DECISION The Court has before it plaintiff Dal G. Bradley’s application for attorneys fees and costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). Plaintiff’s counsel also seeks approval of an award payable out of the past due benefits pursuant to 42 U.S.C. § 406(b)(1). The Secretary of Health and Human Services (Secretary) opposes the EAJA fee applic...
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743 F. Supp. 1245 (1990) Douglas Dwight BENNETT, Plaintiff, v. Michael BATCHIK, et al., Defendants. No. 89-73248-DT. United States District Court, E.D. Michigan, S.D. July 27, 1990. *1246 *1247 Douglas D. Bennett, Walled Lake, Mich., pro se. John H. Dise, Jr., Dise, Gurewitz & Irving, Detroit, Mich., for defendants. MEMORANDUM OPINION AND ORDER ZATKOFF, District Judge. This matter is before ...
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MEMORANDUM OPINION AND ORDER The plaintiffs (hereinafter “Fox”) brought this action for copyright infringement and unfair competition to protect its copyrights in the characters of the television show “THE SIMPSONS”, which runs on the Fox Television Network. Pres *474 ently before this Court is plaintiffs motion for a preliminary injunction and expedited discovery against the...
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MEMORANDUM OPINION AND ORDER This case now comes before the Court on plaintiff Securities and Exchange Commission’s (“SEC” or “Commission”) motion for partial summary judgment pursuant to Fed.R.Civ.P. 56 as to alleged violations of sections 5(a) and 5(c) of the Securities Act of 1933 (“the Registration Provisions”), 15 U.S.C. §§ 77e(a) and 77e(c) by the individual defendants, Arthur N. Ec...
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SUMMARY JUDGMENT The parties have stipulated to the relevant facts in this case. The plaintiff, Keith Beattie, is employed by the City of St. *1456 Petersburg Beach (the City) as a firefighter and has been a member of the Internal Association of Firefighters AFL-CIO (the Union) since he was employed on August 24, 1982. In October of 1983, the City and the Union entered into a collective barga...
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*326 MEMORANDUM Pending before the Court is the summary judgment motion of defendants NYNEX Corp. and Telco Research Corp. (a NYNEX subsidiary), seeking the dismissal of a number of antitrust, contract, and tort claims relating to plaintiffs termination as a senior vice president of Telco. Plaintiff, a lawyer who is proceeding pro se, asserts that he was fired as a res...
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742 F. Supp. 1025 (1990) CANADA COMMUNITY IMPROVEMENT SOCIETY, INC., et al., Plaintiffs, v. CITY OF MICHIGAN CITY, INDIANA, et al., Defendants. No. S87-325. United States District Court, N.D. Indiana, South Bend Division. July 24, 1990. *1026 Ivan E. Bodensteiner, Robert F. Blomquist, Valparaiso, Ind., for plaintiffs. Martin W. Kus, LaPorte, Ind., for City of Michigan City, Ind., and Michigan Cit...
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MEMORANDUM AND ORDER Patricia Burkley filed this action on May 22,1989 alleging that her former employer, Martin’s Super Markets, Inc., violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., when it discharged her. Martin’s moved to dismiss the complaint on the ground that Ms. Burk-ley’s action was untimely. The court converted the motion to one fo...
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MEMORANDUM AND ORDER This is a breach of contract action1 over which, it is asserted, this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. The plaintiff DBMS Consultants Limited (“DBMS”) has applied for the issuance of a letter rogatory requesting the assistance of the Supreme Court of the State of New South Wales, Australia in compelling the deposition of a witness. The defendants...
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MEMORANDUM OPINION This action arose out of the arrest of the plaintiff, Roman A. Grochowski, by the defendant, Thomas S. DeWitt-Rickards. On August 25, 1987, Rickards arrested Gro-chowski for driving under the influence of alcohol, in violation of § 18.2-266 of the Code of Virginia. Rickards conducted field sobriety tests at the scene of the arrest and, under the authority of Va.Code § 18.2-268, ...
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MEMORANDUM AND ORDER Petitioner Allen Hodge seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Hodge is currently a New York State prisoner serving an indeterminate prison term of fifteen years to life upon conviction of robbery in the first degree. The sentence was imposed by the Supreme Court, New York County (Fraiman, J.) after a trial by jury. On appeal, the Appellate ...
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OPINION This employment discrimination case was commenced by the plaintiff pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging sex discrimination and sexual harassment. The defendant has moved for summary judgment. I. FACTS The plaintiff, Kimberley Joan Fair, is the former Associate Director of Admissions for the defendant corpor...
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AMENDED OPINION On October 28, 1988, the court determined that the I.C.C. had primary jurisdiction to decide the validity of the tariff upon which plaintiffs’ claim is based. The I.C.C. subsequently issued an order declaring that the disputed tariff constitutes an unreasonable practice under the Interstate Commerce Act. Now the parties, plaintiffs Delta Traffic Service (“Delta”) and Campb...
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MEMORANDUM DECISION AND ORDER Plaintiffs’ and defendants’ cross-motions for summary judgment came on for hearing before the Honorable Earl B. Gilliam on December 11, 1989 at 10:30 a.m. in Courtroom 7. Rogers & Wells of New York, by Procopio, Cory, Hargreaves and Savitch (Jeffrey Isaacs and Edward I. Sil-verman of counsel) represented the plaintiffs. Pillsbury, Madison & Sutro (Kirke M. Ha...
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MEMORANDUM ORDER Plaintiff Carl J. Cooper (“Cooper”), on behalf of himself and others similarly situated, brings this action seeking declaratory and injunctive relief relating to the drug urinalysis testing procedures utilized by the United States Air Force from April 1982 through November 1983 that resulted in the wrongful and premature discharge from the Air Force of himself and similarly situa...
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After oral argument, I denied defendant’s motion to assess sanctions against the plaintiff under Fed.R.Civ.P. 11 and reserved decision on defendant’s application for attorneys’ fees pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976. 42 U.S.C. § 1988. My examination of the opinions interpreting section 1988 does not support defendant’s argument that in enacting section 1988 Congress i...
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MEMORANDUM OF DECISION This is an appeal pursuant to 28 U.S.C. § 158(a) (1988) from an adversary proceeding in bankruptcy. The plaintiff-appellant asserts that the bankruptcy judge erred in vacating an earlier final order. The plaintiff is a nursing home participating in the Medicaid program. Under the Medicaid system, the defendant Department of Public Welfare (DPW) pays funds to nu...
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AMENDED MEMORANDUM AND ORDER This order is entered in response to motions to alter or amend partial summary judgment. Plaintiff, King Ranch, Incorporated (“KRI”) and Defendant, the United States of America (“United States”) agree on the basic facts in this case. Fact Summary KRI is the owner in fee of certain lands in south Texas. Three separate cases have been consolidated so that this action ...
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ORDER This matter is before the court on the motion for summary judgment by defen *173 dants and counterclaim plaintiffs. Based on the briefs and arguments of counsel and the record, file, and proceedings herein, defendants’ motion will be granted. BACKGROUND Defendants Ronald and Annis Guenther determined to open a small business after retiring from their positions...
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ORDER Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed this age discrimination action on behalf of William Blumenthal, a former employee of defendant G-K-G Inc. (“GKG”). During the course of discovery, GKG asked the EEOC to disclose the identities of two confidential witnesses. The EEOC refused to comply with the discovery request, claiming that the “informer’s” privilege shields t...
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ORDER The Court has reviewed the Government’s motion to dismiss for lack of subject matter jurisdiction. Since affidavits have been attached, the Court deems the motion as one for summary judgement. Accordingly, the facts will be viewed in the light most favorable to the non-moving party. Plaintiff has moved the Court to strike unsubstantiated factual allegations. The Court will grant the...
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743 F. Supp. 1400 (1990) TIME OIL COMPANY, Plaintiff, v. CIGNA PROPERTY & CASUALTY INSURANCE COMPANY, et al., Defendants. No. C88-1235R. United States District Court, W.D. Washington. May 23, 1990. *1401 *1402 *1403 David R. Lord, Ferguson & Burdell, Seattle, Wash., Dennis J. Britt, Snohomish County Courthouse, Everett, Wash., William H. Bode, William H. Bode & Associates, Washington,...
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MEMORANDUM AND ORDER Plaintiff moves to set aside the jury verdict in this case. Fed.R.Civ.P. 50(b). For the reasons discussed below, the motion is denied. FACTS Plaintiff went to trial on asbestos-related claims for wrongful death and product liability. Of the six defendants named in the original complaint, five settled, leaving only Owens-Illinois, Inc. to go to trial. Despite the absence of th...
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ORDER AND MEMORANDUM OPINION Defendant American Bureau of Shipping (“ABS”) has moved for summary judgment, requesting dismissal of the tort cause of action brought against it by Plaintiff Shipping Corporation of India, Ltd. (“SCI”). SCI, the purchaser of several vessels, brought these tort claims, together with contractual claims, against ABS alleging that ABS, a classification company, w...
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MEMORANDUM OPINION On November 1, 1989, the Federal Aviation Administration (FAA) issued a final decision withdrawing FAA approval from a contract entered into by the New Orleans Aviation Board (NOAB) and the Adapt Realty Group (Adapt). The City of New Orleans and NOAB petitioned the Fifth Circuit to review the final decision. By consent of the parties, the petition to review was transferred to...
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743 F. Supp. 733 (1990) Winslow E. WINANS and Eleanor C. Winans, Plaintiffs, v. STATE FARM FIRE & CASUALTY COMPANY, et al., Defendants. Civ. No. 88-0889-G(CM). United States District Court, S.D. California. June 27, 1990. Susan E. Basinger, McInnis, Fitzgerald, Rees, Sharkey & McIntyre, San Diego, Cal., for plaintiffs. Randall M. Nunn, Hughes & Campbell, San Diego, Cal., for defendant...
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*22 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS OR IN THE ALTERNATIVE STAY ALL PROCEEDINGS, OR IN THE ALTERNATIVE TO TRANSFER This matter comes before the Court on the Defendants’ Motion to Dismiss or in the Alternative to Stay All Proceedings, or in the Alternative to Transfer Venue to the Middle District of Pennsylvania, filed on April 18, 1990 (Docket No. 4). Plaintif...
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ORDER After plaintiff Felix Torres was injured while working near a plastic plating machine, he filed this products liability action against defendant Wilden Pump & Engineering Co. (“Wilden Pump”). Torres’ products liability action is predicated on two theories: negligence and strict liability. Torres claims that the plastic plating machine was negligently designed and that it was unreasonably da...
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743 F. Supp. 107 (1990) CONNECTICUT GENERAL LIFE INSURANCE CO.; Colonial Metro Limited Partnership v. SVA, INC. v. GRODSKY SERVICE, INC., t/a Harry S. Grodsky & Co., Inc. Civ. No. H-89-430 (PCD). United States District Court, D. Connecticut. July 26, 1990. *108 Stuart G. Blackburn, Suffield, Conn., for Colonial Metro Ltd. Partnership. Louis B. Blumfeld, Cooney, Scully & Dowling, Hartford,...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS WITH LEAVE TO AMEND This matter is before the Court upon defendants’ motion to dismiss the above entitled action. The Court has fully considered the submissions and arguments of the parties. GOOD CAUSE appearing therefor, the defendants’ motion to dismiss is GRANTED for the reasons set forth herein. Plaintiff is GRANTED 30-days leave to amend h...
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743 F. Supp. 97 (1990) Charles WHITING, III, et al., Plaintiffs, v. TOWN OF WESTERLY, et al., Defendants. Civ. A. No. 89-347B. United States District Court, D. Rhode Island. June 29, 1990. *98 Gary Berkowitz, Pawtucket, R.I., Lynette Labinger, Providence, R.I., for plaintiffs. Maureen McKenna Goldberg, Pawtucket, R.I., for defendants. OPINION FRANCIS J. BOYLE, Chief Judge. Plaintiffs, a certifie...
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ORDER ON DEFENDANT’S MOTION TO SUPPRESS The defendant has moved to suppress as evidence an envelope containing LSD, a Schedule I controlled substance. Both the Government and the defendant agree that before addressing other issues in the Motion to Suppress, the Court should first determine whether the defendant has any standing to challenge the search and seizure of the envelope and ...
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MEMORANDUM DECISION The two-count Indictment returned against this defendant charges that as a grand juror he “corruptly did knowingly and intentionally endeavor to influence, obstruct and impede the due administration of justice in the United States District Court for the District of Maine” in violation of 18 U.S.C. section 1503. FACTS On December 19, 1989, John C. Peasley was a member of ...
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ORDER Defendant Jose Dominguez has filed a variety of pretrial motions. The court will now address each motion. I. Motion for Disclosure and Production of All Electronic or Mechanical Surveillance Dominguez requests the production of all electronic or mechanical surveillance evidence that was generated in the investigation of this case. In response to Dominguez’ motion, the government asserts th...
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MEMORANDUM OPINION AND ORDER The Lake Michigan Federation (“Federation”) has filed this action for declaratory and injunctive relief against Loyola University of Chicago (“Loyola”), the United States Army Corps of Engineers, and various officials of the United States Army Corps of Engineers (collectively referred to as “the Corps”). The Federation seeks an injunction restraining Loyola from con...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on various post-trial motions of the parties for awards of costs and attorney’s fees in this civil rights action brought by plaintiff against several officers and officials of the North Carolina Department of Corrections (“DOC”) pursuant to 42 U.S.C. § 1983. In addition to seeking costs and fees from *661plaintiff, defendants James Wooda...
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*290 MEMORANDUM OF DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT In this pro se civil rights action brought under 42 U.S.C. § 1983, Plaintiff claims that he was denied both access to the courts and adequate recreation while confined in administrative segregation at the York County Jail. Plaintiff alleges that Defendant ignored his requests t...
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743 F. Supp. 1291 (1990) Thomas A. UNDERWOOD, Plaintiff, v. Roy D. WADDELL, Individually, and as Sheriff, Hendricks County, Indiana, Defendants, and Indiana Sheriff's Association, Intervenor-Defendant. No. IP89-600-C. United States District Court, S.D. Indiana, Indianapolis Division. July 23, 1990. *1292 Kenneth Collier-Mager, Stephenson and Kurnik, Indianapolis, Ind., for plaintiff. John C. Ruck...
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ORDER This cause is before the Court on the report and recommendation of the Honorable Elizabeth A. Jenkins, United States Magistrate, and Defendant’s objections thereto. After consideration, the Court adopts the report and recommendation in its entirety, and it is incorporated herein by reference. Accordingly, it is ORDERED that Defendant’s motion for withdrawal of plea is deni...
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ORDER This is an appeal from the decision of the United States Bankruptcy Court for the Southern District of New York, granting summary judgment for the defendant-respondent Texaco International Trader, Inc. (hereinafter “Texaco”) and against the plaintiff-appellant Bruce D. Scherling, as Trustee of Hellenic Lines Limited (hereinafter the “Trustee”).1 50 B.R. 649. The appeal is brought pursuant t...
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743 F. Supp. 922 (1990) Constance Sherbill HENRY, Ann Wilcox, Richard C. Covino, Brian Keith Charlson, Kristin M. Palace, Amy Goldsmith, Ellen Citron, and Amy Perry, Plaintiffs, v. Michael J. CONNOLLY, as he is the Secretary of State of the Commonwealth of Massachusetts, Defendant, and Loretta A. Capezzuto and Massachusetts Committee for Responsible Waste Management, Intervenor-Defendants. Civ. A...
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OPINION Plaintiff, Walter Dukes (“Dukes”), an attorney appearing pro se, brought this action under 42 U.S.C. §§ 1983 and 1985 seeking redress for alleged violations of his constitutional rights. Dukes contends, inter alia, that defendant police officers Thomas Dowd (“Dowd”) and Carlos Gomez (“Gomez”) arrested and imprisoned him without probable cause, that Dowd and Gomez utilized excessive ...
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743 F. Supp. 1253 (1990) Joan MONTGOMERY, Individually and as Personal Representative of the Estate of Sannie Montgomery, Deceased, and Lee Montgomery, Individually, Plaintiffs, v. COUNTY OF CLINTON, MICHIGAN, Terry Haneckow, Individually as Sheriff of Clinton County, Stephen Coughlin and Mark Finnila, Individually and in their capacity as Deputy Sheriffs for the County of Clinton, Mark Steffes, ...
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743 F. Supp. 388 (1990) UNITED STATES of America, Appellee, v. Paul E. HAYNESWORTH, Appellant. Crim. No. H-89-0491. United States District Court, D. Maryland. April 24, 1990. *389 Robert M. Thomas, Jr., Asst. U.S. Atty., Baltimore, Md., for appellee. Denise Benvenga, Asst. Federal Public Defender, Baltimore, Md., for appellant. MEMORANDUM AND ORDER ALEXANDER HARVEY, II, Chief Judge. Defendant Pa...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This is a race discrimination action brought by a black man against his former employer. The second amended complaint alleges racially motivated discharge, harassment on the job, and interference with the plaintiff’s attempt to obtain unemployment benefits, in violation of Title VII, § 703 of the Civil Rights Act of 1964, 42 U.S.C....
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743 F. Supp. 462 (1990) Louise BOSTON, Administratrix of the Estate of Mae Evelyn Boston, Deceased, Plaintiff, v. LAFAYETTE COUNTY, MISSISSIPPI, et al., Defendants. No. WC87-151-B-D. United States District Court, N.D. Mississippi, W.D. July 30, 1990. *463 *464 Ellis Turnage, Cleveland, Miss., for plaintiff. R. Lloyd Arnold, Jackson, Jay Gore, III, Grenada, H. Scot Spragins, Oxford, for defendants...
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ORDER We have before us various motions by plaintiff Raymond Cátala-Fonfrias asking that the Court issue a writ of habeas corpus ad testificandum requesting that the warden of the prison wherein he is detained bring him before this Court for pretrial proceedings and eventually the trial at bar. Magistrate Roberto Schmidt-Monge in a Report and Recommendation (docket entry 58) recommended that the m...
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MEMORANDUM AND ORDER Defendant Department of Revenue, State of Florida (“Florida”) moves for an order pursuant to 28 U.S.C. § 157(d) 1 and Bankruptcy Rule 5011(a) withdrawing the reference of this adversary proceeding instituted by plaintiffs Lopresto, as Trustee (the “Iorizzo trustee”), Agway Petroleum Corporation, Ashland Oil Inc., Patchogue Terminal Corporation, Merrill Lync...
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OPINION AND ORDER Before this Court is defendant County of Westchester’s (“County”) motion to dismiss plaintiff Doris L. Sassower’s complaint against it for failure to state a claim under 42 U.S.C. Section 1983. For the reasons discussed below, defendant’s motion is denied. BACKGROUND On February 25, 1986, plaintiff Sassower, a matrimonial attorney, dined at Le Pastis Restaurant in White Plains, N...
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ENTRY REGARDING NOTICE TO PRO SE PLAINTIFF OF OPPORTUNITY TO SUBMIT AFFIDAVITS IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This cause comes before the court on the defendant’s motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiff, who is acting pro se in this case, has submitted a brief in opposition to the defendant’s motion and sever...
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OPINION OF THE COURT Now before the Court is defendant’s motion for summary judgment pursuant to Fed.R.Civ.P. 56(c) (Rule 56) as to Counts I, II, IV, VI and portions of Count III of plaintiffs’ third amended complaint. Also before the Court is defendant’s motion for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) [Rule 12(b)(6) ] as to the remainder of Count III and all of Count V of plaintif...
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ORDER The Court is called upon to determine ownership and control of attorney-client privileges associated with communications of pre-conservatorship management of Lincoln Savings and Loan Association (Lincoln). Lincoln operates under a Resolution Trust Corporation-administered conserva-torship, following intervention by the Federal Home Loan Bank Board (FHLBB) on April 14, 1989. The events whi...
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MEMORANDUM ORDER I. Introduction The issues raised by this class action have been amply set out in our previous rulings,1 and for the most part we do not repeat them here. Briefly, plaintiffs are black non-attorneys employed at the Department of Justice’s Tax Division who never applied for competitive promotions. They allege that the Tax Division’s competitive promotion system violates Title VII ...
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MEMORANDUM AND ORDER Defendant moves for partial summary judgment pursuant to Federal Rule Civil Procedure 56. Defendant maintains that in light of the recent Supreme Court decision Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), plaintiff’s claims asserted under 42 U.S.C. § 1981 are not actionable and defendant is entitled to judgment dismis...
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MEMORANDUM The plaintiff, Daniel F. Vasconcellos, has instituted the instant action against his former employer, EG & G, Inc. In his three count amended complaint (#68-C),1 the plaintiff sets forth two state law claims, wrongful termination and breach of oral contract in Count I and III respectively, and one federal law claim, violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C...
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OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW sitting by designation: INTRODUCTION Plaintiff Rit-Chem Co., Inc. (“Rit-Chem”), the consignee of a containerized shipment of anhydrous citric acid from Turkey, brings this action against defendant Pharos Lines, S.A., (“Pharos”) pursuant to the Carriage of Goods by Sea Act (“COG-SA”), 46 U.S.C.App. §§ 1300 et seq., seeki...
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MEMORANDUM Pursuant to a Preliminary Injunction entered on November 8, 1989, plaintiffs filed a petition seeking contempt sanctions against defendants Operation Rescue, Project Rescue, Clifford Gannett, Patrick Mahoney, and Michael McMonagle, and respondents Joseph Foreman and Susan Odom. An evidentiary hearing was held on May 15-18, 1990. For the reasons stated below, an accompanying Order will ...
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OPINION AND ORDER Plaintiffs brought the present action against defendant Caribbean Gulf Refining Corp. seeking damages for injuries suffered by Alberto Burgos-Oquendo which occurred at a service station that sells Gulf products. Jurisdiction is invoked pursuant to 28 U.S.C. § 1332(a)(1) for diversity of citizenship. Defendant filed a third-party complaint against the dealer who operated the se...
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ORDER The above-styled matter is before the court on the following three motions: (1) Kelly, Inc.’s (“Kelly”) motion to dismiss pursuant to F.R.C.P. Rule 12(b)(6), (2) Fast Food Merchandisers, Inc.’s (“FFM”) motion to dismiss pursuant to F.R.C.P. Rule 12(b)(6), and (3) plaintiff’s motion to amend her complaint. The plaintiff was employed by Kelly to fill the temporary personnel needs of Kelly...
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OPINION AND ORDER Before this Court is plaintiff Parenting Unlimited Inc.’s (“Parenting Unlimited”) motion, pursuant to Fed.R.Civ.P. 65, for a preliminary injunction enjoining defendants Columbia Pictures Television Inc. (“Columbia Pictures”), Capital Cities/ABC Inc. (“ABC”) and The Weinberger Company (“Weinberger Company”) from using plaintiff’s federally registered trademark “BABY TALK”...
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MEMORANDUM Plaintiff, an Army veteran, commenced this Federal Tort Claims action, Title 28 U.S.C. § 2671 et seq., against the Veterans Administration Medical Center (VAMC) in Louisville, alleging medical malpractice, unnecessary and improper surgery, and lack of informed consent to the surgery. The matter was tried on November 29, 1989, and is before the Court or findings of fact, conclusions...
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743 F. Supp. 410 (1990) In re SABIN ORAL POLIO VACCINE PRODUCTS LIABILITY LITIGATION. Master File No. MDL 780. United States District Court, D. Maryland. July 12, 1990. *411 Marc Moller, Kreindler & Kreindler, New York City, and Stanley Kops, Adler & Kops, Philadelphia, Pa., for plaintiff. Rupert Mitsch and Julie Zatz, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C. (Ann ...
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ORDER ON GENERAL MOTORS CORPORATION’S RULE 37(b)(2) MOTION FOR SANCTIONS (# 103) Rule 16(f), Fed.R.Civ.P., provides, in pertinent part: If a ... party’s attorney fails to obey a scheduling ... order ... the judge, upon motion ..., may make such orders in regard thereto as are just, and among *366others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other...
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ORDER ON RULE 4(j) MOTION TO DISMISS This Title VII and Privacy Act cause comes before the Court on the defendant’s motion to dismiss for failure to effect service within 120 days of filing the complaint. For the reasons set forth below, the Court DENIES the motion to dismiss. I. Facts:1 Plaintiff Stephanie Patterson began full-time employment with the Internal Revenue Service in Indianapolis in ...
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MEMORANDUM AND ORDER The United States petitioned this court ex parte for an order permitting attorneys in the Civil Division, United States Department of Justice (the “Civil Division”) to obtain documents gathered in connection with a grand jury investigation conducted in the Eastern District of New York.1 The subjects of the grand jury investigation included Michael Spivak and Automatique, Inc. ...
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MEMORANDUM AND ORDER On August 12, 1986, the Department of Justice moved in accordance with Section VI of the decree in United States v. American Tel. & Tel. Co., 552 F.Supp. 131 (D.D. C.1982), aff'd mem. sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983), and Rule 37(a), Fed.R.Civ.P., for an order directing US West, Inc., to comply with a written request of ...
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ORDER This matter is before the court on motion for summary judgment filed by defendant Marathon Petroleum Company (Marathon) on December 28, 1989. The parties have fully briefed the issues and oral argument was held on June 7, 1990. For the following reasons the motion for summary judgment will be granted. Summary Judgment Summary judgment is proper “if the pleadings, depositions, answer...
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OPINION AND ORDER Plaintiffs, a professional fashion designer and her company, bring this action alleging trademark infringement in violation of section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1), false designation of origin in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); common law trade name infringement and unfair competition; and violation of New York’s “anti-d...
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743 F. Supp. 1157 (1990) J.M.P.H. WETHERELL, an underwriter at Lloyd's London, for himself and certain other underwriters at Lloyd's London subscribing to Policy No. 83 JAN 0754, Excess Insurance Co., Ltd., Unionamerica Insurance Co., Ltd. v. SENTRY REINSURANCE, INC., Phoenix General Insurance Co., and Cole, Booth, Potter, Inc. No. 85-7061. United States District Court, E.D. Pennsylvania. July 31...
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MEMORANDUM OPINION In this lawsuit, plaintiff CSX Transportation, Inc., commonly referred to as “CSXT,” claims that an ordinance passed by defendant City of Thorsby, Alabama, limiting the speed with which trains may travel through the city, is preempted by the “FRSA,” the Federal Railroad Safety Act of 1970, 45 U.S.C.A. §§ 421, 431-441, 443-444. This cause is now before the court on CSXT’...
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ORDER This matter is before the court on motion to dismiss filed by defendant State of Indiana, Leaking Underground Storage Tank Division of the Department of Environmental Management. The parties have fully briefed the issues. For the following reasons, the motion to dismiss will be granted. In deciding a motion to dismiss for failure to state a claim, this court must take the well ...
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ORDER The underlying action here is for exoneration or limitation of liability on a vessel which sank near the Aleutians December 11, 1988. Arctic Fisheries, Inc. (Arctic) owner of the vessel now seeks partial summary judgment dismissing many of the claims of the parents of two of the seamen drowned when the vessel sank. The relevant facts are undisputed. Although the result may seem harsh, the C...
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743 F. Supp. 600 (1990) Charles J. JACKSON, Plaintiff, v. Ron MOWERY, Grant County Sheriff, Defendant. Civ. No. F 87-251. United States District Court, N.D. Indiana, Fort Wayne Division. July 24, 1990. *601 *602 Charles L. Jackson, pro se. Michael Morow, James S. Stephenson, Stephenson & Kurnik, Indianapolis, Ind., for defendant. ORDER WILLIAM C. LEE, District Judge. This matter is before th...
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ORDER This is a forfeiture action brought by the United States against one 1985 Mercedes-Benz owned by the claimant Sadrudin Ka-bani. Claimant Kabani has moved for summary judgment to dismiss the forfeiture claim and to restore the vehicle to him. After hearing oral argument and considering counsel’s memoranda, this Court denies claimant’s motion. The defendant vehicle was seized by the Unite...
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MEMORANDUM OF DECISION INTRODUCTION In 1979, the Internal Revenue Service (the “Service”) conducted an audit on the 1977 and 1978 tax returns of Mr. Richard Robidoux (“Robidoux”). Subsequent to completing the audit, the Service prepared *322 an audit report in which it determined that Robidoux owed $2,044,984.06 in past due taxes for these years. 1 In 1981, Ro...
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MEMORANDUM AND ORDER In its first six counts, this eight count indictment charges Herbert A. Butt (“Butt”) with various acts of extortion, conspiracy to engage in extortion, racketeering, and conspiracy to engage in racketeering. The conspiracy counts do not name any of Butt’s alleged co-conspirators. The seventh and eighth counts charge James T. Semon (“Semon”) with two acts of perjury. I. Motion...
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OPINION This is a maritime claim under Fed.R. Civ.P. 9(h) in which plaintiff seeks to recover damages arising out of a Charter Party dispute. Plaintiff contends that defendants failed to return a barge in the condition required by the terms of the Charter Party lease agreement. Defendants contend that the barge satisfied the charter requirements. Defendant Pacific Northern Marine Corporat...
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MEMORANDUM OPINION AND ORDER Plaintiffs Rudolph and Mary Nemes (the Nemeses) have brought the instant action asserting claims arising out of their account with defendant Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch). The case is currently before the Court on defendants’ Motion to Compel Arbitration and Stay Proceedings, pursuant to the Federal Arbitration Act, Tit...
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742 F. Supp. 287 (1990) DETROIT EDISON COMPANY; Duke Power Company; Gulf Power Company; Kansas Gas & Electric Company; Mississippi Power & Light Company; Pacific Gas and Electric Company; Potomac Electric Power Company; San Diego Gas & Electric Company; Savannah Electric and Power Company; South Carolina Electric & Gas Company; Southern California Edison Company; Southwestern Elec...
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743 F.Supp. 429 (1990) Jerry SHEPARD, Plaintiff, v. KEYSTONE INSURANCE COMPANY, Defendant. Civ. A. No. HAR-89-3379. United States District Court, D. Maryland. July 31, 1990. William N. Butler, Howard, Butler & Melfa, Towson, Md., for plaintiff. Edson A. Bostic, Cozen and O'Conner, Philadelphia, Pa., and Donald Arnold, Bel Air, Md., for defendant. *430 MEMORANDUM OPINION HARGROVE, District J...
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*1543 MEMORANDUM OPINION Defendants, Piggly Wiggly Alabama Distributing Company, Inc., and Health Benefit Plan for the Employees of Piggly Wiggly Alabama Distributing Company, Inc., have filed a motion to strike the jury demand which plaintiff, Phillip N. Rhodes, filed with his action brought pursuant to § 502(a)(1) of the Employee Retirement Income Security Act (ERISA), 29 U.S.C...
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*1418MEMORANDUM OPINION AND ORDER This Court has just received, by random assignment to its calendar, the Complaint filed by Steven Scholes (“Scholes”), not individually but solely as receiver for Michael Douglas, D & S Trading Group, Ltd., Analytic Trading Systems, Inc., Analytic Trading Service, Inc. and Market Systems, Inc. (“MSI”) against Lawrence Schroeder, Jr. (“Schroeder”). Based on this C...
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743 F. Supp. 28 (1990) HIGHLANDS INSURANCE COMPANY, et al., Plaintiffs, v. The CELOTEX CORPORATION, et al., Defendants. Civ. A. No. 89-2258. United States District Court, District of Columbia. July 31, 1990. *29 Daniel C. Sauls, Steptoe & Johnson, Christine Angeline Nykiel, James Patrick Schaller, Jackson & Campbell, P.C., Washington, D.C., for plaintiffs. Karen Lee Bush, Susan Scharfstei...
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ORDER I. INTRODUCTION Before the court is defendant Southern Pacific Transportation Company’s (Southern Pacific) motion for summary judgment. Defendant asserts that plaintiff’s claim is barred by the statute of limitations. At issue is whether the plaintiff, through his affidavit, has raised a genuine issue of material fact as to when his cause of action accrued. The court heard oral...
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743 F. Supp. 1228 (1990) Primmel WALLACE, Plaintiff, v. CHRYSLER CREDIT CORPORATION and Ralph King, Defendants. No. 89-0069-B. United States District Court, W.D. Virginia, Big Stone Gap Division. June 18, 1990. On Motion to Alter or Amend July 27, 1990. *1229 Henry S. Keuling-Stout, Big Stone Gap, Va., for plaintiff. Mark L. Esposito, Bristol, Va., for Chrysler Credit. Stephen J. Kalista, Big Sto...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT The plaintiff’s complaint describes a long list of asserted material misrepresentations and non-disclosures by a lawyer named David Saltiel in connection with the sale to the plaintiff of a participation in a real estate development enterprise called the Omni Group. Whether this interest was a...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This securities fraud lawsuit was brought on behalf of the purchaser of certain securities by her husband, who is also the administrator of her estate. Pending is plaintiffs motion for certification of the case as a class action pursuant to Fed.R. Civ.P. 23. For the reasons stated below, plaintiffs motion is granted in part and denied in part. II. FACT...
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MEMORANDUM AND ORDER The present case is an action for damages for personal injuries which the complaint alleges were suffered by the plaintiff, Larry D. Waller, due to exposure to asbestos products manufactured by the defendants. Originally filed in the United States District Court for the Eastern District of Texas, the case was subsequently transferred to this court. Motions for summary...
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OPINION Plaintiff Marvel Entertainment Group is a Delaware corporation with its principal place of business in New York City. It is a major publisher and distributor of comic books, and markets and licenses its own and third-party trademarks and copyrights. Co-plaintiff Marvel Productions Ltd., a Delaware corporation with its principal place of business in Van Nuys, California, is a major...
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ORDER This matter is before the court on defendant’s motion to suppress. An evidentiary hearing was held on May 14, 1990. A response to the motion to dismiss was filed by the government on June 25, 1990, to which defendant replied on July 5, 1990. Factual Background1 The events giving rise to this motion to suppress began on February 28, 1990, when defendant, Mr. Roux, accompanied by Carmella Broo...
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ORDER Defendant in the above captioned action has moved for summary judgment on the ground that this action is barred because plaintiff failed to file an administrative charge within 300 days of the alleged wrongful termination as required by 29 U.S.C. § 626(d). Plaintiff timely opposed the motion. The matter was set for oral argument on February 26,1990 at 9:00 a.m. After review of the p...
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743 F. Supp. 563 (1990) Augusto MALDONADO, Plaintiff, v. METRA, Defendant. No. 89 C 469. United States District Court, N.D. Illinois, E.D. August 1, 1990. *564 Mitchell Ware, Keith E. Graham, Jones, Ware & Grenard, Chicago, Ill., for plaintiff. Michael W. Duffee, Frank J. Saibert, Katten Muchin & Zavis, Chicago, Ill., for defendant. ORDER NORGLE, District Judge. Before the court is the m...
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MEMORANDUM Defendant Sinclair is charged with possession with intent to distribute more than five grams of cocaine base. Sinclair has moved to suppress evidence seized from *689 the house in which he was arrested, arguing that the police failed to knock and announce their presence in violation of 18 U.S.C. § 3109. I. At a supression hearing held on June 6, 1990, Police Officer William P. ...
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MEMORANDUM An Order filed January 20, 1990 denied defendants’ motion to dismiss, granted plaintiffs’ motion for summary judgment, and entered a permanent injunction enjoining defendants from, inter alia, “trespassing on, blockading, impeding or obstructing access to or egress from any facility at which abortions, family planning, or gynecological services are performed in the District of Columbia...
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*1201ORDER This matter is before the court on motion in limine by defendant to determine the applicability of the Federal Sentencing Guidelines to the assimilated crimes with which he is charged. Defendant is charged in a six-count indictment with one felony charge, involuntary manslaughter, and five misdemeanors and petty offenses. All of the offenses arise out of the same occurrence on the Fort ...
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FINAL ORDER This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254 and referred to a United States Magistrate pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 29 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. Report of the Magistrate was filed on May 3, 1990, recommendi...
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OPINION AND ORDER After a twelve week trial, defendant LBS Bank — New York, Inc., (“LBS” or “the Bank”) was convicted by a jury of one count of conspiracy to defraud the United States 1 under 18 U.S.C. § 371. 2 Presently before the Court are the Bank’s Motion for Judgment of Acquittal (sometimes referred to as “Motion for JA”) and Motion for New Trial (sometimes refe...
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ORDER THIS CAUSE has come before the court upon the various motions of the parties. On June 6, 1990, this court entered its final order reflecting its findings of fact and conclusions of law after the nonjury trial. Judgment was also entered. The plaintiffs, Skyywalker Records, Inc., et al. (Skyywalker), filed their motion for attorneys’ fees and costs on June 27, 199...
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743 F. Supp. 1573 (1990) MIAMI TELE-COMMUNICATIONS, INC., Plaintiff, v. CITY OF MIAMI; Xavier Suarez, in his official capacity as Mayor of the City of Miami; Miller J. Dawkins, in his official capacity as Vice Mayor of the City of Miami; J.L. Plummer, Jr., Miriam Alonso and Victor De Yurre, in their official capacities as Commissioners of the City of Miami; Jorge L. Fernandez, in his official cap...
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MEMORANDUM AND ORDER I. BACKGROUND This is an action by Anne and Louis Baker, residents of Massachusetts, against Liggett Group, Inc. (“Liggett”) and R.J. Reynolds Tobacco Company (“Reynolds”), manufacturers of cigarettes. Anne Baker alleges that she developed oat cell carcinoma and underwent surgery for the removal of her left lung due to the negligence and breach of implied warranty of the defen...
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Defendants Universal City Studios, Inc., Universal Television, and Randy Cordray move for summary judgment. Plaintiff Mari Bloom moves to remand the action to state court. Oral argument was held February 12, 1990 on both counts. After considering the parties’ memoranda of points and authorities and their arguments made at the hearing, the Court grants defendants’ motion for summary judgment. Pl...
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MEMORANDUM-DECISION AND ORDER Plaintiff David Hiller (“David”), by his parents Robert Hiller (“Mr. Hiller”) and Nancy Hiller (“Mrs. Hiller”), brings this action pursuant to the Education for All Handicapped Children Act (“EAHCA” or “Act”), 20 U.S.C. § 1400 et seq., alleging that plaintiff is a handicapped child who was denied a free, appropriate education while a student at the...
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MEMORANDUM AND ORDER Plaintiff Raymond R. Mouradian brought this action on July 14, 1986 alleging breach of employment contract and breach of the duty of fair representation by the John Hancock Companies (“Hancock”) and the United Food and Commercial Workers Union (the “Union”) respectively. The suit arose out of plaintiff’s termination by Hancock on December 1, 1984. In a Memorandum and Order da...
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MEMORANDUM AND ORDERS ON MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PARTIAL SUMMARY JUDGMENT, AND OTHER MOTIONS Most of the parties to these related ERISA enforcement actions have settled their differences. Partial consent judgments were entered in March 1990. Two parties, Edward M. Clasby and C.T. Garra-han Insurance Agency, Inc., did not join the settlement and remain as defendants in ea...
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743 F. Supp. 1437 (1990) CITY OF CHANUTE, KANSAS; City of Auburn, Kansas; City of Cleveland, Oklahoma; City of Garnett, Kansas; City of Humboldt, Kansas; City of Iola, Kansas; City of Neodesha, Kansas; and City of Osage City, Kansas, Plaintiffs, v. WILLIAMS NATURAL GAS COMPANY, Defendant. No. 87-1463-K. United States District Court, D. Kansas. July 27, 1990. *1438 *1439 *1440 Charles F. Wheatley,...
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MEMORANDUM AND ORDER Plaintiffs request entry of an order allowing an award of reasonable attorney’s fees and costs for the thirty-five individual relief proceedings found necessary by the Special Master. The government, as is its inevitable practice in this case, opposes the request. Plaintiffs have prevailed on the merits of their class action claim. Nevertheless, the government has insisted tha...
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MEMORANDUM AND ORDER On September 15, 1986 President Reagan issued Executive Order 12564 1 which requires federal agencies to develop and implement plans to attain a drug-free workplace, by, among other things, the use of compulsory drug testing of federal employees. Pursuant to this order, the Department of Health and Human Services (HHS) developed its “Drug-Free Workplace Plan,” the impleme...
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743 F. Supp. 933 (1990) CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC. and Watertown Citizens for Environmental Safety, Plaintiffs, v. William K. REILLY as Administrator of the United States Environmental Protection Agency, Defendant. Civ. A. No. 89-2325-Y. United States District Court, D. Massachusetts. July 30, 1990. *934 Stephanie Pollack, Conservation Law Foundation, Stephen Burrington, Pet...
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ORDER THIS CAUSE has come before the court upon the letter dated January 29, 1990 from defendant’s counsel, George H. Bailey, Esquire. By this court’s order dated January 31, 1990, the letter was treated by this court as a motion for reconsideration and/or a motion for correction of order pursuant to Federal Rule of Civil Procedure 60(a). The plaintiff, Thomas Tew, has filed its response to t...
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MEMORANDUM AND ORDER A number of motions are pending in these cases which the parties believe should be decided expeditiously because their disposition will control the length and timing of discovery and the timing of the trial. 1 A. Defendants’ Motion in Limine Defendants have filed a motion in limine regarding the admissibility of several categories of evidence, and pl...
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ORDER GRANTING DEFENDANT HAWAIIAN ELECTRIC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS OKI-MOTO AND YASUTOME’S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant Hawaiian Electric Company, Inc.’s motion for partial summary judgment came on for hearing on April 30, 1990. Defendants Norman Okimoto and George Yasutome joined in the motion. Mitchell J. Green, Esq. and David M. Rob...
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MEMORANDUM AND ORDER The petitioner seeks a writ of habeas corpus for relief from state custody — see 28 U.S.C. § 2254 — , asserting that his state court convictions were constitutionally tainted by an improper jury instruction. The petitioner was convicted, after a jury trial in the New York State Supreme Court for Bronx County, of murder in the second degree, manslaughter in the first degree, t...
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ORDER DENYING DEFENDANTS NORMAN OKIMOTO AND GEORGE YA-SUTOME’S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR MORE DEFINITE STATEMENT Defendants Norman Okimoto and George Yasutome’s motion to dismiss and motion for summary judgment or for more definite statement came on for hearing on April 30, 1990. Mitchell J. Green, Esq...
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MEMORANDUM OPINION AND ORDER On January 16, 1990, the trustee in the bankruptcy proceeding of William J. Stoecker brought a fraudulent conveyance action in this court against defendant Grace M. Stoecker. Pursuant to 28 U.S.C. § 158(a) and General Rule 2.33 of this district, the trustee’s adversary complaint was ■automatically referred to the bankruptcy court. Defendant has now moved for w...
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ORDER Before the court is the second motion of defendant, Gamalier Concepcion, to suppress evidence. It is denied. *504 Concepcion is under indictment for drug offenses and previously filed a motion to suppress evidence based upon an alleged involuntary consent to search an apartment of which Concepcion was a tenant. A hearing was conducted on this motion on May 16, 1990, at which the arres...
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ORDER Before the Court is the motion of the defendants, the Board of Trustees of the University of Illinois (the “Board of Trustees”) and Kenneth Rinehart, 1 to dismiss plaintiff’s two count third amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken...
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ORDER Defendants Kathrine Everett, Robinson Everett, and J.H. Froelich have moved to dismiss this case for lack of personal jurisdiction. For the reasons stated herein, defendants’ motion to dismiss is denied. I. FACTS 1 Plaintiff Continental Bank N.A. (“Continental”) is a national banking association which maintains its principal place of business in Chicago, Illinois. ...
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OPINION Pursuant to an amended motion filed June 29, 1990 in United States v. Patrick Uter, 90 Cr. 278, defendant Patrick Uter (“Uter”) has moved for a determination of whether the search of his person and knapsack was lawful and the subsequent search of his car trunk and seizure of the sum of $22,500.00 was in violation of the Fourth Amendment. On the basis of facts established at a hearing and f...
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OPINION Plaintiff Olin Corporation (“Olin”) seeks in this action, inter alia, a declaratory judgment that various defendant insurance companies have a duty to defend and indemnify Olin in connection with certain events involving mercury contamination allegedly caused by Olin’s former chlor-alkali plant in Saltville, Virginia. See First Amended Complaint, ITU 60-65, 8...
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OPINION A company claiming to be the licensee of exclusive rights under the copyright to a popular song sues a company claiming to be the owner of the copyright for copyright infringement and violations of the Lanham Act. The alleged licensee moves to strike four of the alleged owner's affirmative defenses, for summary judgment as to liability on the copyright claims, and for a permanent ...
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743 F. Supp. 1367 (1990) John H. BOONE, Esq., Trustee of the Maud Van Cortland Hill Schroll Trust, Plaintiff, v. UNITED STATES of America; Department of the Army; United States Corps of Engineers; John O. Marsh, Jr., Secretary of the Army; Lieutenant General Henry J. Hatch, Chief of Engineers, Corps of Engineers, U.S. Army; Brigadier General Arthur E. Williams, Division Engineer, Pacific Ocean Di...
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MEMORANDUM-DECISION AND ORDER I. Introduction This is an action pursuant to 42 U.S.C. § 1983 in which the plaintiffs are challenging the constitutionality of two affirmative action programs administered by the State of New York with respect to certain highway construction projects. The plaintiff in the present motion for a preliminary injunction is Harrison and Burrowes Bridge Co...
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MEMORANDUM AND ORDER Before the Court are cross-motions for summary judgment in a challenge by Key Airlines, Inc., to balloting procedures employed by the National Mediation Board in a representation election. Employees were instructed not to return ballots if they favored union representation but to return them only if they were opposed. The Mediation Board chose this method of proceeding becaus...
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JUDGMENT This matter was referred to United States Magistrate, Mildred E. Methvin, for her Report and Recommendation. After an independent review of the record in this case, the Court concludes that the Report and Recommendation of the magistrate is correct and this Court adopts the conclusions of the magistrate. IT IS ORDERED, ADJUDGED AND DECREED that the Secretary’s motion for summary judgment ...
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MEMORANDUM OPINION ORDER ADOPTING AND AFFIRMING MAGISTRATES REPORT AND RECOMMENDATION AND GRANTING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT THIS CAUSE comes before the Court upon the Report and Recommendation of the United States Magistrate Peter Palermo that the Motion for Summary Judgment filed by Plaintiff, RESOLUTION TRUST CORPORATION (RTC) September 7, 1989 be granted. For the reasons stated b...
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OPINION This is the latest round in the lengthy litigation involving the desegregation of the public schools in Northern New Castle County. The history of this case has been rehearsed elsewhere, see, e.g., Evans v. Buchanan, 512 F.Supp. 839, 841 n. 1 (D.Del.1981), and need not be recited again here. For the sake of completeness, however, a brief recounting is provided. This desegregation liti...
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*1284 MEMORANDUM OPINION Plaintiffs Hodge E. Mason and Hodge E. Mason Engineers, Inc. have filed suit contending copyright infringement pursuant to Copyright Act of 1976, as amended, 17 U.S.C. §§ 101-914 (1977 and Supp.1990) (hereinafter referred to as 1976 Act) and seeking statutory damages pursuant to sec. 504(c) of the 1976 Act. Plaintiffs contend that defendants infringed 234...
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MEMORANDUM OPINION AND ORDER By way of a four-count complaint (the “Complaint”) and a supplemental complaint asserting comparable claims (the “Supplemental Complaint”), Robert Sweeney (“Sweeney”) complains of unfair treatment at the hands of his former employer, the Board of Education of Mundelein Consolidated High School District 120 (“Board”), and District 120’s then Superintendent of Schools...
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OPINION AND ORDER Following a two-day trial, a jury awarded plaintiff, Pablo de León López (“de León”), $800,000.00 for his injury caused when University Hospital of the Puerto Rico Medical Center (“University Hospital”) inadvertently switched one of plaintiff’s newborn twin granddaughters with another family’s twin daughter. The defendant insurance company, Corporación Insular de Seguros...
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MEMORANDUM AND ORDER This is an appeal from an order of the bankruptcy court. The bankruptcy court held that a portion of appellee/debtor Lá-veme J. Melhus’s debt to the Randall Bank was dischargeable. The Bank contends that the bankruptcy court erred in reaching that determination. Having carefully reviewed the arguments of the parties, the court is now prepared to rule. Randall Bank is a bankin...
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DECISION AND ORDER FACTS In April or May of 1987, plaintiff William Coats (“Coats”) began to work for defendant Luedtke Engineering Company (“Luedtke”) as a crane operator on board the vessel, Derrick Boat II (“DB II”). Coats was hired to use the crane to unload dredge material from barges and drop it on shore in a fill area. Luedtke provided Coats with access to and egress from the ...
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ORDER SUPPLEMENTING RECORD Came on this date to be considered sua sponte the above-styled and numbered cause. On July 26, 1990 this Court was furnished, by the government, a copy of Appellee’s Brief on appeal of this cause to the United States Court of Appeals for the Fifth Circuit in which the United States Attorney concedes that this Court committed error in sentencing two of the above-name...
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MEMORANDUM OPINION AND ORDER Plaintiff, Thomas K. Stat (“Stat”), originally filed this action in the Chancery Division of the Circuit Court of Cook County, Illinois, seeking a declaration of the rights and liabilities of the parties under an employment agreement and bonus agreement. Defendants, Avenue Group, Inc., and PHH Group, Inc.1 (collectively, “PHH”), subsequently removed the action to this...
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OPINION The Petitioner, Mikel James Derrick, (“Derrick”), presented his Petition for Ha-beas Corpus to this Court on July 9, 1990. A very abbreviated history of this case is appropriate at this juncture. On October 10, 1980, Edward Sonnier was brutally murdered in his apartment in Houston, Texas. In August 1981, while in custody on an unrelated matter, Derrick wrote a letter to the Harris County D...
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ORDER Plaintiffs brought this action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq. There are three Plaintiffs: Sergeant First Class Richard Grosinsky; Karla Grosinsky, his wife; and Veronica Grosinsky, their child. The sole Defendant is the USA. Defendant filed a Motion to Dismiss/for Summary Judgment (“Motion”). Plaintiffs allege that the surgeon at the military h...
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MEMORANDUM OPINION AND ORDER ON DEFENDANT’S MOTION TO SUPPRESS THE ABOVE CAPTIONED MATTER came before the court on Defendants John Rexius’s and Walter Shelton’s 14 and 15 November 1989 Motion to Suppress, and hearing was held on January 3, 4, 12, and February 9, 1990. After an extensive evi-dentiary hearing, the Court granted the defendants’ motion to file supplemental briefs in support of the ...
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743 F. Supp. 1076 (1990) Charles P. HARPER, Jr., Plaintiff, v. DELAWARE VALLEY BROADCASTERS, INC., a Delaware corporation, and Elmer W. Lindale, Defendants. Civ. A. No. 87-528 MMS. United States District Court, D. Delaware. July 12, 1990. *1077 Melvyn I. Monzack, and Ann Joyce Letcher, of Walsh and Monzack, P.A., Wilmington, Del., for plaintiff. Nina A. Pala, of Richards, Layton & Finger, Wil...
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MEMORANDUM AND ORDER Before the Court is plaintiffs’ motion for summary judgment in a challenge to the constitutionality of so-called “reasonable suspicion” drug testing of employees of the Defense Mapping Agency (DMA). Under the agency’s Drug-Free Workforce Plan, any employee may be required to undergo urinalysis testing upon a “reasonable suspicion” that he had used illegal drugs. 1 For the...
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MEMORANDUM AND ORDER The instant action presents both constitutional and common law claims against the District of Columbia and Officer James Stolburg arising out of defendants’ seizure and destruction of plaintiffs car. Plaintiff has moved for summary judgment against the District of Columbia on the issue of liability arguing that the destruction of the car without a post-seizure notice or hearin...
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MEMORANDUM AND ORDER All defendants are charged (count one) with conspiring to sell American-made C-130 military cargo planes located in Israel to Iran, in violation of the Arms Export Control Act (“AECA”), 22 U.S.C. §§ 2751-2796d. Defendant Joseph O’Toole is also charged (count two) with conspiring with two unindicted co-conspirators to sell American-made anti-aircraft missiles located i...
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743 F. Supp. 1284 (1990) Jag M. CHAWLA, D.D.S., Plaintiff, v. Lewis KLAPPER, D.D.S., Loyola University of Chicago, a not-for-profit corporation, and the Loyola Dental School, its division, Defendants. No. 89 C 0538. United States District Court, N.D. Illinois, E.D. July 2, 1990. *1285 John B. Huck, Steven B. Varick, Thomas R. Stilp, McBridge, Baker & Coles, Chicago, Ill., for plaintiff. Jeffr...
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743 F. Supp. 749 (1990) Beverly J. KACHEL, Plaintiff, v. CITY OF PUEBLO, Defendant. Civ. A. No. 88-S-743. United States District Court, D. Colorado. August 2, 1990. *750 *751 *752 James Carleo, Colorado Springs, Colo., for plaintiff. Theodore Halaby & Jonathan Cross, Denver, Colo., for defendant. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER SPARR, District Judge. THIS MATTER came on for t...
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743 F. Supp. 777 (1990) Homer FLINT, Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant. No. 89-4105-R. United States District Court, D. Kansas. July 31, 1990. *778 Kenneth M. Carpenter, Carpenter, Chtd., Topeka, Kan., for plaintiff. Benjamin L. Burgess, Jr., U.S. Atty., D. Brad Bailey, Asst. U.S. Atty., Topeka, Kan., for defendant. MEMORANDUM AND ORDER ROGE...
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743 F. Supp. 639 (1990) Khalid Yousaf MALIK, Petitioner, v. Edward BRENNAN, Warden, Federal Correctional Institution, Oxford, Wisconsin, and The United States Parole Commission, Respondents. No. 90-C-233-C. United States District Court, W.D. Wisconsin. June 22, 1990. *640 Keith A. Findley, Madison, Wis., for petitioner. Mark Cameli, Madison, Wis., for respondents. ORDER CRABB, Chief Judge. This ...
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MEMORANDUM AND ORDER Before the Court are cross-motions for summary judgment in an action challenging the Federal Labor Relations Authority’s rescission of a regulation governing the granting of stays of arbitration awards.1 Plaintiffs, labor unions representing federal employees, argue that the decision to rescind the regulation was arbitrary and capricious. For the reasons stated below, the Cour...
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743 F. Supp. 655 (1990) Rayburn BURRIS, James Walpole, E.L. Freeman, Billi Freeman, William A. Mullins, Paul Gossage, J.A. Ferguson, Bill Hollingsworth, Chrystal Wortham, Brian Hullum, L.L. Kuehner, Clady Everhart, Eddie Legg, Waldemar Walter, Richard Eddy, O.L. Plunkett, Jr., Florene S. Perciful, Donald Deitz, J.C. Reunard, William J. Folsom, Dorothy Smith, James King, E.W. Waldpole, Jr., Willa ...
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743 F. Supp. 11 (1990) Carroll A. NOVICKI, Plaintiff, v. Janet C. COOK, et al., Defendants. Civ. A. No. 90-0285 (HHG). United States District Court, District of Columbia. July 5, 1990. W. Jay DeVecchio, Clifton S. Elgarten, Crowell & Moring, Washington, D.C., for plaintiff; (Joan H. Moosally, Bryan K. Pollard, of counsel). Jay B. Stephens, U.S. Atty., John D. Bates, Molly D. Current, Asst. U....
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743 F. Supp. 864 (1990) Reverend George W. VEREEN, et al., Plaintiffs, v. BEN HILL COUNTY, GEORGIA, et al., Defendants. Civ. No. 88-4-ALB/AMER(DF). United States District Court, M.D. Georgia, Albany Division. August 2, 1990. *865 Laughlin McDonald, Neil Bradley, Kathleen Wilde, Dereck Alphran, American Civil Liberties Union Foundation, Inc., Atlanta, Ga., H. Christopher Coates, Milledgeville, Ga....
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ORDER The following facts give rise to the issues presently before the Court. Amcor Funding Corporation (Amcor) filed a petition for voluntary relief under Chapter 11 of the Bankruptcy Code on April 13, 1989. Since that time, Amcor has operated the business as debtor in possession subject to the provisions of the Bankruptcy Code and under the supervision of the Bankruptcy Court. ...
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ORDER Pending before the Court is Plaintiffs Motion for Summary Judgment (instrument number 15). Having considered the motion and the response thereto, the record on file, and the applicable law, the Court is of the opinion that the motion should be granted. Background On November 22,1988 and November 28, 1988, Defendant Mortimer Hall (“Hall”) executed and delivered two promissory Notes for...
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MEMORANDUM This case is here for resentencing and for a determination whether a departure *338 from the Sentencing Commission guidelines is warranted. I Defendant Wayne Adonis and his co-defendant Garfield Scott were indicted on September 15, 1988, for drug conspiracy in violation of 21 U.S.C. § 846 and for possession with intent to distribute more than fifty grams of cocaine base in viol...
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OPINION AND ORDER This is an attorney malpractice action with the jurisdiction of this Court based on diversity of citizenship. Defendants have moved for dismissal or for summary judgment on most of plaintiff's causes of action. Defendants have also moved for a stay of a portion of this action pending resolution of a related proceeding in state court. Plaintiff has cross-moved for permiss...
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OPINION The matters before the court are the motions of defendant Roger Hatch 1) for a separate trial (# 90), and 2) to allow him to engage in discovery regarding the amended complaint (# 93), and the motion of plaintiff Deanna Bigoni to reopen discovery (# 86). BACKGROUND Bigoni filed this action alleging a claim for the intentional infliction of emotional distress based on the alleged threats th...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion to alter or amend, pursuant to Rule 59 of the Federal Rules of Civil Procedure, the final judgment entered on June 29, 1990 in the above-captioned matter. Specifically, defendant contends that the court should reduce the amount of the judgment to eliminate damages attributable to hours worked by plaintiff Robert Binder a...
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MEMORANDUM ORDER This matter is before the Court on defendant’s motion to dismiss, plaintiff’s opposition, and defendant’s reply. For the reasons set forth below, defendant’s motion is granted and the case is dismissed. Background Plaintiff ALLNET Communications is an interexchange carrier (IXC) that provides long distance telephone service in two markets. In the interstate ...
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*661 MEMORANDUM This is a case involving an underinsured motorist policy. The defendant Nationwide’s Petition for Declaratory Judgment and Motion for Summary Judgment ask for a declaration of rights and obligations and judgment as a matter of law. For the reasons stated below, the motion is DENIED, and a declaratory judgment cannot yet be made upon the stipulated facts of the rec...
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*155MEMORANDUM These actions, which are consolidated for the purpose of the pending motions, are now before the Court on the motions for summary judgment filed by the defendants. After giving careful consideration to the motions and the opposition thereto, the Court concludes that the motions should be granted and the cases dismissed with prejudice. See Order filed May 29, 1990. I The plaintiffs f...
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MEMORANDUM AND ORDER This is a Federal Tort Claims Action arising out of an injury sustained by plaintiff Robert J. Anderson while working under contract with Native American Consultants, Incorporated (“NAC”) at the Defense Personnel Support Center. Defendants, the United States of America and the Defense Personnel Support Center (“DPSC”), a part of the federal government, 1 have moved for su...
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MEMORANDUM AND ORDER ON SPRINGFIELD TERMINAL’S MOTION TO COMPEL In this action Springfield Terminal Railway Company seeks to set aside an arbitration award in favor of Defendant United *5Transportation Union concerning a strike by Union members against Springfield Terminal over alleged safety issues. Springfield Terminal alleges that the procedures of the National Mediation Board (NMB) denied it ...
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743 F. Supp. 745 (1990) UNITED STATES of America, Plaintiff, v. Norma Mae GALLAGHER, Defendant. Cr. No. 89-285-FR. United States District Court, D. Oregon. July 25, 1990. Charles H. Turner, U.S. Atty., Stephen F. Peifer, Asst. U.S. Atty., Portland, Or., for plaintiff. Charles J. Wiseman, Portland, Or., for defendant. OPINION FRYE, District Judge: The matter before the court is the motion of plai...
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MEMORANDUM OPINION AND ORDER Donald Clements filed this RICO class action against J.D. O’Brien Olds-Cadillac-GMC Inc. and J.D. O’Brien (collectively referred to as “O’Brien”). O’Brien moves to stay this action because parallel proceedings are pending in state court. As explained below, we agree that the pendency of a parallel state action demands that we decline to exercise jurisdiction. However, ...
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MEMORANDUM & ORDER This action arises out of a dispute over the termination date of a letter of credit issued by defendant Westpac Banking Corporation (“Westpac”) in favor of plaintiff Mutual Export Corporation (“Mutual”). Westpac moves to dismiss under the doctrine of forum non conveniens. For reasons which follow, the motion is denied. *162 BACKGROUND Plain...
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OPINION The matter before the court is the motion of plaintiff, Joseph Patrick McReynolds, for a protective order preventing the defendants from obtaining discovery of documents which he claims constitute or contain attorney work product (#44). BACKGROUND This is an action for violation of civil rights under 42 U.S.C. § 1983, deprivation of an appropriate public education under 20 U.S.C. § 1401, ...
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I. Catherine Tunis was employed by Corning Glass at its Fall Brook plant beginning *954April 1,1976, as a process engineer in glass technology. In 1976, there were about 300 production and maintenance workers and 50 salaried employees at the plant, of which 25 were in the engineering department in which Tunis worked. Morning production meetings were held daily. It was Tunis’ job to identify qualit...
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743 F. Supp. 1353 (1990) Bishara WEHAB, d/b/a Daldas Grocery, Plaintiff, v. Clayton YEUTTER, Secretary of the United States Department of Agriculture, et al., Defendants. No. C-90-1043-VRW. United States District Court, N.D. California. August 6, 1990. *1354 Robert M. Teets, Jr., San Francisco, Cal., for plaintiff. William T. McGivern, Jr., U.S. Atty., Stephen L. Schirle, Asst. U.S. Atty., San Fr...
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OPINION The matter before the court is the motion of defendant, Gary Hugh Orton, to dismiss the charges against him on the grounds that the conduct of the government in investigating and prosecuting him constituted entrapment as a matter of law or was so outrageous that it violated Orton’s right to due process of law. On January 24, 1990, Orton was indicted on two counts of mailing visual depictio...
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MEMORANDUM OPINION AND ORDER The plaintiffs Old Republic and International Business & Mercantile Reassurance Company (“Insurers”) have brought this action against the Federal Crop Insurance Corporation (“FCIC”) seeking a declaratory judgment that would prevent FCIC from recovering overpayments made to the Insurers. The Insurers have moved for judgment on the pleadings or, in the alternati...
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743 F. Supp. 1422 (1990) Lynnette COOPER, Plaintiff, v. COBE LABORATORIES, INC., a Colorado corporation, Defendant. Civ. A. No. 88-S-1587. United States District Court, D. Colorado. August 1, 1990. *1423 *1424 John Olsen, Boulder, Colo., for plaintiff. Dirk Biermann, Denver, Colo., for defendant. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER SPARR, District Judge. THIS MATTER came on for trial...
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MEMORANDUM DECISION The Court has before it petitioner’s habe-as corpus death penalty action. The Court heard it’s second series of oral arguments concerning factual and legal issues on July 10, 1990, has reviewed the entire matter and is prepared to submit its written findings. The Court has cited the facts of this case in two previous and exhaustive memorandum decisions and will not repeat ...
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ORDER The “all too familiar path of large [class action] securities cases,” such as those now before the court, is one of “lugubrious” pleadings contests, “massive” discovery and settlement, on the eve or just after the start of trial. In re Activision Securities Litigation, 723 F.Supp. 1373 (N.D.Cal. 1989). At the end of this path are plaintiffs’ applications for attorney fees, which led Judge P...
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MEMORANDUM AND ORDER This matter is before the court on appeal from a July 24, 1989, decision of the bankruptcy court determining that a one-half of the debtor’s military retirement pay, property set aside to debtor’s ex-wife in a divorce proceeding, was property of the debt- or’s estate and was dischargeable in the bankruptcy. Specifically, appellant contends that the bankruptcy cou...
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OPINION AND ORDER This is an action brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986 (“CERCLA”), 42 U.S.C. §§ 9601 et seq. (West 1983 & Supp.1990), enacted by Congress in 1980 “as a legislative response to the growing problem of toxic industrial wastes, many of wh...
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Defendant Harvey Johnpoll, in a petition pursuant to 28 U.S.C. § 2255, seeks an order vacating his conviction and judgment, dismissing the indictment against him with prejudice, granting him a full hearing on the issues raised in the petition, and granting him a new trial. Additionally, Johnpoll moves pursuant to 28 U.S.C. §§ 144 and 455 that the court recuse itself from deciding the instant peti...
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MEMORANDUM AND ORDER The issue before the Court is whether the District of Columbia provides the owners of junk automobiles with sufficient notice prior to seizing and destroying the cars. The plaintiff whose car was seized and destroyed as junk asserts that the District’s failure to provide for a formal notice and hearing violates the Due Process Clause. The Court disagrees. I On April 26,...
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MEMORANDUM I. The facts presented to the jury in this case may be summarized as follows. On the morning of June 22, 1989, Philadelphia Police Officers Alonzo Rush and Titus Knox responded to a radio call advising them that there was a “fight” at 53d and Warren Streets in Philadelphia. Once there, the two officers observed four males sitting in a late model Audi automobile across the street from t...
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MEMORANDUM OPINION AND ORDER We grant plaintiff Montgomery’s motion to amend his complaint by reinstating Dr. Robert A. Del Pero as a defendant in this case. We also grant defendant Eric J. Del Piero’s motion to quash service and dismiss as moot his motion to dismiss the complaint against him for lack of in personam jurisdiction. We strike Dr. Eric J. Del Piero’s name from the complaint and on our...
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MEMORANDUM OPINION AND ORDER Before me are defendant Aspen Airways' (Aspen) motions to dismiss plaintiffs second and third claims, to strike plaintiffs jury demand, and to strike plaintiffs claim under the Colorado Labor Peace Act. The motions have been briefed adequately and oral argument waived. Aspen’s motion to dismiss plaintiffs second and third claims is granted without prejudice be...
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MEMORANDUM AND ORDER Petitioner Edgar Ramos (“petitioner” or “Ramos”), appearing pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner’s application is denied. BACKGROUND Petitioner was indicted for the murder of Manuel Vidal, Sr., who had been found dead in his home on July 2, 1981, in Brent-wood, New York. Ramo...
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*1235 ORDER On September 28, 1989, the Defendant Lawrence Hawkins was indicted in a six-count Indictment charging: (I) conspiracy to possess with intent to distribute and to distribute cocaine and marijuana; (II) distribution of nine ounces of cocaine; (III) possession with intent to distribute seven pounds of marijuana; (IV) the use and carrying of a firearm during and in relati...
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ORDER Before the court is the motion of defendants, Shiley Incorporated and Pfizer Inc., to dismiss plaintiff’s complaint based on the statute of limitations, pursuant to Fed. R.Civ.P. 12(b). For the following reasons, the court grants the motion. Shiley Incorporated and Pfizer, Inc. formerly manufactured and sold a type of *739 “mitral valve” or heart valve. On March 20...
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RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT The parties in this case seek to have the Court interpret the provisions of certain agreements which were entered into by the parties. To better understand the issues involved in this case it is necessary to set forth a summary of the facts which led to the agreements and to this suit. In late 1980 and early 1981, International Minerals & ...
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OPINION Currently before the court is the motion to dismiss of the United States under Rule 12(h)(3) of the Federal Rules of Civil Procedure. For the reasons stated herein, the court will grant the motion and dismiss the complaint. I. FACTS AND PROCEDURE On December 14, 1987, plaintiff Angela Hamilton fell on the premises of the Strat-ford Post Office as she carried boxes from her car to the Post...
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MEMORANDUM OPINION AND ORDER Ann Bunn, Marybelle Hoffman, and Eva M. Schiele (the “Bunn Group”) appeal a bankruptcy court order denying reconsideration of an earlier order approving a Job Preservation and Litigation Settlement Agreement (JPA) executed by Frontier Airlines, Inc., four Frontier employee unions and other parties. The Bunn Group argues that the bankruptcy court’s approval of the JP...
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RULING ON PLAINTIFF'S MOTION TO REMAND Plaintiff filed this suit in state court alleging that after she ingested prescription drugs manufactured by the defendants 1 which contained tetracycline the drugs caused abnormalities in her teeth, including pitting of the enamel. Plaintiff contends that defendants knew of this propensity yet failed to warn doctors, government agencies, ...
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ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT Each defendant in the above-captioned companion cases has filed a motion for summary judgment. *648It is undisputed that on the morning of June 1, 1987, defendant Marc Hill (Hill), an agent of the United States Drug Enforcement Agency (D.E.A.), shot Michael Antonio Smith (Smith) to death. Plaintiff Linda Smith charges four counts in her compl...
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RULING ON RONALD GELET’S MOTION TO DISMISS L. Jerome Stanley, Dr. Jacques de la Bretonne, and Ed W. Litolff, Jr. filed this suit for breach of contract in the 19th Judicial District Court for the Parish of East Baton Rouge against Numero Uno Franchise Corporation (Numero Uno) and Ronald Gelet. The suit was timely removed to this court by the defendants based on 28 U.S.C. § 1332. Gelet has now f...
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MEMORANDUM OF OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS FACTS & PROCEDURE In 1984, petitioner and a co-defendant, Michael Shawn Scroggins, were tried jointly before separate juries and subsequently convicted of first degree murder in the District Court for the Third Judicial District, in and for Canyon County. 1 Thereafter, petitioner appealed the convic...
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743 F.Supp. 802 (1990) UNITED STATES of America, Plaintiff, v. ONE PARCEL OF PROPERTY LOCATED AT RT. 1, BOX 137, RANDOLPH, CHILTON COUNTY, ALABAMA, etc., Defendant. Civ. A. No. 89-T-1071-N. United States District Court, M.D. Alabama, N.D. March 12, 1990. *803 James Eldon Wilson, U.S. Atty., John T. Harmon, Asst. U.S. Atty., Montgomery, Ala., for U.S. Eason Mitchell, Alabaster, Ala., for Horace &a...
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OPINION AND ORDER This is a motion to suppress statements made by defendant Marc A. Madison (“Madison”) and evidence alleged to have been in the possession of Madison on March 9, 1990 when he was approached by detectives from the Port Authority Police Department on board a bus at the Port Authority Terminal (“the Terminal”) in Manhattan, New York. The motion, brought on the grounds that M...
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MEMORANDUM OPINION AND ORDER On June 18, 1990, defendant Liberty Mutual Insurance Company (“Liberty”) filed its motion to dismiss and/or summary judgment. On June 28, 1990, plaintiffs filed their opposition thereto. On July 9, 1990, Liberty filed its'reply.1 The facts underlying this action are not in dispute and are as follows: 1. On December 20, 1988, plaintiffs’ decedent, Mark Douglas Hines, w...
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RULING ON GULF STATES UTILITIES COMPANY’S MOTION TO BRING IN RURAL ELECTRIFICATION ADMINISTRATION AS ADDITIONAL PLAINTIFF The issue presented to the Court is whether the Rural Electrification Adminis*44tration (“REA”) should be added as a party plaintiff to this action. The Court finds that the REA has not waived its sovereign immunity and is not an indispensable party to this litigation. Therefo...
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RULING ON MOTION TO DISMISS FOR FAILURE TO JOIN AN INDISPENSABLE PARTY AND FOR LACK OF SUBJECT MATTER JURISDICTION The issue before the Court is whether IP Timberlands Operating Company, Ltd. (IPTO) is a party “needed for just adjudication” under Rule 19 of the Federal Rules of Civil Procedure and if so, whether the action should be dismissed because the Court lacks diversity jurisdiction under C...
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RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Curtis James filed this suit against Capital City Press (CCP) to recover damages for race and age discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. 621, et seq. James contends he had worked as a journeyman pressman on the night shift at...
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MEMORANDUM OPINION AND ORDER Plaintiff brought the instant suit alleging discrimination in employment in violation of Title VII, 42 U.S.C. § 2000e et seq., on the basis of his race, his sex, and his physical handicap. The case is before the Court on defendant’s Motion for Summary Judgment. I. Plaintiff is a Program Systems Computer Analyst with the Internal Revenue Service Detroit Computi...
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RULING ON MOTION TO REMAND Dwayne J. Royer, filed this personal injury suit on December 11, 1984 in the Eighteenth Judicial District Court in Iberville Parish against Harris Well Service, Inc. (Harris), a Louisiana corporation, and Shell Oil Corporation (Shell) 1 , a foreign corporation authorized to do business in Louisiana. Royer contends he was injured on a...
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MEMORANDUM OPINION This case is one of many in Texas involving the rights and liabilities of lenders and borrowers when a federally insured savings and loan fails. Specifically at issue before this court is the right of a borrower to pursue a cause of action against the new entity replacing the old insolvent savings and loan which he had asserted against the insolvent savings and loan, an...
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ORDER INTRODUCTION These cases involve an appeal of an order issued by the bankruptcy court disqualifying the law firm of Nielsen and Senior from representing both debtors in possession because of an apparent conflict of interest. Ill B.R. 347. Because the sole issue on appeal involves representation in both cases, this court previously consolidated the cases for purposes of this app...
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MEMORANDUM OPINION I. BACKGROUND Sears, Roebuck and Company (“Roebuck”) filed a trademark and trade name infringement suit on June 28, 1988, against Sears pic (“PLC”). See Docket Item *1291 (“D.I.”) 1. On March 10, 1989, Roebuck amended its complaint to add Sears Financial Services Limited (“SFSL”) as a defendant. Discovery closed on December 15, 1989. Current...
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MEMORANDUM OPINION I. BACKGROUND Sears, Roebuck and Company (“Roebuck”) filed this trademark and trade name infringement suit on June 28, 1988, Docket Item (“D.I.”) 1, against Sears pic (“PLC”), a company incorporated under English and Welsh law. Roebuck amended its complaint on March 10, 1989, and added Sears Financial Services Limited (“SFSL”) as a defendant. Discovery closed on De...
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OPINION AND ORDER An employee benefit plan established by NARDA, Inc. (the National Appliance and Radio-TV Dealer’s Association) (“NAR-DA”) to provide its members with medical benefits, life insurance, and related benefits became insolvent in May 1986 because the value of claims of participants for medical benefits exceeded the premiums collected. By September 1987 NARDA had accumulated mo...
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*666 MEMORANDUM A. Factual and Procedural Background Claimant, Leroy Johnson, told his therapist that he had been abusing alcohol since adolescence. Record at 182. He began treatment at the (alcohol) Outreach Program of Jefferson Medical College in August 1984. At the time of his admission to the program, he stated that he was drinking heavily. Id. He attended weekly therapy sessions fr...
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743 F. Supp. 1211 (1990) UNITED STATES of America, Plaintiff, v. Willie Lee DIXON, et al., Defendants. Crim. No. MJG-90-0128. United States District Court, D. Maryland. July 31, 1990. *1212 *1213 Breckinridge L. Willcox, U.S. Atty., Carmina S. Hughes and Robert Thomas, Asst. U.S. Attys., Baltimore, Md., for plaintiff. Steven Dunn, for defendant Dixon. Michael Marr, for defendant O'Dell. James K. ...
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MEMORANDUM OPINION Plaintiff, Ann Walker, was permitted, in response to the jury verdict of June 19, 1990, to suggest to the court by special motion what judgment should be entered on that verdict. The pre-trial posture of the case is set out in Walker v. Anderson Electrical Connectors, 736 F.Supp. 253 (N.D.Ala.1990), and need not be repeated. At this juncture, defendant-e...
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*235 OPINION Plaintiffs, Far West Federal Bank (Far West) and a number of its investors and shareholders (Investors), bring this action against the Director of the Office of Thrift Supervision (OTS), the Federal Home Loan Bank Board (FHLBB), the Federal Home Loan Bank of Seattle (FHLB-Seattle), the Federal Deposit Insurance Corporation (FDIC), and the Federal Savings and Loan Ins...
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743 F.Supp. 681 (1990) Jackie PHILLIPS, Plaintiff, v. UNITED STATES of America, Defendant. No. S88-40C. United States District Court, E.D. Missouri, Southeastern Division. August 7, 1990. *682 C.H. Parsons, Jr., Parsons, Mitchell, Wilson and Satterfield, Dexter, Mo., for plaintiff. Eric T. Tolen, Asst. U.S. Atty., St. Louis, Mo., for defendant. MEMORANDUM LIMBAUGH, District Judge. Plaintiff init...
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MEMORANDUM OPINION AND ORDER The Former Frontier Pilot Litigation Steering Committee, Inc. (Committee) has appealed the bankruptcy court’s order, dated April 7, 1989, confirming Frontier’s Third Amended Plan of Reorganization (Plan). The Committee has listed three issues on appeal: (1) whether the Plan was proposed in good faith under § 1129(a)(3) of the Code “in light of the requirements of fu...
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MEMORANDUM OPINION On February 16, 1987, plaintiff Shirley Hack was operating a punch press allegedly manufactured by Havir Manufacturing Company which malfunctioned and amputated both of her thumbs. On February 15,1989, plaintiffs filed a complaint against *284 defendant H.V.R. Parts, Inc., doing business under the name H.V.R. Machine Tools, alleging that H.V.R. Parts is liable for Mrs. Hack...
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ORDER On May 17, 1989, the Defendant, Anthony T. Frank, Postmaster General of the United States of America, filed a motion to reconsider a previous Order of this Court.1 For the following reasons, this Court denies Frank’s reconsideration request. I. On March 6, 1984, the United States Postal Service hired the Plaintiff, Huey P. Payne, as a custodian. On March 23, 1987, Payne, a black male, had a...
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MEMORANDUM OPINION The plaintiff, Michael Connor, filed this suit against his former employer, Mobil Chemical Company, alleging Mobil acted in a racially discriminatory manner when it discharged him. Connor’s original complaint alleged causes of action under 42 U.S.C. §§ 2000e, et seq. (Title VII), 42 U.S.C. § 1981, and 42 U.S.C. § 1988. Pursuant to the joint pretrial order filed February 26, 1990...
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743 F. Supp. 1218 (1990) Jesse T. DUKE, Sidney W. Fox, Norman R. Barden, and Joseph R. Bishop, Plaintiffs, v. UNIROYAL, INC. and Uniroyal Chemical Company, Inc., Defendants. No. 87-741-CIV-5. United States District Court, E.D. North Carolina, Raleigh Division. March 2, 1990. *1219 *1220 Joyce L. Davis, Lynn Fontana, Crisp, Davis, Schwentker, Page & Currin, Raleigh, N.C., for plaintiffs. James...
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743 F. Supp. 444 (1990) UNITED STATES of America v. Henry Clay SAUNDERS. Crim. No. 90-00074-A. United States District Court, E.D. Virginia, Alexandria Division. July 27, 1990. *445 W. Neil Hammerstrom, Asst. U.S. Atty., Henry Hudson, U.S. Atty, Alexandria, Va., for U.S. Drewry B. Hutcheson, Jr., Alexandria, Va., for defendant. SENTENCING MEMORANDUM ELLIS, District Judge. INTRODUCTION Defendant ...
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OPINION Eddy Peralta pleaded guilty to two counts of an indictment which charge him with conspiracy to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846 and use of a handgun during a drug felony in violation of 18 U.S.C. § 924(c). *1198 The drug conspiracy count carries with it a mandatory minimum sentence of five years incarceration and the gun count requires the imposi...
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RULING ON MOTIONS FOR SUMMARY JUDGMENT OF SEARS, ROEBUCK COMPANY, WILLIAM SANDERS AND EDWARD BRENNAN Angelina Watson filed this suit on May 18, 1989 against Sears Roebuck Co. (Sears) and two executive officers of the company, William Sanders and Edward A. Brennan, claiming that Sears engaged in discriminatory promotion and retaliation employment practices in violation of 42 U.S.C. 1981 and 1983...
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MEMORANDUM DECISION AND ORDER The delicate balance between a criminal defendant’s presumption of innocence and sixth amendment right to an impartial jury on the one hand, and the prospective juror’s potential fear of retaliation or of outside influence on the other, is at the center of the Court’s concern in determining whether there is a need for the drastic remedy of an anonymous jury. Before...
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743 F. Supp. 1524 (1990) CHRIS D. and Cory M., etc., Plaintiffs, v. MONTGOMERY COUNTY BOARD OF EDUCATION, et al., Defendants. Civ. A. No. 89-T-1165-N. United States District Court, M.D. Alabama, N.D. July 2, 1990. Patricia E. Ivie, Robert J. Varley, Legal Services Corp. of Ala., Montgomery, Ala., for plaintiffs. Vaughan H. Robison, Justice D. Smyth, III, Montgomery, Ala., for defendants. MEMORAN...
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ORDER Before the court are the motion of all defendants to strike certain irrelevant allegations from plaintiffs Second Amended Complaint, pursuant to Fed.R.Civ.P. 12(f), and the motion of defendants, Robert Cher-nik and Edward Kopsky 2 to dismiss Counts II through V of the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), based upon the passage of the one year statute of limitatio...
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MEMORANDUM AND ORDER This matter is before the Court on defendant's motion for a reduction in sentence. Based upon the holding of Hughey v. United States, — U.S. -, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), defendant seeks to reduce the amount of restitution he was sentenced to pay. The motion will be denied. FACTS On December 20, 1989, an indictment charging fifteen counts of mail fraud was ...
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MEMORANDUM AND ORDER I. INTRODUCTION This is an action for declaratory judgment as to an insurers’ liability on a policy of mortgage title insurance. Plaintiff Lawyers Title Insurance Corporation (Lawyers Title) issued a policy of mortgage title insurance (the policy) on a mortgage taken *779 by defendant First Federal Savings Bank & Trust (First Federal). Several months...
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MEMORANDUM OPINION The plaintiff is suing the Washington Metropolitan Area Transit Authority (“WMATA”) for personal injuries sustained when the heel of her shoe became caught in the slot of an escalator tread at the L’Enfant Plaza Metro station, causing her to fall two steps. 1 The plaintiff alleges that: (a) WMATA breached its duty to design reasonably safe escalators; (b) WMA...
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In this case the court holds that it retains the power to remand sua sponte an untimely removed civil action, notwithstanding a recent amendment to 28 U.S.C. § 1447(c), and that the action should be remanded. *128 I On March 8, 1985 InterFirst Bank Oak Cliff, N.A. (“InterFirst”) filed this- suit in Texas state court against defendants James A. Loyd, 1 Jo...
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MEMORANDUM AND ORDER This case arises from the default of First Mortgage Medical Facility Revenue Bonds (“bonds” or “bond issue”) issued by the Jefferson County Health Facilities Authority, Inc. (“the Authority”). As this action is ready to proceed to trial, the defendants, in various combinations, have filed twenty-nine motions for summary judgment or dismissal. The motions raise some is...
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MEMORANDUM AND ORDER As indicated in the court’s order of July 30, 1990, an unfortunate procedural squeeze has developed in this case, presently scheduled for trial (as a back-up case) on August 6, 1990. A summary procedural explanation and ruling is appropriate. In this product liability action, where it is claimed that plaintiff suffered severe and debilitating asthma allegedly resulting from o...
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MEMORANDUM OPINION “[T]he Pelham Humphries litigation is over and the Humphries heirs have no title in the league of land ...” Judge Thornberry’s holding in Humphries v. Texas Gulf Sulphur Co., 393 F.2d 69 (5th Cir.1968), has a hollow ring to the plaintiffs here who are seeking to exhume the Pelham Humphries dispute two decades after this definitive epitaph. On...
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MEMORANDUM AND ORDER In this Federal Tort Claims Act action, plaintiff alleges that he was injured on October 29, 1988, when a car in which he was riding collided with a United States Postal Service vehicle driven by postman Joseph McMillan in the scope of his employment. *11Plaintiff filed a timely administrative claim with the Postal Service, which denied the claim in a letter dated June 14, 198...
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MEMORANDUM OPINION Plaintiffs bring this legal malpractice action for breach of fiduciary duty, negligence and fraudulent concealment. This matter comes before the Court on defendant law firm’s second motion for summary judgment. Upon consideration of defendants’ motion, plaintiffs’ opposition thereto, the entire lengthy record in this case, and for the reasons stated below, defendants’ m...
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OPINION AND ORDER REGARDING FUTURE RELIEF FACTUAL BACKGROUND This is a wrongful discharge/breach of employment contract action predicated on the common law doctrine established by the Michigan Supreme Court’s ruling in Toussaint v. Blue Cross and Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980). Plaintiff Franklin Stafford is a former employee of Defendan...
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OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR RELIEF FROM JUDGMENT This matter is presently before the Court on Defendant Cabanas del Caribe Hotel’s Motion for Relief from Judgment filed on May 16,1990. Cabanas del Caribe Hotel is a hotel situated in Cozumel, Mexico. Defendant seeks relief from the default judgment in the amount of $126,797.00 entered in this “slip and fall” diversity...
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AMENDED MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of defendant E. Safani, individually and d/b/a Safani Gallery, to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Plaintiff Amir Zakaria has responded to the motion and the court has considered the memoranda together with attachments submitted by t...
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MEMORANDUM AND ORDER Plaintiff, Pension Benefit Guaranty Corporation (Guaranty Corp.), a wholly-owned United States government corporation established pursuant to 29 U.S.C. § 1302, brought this action under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Guaranty Corp., the successor trustee of the A & S Steel Rule Die Corporation Pension Trust...
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743 F. Supp. 1385 (1990) Steven Carl ADAMS, Plaintiff, v. Lawrence KINCHELOE, Sgt. Frank and R. Percifield, Defendants. No. C-88-593-RJM. United States District Court, E.D. Washington. January 29, 1990. *1386 Steven Carl Adams, pro se. John Scott Blonien, Washington State Asst. Atty. Gen., for defendants. ORDER GRANTING PARTIAL SUMMARY JUDGMENT ROBERT J. McNICHOLS, District Judge: BEFORE THE COU...
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ORDER . Plaintiff is an author who filed the instant lawsuit to obtain information pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq., for a book entitled In the Eye of the Eagle which will document how the United States government analyzed and reacted to the Quebec separatist movement from the early 1960s to the May 1980 referendum in which • the Quebec elector...
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OPINION AND ORDER Pursuant to 28 U.S.C. § 636(c)(1), Fed.R. Civ.P. 73(b) and Local rule 19.06, this cause, on this Court’s order of reference, was transferred to Magistrate Carr to conduct all further proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c). Magistrate Carr has been designated to exercise jurisdiction over civil matters by Local Rule 19.06. The order of referen...
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743 F. Supp. 1393 (1990) Steven Carl ADAMS, Plaintiff, v. Lawrence KINCHELOE, Sgt. Frank and R. Percifield, Defendants. No. C-88-593-RJM. United States District Court, E.D. Washington. March 27, 1990. *1394 *1395 Steven Carl Adams, pro se. John Scott Blonien, Washington State Asst. Atty. Gen., for defendants. ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ROBERT J. McNICHOLS, District Ju...
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MEMORANDUM AND ORDER I. INTRODUCTION This diversity case involves a claim by Ames Privilege Associates Limited Partnership (“plaintiff” or “Ames”) for coverage under an insurance policy issued by Allendale Mutual Insurance Company (“defendant”). The defendant issued a Fire and Extended Property Coverage Policy (“the policy”) which covered property owned by Ames during the period Augu...
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ORDER & OPINION This action is brought by the New Alliance Party (“NAP”), Lenora B. Fulani (Chairperson of NAP), and three New York City residents who allegedly attend political rallies organized by NAP. The defendants are Mayor David Dinkins (the “May- or”), Betsy Gotbaum (New York City Commissioner for Parks & Recreation), the New York City Department of Parks & Recreation (the “Parks D...
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OPINION AND ORDER Multimedia artist David Wojnarowicz brings this action to enjoin the publication of a pamphlet by defendants American Family Association (“AFA”) and Donald E. Wildmon, Executive Director of AFA, and for damages based upon claims of copyright infringement, defamation, and viola *133 tions of the Lanham Act and the New York Artists’ Authorship Rights Act. Duri...
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743 F. Supp. 475 (1990) W.L. FREEMAN, Sr., Plaintiff, v. Randy MOWDY and the Travelers Insurance Company, Defendants. Civ. A. No. E88-0115(L). United States District Court, S.D. Mississippi, E.D. June 13, 1990. *476 Charles C. Pierce, Decatur, Miss., for plaintiff. Clifford K. Bailey, III, Jackson, Miss., for defendants. MEMORANDUM OPINION AND ORDER TOM S. LEE, District Judge. Plaintiff W.L. Fre...
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MEMORANDUM OPINION AND ORDER Responsible legal representation is of paramount importance to our federal judicial system. In most instances, the legal representatives are the ones who ensure that all of the procedural obligations and filing deadlines are being met, assuring thereby the possibility of victory for the deserving litigant. It is not uncommon for an aggrieved party, acting pro se or wit...
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MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This matter came before the Court on defendants Bahama Cruise Line, Inc. and Bermuda Star Line, Inc.’s motion for summary judgment. Plaintiff Donna Rugo (Rugo), 26 years old, was a passenger aboard the S.S. Bermuda Star, a cruise ship, from February 1-8, 1986. Plaintiff alleges that she was assaulted and raped by two crewmem...
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ORDER BEFORE THE COURT is Plaintiffs Motion for Summary Judgment, which motion was filed on March 7, 1990. Defendant responded on May 18, 1990 with Defendant’s Motion to Dismiss Or, In the Alternative, for Summary Judgment, and in Opposition to Plaintiffs Motion for Summary Judgment. Plaintiff responded on June 8, 1990. After careful consideration of the arguments of counsel and the pertinent auth...
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MEMORANDUM AND ORDER Defendant Stephen Hartel invested $100,000 in a tax-shelter limited partnership which was formed to purchase and operate hotels and motels. He paid for his partnership interest with a cash payment of $6,670 and promissory notes for $93,330. Hartel signed the promissory notes in Louisiana, where he resides. The partnership negotiated the promissory notes to a bank, to ...
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MEMORANDUM OPINION AND ORDER This action is brought under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. Plaintiff alleges that on May 13, 1985, he was discharged by defendant for failure to comply with a supervisor’s order that he remain at a meeting which was being held when plaintiff was not on duty and for which plaintiff was not to be paid. Plaintiff filed this lawsuit on Ma...
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MEMORANDUM AND ORDER Certain Cambridge property owners perceive themselves burdened by the City’s decade old restrictions on the removal of rental units from the rental market. In this declaratory judgment action they principally seek a federal court determination that the restriction scheme constitutes a “taking” of their property within the meaning of the United States Constitution. The...
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743 F. Supp. 1264 (1990) Carol ALOQAILI, et al., Plaintiffs, v. NATIONAL HOUSING CORP., f/k/a Showe Realty Company, et al., Defendants. Civ. No. 3:89CV7090. United States District Court, N.D. Ohio, W.D. April 20, 1990. *1265 *1266 Steve Dane, Toledo, Ohio, for plaintiffs. Ted Rowen, Toledo, Ohio, for defendants. MEMORANDUM AND ORDER JOHN W. POTTER, District Judge. This cause is before the Court ...
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MEMORANDUM DECISION AND ORDER Defendant-Appellant Rafique Aslam appeals to this Court pursuant to 18 U.S.C. § 3402, from a judgment of conviction entered after a bench trial before United States Magistrate Ralph W. Smith, Jr. Before the Court addresses the merits of the appeal, the following recitation of the facts is necessary. At around 7:00 PM on January 16, 1990, a sensor alerted border patrol...
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MEMORANDUM OPINION AND ORDER On May 31, 1990, Magistrate Elaine E. Bucklo filed and served upon the parties her Report and Recommendation concerning the parties’ cross motions for summary judgment in this action brought by Albert J. Cooney and the other trustees (“Trustees”) of certain pension and welfare trust funds of the Milk Wagon Drivers’ Union Local 753 (“Local 753”) under the Employee Retir...
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OPINION AND ORDER Plaintiffs move, pursuant to Federal Rule of Civil Procedure 65(a), for a preliminary injunction enjoining the enforcement of that portion of the 1989 amendment to the Communications Act of 1934, 47 U.S.C. §§ 223(b) and (c) (“the Helms Amendment”), which regulates the communication of “indecent” speech over the telephone. Plaintiffs, who refer to themselves as “informati...
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MEMORANDUM DECISION AND ORDER Claimants Eduardo M. Otero and Elizabeth R. Otero bring this motion to exclude from civil forfeiture a sum of money as attorney’s fees from proceeds of a court controlled sale of seized property. The property at issue, the claimants’ house, was seized by federal authorities under 21 U.S.C. § 881. Claimants seek an order excluding $250,000.00 from the sale of ...
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ORDER This is an action for judicial review of a final decision of the defendant Secretary of *856 Health and Human Services denying plaintiffs application for the establishment of a period of disability under Section 216(i) of the Social Security Act and for disability insurance benefits as provided by Section 223 of the Act. 42 U.S.C. § 416(i); 42 U.S.C. § 423. Section 205(g) of the Act pro...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS Defendant A.S. Polonyi Company moves to dismiss plaintiffs Complaint pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, for failure to state a claim upon which relief may be granted. In its Complaint, plaintiff Penalosa Cooperative Exchange asserts six claims for relief: negligence (Count I), conversion (Co...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiffs have been denied membership in the Boy Scouts on the sole ground that they are unwilling to profess a belief in a Supreme Being or God. In their attempt to gain membership in the Boy Scouts, they have brought this lawsuit pursuant to Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, which prohibits places of public ac...
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MEMORANDUM AND ORDER I. INTRODUCTION This diversity case was originally brought by Ames Privilege Associates Limited Partnership (“plaintiff” or “Ames”) against Utica Mutual Insurance Company (“defendant”) in Hampden County Superior Court, Commonwealth of Massachusetts. The defendant is a New York corporation, *705 and none of the Ames partners are citizens of New York. ...
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MEMORANDUM OPINION AND ORDER On November 1, 1989 this Court issued its memorandum opinion and order (the “Opinion,” 726 F.Supp. 198), rejecting the contention of Cook County State’s Attorney Cecil Partee (“Partee”) that he should be dismissed from this 42 U.S.C. § 1983 (“Section 1983”) action brought against him in his official capacity. This opinion is issued sua sponte because of supervening ...
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ORDER DENYING SUMMARY JUDGMENT AND GRANTING MOTION IN LIMINE I This is an employment discrimination suit brought by Plaintiff Keith Goodluek against Defendant Kelly Tractor Company. Defendant has moved for summary judgment on the grounds that Plaintiff’s action is time-barred for having failed to comply with the 90 day limitations period within which to sue under Title VII after being notifie...
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AMENDED OPINION AND ORDER DISCHARGING ORDER TO SHOW CAUSE This is a proceeding on an order to show cause, issued by another judge of this court, as to why sanctions should not be imposed upon the eleven respondent attorneys. The order to show cause arises from a criminal case in this court, United States of America v. Rudolph Henderson, et al., No. CR-87-0398 (N.D.Cal. filed Ju...
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ORDER AND MEMORANDUM IT IS HEREBY ORDERED that the motion by the cities of Eureka, Missouri, and Fenton, Missouri, to intervene and file a complaint be and is denied. The cities of Eureka and Fenton (“the Cities”) seek to intervene and file a complaint against various defendants named in the instant consolidated actions.1 The *59Cities’ interest in intervention stems from their concern about the ...
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ORDER This order is further to our Orders dated June 6, and July 2, 1990, relating to General Dynamic’s Third Motion to Compel Production of Documents Withheld by the Government and the Government’s Fourth Rule 37 Motion. In our July 2 Order, we agreed to open our June 6 Order such that we would view in camera all of the 1976-77 Documents and the Assorted Documents for which we had previously fou...
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OPINION AND ORDER Plaintiff New York News, Inc. (“the Daily News”) brought this action by order to *166 show cause, seeking, inter alia, a preliminary injunction enjoining the defendants, the State of New York, the New York Department of Labor, Thomas Hartnett, Martin F. Scheinman, Fred L. Denson and Thomas F. Carey, from convening a Board of Inquiry, pursuant to S...
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OPINION AND ORDER Plaintiffs Gregory Fenderson, James Summers and Carmelo Torre are flight attendants employed by defendant Trans World Airlines (“TWA”). They move for partial summary judgment, seeking a determination that defendants have violated section 2, Eleventh (a) of the Railway Labor Act (the “RLA”), 45 U.S.C. § 152, Eleventh (a) (1982). BACKGROUND TWA and defendant the Independent Federa...
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OPINION Plaintiff Realdalist A. Fahie was employed by the Federal Bureau of Prisons (the “Bureau”) as a probationary correctional officer at the Metropolitan Correctional Center (“MCC”) in New York City, from November 13, 1983, to September 14, 1984, when he was terminated. Fahie brought this action in January, 1986, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §...
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OPINION The United States of America (the “government”) commenced this civil in rem forfeiture action on October 21, 1988 by filing a verified complaint against the premises and real property located at 710 Main Street, Peekskill, New York (the “property”). On that same date, the United States Marshal seized the property pursuant to a seizure warrant issued by United States District Court...
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OPINION AND ORDER This is a declaratory judgment action, filed pursuant to 28 U.S.C. § 2201. The jurisdiction of this Court is based on diversity of citizenship. Plaintiff seeks a declaration from this Court stating that, inter alia, plaintiff is not obligated to indemnify defendant for losses incurred under certain reinsurance policies between the parties. Extensive discovery ...
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MEMORANDUM OPINION On June 8, 1990, defendants Paccione, Vulpis, A & A Land Development, August Recycling, Inc., National Carting, Inc., Stage Carting, Inc., Rosedale Carting, Inc., and Vulpis Brothers, Ltd. were found guilty of racketeering, racketeering conspiracy, and several counts of mail fraud. Defendants McDonald and New York Environmental Contractors, Inc. were found guilty of one count o...
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MEMORANDUM ORDER This matter comes before the Court on the application of Southern Environmental Law Center (“SELC”), National Wildlife Federation (“NWF”), and Virginia Wildlife Federation (“VWF”) (collectively “the applicants”) to intervene as defendants in the pending case. For the reasons stated below, the application for intervention is DENIED. James City County filed the present action to re...
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ORDER This cause is before the Court on a motion by Connecticut Limousine Service to dismiss the third-party complaint filed against it on the grounds that this Court lacks in personam jurisdiction. Federal Rule of Civil Procedure 12(b)(2). I. BACKGROUND Plaintiff Classic Lines (“Classic”) contracted with Defendant National Coach Corporation (“National”) for the purchase of twelve used buses in o...
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ORDER GRANTING MOTION TO DISMISS THIS CAUSE is before the court upon the motion of defendant, DELTA AIR LINES (“Delta”), to dismiss the above-styled cause for lack of subject matter jurisdiction, pursuant to Rule 12(h)(3), Fed. R.Civ.P. Plaintiff PRINCESS ZSA ZSA VON ANHALT A/K/A ZSA ZSA GABOR (“Gabor”) is a resident of West Palm Beach, Florida. Defendant Delta is a Delaware corporation, ...
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MEMORANDUM OF DECISION AND ORDER LIMITING THE SCOPE OF RICO DISCOVERY Defendant Ferro Corporation moves under Rule 16 of the Federal Rules of Civil Procedure and §§ 21.31 to 21.33 of the Manual for Complex Litigation, Second (1985) for an order that (1) requires plaintiff to provide a “RICO statement,” i.e., to elaborate on various aspects of its RICO claims, (2) stays all discovery, and (3) estab...
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736 F. Supp. 1121 (1990) JDC (AMERICA) CORPORATION, a Florida corporation, Plaintiff, v. AMERIFIRST FLORIDA TRUST COMPANY, as a Trustee, under the provisions of a certain Trust Agreement dated February 29, 1984; Brickell Station Towers, Inc., a Florida corporation, as a general partner of Brickell Station Towers Joint Venture, a Florida general partnership; Peter Wenzel; J. Kenneth Kinsella; Mers...
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MEMORANDUM OPINION This case arises out of the attempt by the Roofers Union Local 30-30B of Philadelphia to give certain Philadelphia County judges clandestine gifts of money. As a result of an investigation into the activity of the Roofers Union, the plaintiff, Thomas A. White, was removed from his position as an elected judge of the Court of Common Pleas of Philadelphia County. Prior to...
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MEMORANDUM OPINION Plaintiff Blue Cross and Blue Shield Association (“Association”) filed this action on July 7, 1989 against the defendant Group Hospitalization and Medical Services, Inc. (“D.C. Plan”) seeking a Declaratory Judgment and injunctive relief under the Lan-ham Trade-Mark Act, as amended, 15 U.S.C. § 1114 et seq. Defendant D.C. Plan has denied plaintiff’s allegati...
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ORDER Upon the Notice of Appeal, dated February 28, 1990, filed in the above-captioned proceeding by the Debtor, ICS Cybernetics, Inc., by its attorneys, Grass, Balanoff, Cos-ta and Whitelaw, P.C., 247 — 259 West Fay-ette Street, Syracuse, New York, which appeal was designated Appeal No. 1 in the within proceeding, and upon the Notice of Appeal dated March 7, 1990, filed in the above-capt...
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ORDER James R. McGraw, one of defendant Lee Alexander’s two privately-re-tamed counsel, has moved pursuant to 18 U.S.C. § 3006A for appointment as counsel to Mr. Alexander retroactive to September 1986 and for waiver of the maximum compensation limits under the Criminal Justice Act. Familiarity with the facts of this case is presumed. See United States v. Alexander, 736 F.Supp. 1236 (N.D.N.Y....
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MEMORANDUM OF OPINION This is a civil action for the recovery of hospital and medical benefits alleged to be due under the terms of an “employee wel *1053 fare benefit plan” and “welfare plan” under ERISA, 29 U.S.C. § 1001, et seq. 1 The action was submitted for decision on stipulated facts. I.FINDINGS OF FACTS. 1. On October 26, 1987, plaint...
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Sunbelt Savings, FSB (“New Sunbelt”) moves the court to reconsider its holding in Sunbelt Sav., FSB v. Amrecorp Realty Corp., 730 F.Supp. 741 (N.D.Tex.1990), that the Federal Deposit Insurance Corporation (“FDIC”) must comply with the traditional requirements in order to qualify as a holder in due course. New Sunbelt contends reconsideration is warranted by virtue of the Fifth Circuit’s subsequ...
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*166MEMORANDUM and ORDER Two lawyers, purporting exclusive representation of the same client, and pursuing opposite strategies, have given this removed case a very odd set of facts. Pursuant to 28 U.S.C. § 1447(c), Defendant City of Macedonia, through its former Law Director and one purported counsel, Orval R. Hoover (“Hoover”), and Plaintiff Karen Blair (“Blair”), have filed Motions to Remand th...
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In this action, we are presented with what is apparently the first challenge in this circuit, and one of only a couple of challenges nationwide, to the constitutionality of section 242(a)(2) of the Immigration and Nationality Act of 1952 (“INA”), as amended. 8 U.S.C. § 1252(a)(2) (1988). This provision provides for the detainment of an alien who has been convicted of an “aggravated felony,” as ...
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MEMORANDUM AND ORDER This matter is presently before this Court on defendant’s motion to dismiss for failure to state a claim and on defendant’s motion for summary judgment. Defendant, Richard Conti, challenges the sufficiency of plaintiffs’ civil RICO claim and argues that since the defendant was not “in the business of lending money,” this Court must summarily dismiss plaintiffs’ federal RICO c...
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ORDER Before the Court is Defendant, Thomas A. O’Brien’s Motion to Dismiss For Lack of Personal Jurisdiction. When a nonresident defendant presents a motion to dismiss for lack of personal jurisdiction, the burden is on the plaintiff to establish a prima facie case for personal jurisdiction over the defendant. See Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir.1985...
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MEMORANDUM AND ORDER Before the merits of this removed diversity case can be addressed, this Court must examine the basis for subject matter jurisdiction. 1 See Gross v. Hougland, 712 F.2d 1034, 1036 (6th Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1281, 79 L.Ed.2d 684 (1984) (A federal court “must satisfy itself that it has subject matter jurisdiction o...
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MEMORANDUM AND ORDER Plaintiff Secretary of the United States Department of Labor (the “Secretary”) brings this action pursuant to section 402(b) of the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”), 29 U.S.C. § 482(b), requesting this Court to set aside the election of certain officials in an election held in June 1988 by the Federation of Postal Police Officers (“FPPO”...
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MEMORANDUM and ORDER In this case involving alleged physical and emotional injuries on an international flight, and thus an interpretation of the Warsaw Convention, 49 U.S.C.App. § 1502.1 Defendant Delta Airlines (“Delta”) has moved for summary judgment because it argues, as a matter of law, Plaintiffs emotional injuries, such as air phobia, are not legally cognizable as “any other bodily injury”...
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MEMORANDUM AND ORDER This matter is presently before the Court on the motion of defendant, Worcester Insurance Company (Worcester), for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Worcester claims that the exclusions contained in the medical payments provision and the uninsured motorist clause of the plaintiffs’ insurance policy preclude plaintiffs’ recov...
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ORDER This action was initiated in 1973 on behalf of the plaintiff class of all black students in Cleveland Public Schools and their parents to remedy the intentional segregation of students by race. This segregation was caused by actions of state and local officials, undertaken in violation of the Fourteenth Amendment to the United States Constitution. Following trial and a finding of liabilit...
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MEMORANDUM AND ORDER Thomas L. Baasch (“plaintiff”) commenced this action to recover the interest and penalties he paid to the Commissioner of Internal Revenue for the 1981 and 1982 tax years. Named as defendant is the United States of America (“defendant”). Presently before the Court are the parties’ cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Pro...
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MEMORANDUM AND ORDER In this pro se, civil rights rights suit, brought under 42 U.S.C. §§ 1981, 1983, 1985, & 1986, the parties have made timely objections to a well-written Report and Recommendation (“Report”) of Magistrate Streepy, filed October 3, 1988. The Defendants had filed Motions to Dismiss or for summary judgment. For the reasons that follow, the Court REJECTS, in part, and ACCEPTS, in ...
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ORDER Before the Court are Plaintiffs’ Motion to Amend Petition, Plaintiffs’ Motion to Remand and Defendants' Motion to Dismiss and in the alternative to Compel Arbitration. The Court has considered each of the pending motions and their accompanying briefs, as well as all responsive pleadings and is of the following opinion. • Plaintiffs seek benefits allegedly due under an employee ...
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ORDER Before the Court is Defendant’s Motion to Dismiss for failure to state a claim upon which relief can be granted. Plaintiff’s cause of action is based on a disappointing grade he received in a physics class while he was enrolled at the University of Texas. In this class, Plaintiff was assigned a grade of “C.” Plaintiff challenges the grade pursuant to 20 U.S.C. § 1232q(a)(2), ot...
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MEMORANDUM AND ORDER Before discovery sheds more light on this alleged malfunctioning product, two pending motions must be addressed. In this diversity action, Defendant Llerrad Corporation (“Llerrad”) has filed, pursuant to Fed.R.Civ.P. 12(b)(2), a Motion to Dismiss for lack of personal jurisdiction. Defendant Underwriters Laboratory (“Underwriters”) has separately filed a Motion to Dism...
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MEMORANDUM AND ORDER Use-plaintiff B & B Welding, Inc. (“B & B”) brings this action under the Miller Act, 40 U.S.C. § 270b, against defendant Reliance Insurance Company of New York (“Reliance”), the surety on a payment bond on a contract entered into between the United States and Danaco Contractors, Inc. (“DCI”), as general contractor, for the construction of a chilled water facility at B...
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ORDER In April 1989 Petitioner Eldridge Lovelace filed this action seeking a writ of habe-as corpus. Respondent, the Attorney General of the State of Illinois, moved to dismiss Lovelace’s petition shortly after it was filed. On May 22, 1989, this court granted the motion to dismiss. The court found that jurisdiction over the petition was lacking because Lovelace’s parole had ended on August 11, 19...
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MEMORANDUM AND ORDER This employment discrimination case, removed under the ever problematic language of 28 U.S.C. § 1441(c) [separate and independent claims]—see Notice of Removal at 2, II 3, raises a thorny jurisdictional problem. Pursuant to 28 U.S.C. § 1447(c) and Rule 12(h)(3), the Court, sua sponte, examines the statutory basis for removal. In light ...
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MEMORANDUM AND ORDER This case arises out of an automobile accident occurring October 4, 1984 in Quebec, Canada. Defendants, who are a Massachusetts resident and corporation, have moved for summary judgment on grounds that the Quebec Automobile Insurance Act (the “Act”) provides the exclusive remedy for plaintiffs’ injury. For the reasons stated below, the court holds that Massachusetts l...
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MEMORANDUM AND ORDER Defendants Revien, Cohen, Ellenbogen, Curylo, Berg, and Matthias & Berg move pursuant to Federal Rules 12(b)(6) and 9(b) of Civil Procedure to dismiss plaintiffs’ complaint. Plaintiff’s complaint asserts ten claims against all defendants 1 (i) civil conspiracy to defraud, (ii) violation of Section 1962(c) of the Racketeer Influenced and Corrupt Organiz...
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MEMORANDUM OPINION AND ORDER This matter is currently before the Court on cross-motions for summary judgment. Both parties have responded and the motions are now ripe for review. FACTS Plaintiff brought this suit to obtain no-fault benefits pursuant to the Michigan No-Fault Insurance Act for an injury which occurred on June 1, 1989. Plaintiffs injury occurred while plaintiff was employed as...
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743 F. Supp. 1496 (1990) William ANDREWS, Petitioner-Appellant, v. Eldon BARNES, Warden, Utah State Prison, Respondent-Appellee. No. 89-C-0649-S. United States District Court, D. Utah, C.D. August 3, 1990. Gordon G. Greiner, Mary V. Stolcis, Sandra R. Goldman, Patricia A. Rooney, Holland & Hart, Denver, Colo., Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, Wash., Robert M. Anderso...
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MEMORANDUM ORDER The Court writes as briefly as is feasible in light of (1) the imminence of the scheduled trial and (2) the complexity of the infinite variety of relevant search and seizure precedents. There is, of course, no question but that defendant was transporting more than 200 grams of cocaine hydrochloride. The investigatory police work which led to his apprehension on June 23,1987, was f...
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MEMORANDUM AND ORDER I. This is a suit for the recovery of sales commissions. Defendant Blazer International Corporation (Blazer) terminated plaintiff, Roberts Associates, Inc. (Roberts) as its exclusive manufacturers representative for certain parts sold to the automobile industry. Roberts sues Blazer for failure to pay commissions on post-termination sales to accounts it originally...
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743 F. Supp. 50 (1990) Abdus Shahid M.S. ALI, Plaintiff, v. UNITED STATES of America, et al., Defendants. Civ. A. No. 89-2863 (CRR). United States District Court, District of Columbia. August 14, 1990. Abdus Shahid M.S. Ali, pro se. Richard N. Reback, Asst. U.S. Atty., Jay B. Stephens, U.S. Atty., and John D. Bates, Asst. U.S. Atty., Washington, D.C., for Federal defendants. Robert P. Owens, Asst...
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MEMORANDUM OPINION AND ORDER This is an action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA), for conversion. The court has heretofore denied the government’s motion to dismiss on the ground that this action was not one in tort, properly brought under the FTCA, but one sounding in contract. Nottingham, Ltd. v. United States, 741 F.Supp. 1445 (C.D.Cal.1989) {Nottingh...
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MEMORANDUM AND ORDER In this teacher’s lawsuit involving serious wrongs to the Plaintiff Kathy Coleman (“Coleman”), Defendant Principal Brian L. Wirtz (“Wirtz”), Cleveland Public School Superintendent Dr. Alfred D. Tutela (“Superintendent Tutela”), Cleveland Board of Education President Ralph J. Perk, Jr. (“Perk”) and the Board of Education of the Cleveland City School District (“Clevelan...
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Plaintiffs Fred Spires, Jr., Ray L. Mercer, David Alan Sanders, and Suzy Stoner Mercer bring this action under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201 et seq. (hereinafter “FLSA”), against Ben Hill County and the other named defendants. The plaintiffs seek to recover minimum wage and overtime compensation, liquidated damages, reasonable attorney’s fees and ...
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OPINION Plaintiff King Instrument Corporation (“King”) brings this action alleging infringement of three King patents by the Defendants Luciano Perego (“Perego”) and Tapematic SrL (“Tapematic”). Plaintiff King is a corporation organized under the laws of Massachusetts and having its principal place of business therein. Defendant Tapematic is a foreign corporation organized under the ...
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MEMORANDUM ORDER I. On August 1, 1990, plaintiff filed this disappointed bidder suit, in which it alleges that the Defense Logistics Agency (“DLA”) awarded a government contract to a nonresponsive offeror in violation of statutory requirements. This case comes before the Court on the Motion for a Preliminary Injunction filed by the plaintiff Diver-co, Inc. (“Diverco”) on August 1, 1990. Diver...
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OPINION On August 14, 1989, the Court granted plaintiffs motion for partial summary judgment as to Counts II and VII of the complaint, holding that defendant both breached his duty of loyalty owed to plaintiff, his employer, and misappropriated property belonging to plaintiff. On February 5, 1990, three days before trial, plaintiff moved to dismiss Counts I, III, IV, V, and VI, on grounds...
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ORDER GRANTING SUMMARY JUDGMENT This is an action for a declaratory judgment on the issue of whether the waiver of the United States’ sovereign immunity from interest on back pay awards, contained in the Back Pay Act, 5 U.S.C. § 5596, applies to actions filed under Title VII. The matter came before the Court for hearing on the parties’ cross motions for summary judgment on June 27, 1990. ...
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MEMORANDUM OPINION In 1956, Eva Vick Yantis created a so-called “spendthrift trust” for her children. The trust provided that no principal or income could be attached by creditors prior to its receipt by beneficiaries. (Def. Exh. 1, at 6). See Bowlin v. Citizens Bank & Trust Co., 131 Ark. 97, 101-02, 198 S.W. 288, 289 (1917) (holding that spendthrift trusts are valid under Arka...
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*986 MEMORANDUM ORDER This action is before the Court on plaintiffs motion for leave to file an amended complaint and defendants’ motions to dismiss for lack of personal jurisdiction. For the following reasons, plaintiff’s motion is denied. Defendants’ motions are granted, and the case is dismissed without prejudice to refile in the proper jurisdiction. Background T...
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*653MEMORANDUM ORDER The complaint in this case was filed on February 26, 1985. Named as defendants were Dr. Pillsbury, Georgetown University Hospital, and three other physicians. Dr. Pillsbury is the only remaining defendant. This case was stayed while a comparable cause of action was pursued by plaintiff against other health care providers in the Southern District of New York. That case since ha...
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ORDER This case is before the court on appeal from a bankruptcy ruling. This case arises from a dispute regarding the value of certain property owned by the debtor Beacon Hill Apartments, Ltd. (“Beacon Hill”). In a proposed plan of reorganization, Beacon Hill valued the property at $3.8 million and proposed to treat 3.8 million of the debt owed to Columbia Savings and Loan Associatio...
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ORDER Before the Court is Defendants’ Motion to Dismiss/Motion for Summary Judgment. The Plaintiff has responded and the Defendants have filed a reply brief. On May 30, 1990, the Court entered an order advising the parties that it would treat the motion as one for summary judgment, and directed the Defendants to file a short and concise statement of the material facts as to which they contend the...
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MEMORANDUM OPINION In February 1989 the plaintiff instituted this action, alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She retained J. Thomas Giunta, Esquire to represent her in this lawsuit. In the summer of 1989, Mr. Giunta asked the plaintiff if she would be willing to enter into settlement negotiations w...
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*1160 ORDER This matter is before the court on plaintiffs’ motion for a preliminary injunction. A hearing was held in this matter on July 12, 1990. After careful consideration of the argument of counsel and the record as a whole, the court makes the following findings of fact and conclusions of law. FACTUAL BACKGROUND Houston Federal Savings and Loan Association (“Houston Federal”) receiv...
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MEMORANDUM ORDER This matter is before the Court on defendants’ motion to dismiss. Upon consideration of defendants’ motion, plaintiff’s opposition, and defendants’ reply, defendants’ motion is denied. Plaintiff is a female former employee of Karalekas & McCahill, a local law firm. Her complaint alleges the following: When she had been working at Karalekas & McCahill for about four y...
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ORDER AND REASONS This matter is before the Court on cross-motions for summary judgment [Document Nos. 11 and 17]. Determining in its discretion that oral argument is unnecessary, the Court previously cancelled the hearing on the motions. For the following reasons, the Court now GRANTS IN PART AND DENIES IN PART each motion; the Court rules for the plaintiffs on their first claim and for the defe...
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MEMORANDUM The plaintiffs filed this action on May 14, 1990 pursuant to the Magnuson Fishery Conservation and Management Act (MFCMA), 16 U.S.C. § 1801 et seq., challenging defendants’ prohibition on the use of drift gillnets 1 in the fishery for the Atlantic migratory group of king mackerels, as published in 55 Fed.Reg. 14833 (1990), hereinafter, sometimes referred t...
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OPINION AND ORDER RE PRIVILEGE ISSUES Introduction Invoking the attorney-client privilege and the work product doctrine, defendants FDIC, as manager for the FSLIC Resolution Fund, which was successor in interest to the FSLIC as receiver for Farmers Savings, and the Resolution Trust Corporation, as receiver for the Federal Asset Disposition Association (FADA), have joined in opposition to plaint...
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MEMORANDUM OPINION The plaintiff in this case is a foreign corporation whose principal place of business is in Arkansas (Complaint, para. 1). Both parties take solid waste from Fort Smith customers and transport such waste to a landfill owned by the defendant. Plaintiff alleges that defendant’s landfill charges defendant a waste disposal fee far lower than that charged to plaintiff and ot...
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743 F. Supp. 456 (1990) SECURITY HOMESTEAD ASSOCIATION v. W.R. GRACE & CO. Civ. A. No. 88-5165. United States District Court, E.D. Louisiana. August 14, 1990. *457 Louise Ferrand Hemard, Security Homestead Ass'n, New Orleans, La., C. Alan Runyan, William Jordan, David C. Eckstrom, Speights & Runyan, Hampton, S.C., Fredericka Homberg Wicker, New Orleans, La., for plaintiff. John J. Weigel,...
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MEMORANDUM Plaintiff filed a complaint in the instant action on December 5,1989. The complaint is based on an allegedly improper real estate transaction. On March 13, 1990 defendants R.K.R. Hess Associates, Inc., David Ross, Herbert A. Hobson, Samuel D’Alessandro, William Hopkins, t/a 304 Park Avenue Real Estate Partnership [hereinafter “Hess defendants”], filed a motion for dismissal pursuan...
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MEMORANDUM AND ORDER This matter is before the court on the motion of plaintiff pursuant to Fed.R.Civ.P. *69854(d) to vacate the assessment of costs against plaintiff. Following defendant’s successful appeal of the first trial in this case, 862 F.2d 242, the clerk taxed appellate costs against plaintiff. Prior to the second trial, plaintiff made a motion to set aside this assessment under Fed.R.Ci...
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OPINION This Freedom of Information Act (FOIA), 5 U.S.C. § 552, matter is before the Court on the parties' cross-motions for summary judgment, the parties’ replies, and the entire record. The underlying facts are as follows. Plaintiff represents the State of Utah in a matter relating to a food stamp quality control error-rate penalty that the Food and Nutrition Service (FNS) has levi...
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MEMORANDUM AND ORDER The Government moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. Claimants Harvey and Helen Lehrer maintain that they are entitled to rely on the innocent owner defense and hence summary judgment must be denied. For the reasons stated below, the Government’s motion is granted. FACTUAL BACKGROUND 1 Claimants owned the defendan...
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ORDER This matter came on for hearing on the Motion for Temporary Restraining Order filed by the plaintiff, George M. Cole, D.O. After consideration of the arguments of counsel and the exhibits admitted into evidence, the Court makes its determination. Findings of Fact 1. In 1982, plaintiff Cole was a doctor in the United States Army stationed at Fort Sill, Oklahoma, and practicing at Reynolds A...
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MEMORANDUM AND ORDER This matter is before the court on the Secretary’s motion to remand (Doc. 13). The Secretary argues that remand is necessary for further consideration of plaintiff’s claim. Specifically, the Secretary seeks remand to obtain the testimony of a vocational expert. The plaintiff has filed an opposition to the Secretary’s motion. The Social Security Act provides: The court may, on ...
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MEMORANDUM AND ORDER Plaintiff Schlaifer Nance & Company, Inc. (“SNC”) moves for an order directing defendant the Estate of Andy Warhol (the “Estate”) to turn over to SNC all documents given to the Estate in breach of a settlement agreement in another action, to which the Estate was not a party. In 1985, Original Appalachian Artworks, Inc. (“OAA”) sued SNC in the United States Distri...
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743 F. Supp. 1273 (1990) Michael D. DAVIS v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY and Cigna Corporation. No. 3-88-0978. United States District Court, M.D. Tennessee, Nashville Division. February 5, 1990. *1274 *1275 R. Stephen Doughty, Nashville, Tenn., for plaintiff. Gregory B. Tobin, Connecticut Gen. Life Ins. Co., Philadelphia, Pa., Thomas P. Kanaday, Jr., Nashville, Tenn., for defendant...
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MEMORANDUM OPINION The issue presented in this lawsuit, brought by two voters against the Montgomery County Board of Education, is a novel one: whether a voting arrangement adopted by the school board, which provides that one of the school board’s single-member districts is to be represented temporarily by two persons, each with a half vote, violates the “one-person-one-vote requirement” of the fo...
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Plaintiff Brasport, S.A. (“Brasport”), is an Argentine corporation with its principal place of business in Buenos Aires, Argentina. Brasport was incorporated on November 16, 1982, as a wholly-owned subsidiary corporation of Comexport, a Brazilian corporation with its principal place of business in Sao Paulo, Brazil. Arthur Goldlust is Chairman of the Board of Comexport and a member of the Board of...
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*1070 OPINION AND ORDER Claimant Jerry Nelson moves to dismiss the Government’s complaint seeking the forfeiture of the defendant-in-rem. The Government cross-moves for summary judgment pursuant to 21 U.S.C. § 881(a)(7). For the reasons stated below, claimant’s motion to dismiss is denied and the Government’s cross-motion for summary judgment is granted. BACKGROUND On S...
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*1388 ORDER DENYING DEFENDANT’S MOTION TO DISMISS; GRANTING PLAINTIFFS’ MOTION FOR ABATEMENT OF JEOPARDY ASSESSMENT BACKGROUND On February 2, 1990, plaintiffs filed a complaint to determine the reasonableness and appropriateness of two jeopardy assessments levied against them by the Internal Revenue Service (“IRS”). The jeopardy assessment made by the IRS against Stebco, Inc...
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MEMORANDUM AND ORDER This matter is before the court on the motion of third party defendant Koch Industries, Inc. to dismiss the third party complaint (Doc. 1535) and on cross motions for summary judgment filed by plaintiff/third party plaintiff Mobil Oil Corporation (Doc. 1698) and third party defendant Koch Industries, Inc. (Doc. 1697). Following the filing of a counterclaim against it by the Un...
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MEMORANDUM AND ORDER This matter is before the court upon defendant’s motion to affirm the Secretary’s denial of disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401-33 (1982 & Supp. IV 1986), and also to affirm the denial of supplemental security income benefits under Title XVI of the Act, 42 U.S.C. § 1381-83c (1982 & Supp. IV 1986). Plaintiff filed his applic...
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MEMORANDUM Pending before the Court are the plaintiff's motion to remand this action to the Chancery Court for the Twentieth Judicial District of the State of Tennessee at Nashville and the plaintiffs motion to file oversized documents. Also pending before the Court are the defendant’s motions to dismiss and to vacate the protective order granted by the Chancery Court prior to removal of the ca...
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MEMORANDUM On April 24, 1990, the undersigned United States Magistrate handed down an Order in this case which, inter alia, directed the parties to complete all discovery proceedings and to submit any dispositive motions in a timely fashion.1 On July 26, 1990, counsel for one of the defendants, Doctor Albert Stofko, filed a notice of taking the plaintiff’s deposition on August 30, 1990. Said noti...
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OPINION This is an action for declaratory and in-junctive relief under the National Labor Relations Act, 29 U.S.C. § 151 et seq. (“NLRA”) and the Employee Retirement Income and Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., as amended by the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. §§ 1381-1453 (“MPPAA”). Global Leasing, Inc. (“Global”) br...
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MEMORANDUM AND ORDER In 1986, defendant Chevron U.S.A. Inc. (“Chevron”) sold its United States northeast regional motor fuel properties, including service stations and related contracts and leases to defendant Cumberland Farms Inc. (“Cumberland”). Plaintiffs, eleven New York service station dealers, brought this action against Chevron and Cumberland to set aside the sale as violative of t...
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743 F. Supp. 772 (1990) COLUMBIAN FINANCIAL CORPORATION, Plaintiff, v. BUSINESSMEN'S ASSURANCE COMPANY OF AMERICA, Defendant. Civ. A. No. 90-4033-S. United States District Court, D. Kansas. July 18, 1990. *773 Gerald L. Goodell, Michael W. Merriam, Goodell, Stratton, Edmonds & Palmer, Topeka, Kan., for plaintiff. Charles N. Henson, Anne L. Baker, Davis, Wright, Unrein, Hummer & McCalliste...
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ORDER ON MOTIONS TO DISMISS This matter comes before the Court on the Federal Deposit Insurance Corporation’s motion to dismiss. The Court, having reviewed the pleadings, having heard the arguments of counsel, and being fully advised in the premises, now FINDS and ORDERS as follows: Background Plaintiffs William A. Ackerley and Cheryl L. Ackerley were borrowers and depositor...
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MEMORANDUM Pending before the Court are the Magistrate’s Report and Recommendation, the defendants’ Objection to Report and Recommendation of Magistrate, the defendants’ Motion for Leave to File Motion for Summary Judgment and the defendants’ Motion for Summary Judgment which addresses the plaintiff’s claim for breach of contract against the defendants for the defendants failure to conduct an int...
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743 F. Supp. 1484 (1990) UNIVERSAL MOTOR OILS CO., INC., Plaintiff, v. AMOCO OIL COMPANY, Defendant. Civ. A. No. 89-1662-T. United States District Court, D. Kansas. August 15, 1990. *1485 John Terry Moore, William F. Bradley, Jr., Hinkle, Eberhart & Elkouri, Wichita, Kan., for plaintiff. Joseph W. Kennedy, Morris, Laing, Evans, Brock & Kennedy, Chtd., Wichita, Kan., Robert M. Newbury, Tho...
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MEMORANDUM AND ORDER This matter is before the court on the defendant’s motion to dismiss for lack of subject matter jurisdiction (Doc. 6), defendant’s motion to dismiss plaintiff’s supplemental complaint for lack of subject matter jurisdiction (Doc. 47), defendant’s motion to dismiss or, in the alternative, to transfer to the Claims Court (Doc. 55), and plaintiff’s motion to strike defen...
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ORDER NO. 254 IN THE MATTER OF PUNITIVE DAMAGES In the Motions for Directed Verdict submitted pursuant to Rule 50 F.R.C.P., 1 defendants reasserted their contention that under pertinent choice of law principles punitive damages are not allowable in these proceedings and incorporated by reference motions previously submitted on this issue. 2 This Order analyses t...
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AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW RE BAIL On March 15, 1990, the United States Attorney filed a complaint under 18 U.S.C. § 3184, seeking a warrant for the arrest of Allen David Taitz for extradition to the Republic of South Africa. A warrant of arrest was issued on March 15,1990. Taitz was arrested later that day and arraigned. He was held without bail until further proceedings. At ...
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ORDER I. INTRODUCTION In this securities fraud class action, defendants move to dismiss the second amended consolidated class action complaint pursuant to Fed.R.Civ.P. 9(b) and 12(b)(6). Upon consideration of all of the papers, the motion to dismiss is GRANTED IN PART AND DENIED IN PART as set forth below. II. DISCUSSION Rule 9(b) requires that “[i]n all aver-ments of ...
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744 F. Supp. 368 (1990) O'CONNELL MANAGEMENT COMPANY, INC., Resorts Aviation, Inc. and George P. Tuttle, Plaintiffs, v. MASSACHUSETTS PORT AUTHORITY, Defendant. Civ. A. No. 90-10908-MA. United States District Court, D. Massachusetts. August 8, 1990. *369 *370 Richard J. Innis, James C. Burling, Hale & Dorr, Boston, Mass., Raymond J. Rasenberger, Frank J. Costello, Richard P. Schweitzer, Zucke...
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OPINION One thing this Court will not suffer lightly is trial by artifice and ambuscade. We expect litigants and their counsel to abide by both the letter and the spirit of the Federal Rules of Civil Procedure, and to cooperate fully — within the metes and bounds of our adversarial system — in an effort to uncover the truth and attempt to do justice. Yet during the course of thi...
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MEMORANDUM OPINION AND ORDER This is yet another battle in the longstanding war to construct public housing in the City of Chicago. In 1966, approximately 43,000 black tenants of public housing filed these actions against the Chicago Housing Authority (“CHA”) and the Department of Housing and Urban Development (“HUD”). In the early stages of the litigation, both agencies were found to have discri...
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MEMORANDUM AND ORDER Plaintiff Buchanan Marine Inc. (Buchanan), an owner and operator of tugboats and barges in Connecticut and elsewhere, brought this action to enjoin defendants from using its commercial barge mooring in Stamford Harbor, Connecticut, and to recover damages allegedly arising from defendants’ use of the mooring. In a memorandum and order, dated October 2, 1987, Buch...
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OPINION Plaintiffs bring this action for declaratory, injunctive and monetary relief under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. The parties are now before the *919 court on defendants’ motion for summary judgment on res judicata grounds. BACKGROUND William Mertens and other plaintiffs filed this action on September 9, 1...
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OPINION Plaintiff, Taj Mahal Enterprises, Ltd., brought this action against defendants, Donald J. Trump, Trump Taj Mahal Associates Limited Partnership and Trump Taj Mahal, Inc., for service mark infringement and unfair competition under the Lanham Act, 15 U.S.C. § 1051 et seq., as well as common law unfair competition. Plaintiff owns a restaurant under the registered mark TAJ MAHAL, and ...
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MEMORANDUM This case presents the question, unaddressed by the Court’s earlier decisions in *549 similar so-called Filipino cases, 1 whether title 38 of the United States Code, section 107(b) 2 comports with the Fifth Amendment to the Constitution. The provision excludes all but certain life insurance and service-related disability and death benefits for...
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AGREED FACTS AND FURTHER FINDINGS OF FACT AND RULINGS OF LAW BY THE COURT This is an action under the Federal Tort Claims Act. David R. Poirier seeks to recover damages for personal injuries. His wife, Margo C. Poirier has brought suit for loss of consortium. The parties through counsel have stipulated as to joint findings of fact which are incorporated by reference into this order a...
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MEMORANDUM OPINION AND ORDER Plaintiff Apex Oil Company (“Apex”) moves for summary judgment dismissing the remaining counterclaims of Coastal States Marketing, Inc. (“Coastal States Marketing”), the Belcher Company of New York, Inc. and Belcher New Jersey, Inc. (“Belcher NY/NJ”) 1 (which entities are referred to collectively as “Coastal/Belch-er” 2 ). The counterclai...
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ORDER AND REASONS Plaintiff, the Buck Kreihs Company, seeks money allegedly owed under a contract in which defendant, International Marine Carriers, engaged plaintiff to perform repairs on the United States Naval Ship ALGOL. Defendant operates the ALGOL under an agreement with Military Sealift Command, a unit of the United States Navy. Defendant now moves to dismiss plaintiffs complaint f...
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ORDER Pending before this Court are a motion to dismiss or in the alternative to stay the action (Document # 3) filed by defendant Village of Bolingbrook Police Pension Fund (the “Fund”) and Plaintiff’s motion to enjoin prosecution of subsequently filed litigation (Document # 6). FACTS The Fund, through its treasurer, defendant Robert Kolodziej (“Kolodziej”), placed orders for s...
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OPINION I. Background On December 1, 1989, this court filed an opinion and entered an order granting the petition of plaintiff in intervention, Cynthia Berger, for attorney’s fees and costs incident to her intervention in this case. 729 F.Supp. 449. The original parties to the suit settled their dispute on December 29, 1986, and shortly thereafter counsel for the plaintiff in...
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*1478MEMORANDUM AND ORDER This matter is before the court on cross motions for summary judgment filed by plaintiff/third party plaintiff Mobil Oil Corporation (Doc. 1716) and third party defendant Sun Company, Inc. (Doc. 1777). The court does not believe oral argument would be of material assistance in deciding these motions and therefore denies the requests for argument. Following the filing of ...
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MEMORANDUM AND ORDER Background The matter now before the Court is a Motion to Dismiss filed by defendant Citadel Bank — Willis Branch (“Willis Bank”). The Court chose to consider that motion as one for summary judgment, and Willis Bank was allowed to submit proof detailing why, under what circumstances, and in what manner Willis Bank received the allegedly wrongful payments. Wil...
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OPINION Plaintiffs in this action 1 have brought suit against the Governor of New Jersey, *603 the Attorney General of New Jersey, the Superintendent of the New Jersey State Police, and the Prosecutor of Mercer County as prosecutor and as a representative of the class of county prosecutors in the State of New Jersey, seeking to strike down as unconstitutional porti...
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OPINION AND ORDER REMANDING This appeal from a decision of the bankruptcy court raises an issue never before confronted by a federal court in a published opinion: Is a security interest in a copyright perfected by an appropriate filing with the United States Copyright Office or by a UCC-1 financing statement filed with the relevant secretary of state? I National Peregrine, Inc. ...
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MEMORANDUM OPINION In this proceeding, the Court is confronted with serious questions relating to the administration and implementation of Section 232 of the Social Security Act of 1935, 42 U.S.C. §§ 301-1397e (“the Act”) as related to the computation of a taxpayer’s social security benefits. In a complaint seeking declaratory and injunctive relief, plaintiff, the National Committee to Preserve S...
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OPINION On May 8, 1990, the Government rested its ease. Defendants then moved for a judgment of acquittal on all counts pursuant to Fed.R.Crim.P. 29(a). After hearing the arguments of counsel on May 8, 1990, the court orally denied defendants’ motions for a judgment of acquittal on all counts with Opinion to follow. This Opinion sets forth the court’s reasons for its ruling. It also sets ...
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MEMORANDUM OPINION AND ORDER Before me is plaintiff’s, Rogene I. Armstrong, individually, and as Personal Representative of J. Robert Armstrong’s Estate (PR), second motion to dismiss Count III of her complaint and defendant’s, Richard C. Armstrong (Dick), counterclaim. For the following reasons, I grant PR’s motion. In my June 6, 1989 Memorandum Opinion and Order, see Armstrong v. Armstrong, 714...
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Plaintiffs seek to recover for losses sustained as a result of their investment in certain oil and gas limited partnerships. Defendants Crown Energy, Inc. (“Crown”), Wiener, Zuckerbrot, Weiss & Brecher (“Wiener”), Ruffa & Hanover, P.C. (“Ruffa & Hanover”), Price Waterhouse, J.H. Cohn & Company (“J.H. Cohn”), and Grant Thornton (“Thornton”) move to dismiss the First Amended Consolidated Complain...
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MEMORANDUM Pending before the Court is the defendants’ motion for summary judgment and the plaintiff’s opposition thereto. FACTS Plaintiff Martin Katahn is a professor of psychology at Vanderbilt University, the Director of the Weight Management Program at Vanderbilt, and the author of several books relating to weight loss and control. His most famous works are The Rotation Diet and The Rot...
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MEMORANDUM AND ORDER The plaintiff, Covenant Insurance Company (“Covenant”), has filed a motion to lift the stay of proceedings in this lawsuit and for entry of summary judgment. Each of the defendants, Friday Engineering, Inc. and Friday Precision Moulding, Inc. (“Friday”), Robert Smith and Elio Centoni, individually and as trustees of the E and R Realty Trust and Century Machine Co. (“C...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER Hearing on defendant, Terry Gene Broom’s (Broom), motion to suppress evidence was held July 23, 1990. Having heard the evidence presented and counsels’ arguments, and upon the following findings of fact and conclusions of law, I deny Broom’s motion. In June 1989, Alcohol Tobacco and Firearms (ATF) Special Agent William G. Fran-gís (Agent Frangís...
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ORDER AWARDING ADDITIONAL ATTORNEYS' FEES On June 25, 1990, 738 F.Supp. 1348, this Court entered an Order awarding attorneys’ fees of $5,943.00 to plaintiffs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). Thereafter, plaintiffs filed Plaintiffs’ Motion For Reconsideration And To Alter Or Amend The Court’s Order Awarding Attorneys’ Fees, seeking reimbursement for the prep...
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ORDER This cause is before the Court on cross-motions for summary judgment in the above-styled action for benefits under a decedent’s Serviceman’s Group Life Insurance Policy. I. Factual Background The pertinent facts are undisputed. The Plaintiff, Gene Lanier, is the step-father of the decedent Daniel Howard Traub, who brings this suit against decedent’s natural father, Ellis Traub, and against t...
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MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND TO DISMISS Defendant United Teachers-Los Angeles moves for summary judgment and defendant Los Angeles Unified School District moves to dismiss the complaint. Both motions were heard on May 14, 1990. Having considered the parties’ briefs, as well as the arguments of counsel, the Court denies the teachers union’...
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MEMORANDUM I. INTRODUCTION Plaintiff Michael Redick brought this action against his former employer Kraft, Inc. (“Kraft”) after he was terminated by Kraft on December 22, 1988. Plaintiff is a citizen of Pennsylvania and was employed in the Commonwealth by Kraft, an Illinois corporation. Redick’s complaint asserts four separate causes of action against Kraft: Count I — breach ...
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*527 OPINION and ORDER BACKGROUND This action in which plaintiff sought to protect the exclusivity of its tradename was the subject of a prior decision where this Court permanently enjoined defendant from using the name Cancer Research Society or any other name confusingly similar to plaintiffs name. See Cancer Research Inst. v. Cancer Research Soc’y, 694 F.Supp. 1051 (S.D.N.Y.1988). The ...
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*698 ORDER OF DISMISSAL Plaintiff Seymour Kleiman, a former employee at the Department of Energy [DOE], commenced this action pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a, seeking an order from this Court requiring the DOE to expunge, amend or correct certain portions of plaintiff’s personnel file which are allegedly inaccurate. At bar is defendants DOE and United States Office of Per...
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MEMORANDUM ORDER THIS MATTER is before the court on the motion of defendant Broward General Medical Center [“Broward General”] for summary final judgment against the claim of plaintiff Michael Maguía [“Maguía”]. Maguía claims that the medical center abridged his civil rights when they unwillingly restrained him while evaluating his medication for schizophrenia, in violation of 42 U.S.C. §...
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ORDER In an opinion issued July 13, 1989, this Court found that defendant unlawfully discriminated against plaintiff Clara S. Lee in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794a, and that defendant had retaliated against plaintiff for her protected activities, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The parties thereafter conferre...
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MEMORANDUM-ORDER I. This case presents a unique and interesting question concerning the operation of certain contractual warranties supported by an indemnity agreement and an escrow fund from shareholders of an acquired enterprise, Ecusta Corporation, to the acquiring corporation, Plaintiff P.H. Glatfel-ter Company. The shareholders warranted, inter alia, that Ecusta had p...
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MEMORANDUM In this products liability action, defendant General Motors Corporation (“General Motors”) wishes to resurrect what has been a closed issue for nearly three years under Pennsylvania law. General Motors has filed a motion in limine seeking to permit the introduction of evidence at trial of plaintiff Michael J. Kolbeck’s (“Kol-beck”) non-use of his seat belt at the time of the ac...
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OPINION GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This civil rights action stems from the purportedly wrongful discharge of plaintiff, Marion Bennett, from her position as director of the Marshall Public Library (the “Library”). Defendants are the Library and the five individuals who constituted the Marshall Public Library Board of Trustees *673 (the “Library Board”) a...
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The Chase Manhattan Bank, N.A., Credit Services Division (“Chase”) brought this action to enforce a personal guaranty (“the Guaranty”) executed by defendants Frank and Christine Ungarten in favor of Chase on all obligations of Doreen Fashions, Inc. *168(“Doreen”) to Chase.1 A bench trial was held and this opinion constitutes the findings of fact and conclusions of law required by Fed.R.Civ.P. 52. ...
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OPINION In this non-jury proceeding the plaintiffs seek reformation of two insurance policies and a declaratory judgment establishing the amount of uninsured and underinsured motorist coverage. The non-jury trial was held March 16, 1990. The parties have filed post-argument briefs. I now make the following: A. FINDINGS OF FACT 1. The plaintiffs are: (a) Harold E. Byers, a c...
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*741 OPINION Earlier proceedings, see 625 F.Supp. 619 (N.D.Ill.1985), affirmed in part and reversed in part, 843 F.2d 967 (7th Cir.1988), left this case in potential need of a second trial to determine whether the state’s procedures for adjudicating claims for extended unemployment benefits complied with the due process clause of the fourteenth amendment. The parties decided that settlement w...
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OPINION AND DECISION The claims in this case were tried to the Court at a Bench trial. Jurisdiction of the separate Counts in the complaint rests on separate grounds. Jurisdiction of Count I of the complaint herein is posited on the ground that the plaintiff is a SIPA trustee and that Count I thereof is related to a proceeding conducted in accordance with and as though under Title 11...
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MEMORANDUM AND ORDER This action arises out of the termination of plaintiff, as Head Football Coach, from defendant University of the District of Columbia (“UDC”), by and through its president defendant Cortada (“Cortada”). Plaintiff has sued defendants alleging wrongful discharge, breach of contract, and a civil rights violation for failure to provide plaintiff with a pretermination hear...
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MEMORANDUM OPINION I. BACKGROUND This is a declaratory judgment action requesting a declaration that the defendant insurer has a duty to defend and pay damages upon any finding of liability in plaintiffs favor in Thornton v. Glenn, C.A. No. 88-197. The plaintiff, Eileen Thornton (“Thornton”) and the defendant, St. Paul Property and Casualty Insurance Company (“St. Paul”), have stipulated to the f...
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MEMORANDUM OPINION AND ORDER Robert Sherman, on behalf of himself and his minor son Richard, and the Society of Separationists, Inc. (“the Society”) filed suit against Community Consolidated School District 21 of Wheeling Township, School District Superintendent Lloyd Des-carpentrie, and Principal Feme Garrett claiming that the daily recital of the Pledge of Allegiance at Richard’s public eleme...
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743 F. Supp. 393 (1990) William V. BIDWELL, et al. v. Edward R. GARVEY, et al. Thomas J. CONDON, et al. v. NATIONAL FOOTBALL LEAGUE, et al. Civ. Nos. JH-87-509, JH-87-698. United States District Court, D. Maryland. May 7, 1990. *394 Lee T. Ellis, Jr., Sargent Karch, Leonard Freiman and Baker & Hostetler, College Park, Md., for plaintiffs. Joseph A. Yablonski, John F. Colwell and Yablonski, Bo...
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MEMORANDUM OPINION Plaintiff filed this action, asserting that defendant is liable for benefits allegedly due the estate under an accidental death policy issued on the life of the deceased insured, David M. Browning. Defendant has paid the estate the face amount of the policy, but has denied double-indemnity liability because it argues that Browning’s death was not the result of an accide...
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MEMORANDUM Now before the Court is plaintiff Page’s motion for leave to amend her complaint. Presently, plaintiff’s action challenges the Pension Benefit Guarantee Corporation’s (“PBGC’s”) failure to guarantee and pay benefits to her and other members of her pension plan, the Federal’s Inc. Teamsters Retirement Income Plan (“the Federal’s Plan”) which terminated in 1980. The amendment to the comp...
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OPINION AND ORDER RE MOTION TO COMPEL PRODUCTION OF THE “BUCHALTER DOCUMENTS” Introduction The documents in issue here include memoranda, correspondence, notes and other materials that make up the files that a law firm, Buchalter, Nemer, Fields, Chrystie & Younger, developed while representing Bank of the West (“BOW”) in litigation *251arising out of the failure of Technical Equities Corporation ...
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MEMORANDUM This case is before the Court on the defendants’ motion for summary judgment. In 1988, the plaintiff, James Masdea, brought this action in state court alleging that he has a contractual right to share the profits from certain albums and a concert tour performed by the rock group Boston. In his complaint, Masdea asserted six state law claims grounded variously in contract and to...
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*454MEMORANDUM OPINION The plaintiffs herein, Michael and Lynn Bowles, have asked the court to enter an order awarding them costs and attorney’s fees pursuant to 26 U.S.C. § 7430. Both parties have submitted briefs supporting their respective positions regarding such an award and, upon due consideration, the matter is ripe for disposition. 7. Background Because an award of fees depends largely on ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came on for nonjury trial on December 6, 7, 8, 11, 12, 13 and 14, 1989. Plaintiffs bring this action against the defendants for alleged breach of contract. In support of their claim, plaintiffs state that they are multi-employer apprenticeship training funds. As training funds, plaintiff Joint Apprenticeship and Training Committee of Sheet Metal...
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ORDER AND OPINION This matter is before the Court on a motion filed by defendants K-H Corporation (“K-H Corp.”) (formerly known as Fruehauf Corporation (“Fruehauf”)) 1 and Kelsey-Hayes Company (“Kelsey-Hayes”) to dismiss plaintiff Citibank, N.A.’s (“Citibank”) third amended complaint for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6...
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ORDER OF COURT AND NOW, this 6th day of June, 1990, upon motion of defendant, Joseph Ichter, M.D., to reconsider order of April 26, 1990, IT IS ORDERED that the motion for reconsideration be and hereby is denied for the following reasons: 1) Remand of a case to state court is a nondispositive action. 2) The appropriate standard of review by a district court for nondispositive actions taken by a m...
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ORDER This matter is before the court pursuant to the defendant’s motion for reconsidera*10tion of this Court’s order denying the defendant’s motion to dismiss count II of the plaintiff’s complaint. The defendant contends that count II does not represent a claim for relief based on quantum meruit because it is based on a speculative assessment of past and future savings to Nevada Power rather than...
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743 F. Supp. 1204 (1990) TENAX CORPORATION, Plaintiff and Counterclaim Defendant, v. The TENSAR CORPORATION, Defendant and Counterclaim Plaintiff, v. RDB PLASTOTECNICA SpA, and Mario Beretta, Counterclaim Defendants. Civ. No. H-89-424. United States District Court, D. Maryland. April 24, 1990. *1205 Alan Schwartz, and Weinberg and Green, Baltimore, Md., for plaintiff and counterclaim defendants. ...
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MEMORANDUM OPINION AND ORDER Natural Gas Pipeline Company (“Natural”) brought a four-count complaint against Union Pacific Resources Company, seeking declaratory relief and specific performance. Natural has filed a motion for summary judgment with the court. Union Pacific has also presented a motion for summary judgment, seeking dismissal of Natural’s complaint on discretionary grounds. 1 Tha...
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OPINION Barbara Heflin and Rebecca Tipps were both the victims and perpetrators of outrageous harassment. This litigation began in 1986 and culminated in 1990 in a verdict in favor of the Defendants following a week-long jury trial. The lesson taught by this case is that federal laws are intended to protect an individual’s civil rights but are not to be used to obtain redress for mere persona...
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MEMORANDUM DECISION AND ORDER Presently before the Court is plaintiff’s motion to strike certain affirmative defenses, raising the issues of whether the notice of claim and statute of limitations provisions of New York’s General Municipal Law apply in an action brought under 42 U.S.C. § 1983. For the reasons stated below, the Court finds that, as a matter of law, the provisions of New Yor...
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MEMORANDUM OPINION In an earlier Memorandum and Order entered in this consolidated case and reported at United States v. 2511 E. Fairmount Avenue, 722 F.Supp. 1273 (D.Md.1989), this Court ruled on a motion for summary judgment filed by plaintiff United States of America. These seven consolidated civil actions involve seven separate parcels of real estate located in the Baltimor...
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MEMORANDUM AND ORDER This case comes before me on defendant’s motion to dismiss based on the doc *381 trine of forum non conveniens, or, alternatively, plaintiffs’ failure to state a claim upon which relief can be granted. Fed.R. Civ.P. 12(b)(6). The plaintiffs, Susan Y. Mercier and her father George E. Mercier (“plaintiffs” or “Merciers”), have filed suit against Sheraton In...
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ORDER ON MOTIONS TO DISMISS This products liability action comes before the Court on the motions to dismiss filed by defendants Lake Shore Electric and Westinghouse Electric. The issues raised have been briefed and are ready for *865 resolution. For the reasons set forth below, the Court DENIES the motion. I. Factual and Procedural Background 1 Pl...
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MEMORANDUM ORDER This action was referred to United States Magistrate Gary L. Lancaster in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 3 and 4 of the Local Rules for Magistrates. On April 26, 1990, the Magistrate filed his Report, which concluded that the case should be remanded to the Secretary for further consideration. Defendant filed timely objections to the Report...
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ORDER GRANTING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT ON ITS COMPLAINT AND DEFENDANTS’ AMENDED COUNTERCLAIM THIS CAUSE comes before the Court upon Plaintiff First Union Discount Brokerage Services, Inc.’s [hereinafter “First Union”] motions for summary judgment on its Complaint and Nick and Catherine Mi-los’ [hereinafter “the Milos’ ”] Amended Counterclaim filed with this Court on June ...
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MEMORANDUM OPINION ORDER DENYING MOTION TO COMPEL This cause comes before the Court upon the motion of PEPPER’S STEEL (PEPPER’S) and NORTON BLOOM (BLOOM) to compel FLORIDA POWER AND LIGHT’s (FPL) representative, J.W. Moly-neaux to answer deposition questions and determine validity of his asserted attorney-client privilege. J.W. Molyneaux was a lawyer for FPL. Pursuant to a document r...
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MEMORANDUM In 1984, the half-brother and the legal guardian of Raoul Wallenberg brought suit against the Soviet Union to force that country to produce Mr. Wallenberg, or account for his whereabouts. The Soviet Union declined to enter any appearance in the action, and in 1985 plaintiffs obtained a default judgment. Relying upon five separate grounds, this Court, Barrington D. Parker, Distr...
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MEMORANDUM OPINION This matter is before me on a motion to dismiss filed by defendant Ronald L. Wood on March 19, 1990. The plaintiffs, Donnk-enny, Inc., Donnkenny Employees’ 401(k) Savings Plan, and Eileen Pack, sue Ronald Wood and others for losses the plaintiffs sustained from mismanagement of a 401(k) employee pension benefit plan by employees of Virginia Financial and Insurance Servi...
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Currently before the court are the motions for summary judgment of defendants Caneel Bay, Inc., Rock Resorts, Inc., and Jackson Hole Preserve, Inc. (“Caneel Bay”) and defendant United Steelworkers of America, AFL-CIO, Local 8249 (“Union”). These defendants have also moved to adjourn the trial date of August 30,1990 until the court enters a decision on their dispositive motions. Also pending is ...
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747 F. Supp. 6 (1990) IT & E OVERSEAS, INC., Plaintiff, v. RCA GLOBAL COMMUNICATIONS, INC., Defendant. Civ. A. No. 87-3089. United States District Court, District of Columbia. June 12, 1990. Brian E. Moran, John H. Chapman, Chapman, Moran, Hubbard & Zimmerman, Stamford, Conn., Victor J. Toth, Reston, Va., for plaintiff. Michael H. Salsbury, Anthony C. Epstein, Carl S. Nadler, Harry H. Rie...
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ORDER Mr. Sanchez was charged in a single-count indictment with using a counterfeit alien registration card in violation of 18 U.S.C. § 1546(a). He pled guilty and was sentenced on May 29,1990. Judgment was entered on June 18, 1990. On June 7,1990, after sentencing but prior to entry of judgment, defendant filed a motion for a judicial recommendation against deportation [JRAD] pursuant to...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This action was commenced by the filing of a complaint in the United States District Court for the Southern District of California on or about April 5, 1988. Thereafter, defendants moved to dismiss or for transfer of this action on the ground of improper venue. Chief Judge Gordon Thompson, Jr. of the Southern District of California, granted d...
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MEMORANDUM ORDER Plaintiffs Jacob J. Fink and Peterson Corporation have moved to dismiss several counts of defendants’ counterclaim pursuant to Fed.R.Civ.P. 12(b)(6). Specifically, plaintiffs contend that Counts I, III, IV, V, IX, X, and XI should be dismissed as to both Fink and Peterson, while Counts VI and VIII should be dismissed as to Fink only. Pursuant Fed.R.Civ.P. 12(f), plaintiff...
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743 F. Supp. 38 (1990) Peter R. PIEKARSKI, Plaintiff, v. HOME OWNERS SAVINGS BANK, et al., Defendants. Civ. A. No. 90-1415. United States District Court, District of Columbia. August 3, 1990. *39 William P. Luther, Luther, Ballenthin & Carruthers (Daniel A. Rezneck, of counsel), Arnold & Porter, Washington, D.C., for plaintiff. Dennis S. Klein, Lawrence F. Bates, Laura Lane, Hopkins &...
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MEMORANDUM AND ORDER Plaintiff, Yorkaire, Inc., (hereinafter “Yorkaire”), and defendant, Sheet Metal Workers International Association Local 19 (hereinafter “the Union”), were parties to a Collective Bargaining Agreement which established the Sheet Metal Workers Local Joint Adjustment Board as an arbitration panel (hereinafter “the arbitration panel”). On September 23, 1987, the arbitrati...
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ORDER The Court now turns attention to the several pending motions in this consolidated age discrimination action. *1101 i. First to consider is the motion by the Equal Employment Opportunity Commission [EEOC] for leave to intervene (D-84). 1 Since filing this motion, the EEOC filed its own lawsuit against the defendant raising the same claims, and the separa...
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ORDER This negligence action is before the court on the defendant’s motion for summary judgment and the plaintiff’s motion for reconsideration of the court’s oral grant of summary judgment after hearing arguments by the parties. Also pending is the plaintiff’s motion to file supplemental evidence in opposition to the motion for summary judgment. Having considered the parties’ briefs and oral ar...
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MEMORANDUM OPINION This cause comes before the court on the defendant’s motion for summary judgment. Having read the pleadings, motion and the parties’ memoranda, the court is prepared to rule in accordance with Fed.R.Civ.P. 56. I. FACTS The plaintiffs sue the City of Greenville under 42 U.S.C. § 1983, alleging that their constitutional rights were deprived pursuant to municipal policy when...
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DECISION AND ORDER Defendant, Marcus Hooper, has moved this court for a review of an order of detention entered on September 26, 1989, after a hearing by United States Magistrate Edmund F. Maxwell. A review by the district court of an order of detention is a de novo review. United States v. Leon, 766 F.2d 77 (2d Cir.1985). Accordingly, defense counsel and the attorney for the government were give...
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ORDER The Court has considered defendant’s motion for partial summary judgment, plaintiff’s motion for summary judgment, and the respective responses. Plaintiff Equal Employment Opportunity Commission (EEOC) has filed this case pursuant to 29 U.S.C, § 623 et seq., the Age Discrimination in Employment Act (ADEA) on behalf of Salvatore Maffei, an instructor at Pinellas Vocational-Technical In...
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MEMORANDUM OPINION The court has before it the motion of plaintiff, Edward C. Hester, for leave to amend his complaint to add a Fifth Claim. This motion was filed some five years after the original complaint was filed on November 9, 1984. Although defendant, Local 320, is not a target of this proposed Fifth Claim, Local 320 nevertheless joins the other two defendants, International Union of Operat...
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MEMORANDUM AND ORDER This matter is before the Court on plaintiff’s motion for summary judgment and defendant’s motion to dismiss or for summary judgment. Defendant’s motion for summary judgment will be granted. FACTS The essential facts are undisputed. On June 1, 1989, the last day of school for Dassel-Cokato High School, a group of students gathered at Cokato Lake to celebrate. Ker...
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MEMORANDUM OPINION Defendants, International Union of Operating Engineers, AFL-CIO and its Local 660 renewed their motions for summary judgment after the mandate of the Eleventh Circuit was issued on October 26, 1989, and after this court’s opinion of June 27, 1990, 742 F.Supp. 1517, which denied the motion of plaintiff, Edward C. Hester, for leave to amend his complaint to add a Fifth Cl...
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ORDER & OPINION Defendant Emanuele Adamita (“Adami-ta”) has been indicted for conspiracy to import narcotics into the United States in violation of 21 U.S.C. § 963, for conspiracy to distribute or to possess with intent to distribute narcotics in violation of 21 U.S.C. § 846, and for participation in a racketeering conspiracy in violation of the RICO statute, 18 U.S.C. § 1962(d...
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MEMORANDUM OPINION AND ORDER Pending before the Court are Motions for Summary Judgment filed by all parties. After carefully reviewing all of the motions and supporting briefs, the lengthy administrative record, and the applicable law, the Court finds that the motions of the defendants should be granted and those of the plaintiffs denied. I. BACKGROUND The dispute in this case c...
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OPINION AND ORDER Defendants are charged in a five count superseding indictment now before this Court. Defendants Stephen Anthony Brown (“Brown”) and Carl Wilson (“Wilson”) are charged in Counts One through Four of the indictment with conspiracy to possess and distribute cocaine (Count One), and three counts of substantive distribution or possession with intent to distribute cocaine (Coun...
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MEMORANDUM This is the foreclosure sale purchaser’s second appeal from the bankruptcy court’s order, first entered August 17, 1989, 104 B.R. 688, and re-instated April 27,1990,113 B.R. 175, setting aside the sheriff’s sale of debtor Thomas Barrett’s residence as a fraudulent transfer under the bankruptcy code. 11 U.S.C. § 548(a)(2). On February 14, 1990, the first order was vacated and th...
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OPINION Presently pending is the motion of defendants John Degnan, Irwin Kimmelman, Donald Belsole, T. Barry Goas, and David V. Brody (the “Attorney General defendants”) for summary judgment in this complex civil rights action. The state police defendants have not joined in these motions nor have they filed their own. Resolution of the instant motion revolves around the application of the...
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ORDER This cause of action arose out of an agreement in April 1988 between defendants Hillvale Associates and Southern Commercial Bank, Mortgagor and Mortgagee, respectively, of the Hillvale Apartments project in the City of St. Louis (the private defendants), to terminate federal mortgage insurance for the project. Plaintiffs assert that the private defendants’ agreement to terminate federal insu...
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MEMORANDUM AND ORDER This is an employment discrimination action brought under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. (“Title VII”); the Fourteenth Amendment to the federal Constitution; Article I, section 11 of New York’s Constitution; section 40-c of New York’s Civil Rights Law; section 296 of New York’s Executive Law and a pair of common law tort t...
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OPINION INTRODUCTION Plaintiff Nancy A. Zwalesky brings this action against Manistee County and the Manistee County Sheriffs Department. She also sues Ed Haik, the Manistee County Sheriff, Art Street, the Undersheriff, John Modjeski, a supervisor at the Manis-tee County Jail, and several deputy sheriffs and corrections officers. The plaintiff alleges that the defendants are responsib...
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*536MEMORANDUM Pending before the Court is the defendants’ motion for summary judgment. DISCUSSION I. Standards for Summary Judgment “The very reason of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Advisory Committee Notes on Rule 56, Federal Civil Judicial Procedure and Rules (West Ed.1989). Moreover...
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OPINION Presently before the court are the following motions: (1) plaintiff Wendall K. Lit-tles’ motion to dismiss all claims against defendants and plaintiff Shirley DiLoreto’s motion to dismiss all claims for excessive use of force against defendants Borough of Oaklyn and Robert Kane 1 ; (2) plaintiff DiLoreto’s motion to amend the complaint; (3) defendant Patricia Walsh’s mo...
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MEMORANDUM — DECISION AND ORDER Background Plaintiff brought this action under 42 U.S.C. § 405(g) of the Social Security Act (“Act”) for review of a final decision by the Secretary of Health and Human Services (“Secretary”), dated October 21, 1988, in which the Secretary determined that the plaintiff’s disability (alcoholism) had ceased in November 1977, and that his entitlement ...
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ORDER ON PENDING MOTIONS This order addresses four outstanding motions in this bankruptcy appeal. The motions are: (1) Motion to Dismiss, filed by the debtor, Nucor, Inc. and its attorney, Bell & Pollock, P.C. on April 16, 1990, (2) Motion to Withdraw, filed by Bell & Pollock on April 25, 1990, (3) Motion for Clarification Re: Order of April 5, 1990, and (4) Response in Opposition to Affidavit of...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT Ardell Arfsten brings this action under sections 502(a)(1) and (3) of the Employee Retirement Income Security Act of 1974 (ERISA), as amended, 29 U.S.C. § 1132(a)(1), (3), seeking the payment of disability benefits from the Frontier Airlines, Inc. Retirement Plan for Pilots (Plan). The Plan is administered by a Pension Board (Board), whose members at the time...
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MEMORANDUM OPINION AND ORDER Introduction Plaintiff, Rodeway Inns International, Inc., brought this suit seeking injunctive relief and damages for trademark infringement in violation of the Lanham Act and damages for breach of contract. On July 26, 1989, this court entered an order upon agreement of counsel which dispensed with the need for a hearing on injunctive relief. 1...
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MEMORANDUM Pending before the Court are the Bache Halsey Stuart Shields, Inc., and the Prudential Bache Securities, Inc., defendants’ 12(b)(6) motion to dismiss the plaintiff’s causes of action brought pursuant to § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), and the Tennessee Consumer Protection Act, T.C.A. § 47-18-101 et seq. from the plaintiff’s amended complain...
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MEMORANDUM Pending before the Court is the plaintiffs motion for relief, pursuant to 28 U.S.C. § 2255, from the conviction of kidnapping, in violation of 18 U.S.C. § 1201, and the use of a firearm during the commission of a felony, in violation of 18 U.S.C. § 924(c). The plaintiff also seeks relief from the conviction of two Northern District of Alabama bank robbery charges, in violation of 18 U.S...
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MEMORANDUM Pending before the Court is the defendant’s motion to dismiss and the plaintiff’s response. FACTS The plaintiff was a United States Post Office employee assigned to the Mt. Juliet, Tennessee, branch of the United States Post Office at the time the plaintiff was allegedly injured by the defendant’s employee, Marjorie Gaddes Boswell. Boswell was the Postmaster of the Mt. Juliet, Te...
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MEMORANDUM OPINION AND ORDER This cause is before the court on separate motions of the defendants F.E. Thompson, individually and as chief of the Bureau of Preventive Health Services, and Doyle Bradshaw, individually and as director of the Division of Disease Control, and of defendant Mississippi State Department of Health (MSDH) to dismiss or, in the alternative, for summary judgment. Pl...
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MEMORANDUM Pending before the Court is the defendants’ motion to dismiss the above-styled action for improper venue or, in the alternative, for lack of subject matter jurisdiction. Also pending before the Court is the plaintiff’s motion for leave to amend its complaint, adding Prix U.S.A. Corporation as a defendant. I. The Defendants’ Motion To Dismiss FACTS Plaintiff...
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MEMORANDUM Pending before the Court is the defendant’s motion to enforce surety bonds exe*1356cuted by plaintiffs’ counsel at the outset of the above-styled actions. FACTS Plaintiffs initiated these actions in the Circuit Court for Montgomery County, Tennessee. Defendant removed these actions to the United States District Court for the Middle District of Tennessee where they later were consolidate...
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MEMORANDUM Pending before the Court is plaintiffs’ counsel’s motion for judgment, as surety, against plaintiff Paula Major, Marjorie Bar-bee, and David Barbee, as principals, pursuant to Tenn.Code Ann. § 25-3-122. FACTS Plaintiffs initiated the above-styled actions in the Circuit Court for Montgomery County, Tennessee. Defendant removed these actions to this Court where they were subsequently cons...
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*1155 MEMORANDUM OPINION ORDER COMPELLING PRODUCTION OF DOCUMENTS PURSUANT TO THE GOVERNMENT’S SUBPOENA DUCES TECUM THIS CAUSE comes before the Court upon the Motion of the United States to Compel production of documents before a grand jury pursuant to its subpoena duces tecum served upon respondents HIRAM MARTINEZ, MERCEDES MARTINEZ, and HIRAM MARTINEZ, JR. and upon Respondent, HIRAM MAR...
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MEMORANDUM Pending before the Court are the plaintiff’s and the defendants’ motions for summary judgment. FACTS The plaintiff, Joe Frank Reecer, was hired by the defendant McKinnon Bridge Company, Inc. on July 8, 1988 as a construction worker. The plaintiff continued to work for the defendant until the plaintiff was injured on October 5,1988. The defendant was involved in a road...
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MEMORANDUM OPINION AND ORDER In this appeal, the Deutsche Credit Corporation (DCC) contests a bankruptcy court order approving the appointment of Bell & Pollock, P.C. as special counsel under 11 U.S.C. § 327(e). 1 DCC argues that the firm’s appointment was improper under this section because of serious conflicts of interest. Joseph G. Rosania, the trustee for the estate of Nuco...
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MEMORANDUM OPINION AND ORDER This matter is before the Court upon the motion of the defendant for relief from or to amend judgment. The United States has filed a response objecting to the motion. Pursuant to a request of the Court, the parties have also filed supplemental memoranda addressing issues raised by the United States in its response. The motion concerns the defendant’s ability under the ...
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JUDGMENT This matter was referred to United States Magistrate, Mildred E. Methvin, for her Report and Recommendation. After an independent review of the record in this case, the Court concludes that the Report and Recommendation of the magistrate is correct and this Court adopts the conclusions of the magistrate. IT IS ORDERED, ADJUDGED AND DECREED that the Secretary’s motion for summary judgment ...
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MEMORANDUM ON RECONSIDERATION I. On July 2, 1990, 740 F.Supp. 1261, the Court issued a Memorandum and Order in this contract case dismissing plaintiff WXON-TV’s (WXON) claim for consequential damages arising out of defendant A.C. Nielsen’s (Nielsen) failure to provide it accurate ratings information. The Court held, however, that WXON may have a claim for a refund of fees it had paid for the ...
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MEMORANDUM OPINION AND ORDER The appellants (collectively referred to as “Pettibone”) have brought this consolidated bankruptcy appeal challenging a February 7, 1990, 110 B.R. 848, memorandum opinion and final orders denying Petti-bone’s motions for default and summary judgments, dismissing Pettibone’s adversary actions against the appellees, Carl and Mary Easley, Edward and Mary Harris, and Ke...
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ORDER Pending before the Court are the following two motions: Defendants’ Motion for Summary Judgment (instrument number 37) and Plaintiffs’ Motion for Rehearing on Motion to Strike Jury Demand (instrument number 51). Having considered the motions and responses, if any, the record on file, and the applicable law, the Court is of the opinion that summary judgment for the defendants should ...
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*317 OPINION Joseph Roth, a citizen and resident of New York, instituted this action against defendants, seeking damages for breach of contract for failure of defendants to deliver to him 350,000 shares of Lansco Resources Ltd. stock in connection with a standby letter of credit provided by plaintiff to the Mizrachi Industrial Bank, Tel Aviv, Israel, for the benefit of Isomed Ltd...
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MEMORANDUM OPINION AND ORDER On July 3, 1990, Magistrate Edward A. Bobrick filed and served upon the parties his Report and Recommendation concerning defendant United Airlines, Inc.’s (“United”) motion for sanctions against the plaintiff, U.S. Equal Employment Opportunity Commission (“EEOC”). Magistrate Bobrick found that the EEOC's prefiling investigation had failed specifically to disclose any a...
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ORDER ON REMAND FOR ATTORNEY FEES AND COSTS THIS MATTER comes before the court on remand from the United States Court of Appeals for the Tenth Circuit on the question of attorney fees and court costs. Terrestrial Systems, Inc. v. Fenstemaker, No. 88-1082, slip op. (July 25, 1989). In its complaint plaintiff, a commercial pay television service, alleges numerous defendants used equipment for unaut...
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ORDER Pending before the Court is Iwao Jiki Kogyo Co., Ltd.’s motion to reconsider order entered November 27, 1989 or in the alternative, motion to amend order of November 27, 1989 to permit immediate appeal. Also pending is Iwao Jiki Kogyo Co., Ltd.’s motion to dismiss for lack of personal jurisdiction. The Court has considered these motions, any responses thereto, the record on file, and the ap...
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MEMORANDUM OF DECISION BACKGROUND This case arises from an accident which occurred at the refining plant of Plaintiff Pease & Curren Refining, Inc. (“Pease & Curren”) on March 21, 1989. Pease & Cur-ren extracts and refines precious metals from liquid and solid by-products (hereinafter “waste”) it receives from various clients. Defendant Spectrolab, Inc. (“Spec-trolab”) is ...
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OPINION Defendant, Adam Renfroe, was convicted on June 12, 1986, of bribing a witness in violation of 18 U.S.C. § 201(d) and obstruction of justice in violation of 18 U.S.C. § 1503. At the sentencing hearing on July 28,1986, the issue of Renfroe’s competency at the time of trial and sentencing was raised for the first time. The court denied Renfroe’s motion to conduct a competency hearing, pursuan...
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MEMORANDUM This matter comes before the Court on defendant’s appeal 1 of an order of the Magistrate committing her for an evaluation of her mental competency pursuant to 18 U.S.C. §§ 4241(b), 4247(b). Defendant had moved to dismiss below on the ground that the complaint against her fails to state the necessary elements of the offense she is alleged to have violated, 18 U.S.C. § 115(a)(1)(B) (...
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OPINION In this matter, removed from state court, plaintiff has filed a motion to remand contending that the Court lacks subject matter jurisdiction. The Court disagrees and, accordingly, will deny such motion. Also pending are cross-motions for summary judgment. In this Court’s opinion, defendant is entitled to summary judgment. I. The motion to remand raises a “preemption” iss...
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MEMORANDUM AND ORDER The United States of America moves for default judgment against certain real and personal property which it seeks to forfeit as the proceeds of narcotics trafficking. 21 U.S.C. § 881 (1988). Johnny Eng, indicted in this district in August 1989 for his alleged management of a continuing criminal heroin enterprise, United States v. Eng, 89 CR 255 (August 24, ...
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743 F. Supp. 448 (1990) Karen L. KOURI, Plaintiff, v. James N. TODD, et al., Defendants. Civ. A. No. 90-0582-A. United States District Court, E.D. Virginia, Alexandria Division. August 22, 1990. *449 Jesse James, Jr., Alexandria, Va., Jonathan E. Kaufmann, Kaufmann & Brick, Annandale, Va., for plaintiff. Julia Judkins, Lewis, Tydings, Bryan, Trichilo & Stock, P.C., Fairfax, Va., Philip J....
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MEMORANDUM OPINION AND ORDER Plaintiff Raymond Mack brings this action pursuant to 42 U.S.C. § 1983 (“§ 1983”) seeking damages and other relief against three Chicago police detectives and two private citizens. Briefly stated, the complaint challenges Mack’s arrest and his treatment during the investigation at the police station immediately following his arrest. The complaint is before the court...
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OPINION Plaintiff, International Ore and Fertilizer Corporation (“Interore”), brings this breach of contract, breach of warranty, negligence and misrepresentation action against defendant, SGS Control Services, Inc. (“SGS”), alleging that SGS improperly inspected and certified as suitable the holds of a ship hired by Interore to ship fertilizer from Tampa, Florida to New Zealand. Specific...
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743 F. Supp. 943 (1990) Kenneth D. GOLDBERG v. Dana WHITMAN, Jr., et al. Civ. No. H-88-840 (AHN). United States District Court, D. Connecticut. July 23, 1990. Reconsideration Granted August 15, 1990. *944 Martin S. Stillman, Stillman & DiCara, Rocky Hill, Conn., for plaintiff. William S. Zeman and Joel M. Ellis, West Hartford, Conn., for defendants. RULING ON MOTION FOR SUMMARY JUDGMENT NEVA...
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OPINION AND ORDER Plaintiff Saul Shapiro (“Shapiro”) moves for reargument of that part of the Opinion and Order of July 9, 1990 (“Opinion”) 741 F.Supp. 472 in the above captioned case which denied the portion of Shapiro’s motion for summary judgment which sought “a declaration that defendant County of Putnam [ (“County") ] is a responsible party within the meaning of [the Comprehensive En...
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ORDER This matter is before the court upon defendant’s motion to suppress items seized by law enforcement officers on October 11, 1989 from the defendant and his automobile, pursuant to Rule 12 of the Federal Rules of Criminal Procedure and the Fourth and Fourteenth Amendments to the United States Constitution. The Government opposes this motion on several grounds. After considering the briefs ...
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MEMORANDUM OPINION AND ORDER This is a police brutality action against the Village of Worth, Illinois (“the Village”), and four individual police officers employed by the Village. Count I of the complaint asserts liability pursuant to 42 U.S.C. §§ 1981, 1983 and 1988 and the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Count II asserts liability pursuant to var...
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I On January 12, 1990, Plaintiff filed a complaint claiming that the Defendants violated Envirotech’s constitutional rights to equal protection and due process of law by inappropriately processing its application for a waste disposal permit. 1 In the form of temporary relief, the Plaintiff petitioned this Court for an injunction prohibiting the Defendants from issuing any decisi...
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MEMORANDUM DECISION AND ORDER This is a motion under former F.R. Crim.P. 35(a) (“Rule 35(a)”) to correct an illegal sentence. Rule 35(a) provides: The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. 1 The issue presented is whether or not United ...
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MEMORANDUM Walter L. Nixon, Jr., was a United States District Judge for the Southern District of *10 Mississippi until removed from office on November 3, 1989, as a result of a conviction by the United States Senate on two of three Articles of Impeachment previously adopted by the House of Representatives. The impeachment derived from Nixon’s 1986 conviction on two counts of ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT BACKGROUND Plaintiff, Lawrence T. Palmer, filed the instant lawsuit on December 20,1988, seeking damages for injuries suffered as a result of an accident that occurred at Tripler Army Medical Center swimming pool on June 23, 1988. Plaintiff claims that he slipped and fell on steps that had been washed down by lifeguards that morning and were s...
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ORDER Between February 6, 1990, and March 14, 1990, plaintiffs Kathleen M. Paul, Pier-retta Alfiera, and Bruce Gorosh purchased approximately 500 shares of Lands’ End, Inc. (“Lands’ End”) common stock. Shortly after plaintiffs invested in Lands’ End, the company’s earnings declined. Having sustained a loss on their investment, plaintiffs instituted this securities action against Lands’ End and ...
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MEMORANDUM AND ORDER On June 14, 1987, according to plaintiff Cheryl Harrison (“Harrison”), the automobile in which her daughter, Jennifer Harrison (“Jennifer”), was riding as a passenger was struck by a train operated by defendant Burlington Northern Railroad Company (“Burlington”). Both Jennifer and the driver of the automobile, Jacqueline Hughes (“Jackie”), died from injuries sustained...
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OPINION AND ORDER The defendant has been indicted for unlawfully engaging in the business of importing, manufacturing and dealing firearms and for transporting firearms in interstate commerce in violation of 18 U.S.C. § 922. He now moves to suppress evidence recovered following his arrest, including twenty-one handguns recovered from the automobile which defendant was driving at the time of his ar...
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MEMORANDUM AND ORDER I This action was initiated by the Plaintiffs against eleven present and former state police officers. The Plaintiffs allege that their constitutional rights were violated on March 24, 1985, when the Defendants mistakenly obtained and executed a search warrant on the Plaintiffs’ home believing it to be the home of one Martin Moore, a neighbor of the Plaintiffs, who was the tar...
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MEMORANDUM AND JUDGMENT I The Plaintiffs, Susan Kilmer and Richard Schoch, were seriously injured on May 16, 1987, when the vehicle in which they were passengers left the highway on Route 209, Stroudsburg, Monroe County, Pennsylvania, and careened over an embankment. The vehicle in which they were traveling was owned by Defendant, Gwendolyn Hall. The operator of the vehicle at the time of the acci...
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MEMORANDUM OPINION AND ORDER Defendant has pled guilty to bank robbery and awaits sentencing. Pending is his motion for a downward departure from the guideline range in recognition of substantial assistance provided to the State of Illinois in the prosecution of two individuals. The government opposes such a departure. § 5K1.1 of the Sentencing Guidelines 1 allows the Court to depart on the...
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MOTION FOR RECONSIDERATION OR REHEARING This cause is before the Court on a motion for rehearing from an Appeal from the United States Bankruptcy Court for the Middle District of Florida, entered by this Court on June 12, 1990. 115 B.R. 368. FACTS This is a Chapter 7 case and the matter under consideration is the dischargeability vel non of certain debts owed to The Cadle Compan...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This cause is before the Court on both parties’ motions for summary judgment. FACTS The uncontroverted facts in this case are: 1. Edward L. French (Mr. French) rented a car from Alamo Rent-A-Car, Inc. (Alamo) and was involved in an accident on or about May 5, 1986. Thereafter, a civil action for damages against Mr. French and Alamo was filed by the operator of ...
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ORDER ON MOTION TO DISMISS This cause is before the Court on Defendants’ motions to dismiss filed on December 13, 1989, and response thereto, filed March 27, 1990. A trial court in ruling on a motion to dismiss for lack of standing must accept all material allegations of the complaint as true, and must construe the complaint in favor of the plaintiff. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2...
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MEMORANDUM OPINION In this consolidated action, plaintiffs American Continental Corporation and Lincoln Savings and Loan Association seek to regain operational control of Lincoln Savings and Loan Association. Plaintiff American Continental Corporation (“ACC”) is an Ohio corporation with its principal place of business in Phoenix, Arizona. Plaintiff Lincoln Savings and Loan Association (“Lincoln”)...
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MEMORANDUM OPINION Introduction This matter is before the court upon defendants’ motion for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The plaintiffs brought suit, pursuant to 45 U.S.C.A. § 152 et seq. (West 1986), alleging a breach of the duty of fair representation by the International Association of Machinist and Aerospace Worke...
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COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER This matter having gone to trial before the Court, sitting without a jury, the parties having presented their evidence and the Court having considered and heard the parties’ arguments with respect to damages, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT The Court entered its Amen...
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FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW This matter is before the Court after hearing and presentation of evidence and testimony on July 16, 1990. Plaintiff seeks a combined pension from both Defendants and asserts that he has met all of the requirements therefore. Defendants have denied that Plaintiff is entitled to a pension. In accordance with Rule 62, Fed.R. of Civ.P., the Court does...
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MEMORANDUM AND ORDER This is a civil action brought by two grandchildren of the late Dorothy B. Gal-breath against the estate of John W. Gal-breath, her late husband, as well as members of the Galbreath family and business entities owned or controlled by the Gal-breath family. Also named as defendants are the law firm of Bricker and Eckler, and John Eckler, David C. Cummins, Charles H. Wa...
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MEMORANDUM AND ORDER This action comes before me on defendant’s motion to dismiss for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). The plaintiff, A-Connoisseur Transportation Corp., a Massachusetts corporation which resided in Revere, Massachusetts during the relevant period, has filed a five count complaint against Celebrity Coach, Inc. (“Celebrity”) and United States Fidelity a...
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*30MEMORANDUM AND ORDER Presently before the court is defendant’s motion pursuant to Fed.R.Civ.P. 35(a) to compel a physical examination of the minor plaintiff in this case. Plaintiffs are seeking damages for minor plaintiff’s brain damage and retardation which they allege resulted from negligent neonatal care by physicians employed by the defendant. The defendant states that one of the defenses ...
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MEMORANDUM-DECISION AND ORDER Plaintiffs in this case are individuals who have been (since December of 1987, when a class was certified), are, or will be housed in the Protective Custody (“PC”) unit of Clinton Correctional Facility (“Clinton”). This case was filed in 1983 and is brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331. The plaintiffs seek injunctive relief to remedy alle...
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ORDER This matter is before the Court in accordance with a remand by the United States Court of Appeals for the Sixth Circuit (Doc. No. 99) and a hearing in open Court on February 28, 1990. The opinion of the United States Court of Appeals for the Sixth Circuit, 882 F.2d 1101, 1105 (6th Cir.1989), contains the following language: Thus, we remand the case for further findings of fact ...
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MEMORANDUM OPINION This matter is before the Court on defendants’ Motion to Dismiss. After having reviewed defendants’ motion, plaintiff’s response thereto, and after having heard oral argument from the parties, this Court is prepared to rule on the Motion. 1. BACKGROUND Plaintiff, formerly the largest single shareholder of Independent American Savings Association (“IASA”), a savings and loan loc...
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743 F. Supp. 364 (1990) Stephanie DePASQUALE v. AETNA LIFE INSURANCE CO., and Parelin USA, Inc. Civ. A. No. 89-6877. United States District Court, E.D. Pennsylvania. August 23, 1990. *365 Terry L. Fromson, Community Legal Services, Inc., Philadelphia, Pa., for plaintiff. Morton F. Duller, Rawle G. Henderson, Philadelphia, Pa., for defendant. MEMORANDUM LOUIS H. POLLAK, District Judge. Plaintiff ...
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OPINION AND ORDER Defendant City of Philadelphia has moved for summary judgment under Fed. R.Civ.P. 56(b) challenging plaintiff’s civil rights complaint as barred by Pennsylvania statutes of limitation.1 For the reasons stated below, defendant’s motion is granted. Upon review of the materials properly before the court and considering them in a light most favorable to the non-moving party, summary ...
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ORDER ON APPEAL This cause is before the Court on the appellant’s appeal from the Bankruptcy Court’s order extending the bar date for attorney fees, denial of motion to recuse, denial of a continuance of the Final Eviden-tiary Hearing, and award of fees to the original attorney for debtor. 95 B.R. 812. STANDARD OF REVIEW Findings of fact by the Bankruptcy Court will not be set aside unless clearl...
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MEMORANDUM OF OPINION AND ORDER This is an action under the Federal Election Campaign Act of 1971, as amended (“Act”), 2 U.S.C. §§ 431 et seq. Plaintiff, the Democratic Senatorial Campaign Committee (“DSCC”), seeks judicial review of a decision by the Federal Election Commission (“Commission”) dismissing a portion of a complaint brought by DSCC against the Auto Dealers and Drivers for Free Trade P...
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MEMORANDUM OPINION Plaintiff, proceeding pro se and in for-ma pauperis, is an inmate at a Federal Correctional Facility in Tennessee Colony, Texas. Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1977 & Supp.1990), plaintiff made a request to defendant Drug Enforcement Agency (DEA) for records concerning purported “government informants.” DEA denie...
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MEMORANDUM OPINION AND ORDER This case concerns the Secretary’s authority to reopen a determination for good cause under the Social Security regulations. Theodore Koolstra commenced this action challenging the Secretary’s decision to reopen a determination by the administrative law judge (AU) in his Social Security case. The Secretary moved to dismiss the complaint, arguing there was no s...
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743 F. Supp. 44 (1990) Alton A. BEST, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants. Civ. A. No. 89-3382-LFO. United States District Court, District of Columbia. August 10, 1990. *45 Stephen L. Braga, Jay L. Alexander, Miller, Cassidy, Larroca & Lewin, Washington, D.C., for plaintiffs. Harry Toussaint Alexander, Jr., Asst. Corp. Counsel, D.C., Correctional Litigation Section...
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OPINION and ORDER In this action, the parties seek, on the one side, to vacate a foreign arbitration award, and, on the other, to enforce that award pursuant to an international convention. This case, then, requires us to evaluate and apply the relevant standards for vacatur and enforcement of an award made under the aegis of the International Chamber of Commerce Court of Arbitration in P...
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MEMORANDUM Plaintiff 1756, Inc., petitioned the Immigration and Naturalization Service (INS) on behalf of plaintiff Stanislaus Noronha for a temporary visa. 1756 hoped to transfer Noronha for one year from a restaurant in Kuwait owned by its parent corporation to a newly opened operation in Florida. The INS’s Southern Regional' Center ("Region”) refused to issue an L-l visa for Noronha or...
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ORDER This case is before the Court upon defendant Anacomp’s motion for summary judgment. Plaintiff Proffitt contends that she was discharged due to sex and age discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Title VII), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (ADEA), and Ohio Rev.Code § 4112.99. Anaeom...
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OPINION This matter is before the Court on motions for a preliminary injunction filed separately by plaintiffs C & K Manufacturing & Sales Company 1 and JetNet Corporation in these consolidated actions. Upon consideration of the motions, the Government’s opposition thereto, and the entire record herein, plaintiffs’ motions are granted in part and denied in part. Backgrou...
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MEMORANDUM AND ORDER Defendant was indicted on one count of possession with intent to distribute cocaine on March 15, 1990. He moved to suppress evidence found in a search of his apartment. An evidentiary hearing was held. The court credited the testimony of the government agents and made the following findings of fact. One of the agents knocked on the door of defendant’s apartment. She prete...
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MEMORANDUM OPINION AND ORDER Plaintiff is the holder of Federal Trademark Registration No. 941,497 for use of the trademark “DAKOTA” on snowmobile suits, jackets, coats, coveralls, ski pants and jackets, and jumpsuits and jackets, in U.S. Class 39. Plaintiff has brought this action alleging that the defendant’s use of the trademark “DAKOTA SPORTSWEAR” infringes its trademark. This Court has feder...
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OPINION Arkwright Mutual Insurance Company (“Arkwright”) is an insurance company with offices in Massachusetts. It was the insurer under a blanket cargo policy held by Supermarkets General Corporation (“Supermarkets”) on the shipments of goods on Voyages 7 and 8 of M/V Oriental Fortune which are the subject of this litigation. Arkwright has paid the loss claimed by the insured and brings ...
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MEMORANDUM DECISION AND ORDER The plaintiff, retired Major General Richard V. Secord, filed the instant libel action against the defendants Leslie Cockburn, Andrew Cockburn, Morgan Entrekin, Atlantic Monthly Press, and Little, Brown and Company, Inc., arising out of the writing, publication and distribution of a book entitled Out of Control: The Story of the Reagan Administration’s ...
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ORDER INTRODUCTION In this action for declaratory relief, a proposed class of military veterans challenge the actions of the Department of Veteran’s Affairs (V.A.) in seeking deficiency judgments against them personally following non-judicial foreclosure of their V.A. insured home mortgages following default in loan payments by subsequent purchasers. The parties have stipulated ...
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MEMORANDUM Plaintiffs are a non-profit corporation, Citizens To End Animal Suffering And Exploitation, and two of its members, Doreen Close Lavenson and Mark Sommers. They allege that defendant, Faneuil Hall Marketplace, Inc., infringed their First Amendment right of free expression when it arrested Lavenson and Sommers on grounds of criminal trespass for distributing literature on land l...
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MEMORANDUM-DECISION AND ORDER Plaintiff Robert J. Neville, appearing pro se, commenced this action alleging deprivation of various constitutional rights and seeking injunctive relief declaring Section 90(10) of the Judiciary Law of the State of New York unconstitutional. All of the defendants have moved for dismissal of plaintiff’s complaint on numerous grounds, and certain defendants have mo...
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DECISION AND ORDER This action was filed on March 26, 1987 and assigned to Judge Terence T. Evans. The case was transferred to this court on November 4, 1987. Originally plaintiffs, Dennis and Star Langley, were joined with Gerald and Marcia Langley as plaintiffs in an identical case. The magistrate in the latter case ruled that the two sets of plaintiffs were impermissibly joined, and th...
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RULING ON DEFENDANTS’ MOTION TO DISMISS The pro se plaintiff in this case, Frank LoSacco (“LoSacco”), brought suit in December 1989, pursuant to 42 U.S.C. Section 1983 and Connecticut common law, against two officers of the Middletown Police Department, the City of Middletown, its former Mayor, the Chief of Police and the Deputy Chief of Police alleging that he had been falsely arrested. ...
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ORDER NO. 257 IN THE MATTER OF PERSONAL JURISDICTION 1 At the conclusion of plaintiffs’ case in chief various defendants 2 moved the Court *720 for a directed verdict 3 alleging they are not subject to personal jurisdiction in this forum. Defendants argue that plaintiffs failed to prove at trial the necessary facts to show that this Court is...
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MEMORANDUM AND ORDER Plaintiffs move for reargument of this Court’s Memorandum and Order that punitive damages are barred by the Warsaw Convention, or, if that is denied, for an Order pursuant to 28 U.S.C. § 1292(b) to *19 amend the Court’s Memorandum and Order to include a certification for an immediate appeal. Plaintiffs assert that reargument is warranted because this Court failed to fol...
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This case began on May 15, 1989 when a grand jury handed down a thirty-nine count indictment charging twenty-nine persons with conspiracy to violate the narcotics laws and various other offenses; a Superseding Indictment was filed on June 20, 1989, with four additional counts. 1 Thereafter, on August 9, 1989, the Court filed an Order severing the defendants and counts *1125 ...
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SPORKIN, District Judge. This case involves the application of the McNamara-O’Hara Service Contract Act, as amended, 41 U.S.C. § 351 et seq., to five United States Department of Navy (“Navy”) service contracts awarded variously to the Burnside-Ott Aviation Training Center, Inc. (“Burnside-Ott”) and the Dynalectron Corporation, now known as DynCorp (“DynCorp”). In this action, re...
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OPINION Plaintiffs James Wenzel (“Wenzel”) and David Crocker (“Crocker”) brought this action on behalf of themselves and a proposed class of plaintiffs. Wenzel and Crocker assert that the defendant Patrick Petroleum Company (“Patrick Petroleum”) violated § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1988), and Rule 10b-5 of the rules and regulations promulgated under...
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OPINION & ORDER This opinion arises out of the voluntary settlement in the action commenced by the plaintiffs United States of America (the “Government”) against the defendants International Brotherhood of Teamsters (the “IBT”) and the IBT’s General Executive Board (the “GEB”) embodied in the voluntary consent order entered March 14, 1989 (the “Consent Decree”). The remedial provisions in...
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MEMORANDUM AND ORDER Pending before the Court in the above-captioned case is the motion of defendant Century Products, Inc. (“Century”), for partial summary judgment. 1 The motion has been fully briefed and the Court is now prepared to rule without need for a hearing. Local Rule 105.6 (D.Md.1989). For the reasons set forth below, the motion will be denied. I. Background ...
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*171 MEMORANDUM OPINION This litigation arises out of alleged violations of the McNamara-O’Hara Service Contract Act, as amended, 41 U.S.C. § 351 et seq., by several defense contractors during the performance of five United States Department of Navy (“Navy”) service contracts. Plaintiffs Lloyd T. Danielsen, David W. King, and Jack Wagstaff 1 contend that def...
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Plaintiff, Northwestern National Insurance Company of Milwaukee, Wisconsin (“Northwestern”) has moved for leave to amend its complaint pursuant to Federal Rule of Civil Procedure 15(a) and for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a) on the basis of an amended complaint asserting the grounds of equitable, common law and contractual surety rights of exoneration ...
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MEMORANDUM and ORDER This is one of several recent federal prosecutions in this Court involving a motion to suppress evidence recovered during an ongoing interdiction operation by the federal *1219 Drug Enforcement Administration (“DEA”) at the interstate bus terminal in downtown Buffalo, N.Y. 1 See also United States v. Murguia-Rodriguez, unpublished opinio...
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OPINION AND ORDER This civil RICO action, to which various state law claims are appended, arises out of an employment relationship between the plaintiff and certain of the defendants. FACTUAL BACKGROUND 1 Plaintiff William Miller (“Miller”) was hired as an Executive Vice President of Brown Harris Stevens, Inc. (“BHS”) in February 1984, and subsequently became the president...
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MEMORANDUM OPINION On May 25, 1990, the parties to the class actions related to the above-captioned case, the “Brown” actions, presented to the court a proposed implementation order for a settlement agreement for those actions. This settlement agreement included an “opt-out” provision permitting class members to choose to participate in the Kamer-man action, in which there was no settlement, in...
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MEMORANDUM OPINION AND ORDER Six former employees of Bankers Life & Casualty Company (“Bankers”) bring this action on behalf of themselves and approximately 680 other individuals who retired from Bankers’ Home Office before January 5, 1987 and were adversely affected by changes in Bankers’ plan for employee and retiree health insurance, Group Policy 778 (the “Plan”). Plaintiffs bring this...
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OPINION AND ORDER This is an action brought by plaintiff, a registered securities broker-dealer, for damages arising out of stock transactions which occurred in October 1987. Plaintiff alleges that defendants have violated Sections 12(2) and 17 of the Securities Act of 1933, 15 U.S.C. §§ 111 and 77q, Sections 9(a) and 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78...
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MEMORANDUM OPINION AND ORDER On August 3, 1989 the Securities and Exchange Commission (“SEC”) brought this action against 14 individuals and two corporations, charging a large-scale securities fraud in the marketing and sale of low-priced securities (so-called “penny stocks”). This opinion deals with problems attendant on SEC’s claims against Thomas Quinn (“Quinn”), who has been incarcerated thro...
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MEMORANDUM OPINION AND ORDER Before the Court is the motion of defendant, Transtech Service Network, Inc. (TSN) to dismiss the Complaint of the plaintiff International Honeycomb Corp. (IHC) under Federal Rule of Civil Procedure 12(b) or transfer the complaint to the Eastern District of New York pursuant to 28 U.S.C. § 1404. FACTS TSN is a New York corporation with its principal ...
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*499MEMORANDUM OPINION AND ORDER Attorneys Boyd McDowell III (“McDowell”) and Anthony Colantoni (“Colantoni”) have just sued Department of Health and Human Services Secretary Louis Sullivan (“Secretary”), asserting Secretary’s failure to perform the obligations imposed on him by 42 U.S.C. § 300aa-10(e):1 The Secretary shall undertake reasonable efforts to inform the public of the availability of t...
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*794MEMORANDUM DECISION AND ORDER This matter is before the court on the defendant’s motion to dismiss. A hearing was held on June 11, 1990, at which the plaintiff was represented by Blake T. Ostler, and the defendant was represented by James R. Brown. The court had carefully read the relevant documents submitted by the parties before the hearing, and at the conclusion of the hearing, the court t...
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OPINION AND ORDER This is an action for injunctive and declaratory relief and damages brought by a former partner in the law firm of LeBoeuf, Lamb, Leiby & MacRae (“LLL & M”). Plaintiff alleges that the individual partners of LLL & M have violated the Employee Retirement Income and Security Act of 1974, 29 U.S.C. §§ 1132(a)(1)(B), (a)(8) and 1140, as amended, (“ERISA”) and the Racketeer I...
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743 F.Supp. 626 (1990) Thomas E. ZABLOCKI and Jean J. Zablocki, Plaintiffs, v. John D. HUBER, Michael N. Maciejewski, Richard Keskey, and American Title Insurance Company, a Florida corporation, Defendants. No. 88-C-1237. United States District Court, E.D. Wisconsin. July 27, 1990. *627 Pfannerstill & Camp by Mark M. Camp and Thomas Kreul, Wauwatosa, Wis., for plaintiff. Halling & Cayo by...
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OPINION Sakharam D. Mahurkar, a physician, holds several patents on dual-lumen hemo-dialysis catheters. A dual-lumen catheter is a pair of tubes (lumens) designed to allow blood to be removed from an artery, processed in a machine that removes impurities, and returned close to the place of removal. Hemodialysis catheters are used to palliate kidney failure. In the event of chronic fa...
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MEMORANDUM OPINION Presently pending in this civil action are cross-motions for summary judgment filed by both plaintiffs and defendants. Plaintiffs are the International Caucus of Labor Committee (hereinafter “I.C.L.C.”) and one of its members, David McVey. Plaintiffs have here sued the Motor Vehicle Administration (hereinafter the “MVA”) of the Maryland Department of Transportation, as ...
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MEMORANDUM OPINION AND ORDER DENYING MOTION TO WITHDRAW REFERENCE In the midst of Chapter 7 bankruptcy proceedings, including an adversary proceeding between the parties, plaintiff Auto Specialties Manufacturing Company (“AUSCO”) has moved the court pursuant to 28 U.S.C. § 157(d), to withdraw the reference of the adversary proceeding to the Bankruptcy Court. Defendant Manufacturers Nation...
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DECISION AND ORDER The plaintiff, an inmate at the Green Bay Correctional Institution, alleges that various correctional officers beat him. This case was referred to the magistrate for all pretrial proceedings. 28 U.S.C. § 636(b)(1)(A). On May 24, 1990, Magistrate Robert L. Bittner issued an order resolving the discovery disputes between the parties in the instant case. The plaintiff has lodged ob...
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OPINION This matter is before the Court on defendant’s motion for summary judgment. Plaintiff contends that he was compelled to retire at age 70 in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. § 623 (West 1985 & Supp.1990). Defendant moves for summary judgment on the grounds that plaintiff falls within an exemption to the ADEA which permits compulsory retirement if ce...
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MEMORANDUM In this negligence action brought by a worker against Koch Industries, a manufacturing firm that had hired the plaintiff’s employer, Matlack Systems, Inc., to ship its product, Koch has filed a third-party complaint against Matlack pursuant to an indemnification agreement between them. Matlack has moved to dismiss this third-party complaint. This motion shall be denied. I....
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MEMORANDUM The plaintiffs, proceeding under 42 U.S.C. § 1983, seek damages from the defendants, police officers and their employer, for alleged police brutality. The plaintiffs have also requested attorney’s fees under 42 U.S.C. § 1988. The defendants have now moved for an order requiring counsel on both sides to submit their monthly invoices to the defendants’ counsel under seal. This motion sha...
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MEMORANDUM OPINION This is a collection action brought by the Trustees of the Freight Drivers and Helpers Local Union No. 557 Pension Fund (“Fund”) against defendants Centra, Inc., General Highway Express, Central Transport, Inc., GLS Leasco, Inc., Central Cartage, Inc. and Mason and Dixon Tank Lines pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 ...
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MEMORANDUM I. Introduction. This is a product liability action. Plaintiffs 1 allege that on January 12, 1985 a Winchester Model 1897 shotgun discharged and injured plaintiff Tara Tracey. Plaintiffs’ Complaint contains five counts alleging strict liability, negligence, breach of warranty, medical expenses and wanton, reckless and/or intentional misconduct. Defendants ...
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MEMORANDUM OPINION AND ORDER This Court’s threshold July 27, 1990 memorandum opinion and order (the "Opinion”), issued sua sponte pursuant to its regular practice of conducting an initial review of every complaint newly assigned to its calendar, 1 directed the attention of counsel for plaintiff Steven Scholes (“Scholes”) 2 to possible subject matter jurisdictional pr...
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743 F. Supp. 758 (1990) Isaac L. PUNAHELE, Plaintiff, v. UNITED AIR LINES, INC., a Delaware corporation, Defendant. Civ. A. No. 89-B-1087. United States District Court, D. Colorado. August 24, 1990. Barry D. Roseman, Denver, Colo., for plaintiff. Michael D. Nosler, Frances B. McDonald, Rothgerber, Appel, Powers & Johnson, Denver, Colo., for defendant. MEMORANDUM OPINION AND ORDER BABCOCK, Di...
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MEMORANDUM This matter was submitted to this Court on the parties’ stipulations. This Court having considered the pleadings, the documents in evidence and the stipulations of the parties, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law. Fed.R. Civ.P. 52. I.FINDINGS OF FACT Parties and Jurisdiction 1. Plaintiff Justine Realty Company (“...
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MEMORANDUM AND ORDER At issue in the plaintiff’s application for a preliminary injunction is whether the defendants’ denial of the plaintiff’s request to distribute noncommercial religious pamphlets in a limited area of Jones Beach State Park comports with the First Amendment to the United States Constitution. The Court concludes that the defendants’ action in denying a limited permit to the plai...
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MEMORANDUM This case comes before me on remand from the Court of Appeals for the Third Circuit for further consideration of the in-junctive relief to be granted in light of its opinion in Northeast Women’s Center, Inc. v. McMonagle, 868 F.2d 1342 (3d Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 261, 107 L.Ed.2d 210 (1989). Before the court is the motion of the pl...
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MEMORANDUM AND ORDER The above-numbered civil suits were consolidated for trial before the Court without a jury. The Plaintiff Oses is an inmate incarcerated in the Massachusetts Correctional system. The Court has dismissed all defendants from the case with the exception of John Cummings who is an employee of the Massachusetts Department of Corrections. The Supreme Court has held that the Eig...
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MEMORANDUM OF DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEAN WITTER’S MOTION FOR SUMMARY JUDGMENT Defendant Dean Witter Reynolds Inc. moves for summary judgment on plaintiff’s *1395 complaint for copyright infringement and breach of contract, viz., breach of a settlement agreement. A hearing was held on February 26, 1990, and the Court took defendant’...
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*496 ORDER Upon the petition of the Department of Veteran’s Affairs Medical Center, a medical facility owned and operated by the Department of Veteran’s Affairs, located in the Bronx, New York, and upon all of the testimony received at an emergency hearing before the Court on August 16, 1990, and based upon our findings dictated into the stenographic record at the conclusion of the hearing, u...
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OPINION AND ORDER This matter is before the Court upon the filing of objections to the Magistrate’s Report and Recommendation. The Magistrate, after consideration of various motions for summary judgment and for judgment on the pleadings, recommended dismissal of several defendants and claims in these matters. Various parties have now objected to all or part of his Report and Recommendatio...
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MEMORANDUM OPINION AND ORDER In United States v. Bermudez, 742 F.Supp. 556 (C.D.Cal.1990) (Bermudez I), the Court held that defendant’s enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was an illegal sentence. The ruling was based on then-binding circuit law that “burglary” under the ACCA was limited to common law burglary. See ...
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MEMORANDUM AND ORDER David Raff (“plaintiff”) initiated this action to recover fees with respect to his service as arbitrator in connection with a labor dispute. Defendant Maggio, as the employer involved with the arbitrated labor dispute, is liable for half the cost of the arbitrator’s fees pursuant to a collective bargaining agreement. Currently before the Court are the parties’ cross-m...
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MEMORANDUM OPINION AND ORDER On February 22, 1990, the United States Bankruptcy Court for the Northern District of Illinois ruled that United States Fidelity & Guaranty Company (“USF & G”), the largest unsecured creditor of debt- or Wayne J. Klein, could not vote for the permanent trustee in a Chapter 7 proceeding. In re Wayne Klein, 110 B.R. 862 (Bankr.N.D.I11.1990). The bankr...
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MEMORANDUM-DECISION AND ORDER Introduction Plaintiffs, shareholders in Continental Information Systems, Inc., have brought suit against certain of the corporation’s officers and directors alleging that the defendants made material misrepresentations and omissions in information provided to the investing public, in violation of Sections 10(b) and 20(a) of the Securities and Exchan...
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746 F. Supp. 633 (1990) STAR BRITE DISTRIBUTING, INC., Plaintiff/Counter-Defendant, v. David C. GAVIN and Gary L. Geeslin, Defendants/Counter-Plaintiffs/Third-Party Plaintiffs, v. OCEAN BIO-CHEM, INC., Peter G. Dornau, Star Brite Distributing (Canada), Inc., and F.K.M., Inc., Third-Party Defendants. Civ. A. No. EC 89-208-D-D. United States District Court, N.D. Mississippi, E.D. August 23, 1990. *...
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Counsel have concluded their arguments and I think we’ve all spent enough time on this case, so I’m going to try to decide it. It is a unique case in many respects. The preponderance of the evidence shows that the plaintiffs owned the 1931 Estey Baby Grand piano and that it was completely reconstructed and refurbished in the Bay area by Stone Piano Company and Schmalz & Nelson. It was move...
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MEMORANDUM OPINION AND ORDER The plaintiff, Bruce Hollister, originally filed this civil declaratory judgment action on April 17, 1990, in the Circuit Court for the Sixteenth Judicial Circuit, Kane Coun*847ty, Illinois, seeking a declaration of rights under a policy of insurance issued by the defendants. The defendants removed the action to this Court, on the ground that the suit, predicated excl...
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743 F. Supp. 103 (1990) UNITED STATES of America v. ONE PARCEL OF REAL PROPERTY WITH BUILDINGS, APPURTENANCES, AND IMPROVEMENTS KNOWN AS 190 COLEBROOK ROAD, Located in the TOWN OF LITTLE COMPTON, RHODE ISLAND. Civ. A. No. 89-0372-T. United States District Court, D. Rhode Island. August 29, 1990. *104 Michael Iannotti, Asst. U.S. Atty., Dept. of Justice, Providence, R.I., for plaintiff. Joseph T. ...
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MEMORANDUM OF DECISION The plaintiff class was certified by this court on March 14,1988, and consists of all persons who have been or will be denied benefits under the California Medicaid program because they have been found to be ineligible for federal Supplemental Security Income (“SSI”) benefits. The plaintiffs challenge the policy adopted by the Secretary of Health and Human Resources...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT The undisputed factual background for this cause is set forth in the court’s Order on Motions to Dismiss and to Abstain from Exercising Jurisdiction, published at 735 F.Supp. 907 (N.D.Ind.1990). The single issue presented here is the legal question whether the Private Express Statutes, 1 recently interpreted by the Supreme Court in Regents of the Unive...
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*576ORDER Hector Juan Rivera, an inmate at Pontiac Correctional Center, is currently serving a 40-year prison term for a gang-related street shooting. Rivera now petitions the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the court denies Rivera’s petition. FACTS On November 21, 1983, Jose Rodriguez and Israel Delgado were shot while standing in a s...
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Before the Court is plaintiff Resolution Trust Corporation’s (“RTC”) Motion To Dissolve Injunctions. Because the positions asserted by the plaintiff have merit, the Court grants the motion and dissolves the injunctions entered by the state trial court before the removal of these cases to this Court. Background In December 1981, Wade T. Verges approached Security Homestead Associat...
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ORDER AND REASONS This matter comes before the Court on the plaintiffs’ motion to remand the case to the District Court for the Parish of Orleans. After reviewing the motion, memo-randa of counsel, the record and the law, the Court grants the motion because the case is not a civil action over which this Court has subject matter jurisdiction. 1 *350 FACTS On June...
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MEMORANDUM AND ORDER I. BACKGROUND This is an action by the parents of a young man who recently died of AIDS in which the parents seek to recover the proceeds of a policy of insurance on their son’s life. The insurer’s records indicate that the decedent never designated a beneficiary. In the absence of such a designation, the policy provides for payment to the following persons, if any, in th...
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MEMORANDUM-DECISION AND ORDER Plaintiffs Robert and Susan Joki commenced this action on September 19, 1989. Plaintiffs seek to permanently enjoin defendants from displaying a particular painting in the Schuylerville High School auditorium. Presently before the court is plaintiffs’ motion for summary judgment. BACKGROUND Plaintiffs Robert and Susan Joki, after attending a function in Schuylerville ...
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MEMORANDUM Defendant moved for summary judgment, pursuant to Fed.R.Civ.P. 56(b), dismissing plaintiffs amended complaint. Plaintiff opposed defendant’s motion; additionally, plaintiff moved for partial summary judgment pursuant to Fed.R.Civ.P. 56(a). In an opinion dated May 30, 1990, we granted defendant’s motion for summary judgment and dismissed as moot plaintiff’s motion for partial su...
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MEMORANDUM OPINION AND ORDER Defendant, Howard Gordon, was indicted on one count of being a felon in possession of a firearm in contravention of 18 U.S.C. § 922(g). 1 Defendant is alleged to have illegally possessed an AK-47 semi-automatic assault rifle during the sale of said weapon in an undercover operation executed by special agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) on ...
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OPINION ON REMAND Marjorie F. Pickett has sued Cigna Healthplan of Texas, Dr. Wylie Tjoa, Dr. Milton Thomas, and Dr. William Huang for medical malpractice in state district court. Cigna removed the case. Because it does not present a question under ERISA, it will be remanded to the 215th Judicial District Court of Texas, Harris County. Employee Retirement and Income Security Act of 1974, 29 U.S...
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746 F. Supp. 178 (1990) Christine M. TOWNSEND, Plaintiff, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant. Civ. A. No. 89-1247 (CRR). United States District Court, District of Columbia. August 31, 1990. *179 Douglas B. Huron of Kator, Scott & Heller, Washington, D.C., for plaintiff. James W. Morrison, Asst. Gen. Counsel, Robert J. Kniaz, Acting Deputy Gen. Counsel, Washington, D....
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743 F. Supp. 289 (1990) Gloria HELMAN, individually and, as a representative of the estate of Sandra Mendelson, Plaintiff, v. MURRY'S STEAKS, INC., Murry Mendelson, Ira Mendelson and The Rymer Company, Defendants. Civ. A. No. 86-469 LON. United States District Court, D. Delaware. August 29, 1990. *290 Leone L. Ciporin of Lassen, Smith, Katzenstein & Furlow, Wilmington, Del., for plaintiff; En...
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Plaintiff, a GS-12 Project Analyst in the United States Department of Education’s Office of Elementary and Secondary Education (“Department”), is suing the Secretary of Education for age and handicap discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act...
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ORDER ON APPEAL OF SECRETARY’S DENIAL OF BENEFITS This social security appeal is before the Court on the Complaint of the plaintiff for review of the Secretary’s denial of benefits. The issues raised have been briefed and are ready for resolution. For the reasons forth below, the Court hereby AFFIRMS IN PART and REMANDS IN PART this case to the Secretary for further proceedings at Step Fi...
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ORDER This matter is before the Court on the Motion to Compel Interrogatory Answers filed by the defendant, Bethlehem Steel Corporation, on February 23, 1990. For the reasons set forth below, the Motion is DENIED. George Bottorff, the husband of the plaintiff, Janice Bottorff, was killed while working at Bethlehem’s Burns Harbor Plant. At the time of his death, Bottorff was employed by Serstell C...
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OPINION Defendants Metropolitan Transportation Authority (“MTA”), Metro-North Commuter Railroad Company (“MetroNorth”), Peter Stangl (“Stangl”), Thomas Constantine (“Constantine”), Raymond Burney (“Bur-ney”), and New York State (the “State”) move for dismissal of plaintiff Richard De-Clara's (“DeClara”) complaint, under either Rule 12(b)(1) or 12(b)(6), Fed.R.Civ.P. For the reasons set fo...
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MEMORANDUM AND ORDER Plaintiff, Arkansas State Bank Commissioner, brings this action for declaratory and injunctive relief against the Resolution Trust Corporation, the Federal Deposit Insurance Corporation, and Robert L. Clarke *551 in his official capacity as the Comptroller of the Currency. Relief is requested pursuant to 12 U.S.C. § 36(c); 12 U.S.C. § 1823(k) of the Finan...
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ORDER RATIFYING MAGISTRATE’S REPORT AND DENYING PETITION FOR WRIT OF HABEAS CORPUS THIS CAUSE came before the Court upon Magistrate Linnea R. Johnson’s Report & Recommendation on Plaintiff’s Petition for Writ of Habeas Corpus which recommended that the petition be denied. THE COURT has heard oral argument, considered the Report & Recommendation, the objections and responses thereto, ...
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MEMORANDUM OPINION The above-captioned case arrives in this Court after an international business deal involving a Royal Jordanian Airlines (“Airlines”) passenger jet airliner went awry. To assist them in achieving their goal of purchasing and then selling the airplane for a profit, the plaintiffs enlisted the defendants’ assistance. Although the precise contours of the relationship betwe...
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ORDER REVERSING BANKRUPTCY COURT AND REMANDING FOR FURTHER PROCEEDINGS THIS CAUSE came before the Court upon THEODORE B. GOULD, MIAMI CENTER CORPORATION, MIAMI CENTER LIMITED PARTNERSHIP, CHOPIN *878 ASSOCIATES and HOLYWELL CORPORATION’S consolidated appeal from three orders entered by the United States Bankruptcy Court in an Adversary Proceeding. The appealed orders are as follows: 1. Orde...
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743 F. Supp. 379 (1990) NORTHERN INSURANCE COMPANY OF NEW YORK, Plaintiff, v. AARDVARK ASSOCIATES, INC. and Insurance Company of North America, Defendants. Civ. A. No. 86-108E. United States District Court, W.D. Pennsylvania. August 29, 1990. George I. Buckler, Meyer Darragh Buckler Bebenek Eck, Pittsburgh, Pa. and Thomas R. Brunner, Piper & Marbury, Washington, D.C., for Northern Ins. Co. of...
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OPINION I. OVERVIEW This action was brought by four mul-tiemployer pension funds, for inter alia, the collection of withdrawal liability from the Defendant Laidlaw Transportation, Ltd. (“Laidlaw, Ltd.”) and all the corporations under common control with Laidlaw, Ltd. (collectively referred to as the “Defendants”). The Plaintiff pension funds are: The New York State Teamste...
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ORDER ON APPEAL FROM DECISION OF BANKRUPTCY COURT I. Introduction: On its surface, this bankruptcy appeal presents an easy case to resolve. As will be seen, though, first impressions are often deceiving. The central issue is whether an agreed judgment entered into in state court by the debtors and the creditors in a pre-bankruptcy action should be given collateral estoppel ef...
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743 F. Supp. 856 (1990) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant, v. KLOSTER CRUISE LIMITED d/b/a Norwegian Cruise Lines, Respondent. No. 89-0732-CIV. United States District Court, S.D. Florida. July 26, 1990. Angelo Filippi, Sr. Trial Atty., E.E.O.C., for applicant. J. Alberto Gonzalez-Pita, McDermott, Will & Emery, Miami, Fla., for respondent. ORDER DENYING ENFORCEMENT OF ADMINIS...
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OPINION This is the most recent proceeding in lengthy desegregation litigation that traces *307its origins to the landmark decisions of the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I) and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II).1 In the mid-1970’s, a three-judge court determined that the Wilmington schoo...
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OPINION John Healey, a professional investor and resident of New York instituted this action against Chelsea Resources, Ltd. (“Chelsea”), a Canadian corporation, Dominick & Dominick Securities, Inc. (“Dominick Canada”) and Dominick & Dominick, Inc. (“Dominick U.S.”) alleging violations of § 12(2) of the Securities Act of 1933, 15 U.S.C. § 111(2), § 10(b) of the Securities Exchange Act of 1934, 15...
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MEMORANDUM OPINION AND ORDER According to their Complaint, Dr. Sam Shushan and Dr. Erik Bonde, the two named plaintiffs, are full-time, tenured professors of biology in the University of Colorado at Boulder’s College of Arts and Sciences. Professor Shushan is 67 years old, has been employed by the University for approximately 40 years, and is paid an annual salary of $26,118.00. Professor Bonde i...
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743 F. Supp. 369 (1990) INSTITUTE FOR SCIENTIFIC INFORMATION, INC. v. GORDON AND BREACH, Science Publishers, Inc. and Scientific Technical Book Service, Ltd. Civ. A. No. 89-6730. United States District Court, E.D. Pennsylvania. August 30, 1990. *370 Arthur Seidel, Philadelphia, Pa., for plaintiff. James J. Rodgers, Philadelphia, Pa., for defendants. *371 MEMORANDUM ROBERT F. KELLY, District Jud...
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OPINION Presently before the Court is the petition of the United States (the “Government”) for an order summarily enforcing a subpoena duces tecum issued by the Inspector General (“IG”) upon the respondent to produce certain records and documents as set forth in the subpoena. See Docket Items (“D.I.”) 1, 2. See also D.I. 1 at Attachment F. The Respondent, Paul L. Tee...
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MEMORANDUM OPINION AND ORDER Plaintiff Haydee Ruiz brings this action for false arrest pursuant to 42 U.S.C. *942 § 1983 and under a theory of common law negligence. The case is before the Court on the motion for summary judgment of defendants Herrera, Earley, Krzeminski and Monroe, and on the motion to dismiss of defendant Burden. Background Haydee Ruiz is a resident of Bridgeport, Con...
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OPINION Plaintiff Imperial Chemical Industries, PLC (“ICI”) brought this patent infringement action against Defendant Danbury Pharmacal, Inc. (“Danbury”) on October 19, 1989. 1 The subject patents are United States Patents 3,836,671 (the “ ’671 patent”) issued to ICI on September 17, 1974 and 3,934,032 (the “ ’032 patent”) issued to ICI on January 20, 1976. 2 The ’67...
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743 F. Supp. 293 (1990) TERRA NOVA INSURANCE COMPANY, LTD., Plaintiff, v. NANTICOKE PINES, LTD. and Kevin L. Gibbs, Defendants. Civ. A. 89-75-CMW. United States District Court, D. Delaware. August 29, 1990. *294 Mason E. Turner, Jr. of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del. (Jonathan Dryer, and Margaret Sherry Lurio of Wilson, Elser, Moskowitz, Edelman & Dicker, Phil...
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OPINION Plaintiff moves, pursuant to the Handicapped Children’s Act of 1986, 20 U.S.C. § 1415(e)(4)(B), for attorneys’ fees and costs in the amount of $102,315.50. Defendant argues that the attorneys’ fees should be substantially reduced and suggests the amount of $14,341.60. I. This case arrives at this point in the proceedings with a fairly long and complex background, with which familiarity is...
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743 F. Supp. 1302 (1990) William OZZELLO and Marlene Ozzello, Plaintiffs, v. PETERSON BUILDERS, INC., Defendant. No. 89-C-85. United States District Court, E.D. Wisconsin. August 24, 1990. *1303 Michael Tarnoff, Milwaukee, Wis., for plaintiffs. Dennis Minichello, Chicago, Ill., for defendant. OPINION AND ORDER CURRAN, District Judge. On June 18, 1987, William Ozzello fell on a hose aboard the MC...
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OPINION AND ORDER Deborah Pfeifer commenced the above-captioned case against the City of Brook-field (Wisconsin), former Brookfield police officer Stephen McNeill, and their insurers seeking compensatory and punitive damages for depriving her of rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution. She seeks relief under section one of the Ku Klux Kl...
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MEMORANDUM OPINION AND ORDER Plaintiff, as trustee of a trust, filed this action on October 1, 1985. Various pendent claims arising under state law have been eliminated, and the case now involves only a single claim for relief under section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C.A. § 78j(b) (West 1981), and rule 10b-5 promulgated thereunder. Plaintiff contends that defendants,...
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Jerome S. Cardin filed suit against Pacific Employers Insurance Company (Pacific), his legal malpractice insurer, in order to recover attorneys fees Cardin incurred in defending a civil suit for negligence and legal malpractice. Pacific has denied that it must pay these fees, arguing that it in fact provided counsel for Cardin and thereby satisfied its duty to defend its insured under the polic...
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Pasquale Maiorino, appearing pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). In 1980, after a jury trial in the New York State Supreme Court, New York County, Maiorino was convicted of murder in the second degree (New York Penal Law § 125.25[1]) for having intentionally caused the death of Clay Delauney, and attempted murder in the second degree (New York Pena...
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OPINION AND ORDER This copyright infringement action is before the Court on plaintiffs’ motion to dismiss the three-count antitrust and copy *323 right misuse counterclaim and to strike the affirmative defenses of defendant Hearst/ABC Viacom Entertainment Services d/b/a Lifetime Television (“Lifetime”). Fed.R.Civ.P. 12(b)(6), (f). Frances W. Preston also moves to dismiss the ...
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AMENDED. OPINION AND ORDER This is a motion by defendants and a cross-motion by plaintiff for summary *199 judgment pursuant to Federal Rule of Civil Procedure 56. BACKGROUND Plaintiff is a national wholesale jewelry-manufacturer based in New York City and sells gold jewelry to major retail chain stores in other cities in the United States. On July 18, 1988, Mr. John Paist (“Paist”), as a...
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755 F.Supp. 314 (1990) Kenneth ROSSI and Anita Rossi, dba Princeton Investment Company, Plaintiffs, v. UNITED STATES of America, B.J. Peters, James Meler, and Carmen Meler, Defendants. Civ. No. 89-6317-JO. United States District Court, D. Oregon. August 29, 1990. *315 Kenneth Rossi and Anita Rossi, Bandon, Or., pro se. Charles H. Turner, U.S. Atty., Portland, Or., David M. Katinsky, Trial Atty., ...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff filed a complaint in the Superior Court, Suffolk County, Massachusetts, alleging discrimination on the basis of handicap, under Mass. Const, amend, art. CXIV and Mass. Gen. L. ch. 12, §§ 11H and 111. Plaintiff later amended her.complaint to plead, in addition, discrimination in employment under Mass. Gen. L. ch. 151B, §...
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OPINION AND ORDER Plaintiff sues for breach of an insurance contract involving an alleged car theft. Defendant now moves pursuant to Fed.R. Civ.P. 12(b)(6), 12(c) and 12(h)(2) to dismiss the complaint insofar as it seeks $500,000 in punitive damages and any attorney’s fees. The Government has intervened requesting an order quashing the subpoenas served by plaintiff on the Federal Bureau of Inve...
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ORDER This cause is before the Court on a motion to dismiss filed on behalf of Defendants Jeremy Margolis and the Department of Illinois State Police. Defendants assert that Plaintiffs claim under the Age Discrimination in Employment Act (ADEA) must fail because Plaintiff is a state policeman and is not protected from mandatory retirement under the ADEA. Defendants further assert that Pla...
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OPINION AND ORDER Defendants move, pursuant to Federal Rule of Civil Procedure 52(b), for an amendment to the findings of fact and conclusions of law contained in the Opinion and Order of June 5, 1990 (“the Opinion”) in the above captioned cases. 739 F.Supp. 814. This motion pertains to the portion of the Opinion which found that defendants had violated the due process rights of permanent emplo...
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On October 31, 1979, following the defendant’s failure to appear personally before a French court to face criminal charges of fraud and breach of trust perpetrated upon the public, the Tribunal de Grande Instance de Paris (Court of First Instance of Paris and hereinafter the “French Court”) held the defendant in default and entered a judgment of guilty against him. The French Court sentenced th...
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CORRECTED ORDER GRANTING DEFENDANT’S MOTION TO EXPUNGE CRIMINAL RECORD On August 24, 1990, the Motion of Defendant James P. Smith (Hereinafter “Defendant”) to Expunge his Criminal Record pursuant to the inherent equitable powers of the Court came on for a hearing before the Court. The Court has studied and analyzed the moving and opposing papers and the oral argument of counsel and makes the foll...
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MEMORANDUM OPINION AND ORDER On August 20, 1990 a divided en banc Seventh Circuit affirmed this court’s ruling that Superintendent of Police Fred Rice was not entitled to qualified immunity from suit with regard to the claims presented by plaintiffs in Counts III and V of the Second Amended Complaint. 1 Auriemma v. Rice, 910 F.2d 1449 (7th Cir.1990). The parti...
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MEMORANDUM OPINION These two lawsuits are now before the court on a motion filed by class representatives of all female police officers in the City of Montgomery Police Department, claiming that the recent promotion of six males, but no females, to the rank of captain violated the department’s court-ordered interim promotion plan. For reasons that follow, the court finds that the female officer...
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MEMORANDUM AND ORDER Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendant S & T Manufacturing (“S & T”) and defendant Saul Spector move for summary judgment against plaintiff Steco, Inc. (“Steco”) on Counts I and II of the complaint, which allege violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, because they contend that plain...
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OPINION At issue in this case is the validity under the Fourteenth Amendment of the Affirmative Action Plan of the Michigan Department of Transportation (MDOT) and, inferentially, the affirmative action policies of the entire State of Michigan. For the reasons stated herein, the Court finds that Plaintiff has no basis for complaint under the Fourteenth Amendment, and that MDOT’s Affirmative Act...
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OPINION AND ORDER This is defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. BACKGROUND Plaintiff’s predecessor in interest, Wild Bill Realty Corp., and defendant entered into a contract of sale (the Contract) in June 1987 for the 42 unit building at 225 West End Avenue, New York, New York (the Premises).1 Plaintiff alleges that de*68fendant committed fraud by...
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MEMORANDUM AND ORDER In this case, Franklin Savings Association (“Franklin” or “the institution”) and Franklin Savings Corporation (“FSC”) challenge the Office of Thrift Supervision’s (“OTS” or “the regulator”) February 15, 1990, decision to appoint the Resolution Trust Corporation (“RTC”) as conservator for the institution. Franklin attacks the legality of the appointment and seeks remov...
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MEMORANDUM OPINION Presently before this Court are cross motions for Summary Judgment filed by the parties in this case. The issues have been fully briefed and material facts stipulated. No hearing is deemed necessary. Local Rule 105.6 (D.Md.). FACTS Plaintiff Cumberland Typographical Union No. 244 (“Union”) is the exclusive representative of composing room employees (“employees”) working for Def...
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MEMORANDUM OPINION AND ORDER Each of the two defendants in this case, Norman Jacobs (“Jacobs”) and Rex Rasmussen (“Rasmussen”), has filed a motion to dismiss the indictment against him on grounds of outrageous government misconduct and pre-indictment delay. For the reasons set forth below, at this time, the Court denies the motions of both defendants without an evidentiary hearing. I. Facts In an ...
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MEMORANDUM OPINION AND ORDER Plaintiff, Tamara Class, filed a two count complaint against defendants, New Jersey Life Insurance Company (“the company”), and its employee, William Winsberg. Count I alleges that defendants engaged in sexual harassment and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. sections 2000e et seq. The gravamen of Count II of...
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MEMORANDUM OPINION AND ORDER This Court’s August 20, 1990 memorandum opinion and order, 132 F.R.D. 498 (the “Opinion”) was issued sua sponte after this Court had performed its universally-followed practice of reviewing newly-filed complaints for potential subject matter jurisdictional problems.1 After identifying some of the relevant considerations, Opinion at 500 directed plaintiffs Boyd McDowel...
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MEMORANDUM AND ORDER This matter is before the Court on two motions for preliminary injunctive relief brought by plaintiff. Upon review of the file, the Court notes that the case is substantially duplicative of an action previously brought by plaintiff, Sassower v. Carlson, et al., CIVIL 4-90-511, which was dismissed by another judge of this Court on August 20, 1990 under 28 U.S.C. § 1915(d) ...
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MEMORANDUM AND ORDER Plaintiff Ray Kim Ford, Inc., (Ford) filed this action against Dolour Daoud charging that he violated both federal and Illinois law when he traded in a used car. Count I alleges that Daoud turned back the odometer. Counts II and III allege that Daoud failed to properly disclose that he knew that the odometer reading was inaccurate. We have before us plaintiff’s motion for summ...
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This case was originally tried before this court without a jury on April 8, 1987. The plaintiff, Alice Gary, was employed by the defendant as a licensed nurse from April 1983 through September 1984. Gary worked at Cedar Hills Nursing Home on an eight hour shift with a paid thirty-minute lunch break. Because Cedar Hills considered this to be a “bona fide” lunch period during which the plaintiff ...
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*438 TABLE OF CONTENTS I. FACTS AND PROCEDURE. A. Defendant Frank Camiscioli, Jr. B. Defendant Peter Mylenki. C. Defendant William Odierno. D. Defendant Alan Grecco. E. Defendant Joseph Gatto. F. Defendant Louis Gatto Sr. G. Defendant Louis Gatto Jr. H. Defendant Stefano Mazzola. II. DISCUSSION. A. Motions for Severance . 1. P...
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MEMORANDUM AND ORDER Plaintiffs Gennaro Mecca and Florence Warehouse, Inc., brought this action against defendants Gibraltar Corporation of America (“Gibraltar”) and Irwin Schwartz (collectively, the “Gibraltar Defendants”) and Joseph P. Contreras, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“R.I.C. 0.”), Sections 10(b) and 20(a) of the Securities Exchan...
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MEMORANDUM OPINION AND ORDER Plaintiff, proceeding pro se, was incarcerated at a federal correctional facility in Milan, Michigan at the time this action was commenced. He brings this action pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (1977 & Supp. I 1990) [hereinafter “FOIA”], and the Privacy Act, 5 U.S.C. § 552a (1977 & Supp. I 1990) [hereinafter “PA”], seeking...
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ORDER AND OPINION Plaintiff Thane Carl Chew brings this action pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights were violated when a police dog injured him during his arrest. Here, certain defendants move for summary judgment on plaintiffs claims that the training and use of police dogs to search for, seize and hold suspects is unconstitutional. FACTUAL ALLEGATIONS On Se...
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MEMORANDUM OPINION Liggett Group, Inc., (“Liggett”) brought this private antitrust suit to recover treble damages against Brown & Williamson Tobacco Corporation (“B & W”) alleging predatory price discrimination in violation of Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a). 1 Liggett also charged that B & W *348 violated t...
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ORDER Before the Court are a host of summary judgment and dismissal motions by defendants the United States of America, et al. (“United States”), Federal-Hoffman, Inc. (“FHI”), Honeywell, Inc., (“Honeywell”), Norton Erickson (“Erickson”) and Sylvester Bendel (“Bendel”), as well as plaintiffs’ renewed motion for class certification. This matter came on for oral hearing on M...
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744 F. Supp. 179 (1990) John PAIST, Plaintiff, v. TOWN & COUNTRY CORPORATION, a Massachusetts corporation, and Feature Enterprises, Inc., a New York corporation, Defendants. No. 90 C 1060. United States District Court, N.D. Illinois, E.D. August 21, 1990. *180 Peter J. Wifler, Michael J. Salvi, Salvi, Salvi & Wifler, Lake Zurich, Ill., for plaintiff. Marjorie S. Cooke, Goodwin, Procter &a...
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743 F. Supp. 589 (1990) UNITED STATES of America, Plaintiff, v. ONE 1989 HARLEY DAVIDSON MOTORCYCLE VIN 1HD1EGL15KY1103-85 and $9,025.00 in United States Savings Bonds, Series EE, Defendants. UNITED STATES of America, Plaintiff, v. ONE PARCEL OF REAL ESTATE LOCATED AT 7109 106TH AVENUE, TAYLOR RIDGE, ILLINOIS, Defendant. UNITED STATES of America, Plaintiff, v. $5,800.00 IN UNITED STATES CURRENCY,...
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MEMORANDUM-DECISION & ORDER Defendants are charged in a one count indictment with conspiracy to knowingly and willfully distribute and possess with intent to distribute a controlled substance, namely cocaine, in violation of 21 U.S.C. § 846. Presently before the court are defendants’ motions seeking an order granting them standing to challenge the legality of several warrants authorizing ...
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MEMORANDUM This case is before the Court on defendant’s Motion to Suppress Physical Evidence. At the suppression hearing held on July 30,1990, Detective Yance Beard of the Metropolitan Police Department testified on behalf of the government. Mr. Raheem Tucker and the defendant testified on behalf of the defense. For the reasons stated below, the Court grants defendant’s motion to suppress. I....
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MEMORANDUM This action involves a dispute over liability for the contamination of real property located in Wellesley, Massachusetts (the “site”) now owned by the plaintiff, Welles-ley Hills Realty Trust (“WHRT”), and formerly owned by the defendant, Mobil Oil Corporation (“Mobil”). The plaintiff has alleged that Mobil contaminated the property by releasing oil and hazardous materials duri...
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MEMORANDUM This matter is before the Court on Defendant McKinley L. Board’s Motion to Suppress Physical Evidence. Sergeant James Dodrill and Officer Gail Haywood, of the Metropolitan Police Department, testified on behalf of the government at the suppression hearing. Erskill Moore, Michael Green and Andre Derrington, acquaintances of McKinley Board, testified *7on behalf of the defendant. For the ...
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ORDER The plaintiff ( the Union”) and the defendant (“the Hotel”) are parties to a collective bargaining agreement (“the Agreement”) covering certain employees, including bellmen. The Agreement contains a broad arbitration clause providing for arbitration “in the event a grievance or misunderstanding arises out of and during the term of this Agreement.” Agreement, Art. XVII § 17.1 (attached to Co...
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ORDER This matter is before the Court on defendant Fifth Third Bank’s (Fifth Third) motion to dismiss (Doc. No. 16). Fifth Third contends that this action is barred by the doctrine of res judicata and seeks dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Plaintiff Federal Insurance Company (FIC) has filed a...
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MEMORANDUM OPINION AND ORDER William Simpson (“Simpson”) has filed a petition for writ of habeas corpus (the “Pe *782 tition”) under 28 U.S.C. § 2254 (“Section 2254”) against Danville Correctional Center Warden Michael Neal (“Neal”) challenging Simpson’s 1982 murder conviction. After this Court found as a threshold matter that the Petition stated claims potentially justifying habeas relief an...
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MEMORANDUM OF DECISION AND ORDER This matter is before the Court1 on plaintiff’s (hereinafter, “Golden Valley”) *206Motion to Compel Production of Documents directed to Beatrice/Hunt-Wesson (hereinafter, “Hunt-Wesson”) and American Packaging (hereinafter, “American”) filed on June 8,1990. Hunt-Wesson and American filed a response on June 19, 1990. Golden Valley's reply was filed on June 27, 1990....
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*19OPINION AND ORDER The above-captioned action has been on this Court’s docket as long as any case currently before us. Magistrate Nina Gershon has been supervising this matter during its long and tortuous pre-trial stage. A number of her rulings have been appealed to this Court pursuant to Rule 72 of the Federal Rules of Civil Procedure. We now review all of the Magistrate’s rulings which have ...
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MEMORANDUM DECISION AND ORDER By way of the defendant’s motion for summary judgment, the Court is asked to *867 determine whether certain undisputed misrepresentations made by the insured in his application for life insurance are “material” as a matter of law, thus voiding the resulting contract of insurance. Since at least some of the misrepresentations are “material” as a m...
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*610ORDER Plaintiff brings the instant action alleging that the defendant brokers were negligent in acquiring an insurance policy for plaintiff from an insolvent insurer. The defendants now move to dismiss the complaint, arguing that plaintiff has failed to file an affidavit of an expert witness as required in malpractice actions by O.C.G.A. § 9-11-9.1. As more fully set out below, the Court hold...
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743 F. Supp. 502 (1990) Patricia S. SMALLWOOD, Plaintiff, v. JEFFERSON COUNTY GOVERNMENT, et al., Defendants. Civ. A. No. C-88-0647-L(M). United States District Court, W.D. Kentucky, Louisville Division. September 4, 1990. Ronald C. Bakus, Louisville, Ky., for plaintiff. I.G. Spencer, Asst. County Atty., Jefferson County, Louisville, Ky., for defendants. MEMORANDUM AND ORDER MEREDITH, District J...
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OPINION Presently before the court is a motion for summary judgment by defendant Mor-dicai Dunst, M.D. For the reasons stated herein, defendant’s motion for summary judgment will be granted. I. FACTS AND PROCEDURE A. Prior Proceedings Plaintiffs commenced a civil action for negligence and medical malpractice against Cooper Hospital/University Medical Center, Doctors...
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OPINION Plaintiff Allstate Insurance Company (Allstate) brings this action seeking a declaration that it is not required to defend or indemnify defendant Rosemary Belezos in an action pending in a Circuit Court of the State of Oregon (State Court). Plaintiff and defendants Rosemary and Thomas Belezos have filed cross motions for summary judgment. I grant plaintiff’s motion for summary jud...
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ORDER REGARDING CANADIAN SHAREHOLDERS Defendants contend that Canadian shareholders who purchased their shares on Canadian stock exchanges should not be included in the class. They allege that these individuals are subject to a defense of lack of subject matter jurisdiction which is unique to their claims. The federal securities laws provide no indication as to when American federal ...
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MEMORANDUM OPINION & ORDER Before me is Ali Reza Haghi’s (Haghi) objections to the recommendation of the magistrate that I deny Haghi’s petition for writ of habeas corpus. Haghi is currently confined in the Immigration and Naturalization Service (INS) detention center in Aurora, Colorado, awaiting deportation. In his petition, authorized by 8 U.S.C. § 1105a(a)(9), Haghi seeks to withhold his depo...
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MEMORANDUM OPINION AND ORDER The plaintiffs, former employees of defendant Mine 29 Mining and Processing, Inc. [Mine 29], filed this action claiming that Mine 29, in association with defendants Rob Fork Mining Corporation and Rob Fork Processing Corporation [Rob Fork], Jackal Mining Company [Jackal], Sidewinder Mining Company [Sidewinder], and BethEnergy Mines, Inc. 1 , failed to give sixty d...
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743 F.Supp. 738 (1990) John TOWEY, Plaintiff, v. Thomas CATLING, Defendant. Civ. No. 89-00554 DAE. United States District Court, D. Hawaii. August 10, 1990. *739 Teresa Tico, Lihue, Kauai, Hawaii, for plaintiff. John Price, Honolulu, Hawaii, for defendant. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PRE-JUDGMENT INTEREST AND COSTS AND ATTORNEYS' FEES DAVID A. EZRA, District...
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ORDER AND REASONS Before the Court is the motion of plaintiff, TransAmerican Refinery Corporation (“TRC”), for summary judgment. TRC is the successor to GHR Energy Corporation. Plaintiff bases this motion on recent Louisiana Supreme Court jurisprudence, 1 which TRC asserts makes its claims of failure to warn, as a matter of law, not prescribed. The Court, after reviewing the motion, memoranda...
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745 F.Supp. 1486 (1990) Rosetta J. GREENE, Plaintiff, v. UNITED STATES of America, Defendant. No. 87-1981C(3). United States District Court, E.D. Missouri, E.D. June 25, 1990. *1487 *1488 Marc S. Wallis, Newman and Bronson, St. Louis, Mo., for plaintiff. Eric T. Tolen, Asst. U.S. Atty., for defendant. MEMORANDUM HUNGATE, District Judge. This matter is before the Court to determine the merits of ...
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ORDER GRANTING MOTION TO DISMISS In this action plaintiffs Richard C. Brown and Marie Brown (taxpayers) were assessed income tax deficiencies for the calendar years 1977, 1978, 1979, 1980 and 1981 and real property owned by taxpayers at 3975 Lamay Lane, Reno, Nevada was levied upon and sold to satisfy the deficiencies. Plaintiffs sue the United States for wrongful levy and sale seeking damages and...
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MEMORANDUM-DECISION & ORDER Background The plaintiff, Alexander Wilson, represents a class of former minority shareholders of Chenango Industries, Inc. (“Chenan-go or Chenango I”), who have brought suit challenging the legality of a joint proxy/prospectus (“proxy”) issued by Great American Industries (“GAI”) and Chenango as part of Chenango’s 1979 merger into GAL The defendants a...
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MEMORANDUM OF DECISION This action arises from the crash of a helicopter ambulance en route from Kear-ney, Nebraska, to Ainsworth, Nebraska, on December 20, 1985. The pilot of the helicopter was Craig Budden, employed by Ronald P. Rodgers, d/b/a Rodgers Helicopter Service (Rodgers). The aircraft was a Bell 206L helicopter, bearing the registration number N110LG and owned by Rodgers. Also ...
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ORDER Before the court is the 28 U.S.C. § 2255 petition of Richard F. LeFevour. On July 13, 1985, after a seven week trial, LeFev-our was convicted of 53 counts of committing mail fraud 1 five counts of filing false tax returns, 2 and one count of violating the Racketeering Influenced and Corrupt Organizations Act 3 (“RICO”). On August 27, 1985, LeFevour, ...
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OPINION Defendant, The Pub of New Jersey (“Pub”), moves for Summary Judgment pursuant to Federal Rule of Civil Procedure 12(b) for failure to state a claim upon which relief can be granted. The sole issue presented by this motion is the determination of the applicable statute of limitations for claims under Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), as amended, 29 U.S.C. ...
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ORDER Pending before the Court is a motion for summary judgment filed by Defendants H & H Music Company, Brook Mays Music Company and General American Life Insurance Company. After consideration of said motion and the response filed by Plaintiff John McGann, the Court is of the opinion that there is no genuine issue of material fact in this case, and that, for the reasons discu...
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*78 OPINION AND ORDER Plaintiff applies pursuant to Rules 15(a) and (b) of the Federal Rules of Civil Procedure to amend the ad damnum to reflect a claim for punitive damages and to amend its complaint to increase its claim for compensatory damages to 4 million dollars. Plaintiff’s present ad damnum is for 1 million dollars in compensatory damages. Such amendments are to be liberally perm...
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OPINION This matter is before the Court on defendant’s Motion to Reconsider this Court’s Memorandum Opinion and Order of February 21,1990, 731 F.Supp. 1119 and on plaintiff’s Motion for Attorney Fees and Costs. The Court has considered the motions and the memoranda submitted in support of the parties’ positions, and the entire record in this case. These submissions present no new law or facts w...
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MEMORANDUM OPINION The Court has before it petitioner’s habe-as corpus death penalty action. The Court heard oral arguments pertaining to the purely legal issues on March 22, 1990, has reviewed the entire matter, and is prepared to submit its written findings. The petitioner, Donald Fetterly, was sentenced to death for his conviction of First Degree Murder, Burglary and Grand Theft. At the sa...
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ORDER Before the court is the motion of defendants, Richard C. Hogan, Jeanne D. Hogan, Shelly Latoria, Joseph Latoria, Shawn Sterne, Julie Sterne, Peter Sorensen, Nancy Sorensen, Dennis Bomberek and Vicki Bomberek for attorney’s fees and costs, pursuant to 42 U.S.C. § 1988, and sanctions pursuant to Fed.R.Civ.P. 11. For the following reasons, the motion is granted. The facts in this ...
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746 F. Supp. 1395 (1990) Roger ATTAKAI, et al., Plaintiffs, v. UNITED STATES, et al., Defendants. No. CIV 88-964 PCT EHC. United States District Court, D. Arizona. February 28, 1990. *1396 *1397 *1398 Lee Brooke Phillips, Big Mountain Legal Office, Flagstaff, Ariz., for plaintiffs. Steven Carroll, Atty., Dept. of Justice, Land & Natural Resources Div., Indian Resources Section, Washington, D....
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MEMORANDUM OF DECISION This case came on for trial before the Honorable Laughlin E. Waters, Senior United States District Judge on January 11, 1990. Sherman Stacey appeared on behalf of the plaintiff; Gwendolyn R. Poindexter, Deputy City Attorney appeared on behalf of the defendant. FACTS A. The Challenged Provision of the City’s Rent Control Ordinance. Plaintiff is a family owned and c...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the government’s Response to and Motion to Reconsider Court’s Memorandum Opinion and Order of July 20, 1990. The court has rejected tendered plea agreements of defendants, Linda Hinkle, Julio Abreu, and Nicholas Padilla. The court has taken under advisement the tendered plea agreements of defendants, Carlos Arroyo, Theodore G...
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Defendant, Orkin Exterminating Company, Inc. (hereinafter “Orkin”), moves this Court for partial summary judgment pursuant to Rule 56, Fed.R.Civ.P., restricting its obligation for any termite damage to the home of plaintiffs, Herman Johnson and Joyce Johnson, to re-treatment of said property pursuant to the Subterranean Termite Agreement (hereinafter “Agreement”) entered into by Orkin and the Joh...
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*991 ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiffs are tenants in federally assisted public housing projects for low income tenants, owned and operated by defendant Housing Authority of the City of Oakland (hereinafter “OHA”), 1 a public housing authority operating under the United States Housing Act of 1937 (hereinafter "the Act”). 42 U.S.C...
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MEMORANDUM Defendant James E. Tabor is the administrator for the estate of Todd J. Tabor who was killed in an automobile accident. Aet-na Life & Casualty Company insured the host vehicle in which decedent, who was a passenger, was killed. That company paid to the estate $250,000 in liability coverage. The Tabors have a personal automobile policy which provides coverage for three vehicles ...
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OPINION This action stems from the involuntary separation of Jon T. Karr (hereinafter “Karr”), a former Captain with the Delaware Army National Guard (“DEARNG”), from a three year tour in the Active Guard/Reserve (“AGR”) as Recruiting and Induction Officer, Delaware Army National Guard, based on substandard performance and dereliction of duty. In this action, plaintiff alleges that he was...
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MEMORANDUM Before the court is the motion of the plaintiffs for reconsideration of my ruling 1 dismissing certain counts of the plaintiffs' complaint and, in the alternative, for certification for final judgment pursuant to Rule 54(b) or permissive appeal of an interlocutory order pursuant to 28 U.S.C. § 1292(b) (Document No. 31). For the reasons set forth below, the motion of ...
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743 F. Supp. 729 (1990) John G. BROWN, Petitioner, v. Daniel VASQUEZ, Warden of San Quentin State Prison, Respondent. No. CV 90-2815 AWT. United States District Court, C.D. California. September 4, 1990. Donald Etra and Chestopher L. Taylor, Sidley & Austin, Los Angeles, Cal., for petitioner. John K. Van de Kamp, Atty. Gen. of State of Cal., Richard B. Iglehart, Chief, Asst. Atty. Gen., Jay M...
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MEMORANDUM AND ORDER This diversity action arises out of the electrocution of Edward F. Sklodowski, III, plaintiff’s decedent, (“Sklodowski”) while working at defendant’s office building.1 Defendant Scott Paper Company (“Scott”) has moved for summary judgment claiming immunity from suit under the Pennsylvania Workmen’s Compensation Act. The court heard oral argument on August 30, 1990, as to wheth...
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FINDINGS OF FACT 1. This action is instituted under, and this Court’s jurisdiction is based upon, Section 15 of the Clayton Act, 15 U.S.C. § 25, providing for injunctive and other relief for violations of Section 7 of the Clayton Act, 15 U.S.C. § 18. 2. Defendant Country Lake Foods, Inc. (“Country Lake”) is a Delaware corporation with its principal place of business in St. Paul, Minnesota. Co...
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OPINION Several motions are before the Court, all of which have been fully briefed and argued but which do not require extensive comment by the Court at this time. Motions to dismiss or, in the alternative, for a more definite statement, have been filed by the following defendants: Local 1804-1 and its Executive Board, Joseph Kenny, Harry Cashin, Ronald Capri, Harold Daggett, George Barone, Thomas...
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MEMORANDUM-DECISION & ORDER I. Introduction This action arises out of the discovery in 1981 of pollution at a site, in South Cairo, New York, which is owned by the defendant/third-party plaintiff Amro Realty Cor *834 poration (“AMRO”) and leased to American Thermostat Corporation (“AT”). In 1981, the State of New York, along with a number of private citizens, brought...
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ORDER Before the Court is a Motion by the Defendants for summary judgment (# 32) which is brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court grants the Defendants’ Motion for Summary Judgment (# 32). BACKGROUND Constant grew up in Aledo, Illinois, and attended Western Illinois University in Ma-comb, Illinois. Constant was employed by *1376 ...
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MEMORANDUM The defendant in this case pleaded guilty to one count of 18 U.S.C. § 659, charging him with interstate transportation of stolen funds. The circumstances are that the defendant, on January 20, 1988, while a part-time security guard for the Brooks Armored Car Company, stole $651,000.00 in cash from the armored car while his two co-workers, unaware of the defendant’s act, were making a de...
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ORDER DENYING DEFENDANT’S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT INTRODUCTION Defendant United States of America (the “government”) brings this motion to dismiss or in the alternative for summary judgment on plaintiffs claim under the Hawaii wrongful death statute. Haw.Rev. Stat. § 663-3 (1988). Plaintiffs oppose this motion. Defendant’s motion came on for heari...
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OPINION AND ORDER A non-jury trial was held in the captioned matter on August 20,1990 in Easton, Pennsylvania. This action for a declaratory judgment and an award , of monetary damages was filed by the plaintiff on September 1, 1989. The plaintiff seeks a declaration by the court that it is not obligated to provide a defense for the defendants in the instant case who are also defendants i...
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This is an action by Ralph A. Bryant, Jr. against his employer, Gates Construction Corporation (“Gates”), under the Jones Act, 46 U.S.C.App. § 688, and general maritime law. Bryant seeks recovery for injuries sustained while employed as a crane operator on defendant’s barge “Gates 196”. Gates moved for summary judgment arguing that Bryant was not a seaman, but rather a land-based construction w...
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MEMORANDUM This is a suit against Glassboro State College (“Glassboro”) and certain Glass-boro fraternities. Plaintiff alleges that the fraternities’ unlawful serving of alcohol to him at age 19 proximately caused him to drive into a tree and injure himself. Presently before the court is Glassboro’s motion for summary judgment on grounds of Eleventh Amendment sovereign immunity. I. ...
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ORDER Plaintiff Federal Deposit Insurance Corporation (“FDIC”) commenced this action seeking to recover $200,000, plus interest from the defendant James A. Sullivan. The FDIC alleges that, in violation of 12 U.S.C. § 91, Sullivan withdrew $200,000 from Market National Bank seven days before it was declared insolvent and closed. Jurisdiction is founded on 12 U.S.C. §§ 1819(4) and 94, and 2...
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OPINION Plaintiff, Samuel LeMaire, an inmate at Oregon State Penitentiary (OSP), brings this civil rights action under 42 U.S.C. § 1983, against defendant Manfred Maass, the OSP Superintendent. He seeks injunc-tive relief from allegedly unconstitutional conditions of his imprisonment in the Disciplinary Segregation Unit (DSU) at OSP. I toured the DSU and conducted a court trial at OSP. Th...
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*1024 ORDER On October 17, 1988, the plaintiffs, Harry K. Richardson and Maria Richardson, citizens and residents of Montana, commenced this action in the District Court for the Thirteenth Judicial District, in and for the County of Yellowstone, Montana, against, inter alia, Edward D. Jones & Company, a Missouri limited partnership with its principal place of business ...
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MEMORANDUM Nearly four years after pleading guilty to one count of conspiracy to commit espionage in violation of 18 U.S.C. § 794(c), defendant moves on several grounds to withdraw the plea and to stand trial. He files his motion under 28 U.S.C. § 2255. Defendant also moves that his counsel now be provided with access to certain materials made available to him and to the Court at sentenci...
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Before the Court is the defendant’s Motion To Review Magistrate’s Order Or, Alternatively Motion To Strike. This motion arises from the Federal Deposit Insurance Corporation’s (“FDIC”) suit to recover amounts it contends the Aetna Casualty and Surety Company (“Aetna”) owes it for claims made pursuant to an Aetna Savings and Loan Blanket Bond No. 39 F 3190 BCA (“Bond”) issued to Audubon Federal ...
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ORDER REMANDING CASE Plaintiffs, Todd Holding Co., Inc., Toddys of Greeley, Inc., and Toddys of Ft. Collins LTD., (“Plaintiffs”) all Colorado corporations, commenced this action in the State District Court in and for Weld County, Colorado, against Super Valu Stores, Inc., a Delaware corporation (“Super Valu”), and Ken Kegerreis (“Kegerreis”), a Colorado citizen. On May 31, 1990, the defen...
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MEMORANDUM OPINION AND ORDER The legal representatives of four aged, infirm and mentally incompetent women commenced this lawsuit in an effort to extricate their charges from the “Utah Gap.” That is the popular nomenclature for a “Catch 22” in state health care policy that deprives many senior citizens of Medicaid payments for nursing home expenses to which they are otherwise entitled. Wh...
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Plaintiff Priscilla Sherk East, individually and in her capacity as the personal representative of the estate of her deceased husband, Senator John Porter East, brings this medical malpractice action asserting negligence, wrongful death, and loss of consortium against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. 1 In ess...
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OPINION AND ORDER REJECTING MAGISTRATE’S REPORT AND RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter is before this Court on the Report and Recommendation of Magistrate Steven D. Pepe, filed January 22, 1990. The case involves the Plaintiffs application for Social Security widower’s disability benefits which was deni...
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OPINION & ORDER Defendant William LaMorte moves this Court to suppress evidence seized at his home during a search executed on July 20, 1988, and for a bill of particulars. For reasons to be discussed, LaMorte’s motion is denied in all respects. I. Facts Indictment 89 Cr. 742 charged defendant William LaMorte with conspiracy to import marijuana, conspiracy to import heroin, ...
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MEMORANDUM OPINION AND ORDER Plaintiff, a citizen of New York, brings this diversity action, see 28 U.S.C. § 1332 (1988), to enforce a judgment of divorce against Plastocks, Inc., a Delaware corporation. Presently before the Court is defendant’s motion to dismiss the complaint for lack of personal and subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1), (2). For t...
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OPINION AND ORDER In the matter before the court, defendant Pay ’N Pak Stores, Inc. (Pay ’N: Pak) moves the court to direct entry of final judgment for Pay ’N Pak on plaintiff’s claim for the intentional infliction of emotional distress pursuant to Fed.R.Civ.P. 54(b). In an order filed June 21,1990, this court granted Pay 'N Pak’s motion for summary judgment on plaintiff’s claim for the intentiona...
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ORDER In this criminal case, citizens were called from the qualified jury wheel, Cleveland, Eastern Division to serve as petit jurors. As part of the Jury Selection Plan in the Northern District of Ohio (the “Plan”), citizens drawn from the qualified jury wheel are required by some judges, through the clerk, to serve as summary jurors in summary jury trials. The Jury Selection and Service...
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OPINION The matter before the court is the motion to strike (# 104) of defendant Pay ’N Pak Stores, Inc. (Pay ’N Pak). Pay ’N Pak moves the court to strike three portions of the amended complaint of plaintiff, Deanna Bigoni, as follows: 1. Paragraph 5(a), lines 19 through 21, of the first claim for relief for outrageous conduct, which states: “At all times stated defendant Hatch acted within the s...
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OPINION AND ORDER DENYING DEFENDANT’S RENEWED MOTION TO VACATE ATTACHMENTS AND INJUNCTIONS AND FOR AWARD OF DAMAGES This matter is presently before the Court on the Defendant, John Z. DeLorean’s (“DeLorean”) Renewed Motion to Vacate Attachments and Injunctions and for Award of Damages. The Court heard arguments of counsel on August 8, 1990. I. FACTS A. PROCEDURAL BACKGROUND Much of the background...
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MEMORANDUM AND ORDER After the ships transporting the custom ordered steel plates delivered only some, but not all of the goods, upon arrival at port Cleveland, Plaintiffs Lyman Steel Company (“Lyman”) and Federal Insurance Company of New Jersey/ Chubb Insurance (“Chubb”) filed this diversity action on July 14, 1988 alleging causes of action for conversion and breach of contract and reque...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT This cause is before the Court on Defendants’ motions for summary judgment and Plaintiffs’ response thereto. Plaintiffs claim that Ricky, Randy, and Robert Ray were infected by the Acquired Immune Deficiency Syndrome (AIDS) virus as a result of their use of plasma products manufactured by Defendants. Plaintiffs have raised claims of negligen...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT The cause is before the Court on Defendant’s motion for summary judgment and Defendant’s request for oral argument, filed May 16, 1990; Plaintiff’s motion for partial summary judgment; response to Defendant’s motion for summary judgment; and Plaintiff’s request for oral argument filed June 15, 1990; and Defendant’s response thereto filed July 9, 1990....
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ORDER ON MOTION TO DISMISS This cause is before the Court on Defendants’ motion to dismiss or for more definite statement, filed June 7, 1990,- and response thereto, filed June 25, 1990. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-4...
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MEMORANDUM AND ORDER This is a declaratory judgment action initiated by the Maryland Casualty Company in which the terms and provisions of an automobile insurance policy are in dispute. The issue presented to the court is whether the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.Con.Stat.Ann. §§ 1701 et seq. (hereinafter “MVFRL”), allows an insured to “stack” h...
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MEMORANDUM AND ORDER This civil rights Complaint juxtaposes the issue: whether false accusations of child abuse, which result in denial of visitation *799 rights, state a constitutional violation cognizable under the civil rights laws? In addition to this constitutional issue, Plaintiff Donald Norton (“Norton”) has also alleged several state law claims. Pursuant to Fed.R.Civ....
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MEMORANDUM OPINION AND ORDER The Chicago Typographical Union No. 16 (“Union”) filed this action against the Chicago Sun-Times, Inc. (“Sun-Times”) to compel arbitration of certain aspects of the Sun-Times’ “final offer” for a new collective bargaining agreement. Both parties now move for summary judgment. For the reasons set forth below, the Union’s motion is denied, and the Sun-Times’ motion is g...
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ORDER Before the court are the motions of the Amoco Parties1 (collectively “Amoco”), the Republic of France (“France”), and Astille-ros Españoles (“Astilleros”) to stay execution of their respective judgments pending appeal. For the reasons discussed below, Amoco and France are each granted a stay without bond and Astilleros is denied a stay without bond. The court will deal with each motion in tu...
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MEMORANDUM AND ORDER Petitioner was convicted by a jury of robbery and menacing in December 1985 in the New York State Supreme Court, Queens County. The conviction was affirmed by the Appellate Division in September 1988. The Court of Appeals denied leave to appeal in April 1989. Petitioner sought a writ of habeas corpus in September 1989. As demonstrated below, petitioner’s confrontation right...
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OPINION AND ORDER Plaintiff The New York Times Company (New York Times) moves for attorney’s fees in the amount of $101,053.10 and costs of $10,971.35 in connection with the services performed in a contempt action arising out of defendant Union’s members engaging in a work stoppage on March 28, 1990 in violation of an injunction agreed upon by the parties and so ordered by the Court on March 28, 1...
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In this appeal from an order confirming a plan of reorganization, the court discerns no clearly erroneous findings by the bankruptcy court in support of its determination that the plan complies with 11 U.S.C. § 1129(a) and (b). The order is therefore AFFIRMED. I The portions of this appeal that were not previously dismissed, see In re Block Shim Dev. Co. —Irving, 113 B.R. 2...
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MEMORANDUM-DECISION & ORDER All defendants in the present action move for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Plaintiff claims that he was falsely arrested, falsely imprisoned and maliciously prosecuted. Plaintiff alleges that the actions of the defendants deprived him of his constitutional rights and therefore he is entitled to damages under T...
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OPINION This Court has before it, pursuant to 28 U.S.C. § 158(a), two appeals from a decision of the United States Bankruptcy Court. Both appeals involve the same parties, facts, and issues. Thus, in the interest of judicial economy the Court will consolidate the cases for purposes of appeal. Although we find that the bankruptcy court was correct in holding that the Eleventh Amendmen...
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ORDER In this action, plaintiffs seek to prevent defendants from enforcing Canon 7(B)(1)(c) of the Florida Code of Judicial Conduct. Plaintiffs claim that such canon violates their rights under the first and fourteenth amendments of the United States Constitution. Before the court at this time are plaintiffs’ motion for leave to proceed under fictitious name (document 1, number 7) and pla...
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MEMORANDUM OPINION AND ORDER' This matter is before the Court on defendant, Wausau Insurance Company’s, motion for rehearing. Pursuant to a Memorandum Opinion and Order dated August 13, 1990, 742 F.Supp. 1342, this Court denied defendant’s motion for summary judgment and granted plaintiff’s motion for summary judgment. Defendant timely filed this motion for rehearing consistent with this court’s l...
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ORDER Plaintiff filed an application for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Plaintiff seeks fees for 76.7 hours of legal representation, at a rate of $90 per hour, for a total *716 of $6,903 in fees plus $290.37 in costs. The only issue disputed by defendant, the Secretary of Health and Human Services, is the hourly rate. Defendant...
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ORDER Plaintiffs, Mr. and Ms. Grinsell, filed this securities fraud action against their investment broker, Laura Kent, and her employer, Kidder, Peabody, & Company. The complaint alleges eleven causes of action, including violation of §§ 17(a) and 12(2) of the Securities Act of 1933. Defendants move to (1) strike allegations regarding violation of § 17(a) from the tenth cause of action a...
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OPINION Plaintiff French American Banking Corporation (“FABC”) brings this diversity action seeking to recover approximately $4 million, plus accrued interest, from defendant Fireman’s Fund Insurance Company (“Fireman’s”) under a Banker’s Blanket Bond (“Bond”) issued by Fireman’s to FABC. FABC alleges that it incurred that loss as a result of loan made to Colombian Coffee Company (“CCC”) ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Earl and Alice Souders filed this maritime action on April 3, 1987. 1 Plaintiffs allege Earl Souders contracted asbestosis during his career in the merchant marine aboard ships operated by The Atlantic Richfield Company (“ARCO”) containing asbestos products manufactured by the remaining defendants (“asbestos defendants”). Defendants conte...
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MEMORANDUM AND ORDER Petitioner, pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the motion is denied. FACTS On December 15, 1978, petitioner pled guilty in New York Supreme Court, Queens County, to second degree murder. N.Y.Penal Law § 125.25 (McKinney 1987). Petitioner was subsequently sentenced to serve a term of twenty years to life imprison...
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OPINION Cases involving the acronym “NIMBY,” which stands for “Not In My Backyard,” have been feverishly litigated throughout the country. In this case, we are presented with a variation on the theme, and have developed what we believe is a new acronym, NIMAS, which stands for “Not In My Airspace.” I. PACTS Plaintiff, the County of Westchester, which is located in New York State...
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MEMORANDUM OPINION This matter is before the court on cross motions for summary judgment. The court finds that there are no material facts in dispute and the case can be decided on the summary judgment motions. Plaintiff Carlos Morrobel is a 34 year old native and citizen of the Dominican Republic, who has been convicted of attempted distribution of cocaine. On June 13, 1990 Morrobel...
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MEMORANDUM OPINION AND ORDER The defendants, with the exception of one of them, Rex Travel Organization, Inc., each have filed motions for summary judgement which are now before the court for ruling. The moving defendants are Air New Zealand, Ltd., United Air Lines, and Royal Cruise Lines. The plaintiff complains of delays and difficulties she experienced while attempting to embark on a vacation ...
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ORDER This matter is before the Court on the motion for summary judgment of Defendants Lone Star Gas Company and Enserch Corporation (hereinafter collectively referred to as “Lone Star”) and Plaintiffs’ motion for partial summary judgment as to liability against these Defendants. This case arises out of a mobile home fire in the early morning hours of March 10, 1989, which resulted in the deaths ...
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OPINION AND ORDER Birds of a feather flock together, or at least they did so in this case. Fourteen defendants were all charged together with violations of Section 703 of Title 16 of the United States Code, which makes it a petit offense to take or attempt to take by aid of baiting or on or over any baited area any migratory bird. The matter was tried to the Court, sitting jury-waived, in early...
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MEMORANDUM OPINION AND ORDER This proceeding was instituted under the Civil Rights Act, Title 42 U.S.C. § 1983, with jurisdiction based on Title 28 U.S.C. § 1343. Plaintiff seeks the following relief: (1) An order from this Court directing the Dardanelle Public School District (School District or District) to vacate and set aside the Dardanelle High School Student Council presidential electio...
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746 F. Supp. 798 (1990) Anna M. JUAREZ, Plaintiff, v. AMERITECH MOBILE COMMUNICATIONS, INC., a Delaware Corporation, and Peter Shkrutz, individually and each of them, Defendants. No. 89 C 00017. United States District Court, N.D. Illinois, E.D. September 10, 1990. *799 Richard L. Lucas, William E. Hale, Richard L. Lucas & Assoc., Ltd., Addison, Ill., for plaintiff. Barry A. White, David B. Ri...
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Plaintiffs Robert Wright, Sr. and Ruby Wright filed the above styled complaint pursuant to 42 U.S.C. § 1983 to recover damages for the wrongful death of and deprivation of rights held by plaintiffs’ decedent, Robert Wright, Jr., under the fourth, fifth, and fourteenth amendments to the Constitution of the United States and under the laws of the State of Georgia. Plaintiffs subsequently agreed t...
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*21OPINION In this bankruptcy appeal under 28 U.S.C. § 158(a), certain former employees of two of the debtors, appearing pro se, seek to reverse a ruling of the bankruptcy court expunging their claims to surplus pension funds. The ruling of the bankruptcy court is affirmed. FACTS Appellee Bruce D. Scherling is the trustee in bankruptcy for Hellenic Lines Limited and three affiliated entities. This...
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*1567 ORDER Southeastern Equipment Company (“SECO”) seeks the return of an address book taken pursuant to a March 16, 1989, search of its offices and of notes taken by one of the federal agents, Department of Defense Investigator Messersmith, who participated in that particular search. The motion is presently before the Court on the United States’ appeal and SECO’s cross-appeal o...
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743 F. Supp. 1381 (1990) Kevin Carlton McCLAFLIN, Plaintiff, v. Fred B. PEARCE, Director of Department of Corrections, et al., Defendants. Civ. No. 89-1361-FR. United States District Court, D. Oregon. September 10, 1990. *1382 Kevin Carlton McClaflin, pro se. Dave Frohnmayer, Atty. Gen., Jan Peter Londahl, Asst. Atty. Gen., Salem, Or., for defendants. OPINION FRYE, District Judge: The matter bef...
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MEMORANDUM OPINION AND ORDER Presently before the court are the motions of defendant, Smithkline Beckman (Smithkline), for partial summary judgment, to strike plaintiffs jury demand, and to bifurcate trial. After due consideration of the memoranda filed by both parties, I will deny all the motions except the motion for partial summary judgment on compensatory damages, and the motion to st...
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On Appeal from the Territorial Court of the Virgin Islands BEFORE: STANLEY S. BROTMAN, Acting Chief Judge, District Court of the Virgin Islands, Judge of the United States District Court for the District of New Jersey, Sitting By Designation, JOSEPH J. FARNAN, JR., Judge of the United States District Court for the District of Delaware, Sitting by Designation, and IVE A. SWAN, Judge of the Territor...
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On Appeal from the Territorial Court of the Virgin Islands BEFORE: STANLEY S. BROTMAN, Acting Chief Judge, District Court of the Virgin Islands, Judge of the United States District Court for the District of New Jersey, Sitting By Designation, JOSEPH J. FARNAN, JR., Judge of the United States District Court for the District of Delaware, Sitting by Designation, and IVE A. SWAN, Judge of the Territor...
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ORDER GRANTING SUMMARY JUDGMENT This is an action for declaratory relief as to defendant’s right to insurance coverage for a wrongful death action currently pending in state court. The Court has jurisdiction pursuant to 28 U.S.C. § 1332. The matter came before the Court for hearing on the plaintiff’s motion for summary judgment on August 15, 1990. For the reasons stated at the hearing and...
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MEMORANDUM OPINION AND ORDER This action, brought purportedly on behalf of the United States by an attorney *107 pro se, seeks declaratory relief relating to the famous trial and sentencing of Julius and Ethel Rosenberg. Currently before the Court is defendant Judge Kaufman’s motion to dismiss the Complaint. BACKGROUND On August 17,1950 the Rosenbergs were in...
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OPINION AND ORDER This is a contract action between the United States, the Government Development Bank,1 and now the Federal Reserve Bank of New York.2 The matter pends before the Court on FRB-NY’s motion to dismiss GDB’s third-party complaint, its subsequent oppositions, and the corresponding replies. The salient facts have already been rehearsed in our previous opinion on the subject and shall ...
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MEMORANDUM AND ORDER I. SUMMARY This case arises from an impressive undercover operation conducted by the Federal Bureau of Investigation (“FBI”) from 1983 to 1987, and from the apparently unprecedented electronic surveillance of a La Cosa Nostra (“LCN”) or Mafia induction ceremony on October 29, 1989. The evidence preliminarily indicates that the defendant Biagio DiGiacomo is a “Cap...
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OPINION This protracted litigation arises from a series of agreements entered in or about April 1985 pursuant to which defendant Glenfed Financial Corporation (“Glenfed”), a subsidiary of Glendale Federal Savings and Loan Association (“Glendale”), acquired from plaintiff Armco Inc. (“Armco”) the Armco Financial Corporation (“AFC”), a company engaged in the business of secured lending. The...
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MEMORANDUM OPINION AND ORDER Rose Marine Transportation, Inc. (“Rose Marine”) filed this action seeking a declaratory judgment that it had the right to seize property (more than $7 million worth of calcinated coke) that was stored on barges Rose Marine had leased to Calciner Industries, Inc. (“Calciner”). Rose Marine’s claimed right to seize the coke was by way of liquidated damages for injuries ...
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MEMORANDUM OPINION This case is before us on plaintiffs motion for injunctive relief from prosecution and defendants’ motion to dismiss plaintiff’s complaint. We deny the former and grant the latter. FACTS Plaintiff Dr. Helio Zapata is a licensed obstetrician who has been practicing medicine in Illinois since 1971. On October 4, 1988, he was indicted for allegedly accepting “kickbacks” in violatio...
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MEMORANDUM DECISION AND ORDER RE SUMMARY JUDGMENT The Court has reviewed and considered the moving and opposing papers, the record of the case, the arguments of counsel, the applicable authorities and good cause appearing therefore: IT IS HEREBY ORDERED that the defendants’ motions for summary judgment are GRANTED and the plaintiffs’ motions for summary judgment are DENIED. The ...
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FINAL SUMMARY JUDGMENT FOR DEFENDANTS AND DISMISSAL OF STATE CLAIMS WITHOUT PREJUDICE THIS CAUSE came before the Court upon the Defendants’ Motions for Summary Judgment., THE COURT has heard oral argument on the defendants’ motions for summary judgment, considered the memoranda, appendices, depositions and affidavits filed in support of and opposition to the motions and the pertinent portions...
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748 F.Supp. 319 (1990) ST. AGNES HOSPITAL OF THE CITY OF BALTIMORE, INC., v. Frank A. RIDDICK, Jr., M.D., etc. Civ. No. HM-86-3071. United States District Court, D. Maryland. September 10, 1990. *320 John G. Kruchko, Jay R. Fries and Kathleen A. Talty, Towson, Md., for plaintiff. Philip Jacobs and John F. King, Baltimore, Md., Douglas R. Carlson, Gary E. Dyal, Wildman, Harrold, Allen & Dixon,...
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MEMORANDUM ORDER Counsel for defendant Amphenol Corporation (“Amphenol”) have just filed with the Clerk of this District Court a counterpart of the Fed.R.Civ.P. (“Rule”) 68 offer of judgment that they have contemporaneously tendered to plaintiff Edward Kason (“Kason”) through his counsel. This memorandum order is issued sua sponte (1) to cause the offer of judgment to be stricken from the court fi...
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OPINION The defendants New York City Police Officers Kevin Doherty (“Doherty”) and Thomas Holihan (“Holihan”) have moved in accordance with Rule 50(b), Fed.R.Civ.P., for judgment notwithstanding the verdict that was rendered by the jury in favor of the plaintiff Posr Amojo Posr (“Posr”) 1 in this action on December 21, 1989. For the reasons set forth below, the motion is grante...
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ORDER After the Court granted petitioner habe-as corpus relief as to his death sentence, the United States Court of Appeals for the Eleventh Circuit dismissed cross-appeals in this action, because it found that the Court had not considered every claim raised by petitioner regarding his guilt. Mathis v. Zant, 903 F.2d 1368 (11th Cir.1990). As a result, the appellate court stated, petitioner had no...
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MEMORANDUM AND ORDER This matter is before the court on the pretrial discovery motions of defendants. Defendants move for disclosure of all material discoverable under Fed.R.Crim.P. 16 and the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for disclosure of various forms of impeaching evidence relevant to the credibility of the government’s witnesses, and for d...
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743 F. Supp. 1463 (1990) James J. TERSINER, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, and Michael Gretencord d/b/a Penn's Apco, Defendants. Civ. A. No. 89-2299-0. United States District Court, D. Kansas. August 6, 1990. Henri J. Watson, Kansas City, Mo., William Metcalf, Metcalf & Justus, Topeka, Kan., for plaintiff. Brian G. Boos, Gehrt & Roberts, Chartered, Topeka, Kan., Michael B. ...
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OPINION AND ORDER This matter is before the Court pursuant of the Defendant, United States of America’s, Motion for Dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The government has moved for the dismissal of this action for lack of jurisdiction and failure to state a claim upon which relief can be granted. Jurisdiction in this matter is alleged under Title 28 U.S.C. § 13...
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OPINION I. INTRODUCTION This appeal from an Order and Memorandum Opinion of the United States Bankruptcy Court, In re BH & P, Inc., 103 B.R. 556 (Bankr.D.N.J.1989), raises important questions concerning the administration of related estates under the Bankruptcy Code. At issue is the ethical propriety of employment by related estates of a common trustee, attorney, and accou...
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OPINION Plaintiff David Leslie Gibson (“Gibson”), an on air correspondent, seeks damages for discrimination alleged to have been committed by his employer, defendants American Broadcasting Companies, Inc. (“ABC”), its Vice-President Robert Benson (“Benson”), its General Managers Peter Flannery (“Flannery”), Richard Dressel (“Dressel”) and Jeffrey Sprung (“Sprung”) under Title VII of the Civil Rig...
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ORDER AND REASONS In this civil action for alleged personal injuries, the plaintiff brought a motion in limine to exclude evidence of: 1) a 1981 conviction of the plaintiff; 2) the conduct underlying the conviction; 3) the plaintiff’s history of credit and financial transactions; and 4) testimony from the plaintiff’s former husband. Upon review of the parties’ briefs, the court finds that oral arg...
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MEMORANDUM AND ORDER This matter is before the court on the Department of Energy’s (“DOE”) motion for summary judgment against Gulf Oil Corporation (“Gulf”) (Doc. 1283), DOE’s two amended motions for summary judgment (Doc. 1804, 1825), and the counter motion for partial summary judgment filed by Chevron U.S.A. Inc. (“Chevron”) (Doc. 1587). The court heard oral argument on the motions on May 30, 1...
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MEMORANDUM AND ORDER This matter is before the court on defendant Ogilvie Mills, Inc.’s, (“Ogilvie’s”) motion to reconsider and correct inventorship. Defendants Henkel Corporation and Henk-el of America, Inc., (“Henkel”) have also filed a motion for reconsideration. On June 6, 1989, the court issued an order denying Ogilvie’s motion to correct inven-torship of three patents pursuant to 35 U.S.C...
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MEMORANDUM OPINION AND ORDER Before me are two motions: (1) defendant’s motion to dismiss plaintiffs’ pendent state claims and (2) defendant’s motion for summary judgment on all claims of plaintiff Jesse L. Carter (Carter). These matters have been thoroughly briefed and oral argument will not materially assist me. Plaintiffs, all black males, allege: (a) race discrimination in violat...
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OPINION The plaintiffs in this action are a group of investors who invested and lost substantial sums of money in the private offering (the “Private Offering”) of securities in a high-risk business venture called the Southeastern Insurance Group, Inc. (“SIG”). In an effort to recoup some or all of their investment, the plaintiffs initiated this lawsuit alleging violations of various feder...
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MEMORANDUM AND ORDER This matter is before the court on defendants Beech Aircraft Corporation’s (“Beech”) and Raytheon Company Corporation’s (“Raytheon”) motion for reconsideration of the court’s order of June 29, 1989. In that order, the court granted plaintiff’s motion to strike defendants’ sixth affirmative defense and denied defendants’ cross motion to dismiss. Having reviewed the motion fo...
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*1048 MEMORANDUM AND ORDER This matter is before the court on the defendant’s motion to dismiss, or in the alternative, for summary judgment (Doc. 7). Defendant argues that plaintiffs’ libel claim is barred by the statute of limitations and that plaintiffs have failed to state a claim under the Kansas Fair Credit Reporting Act, K.S.A. 50-701 et seq. The court has consi...
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MEMORANDUM AND ORDER This matter is before the court on Henkel Corporation’s and Henkel of America, Inc.’s (“Henkel’s”) motion for reconsideration or clarification of the court’s June 30, 1989, order. 723 F.Supp. 567. In that order, the court denied Henkel’s motion for summary judgment with respect to Counts VIII through XI of plaintiff’s third amended complaint. For the reasons set forth...
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On Remand from the United States Court of Appeals for the Third Circuit BEFORE: STANLEY S. BROTMAN, Acting Chief Judge, District Court of the Virgin Islands, Judge of the United States District Court for the District of New Jersey, Sitting By Designation, JOSEPH J. FARNAN, JR., Judge of the United States District Court for the District of Delaware, Sitting by Designation, and IVE A. SWAN, Judge of...
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MEMORANDUM AND ORDER The Agency for International Development (AID) requires all foreign nongovernmental family planning organizations that receive federal family planning funds to certify that they will not perform or actively promote abortion as a method of family planning. Plaintiffs, three domestic family planning organizations, contend that the requirement abridges their First Amendment ri...
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MEMORANDUM OPINION AND ORDER Richard and Candice Salzstein (collectively “Salzsteins”) have just filed suit against a number of common carriers engaged in the shipment of goods by motor vehicle — five named defendants 1 and an unnamed John Doe, as to which Complaint ¶ 8 says this: At all relevant times, John Doe, was a corporation and/or partnership doing business as a com...
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MEMORANDUM AND ORDER This action was brought by Zurn Constructors, Inc. d/b/a Vinylplex (Vinylplex), a manufacturer of polyvinylchloride (PVC) pipe located in Pittsburg, Kansas, against B.F. Goodrich (Goodrich), Vinylplex’s major supplier of PVC compound, alleging Goodrich (1) breached a 1982 requirements contract to supply Vinylplex with PVC compound by wrongfully attempting to cancel th...
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111 B.R. 474 (1990) In re Glyndon BRYANT, Debtor. Glyndon BRYANT and Edward M. Mazze, Trustee, Plaintiffs, v. Richard H. WOODLAND and Reginald D. Lundy, Defendants. Misc. No. 89-0682, Bankruptcy No. 85-02472F, Adv. No. 88-2254F. United States District Court, E.D. Pennsylvania. January 31, 1990. *475 Susan DeJarnatt, Community Legal Services, Philadelphia, Pa., for plaintiff/debtor, Glyndon Bryant...
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On February 23, 1989, the buyer, Green Construction Co. (“Green”) brought this action lying in diversity against, the surety, First Indemnity of America Insurance Co. (“FIA”). On November 30, 1989, Green filed an amended complaint against FIA, charging that FIA breached its obligation to pay Green the penal sum of a performance bond upon the occasion of the default of the seller, ESC Stone Prod...
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ORDER This cause came before the Court on Plaintiffs’, Jon G. Murray and the Society of Separationists, Original Complaint, seeking declaratory and injunctive relief against the City of Austin, Texas, the City Council, its individual members, and the Mayor in their official capacities. Specifically, Plaintiffs seek a declaration that the Defendants’ use of the City Seal, which contains a Latin ...
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ORDER AND NOW, this 31st day of January, 1990, it is hereby ORDERED that Defendant’s motion for joinder of additional parties is GRANTED. It is further ORDERED that defendant has leave to file an amended answer within ten (10) days of entry of this Order. 1. Plaintiff filed the above captioned action for declaratory judgment to determine whether it infringed the copyright of defendant or competed ...
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MEMORANDUM AND ORDER This matter is before the court on the motions of Exxon Corporation and Atlantic Richfield Corporation to enforce the State of Alaska’s obligations under the settlement agreement (Doc. 1645, 1652); the State of Alaska’s motion to dismiss (Doc. 1733); Alaska’s two motions for protective order (Doc. 1735, 1784). The court held oral argument on May 30, 1990. Exxon Corporation (E...
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OPINION Defendant moves to dismiss this action for lack of subject matter jurisdiction, failure to state a claim on which relief can be granted, or, in the alternative, for summary judgment. Defendant relies on its brief and the declaration of Ronald Farrington, District Manager, Paterson Office, Social Security Administration. Plaintiff opposes the motion and relies on her brief. The Court has r...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs’ motion to remand to the District Court of Dickinson County, Kansas, pursuant to 28 U.S.C. § 1447(c) and on the motion of defendants, John Alden Life Insurance Company (hereinafter referred to as “John Alden”) and Jack Ropp. Defendants move to dismiss on two grounds. First, defendants contend Counts I through V are preempted by ...
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MEMORANDUM AND ORDER Before the Court is defendants’ renewed motion to dismiss or in the alternative for summary judgment. The defendants assert that plaintiff is collaterally estopped from raising the one remaining issue in this case because plaintiff raised and lost that issue in other litigation. For the reasons stated below, the motion is granted. I Yamaha Corporation of America (Yamaha...
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MEMORANDUM AND ORDER In this action, plaintiff seeks declaratory relief and money damages arising from defendants’ alleged breach of their contractual obligations to provide insurance coverage to plaintiff for certain environmental harm. The harm in the present case stems from plaintiff’s shipping of large volumes of coffee production materials from its manufacturing facility to the Lone Pine lan...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendant, HCA Management, Inc., to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. This is an age discrimination action filed under the Age Discrimination in Employment Act of 1967 (“ADEA”), Title 29, United States Code, Section 621, et seq. Subject matter juris...
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746 F. Supp. 50 (1990) James S. TAYLOR, Individually and as Representative of the Estate of Linda Marie Taylor, Deceased, and as Father and next Friend of Cameron Taylor, Adam Taylor, and Benedict Taylor, Minors, Plaintiffs, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY; Southern Pacific Transportation Company; Union Pacific Railroad Company; F.S. Altergott; A.M. Henson; W.J. Lacy; H.D. Fisher; and R...
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MEMORANDUM AND ORDER This matter is before the court on appeal from a November 17, 1987 memorandum decision of the bankruptcy court sustaining defendants/appellees’ motion for a directed verdict in a fraudulent conveyance action brought by the appellant, Joseph I. Witt-man, who served as trustee in the bankruptcy of Francis and Betty Lou Kennedy. On December 14, 1987, the bankruptcy court denied ...
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MEMORANDUM The petitioner, an inmate at the Allen-wood Federal Prison Camp, Montgomery, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) on May 23, 1989. The petitioner was granted leave to proceed in forma pauperis on July 24, 1989. On January 19...
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OPINION This breach of contract ease comes before the court on a motion for a stay by defendant, City Federal Savings Bank, against plaintiffs, Tuxedo Beach Club Corporation and Edmund C. Wideman, III. Defendant is a financial institution subject to the provisions in the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA). P.L. No. 101-73, 1989 U.S.Code Cong....
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ORDER Plaintiff, Atlanta Gas Light Company, has alleged in both its original and amended complaints that defendant Semaphore Advertising, Inc. (“Semaphore”) contracted with television stations broadcasting in Augusta and Savannah, Georgia, on behalf of defendant Central Electric Power Cooperative, Inc. (“Central”) to telecast a false, misleading and deceptive television commercial which c...
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OPINION Defendant has moved to quash a grand jury subpoena pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure. For the reasons set forth below the motion is granted. The Instant Motion Defense counsel accepted a grand jury subpoena duces tecum on behalf of mov-ant, requiring movant to appear before the grand jury on May 18,1990. The subpoena orders ...
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ORDER Petitioner Paul S. Wasylak, through counsel, has filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.1 RELEVANT FACTS Petitioner is presently incarcerated at the New Hampshire State Prison pursuant to a parole violation warrant issued by the United States Parole Commisrion (Commission). He is awaiting a parole revocation hearing. Petitioner was convicted by a Nebraska ...
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ORDER Before the Court is petitioner’s “Notice of Appeal And/Or Motion For Leave To Appeal.” Petitioner, Kearney-National, Inc. (“Kearney”) entered into an agreement styled as a lease with the Development Authority of Warren County (“Authority”) whereby Kearney acquired rights in certain real property, personalty and industrial equipment. Kearney financed the acquisition of the property through...
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MEMORANDUM This matter comes before the Court upon the Petition for Preliminary Injunction filed by the plaintiff, Warrick County Coal Corporation. Warrick Minerals, Inc. subsequently intervened as a plaintiff. The plaintiffs are seeking to enjoin the defendant, Warrick County, from enforcing restrictions on coal truck traffic upon Yan-keetown Road in Warrick County, Indiana. The intervening plai...
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ORDER ON APPEAL Defendant, Ford Motor Credit Co. (“FMC”), appeals the final order and judgment entered by the United States Bankruptcy Court for the Southern District of Georgia. The bankruptcy court tried the case on June 5, 1989. The facts, more amply stated in the order of the bankruptcy judge, are summarized as follows. Dillard Ford, Inc. (“Dillard”), a Ford dealership in Metter, Georgia, and...
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ORDER GRANTING AND DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT Plaintiff, Chemical Specialties Manufacturers Association (CSMA) is a trade association whose members manufacture a variety of chemical specialty products. Plaintiff filed an action for declaratory judgment in the Southern District, seeking a ruling that California’s Proposition 65 (Prop 65) warning requirements are preempted b...
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ORDER Came on for consideration certain defendants’ Motion to Remand this case to state court in Phoenix, Arizona, and Plaintiffs’ Response in opposition. Due deliberation being had, the Court is of the opinion that said Motion should be GRANTED. The procedural history of this case begins with the filing of a complaint in Arizona state court on May 31, 1988 for a deficiency judgment....
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ORDER Plaintiffs, parents of decedent and administrator of decedent’s estate, bring this action in admiralty to recover damages resulting from decedent’s death. On August 22, 1987, decedent, Steven H. Seymour, Jr., dove off his parent’s house boat and was swimming in Strom Thurmond Lake near a dock operated by the Tradewinds Marina & Yacht Club, Inc. (Marina) when he sustained an electric...
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ORDER This action is before the Court on defendant’s motion for partial summary judgment, plaintiffs’ motion for partial summary judgment, and plaintiffs’ motion to strike hearsay statements contained in defendant’s brief filed in support of defendant’s motion for summary judgment. The jurisdiction of the Court is based upon the provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S....
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I. INTRODUCTION TO CASE Plaintiff initiated this cause of action by filing a Complaint for Preliminary and Permanent Injunction and Damages on June 6, 1989. On the same day the plaintiff filed a Motion requesting a Temporary Restraining Order. Jurisdiction exists under 28 U.S.C. § 1332, diversity of citizenship. In its Complaint the plaintiff, an Ohio Corporation, claimed that defenda...
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MEMORANDUM AND ORDER This matter is presently before the Court on the motions of all defendants to dismiss for failure to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6), or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The case arises as a result of the appointment of defendant Anthony DeCastro as the Chief o...
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MEMORANDUM Presently before the Court is the Plaintiffs motion for a preliminary injunction and the Defendants’ opposition. Both parties have submitted extensive briefs on the matter. For the following reasons, the Plaintiff’s motion for a preliminary injunction will be GRANTED. Facts The Plaintiff, Someday Baby, Inc., manufactures children’s products which consist of a book...
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MEMORANDUM OPINION AND ORDER Plaintiff is a former attorney with the Civil Division, Child Support Unit (now Child Support Section) (CSS) of the District of Columbia Office of Corporation Counsel (OCC). Defendants are the District of Columbia, Frederick D. Cook, in his official capacity as D.C. Corporation Counsel, and Arlene Robinson, in her individual and in her official capacity as Chi...
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MEMORANDUM This matter comes before the Court upon defendant, Louis Sullivan, M.D., the Secretary of Health and Human Services’, Motion to Dismiss. The plaintiff, Ralph Millsaps, M.D., is a cardiologist in Evansville, Indiana, who performs precutaneous transluminal coronary angioplasties (“PTCA”) on Medicare patients. Medicare Part B enrollees John Beavin and Edmond Hollander are patients of Dr. M...
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ORDER AND REASONS Before the Court is the motion of defendants, United States Fire Insurance Company (“U.S. Fire’’) and International Insurance Company (“International”), for summary judgment. The Court had taken this matter under submission by an Order which was entered April 9, 1990. After reviewing the motion, memoranda of counsel, the record and the law, the Court hereby denies the motion for...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION The Lady Elgin, built in 1851, was a celebrated sidewheel steamer which carried passengers, mail and freight on Lake Michigan and Lake Superior. On September 8, 1860, she was overloaded with approximately 450 passengers returning to Milwaukee after attending a Democratic Party rally in Chicago for presidential candidate Stephen ...
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RULING ON PLAINTIFF’S MOTION TO COMPEL AND ON DEFENDANT’S MOTION FOR A PROTECTIVE ORDER Plaintiff Allied-Signal, Inc. (“Allied-Signal”), a Delaware corporation, has brought this action under 35 U.S.C. § 146 against defendant Allegheny Ludlum Corporation (“Allegheny Ludlum”), a Pennsylvania corporation, to review the February 28, 1988 decision of the Board of Patent Appeals and Interferences (the ...
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MEMORANDUM AND ORDER This matter is before the court on the States’ motion to enforce DOE’s obligation under the Final Settlement Agreement to permit rebuttal of the presumption of injury (States’ motion to enforce) (Doc. 1693). The court heard oral argument on May 30, 1990. In addition to the briefs filed by the States and Department of Energy (DOE), the court has received various amicus briefs....
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is a civil forfeiture action brought by the United States of America pursuant to 21 U.S.C. § 881(a)(7), arising from the government’s seizure of illegal drugs at the tavern and second floor apartment owned in joint tenancy by claimants Raul and Reyna Serratos. The claimants have asserted an affirmative defense of innocent ownership. P...
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MEMORANDUM Plaintiff instituted this action in the Court of Common Pleas of Philadelphia County to recover damages from alleged defamation in the course of his employment with defendant, Amtrak. Plaintiff alleges he was injured as a result of the carelessness, recklessness and negligence of Amtrak. Complaint, at ¶ 10. Compensation for injuries is presumably sought pursuant to the Federal Employers...
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OPINION Appellants seek reversal of a ruling by the bankruptcy court allowing the debtor in this case to reject an executory contract with them. I have jurisdiction under 28 U.S.C. § 158(a). The following facts are apparently not in dispute. The debtor and his wife sold a piece of real property to appellants for $105,000, on April 21, 1989. Appellants made a down-payment of $30,-000 on th...
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ORDER I. INTRODUCTION. We are presented with a motion by defendant Shearson Lehman Hutton (“Shear-son”) to stay proceedings and compel arbitration in this sex discrimination suit brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff Lauryn Agnew Bierdeman was employed by Shearson as an institutional equity salesperson. She alleges tha...
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OPINION Plaintiffs, Far West Federal Bank (Far West) and a number of its investors and stockholders (Investors), bring this action against the Director of the Office of Thrift Supervision (OTS), the Federal Home Loan Bank Board (FHLBB), the Federal Home Loan Bank of Seattle (FHLB-Seattle), the Federal Deposit Insurance Corporation (FDIC), and the Federal Savings and Loan Insurance Corpora...
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MEMORANDUM OPINION AND ORDER Before me are cross-motions for summary judgment on plaintiff Communications Workers of America, AFLIGIO, CLC’s (Union) action for a permanent injunction. Hearing was held on August 24,1990. The Union seeks to prevent defendant U.S. West Communications (U.S. West) from implementing a policy to test employees for drug and alcohol use pending grievance and arbitration pr...
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OPINION Presently before the court is (A) defendant Anthony Blyden’s and Allen Van Put-ten’s motion to dismiss the information on grounds of double jeopardy, (B) defendant Blyden’s motion for reconsideration of pretrial detention, (C) defendant Van Putten’s motion requesting a date certain for trial, and (D) defendant Van Putten’s motion to dismiss the superseding information. In this opi...
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Mine Safety Appliances Company and its subsidiary Catalyst Research Corporation (“Mine Safety”) commenced this action seeking a declaratory judgment that patents held by defendant Becton Dickinson and Company are invalid or are not infringed by certain gas detectors (known as “MiniCo I, II, III, and IV”) manufactured by Mine Safety. Becton Dickinson (“BD”) counterclaimed, alleging infringement ...
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MEMORANDUM-DECISION AND ORDER The complaint in the instant action was filed on October 20, 1981. The action is brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., and the National Swine Flu Immunization Program of 1976 (the “Swine Flu Act”), 42 U.S.C. § 247b. As the result of a swine flu shot, plaintiff, Irene Weldon, claims to have contracted v...
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OPINION AND ORDER This is a motion by defendants for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) or for summary judgment pursuant to Federal Rule of Civil Procedure 56. Background On May 15, 1986 the defendants filed a Schedule 13D with the Securities and Exchange Commission stating that by the close of business on May 9,1986, defendant Carl C. Ic...
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MEMORANDUM DECISION This is an action brought by plaintiff William Perry (“Perry”), as President of Local 6 of the International Longshoremen’s Association, AFL-CIO, an unincorporated association (“Local 6”) 1 and inter-venor plaintiff International Shipping Association (“ISA”) 2 against the defendant International Transport Workers’ Federation (“ITF”). 3 ...
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OPINION AND ORDER Defendant Sea-Land Service, Inc. (“Sea-Land”) moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure or, in the alternative, for a $500 per container limitation on its liability in this maritime loss action. 1 Defendant’s motion for summary judgment is based on the fact, agreed upon at oral argument, that the loss occurred after...
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SENTENCING MEMORANDUM Larry G. Enquist has tendered a guilty plea to a misdemeanor charge of possession of methamphetamine, 21 U.S.C. § 844(a), as part of a written plea agreement in which Mr. Enquist agreed to cooperate with the government, which in turn agreed to dismiss an indictment charging him with felony offenses of conspiracy, possession with intent to distribute methamphetamine, ...
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OPINION Jane Does, Nos. 1, 2, and 3, who are female victims of sexual assaults, have sued the Mayor and City Council of Poco-moke City, Maryland, the Mayor and City Council of Ocean City, Maryland, and the State’s Attorney for Worcester County, Maryland, alleging that the police departments of Pocomoke City and Ocean City failed to investigate properly the crimes and that the State’s Attorney f...
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ORDER I. INTRODUCTION. This matter comes before the court on defendants’ second motion for summary judgment. Plaintiff, a black man, has brought suit against the County of San Mateo (“County”) and individual defendants Donati, Frimmersdorf, Fagetti, and MeCreadie under 42 U.S.C. § 2000e (“Title VII”), 42 U.S.C. §§ 1981, 1983, and 1985, and the California Fair Employment and Housing A...
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MEMORANDUM OPINION AND ORDER The original indictment in this case was handed down on August 2, 1989 naming eighteen commodities traders in the soybean futures pit at the Chicago Board of Trade (“CBOT”) and a floor clerk as defendants. The indictment charged the defendants with 534 counts alleging violations of, inter alia, the Racketeer Influenced and Corrupt Organizations Act ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER came before the Court for trial commencing September 25, 1989. On September 26, October 16 and October 20, 1989, the Court rendered oral rulings, which have been transcribed and filed and are incorporated herein as Findings of Fact and Conclusions of Law by this reference. On the basis of the testimony presented at trial, the documentary...
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MEMORANDUM AND ORDER Lois Millspaugh and Tina Dyson believe several of their constitutional rights were violated when their county welfare department took their children from them. The defendants they seek to hold liable, child welfare caseworker Manetta Tucker and the Wabash County Department of Public Welfare (“Department”), have moved for summary judgment in separate motions, claiming ...
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MEMORANDUM AND ORDER This cause came before the court on August 16, 1990 for hearing on the motion of plaintiff Braxston Banks for a temporary injunction. Mr. Banks seeks injunctive relief against the National Collegiate Athletic Association (“NCAA”) and the University of Notre Dame to restore his eligibility to play intercollegiate football for Notre Dame during the 1990 season. Without injunc...
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MEMORANDUM AND ORDER Plaintiff commenced this suit on January 10, 1990 seeking treble damages, costs and attorneys fees for defendants’ alleged violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Defendants move to dismiss plaintiff’s complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subjec...
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*385OPINION Pursuant to Fed.R.Civ.P. 72(a) and Local Rule 40(D)(4)(a), defendants Westinghouse Electric Corporation and Westinghouse International Projects Company (“Westinghouse”) appeal portions of two of Magistrate Hedges’ discovery orders. FACTS In 1978 the Securities Exchange Commission (“SEC”) began investigating Westinghouse for securities violations relating to alleged illegal payments ma...
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This is a lawsuit brought pursuant to 21 U.S.C. Section 853(n). That section authorizes suits by third parties who are claiming “a legal interest in property which has been ordered forfeited to the United States.” The statute is designed to create a remedy in favor of third parties whose legitimate legal interests have in some manner been swept up in property which has been forfeited to the United...
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The defendant’s motion to suppress physical evidence seized on August 21, 1989, raises some important questions, questions that are not easily resolved. The basic facts are relatively clear. At approximately 10:00 p.m., on August 21, 1989, Officer Abel, a Philadelphia police officer attached to the Drug Enforcement Task Force, was in his vehicle in a parking lot outside a Wawa. He observed a BMW c...
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MEMORANDUM AND ORDER In these consolidated actions, the Court is asked to resolve a conflict between the employment rights of prison guards working in the New Jersey Department of Corrections and the constitutional rights of the prisoners they guard. Gertrude Csizmadia is a female corrections officer at the Garden State Reception and Corrections Facility and represents the class of female...
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ORDER AND NOW, this 1st day of March, 1990, upon consideration of the various pending applications for interim relief, and for the reasons stated in this court’s rulings on interim relief in the case of Temple University v. John F. White, Jr., C.A. 88-6646, 732 F.Supp. 1327 (to the extent those reasons apply to all hospitals, without regard to their classification or other individual distinguishin...
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MEMORANDUM OPINION This case involves a Freedom of Information Act (“FOIA”) request for documents. The request, made by the American Society of Pension Actuaries (“ASPA”), sought to uncover the reasoning behind a revenue estimate contained in the President’s Proposed Budget for Fiscal Year 1990. This matter is now before this Court on defendant’s motion for summary judgment and plaintiff’...
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ORDER This matter is before the court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner, an inmate at the United States Penitentiary (“USPL”), Leavenworth, Kansas, claims that: (1) the Parole Commission acted arbitrarily and capriciously by denying petitioner a release date within his guideline range; *1147and (2) the Parole Commission should immediately set a ...
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ORDER This matter is before the court on a civil rights complaint filed pursuant to 28 U.S.C. § 1331. Plaintiff, an inmate at the United States Penitentiary, Leavenworth, Kansas, claims that the defendants have violated his constitutional rights by refusing to change the race classification in his Bureau of Prison records from “Black” to “African American”. Plaintiff seeks injunctive relief and da...
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MEMORANDUM OPINION This matter is before the Court on Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction or in the Alternative Motion to Transfer Pursuant to 28 U.S.C. § 1404(a). An evidentiary hearing was held on July 31, 1990. Thereafter, the parties were provided an additional opportunity to brief the jurisdictional issue presented. Having carefully reviewed the entire rec...
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OPINION AND ORDER On April 19, 1990, defendant was convicted of both counts of a two-count indict*202ment. Under count 1, defendant was convicted of possession of a firearm by a career criminal in violation of 18 U.S.C. § 922(g) and § 924(e)(1). Under the statute, a career criminal is a person who has been convicted of three “violent felonies.” A conviction under 18 U.S.C. § 924(e)(1) carries a ma...
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MEMORANDUM OPINION This action involves the efforts of The Miami Herald Publishing Co., a division of Knight Ridder, Inc. (“The Herald”) to obtain certain photographs, negatives, contact prints, Polaroids, and slides (collectively, “photographs”) from the City of Miami (“City”), the State of Florida’s Office of the State Attorney for the Eleventh Judicial Circuit (the “State Attorney”), and Metro...
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MEMORANDUM OF DECISION This is an action brought pursuant to § 615(e) of the Education of the Handicapped Act (“EHA” or “the Act”), 20 U.S.C. § 1415(e), and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs seek review of an administrative decision allowing defendant Colchester Board of Education (“the Board”) to prohibit the tape recording of Planning and Placement Team (“PPT”) meeting...
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OPINION Presently before the court is the motion of defendant PPG Industries, Inc. (“PPG”) for summary judgment pursuant to Fed.R. Civ.P. 56 asserting that plaintiff has failed to come forth with any evidence establishing William Wade’s exposure to any asbestos-containing product distributed by it. Also before the court is the motion of defendants Celotex Corporation, Fibreboard Corporati...
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OPINION These consolidated diversity actions arise from a fire that broke out in a dormitory at Wesley College on April 12, 1987. As a result of that fire Christopher Sterner died and Joseph Morgan was injured. The parents of Christopher Sterner, with his father also acting as administrator of Christopher’s estate, filed suit against Wesley College and against Edward McGee and Robert Rumsey, tw...
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MEMORANDUM ORDER The Internal Revenue Service (“IRS”) has asserted a claim for administrative expenses incurred by the debtor in this bankruptcy proceeding. In disallowing the IRS's claim, the bankruptcy court held that the claim was untimely filed. The IRS now appeals that ruling. For the reasons stated herein, the decision of the bankruptcy court is affirmed. I. FACTS The debt...
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MEMORANDUM AND ORDER Pending before the Court is the motion for summary judgment filed by separate defendant W.R. Grace & Co. — Conn seeking dismissal of the claims against this defendant filed by the administratrix of the estate of Orka Rogers. For the reasons set forth below, the motion will be granted in part and denied in part. Between 1948 and 1973, Orka Rogers worked as a plumb...
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MEMORANDUM OPINION The history and posture of the above-entitled case as of March 12, 1990, is outlined in U.S. v. Premises Located at 207 W. Washington St, 732 F.Supp. 1128 (N.D.Ala.1990). There is no reason here to repeat what was said there. That opinion suffices as a background and starting point for this opinion. Originally, the United States undertook to obtain the f...
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AMENDED MEMORANDUM AND ORDER Defendants James A. Pepitone and Marina Del Mar move to dismiss plaintiffs complaint pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure. Plaintiffs complaint claims that (i) defendant Pepitone violated the Racketeer Influenced and Corrupt Organizations Act, (“RICO”) 1 , (ii) defendant Pepitone committed fraud, (iii) defendan...
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*19 MEMORANDUM OPINION This matter is before the Court on plaintiffs’ motion for summary judgment, defendants’ motion to dismiss, and the opposition to these motions. Plaintiffs challenge the United States Department of Labor’s (“DOL”) Adverse Effect Wage Rate (“AEWR”) regulation, 20 C.F.R. § 655.107(a) (1989). I. BACKGROUND Plaintiffs in this action challenge the DOL’s...
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OPINION AND ORDER This case presents the next chapter in the continuing narrative of this Circuit’s treatment of the fair use defense to a charge of copyright infringement. The parties have cross-moved for summary judgment on this claim. For the reasons set forth below, defendants’ motion is granted. In addition, defendants have moved for summary judgment on plaintiff’s breach of contract...
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MEMORANDUM OPINION AND ORDER Jacqueline Brown, by her mother Marsha Thomas, has filed this three count action against Cecil A. Partee and Neil Hartigan, the Attorney General of the State of Illinois (“State”). Both Partee and the State have moved to dismiss the action. For the reasons stated below, we grant the motions to dismiss. At its core, this a paternity suit. Brown alleges that she is ...
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MEMORANDUM AND ORDER Before the Court is defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. Plaintiff has filed a response to defendants’ motion, and defendants have filed a reply brief. The defendants assert that Count I is subject to the exclusivity provisions of the Illinois Workers’ Compensation Act. Defendants further assert that Counts III and IV of the compl...
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MEMORANDUM OPINION AND ORDER INTRODUCTION. The Court has received a pro se application for writ of habe-as corpus pursuant to 28 U.S.C. § 2254 from petitioner, Vernon Ray Cope. He is currently serving two consecutive life sentences in the custody of the Arkansas Department of Correction. See Application at 2. On June 25, 1986, petitioner was convicted in Craighead County Circuit Court of two count...
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MEMORANDUM OPINION AND ORDER Plaintiffs have sued the defendants, the Sheriff of Cook County and other high-ranking officials in his administration 1 for damages and injunctive relief under 42 U.S.C. § 1983 (1982). Specifically, plaintiffs charge violation of free speech and other infringements arising out of alleged incidents of intimidation and harassment. The defendants move...
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OPINION Plaintiff Dolores Canales (“Canales”) has moved the Court to reconsider and vacate its order and judgment (the “Order”) dismissing Canales’ complaint and to reopen this case to review it on the merits. For the reasons set forth below the motion is denied. Prior Proceedings On February 23, 1990 an Order was entered dismissing Canales’s complaint. The memorandum opinion ci...
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OPINION AND ORDER This is an action by a reinsured (“AIG”) against a reinsurance company (“Fremont”) on two contracts of reinsurance, or “treaties.” Defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56 rescinding the reinsurance treaties and dismissing the complaint. For the reasons set forth below, defendant’s motion is denied. BACKGROUND 1. First Blanket Treaty...
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OPINION AND ORDER This opinion emanates from the voluntary settlement in the action commenced by plaintiff United States of America (the “Government”) against defendants International Brotherhood of Teamsters (the “IBT”) and the IBT’s General Executive Board (the “GEB”) embodied in the voluntary consent order entered March 14, 1989 (the “Consent Decree”). The remedial provisions in the Consent ...
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OPINION Plaintiff Banco Portugués do Atlántico (“the Bank”) has moved, pursuant to Rule 56, Fed.R.Civ.P., for summary judgment against defendant Asland, S.A. (“Asland”) with respect to the first cause of action in plaintiff's amended complaint, and for entry of a final judgment as to that claim pursuant to Rule 54(b), Fed.R.Civ.P. For the reasons that follow, the motion for summary judgme...
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MEMORANDUM OPINION AND ORDER Defendant Joseph A. Pontarelli has moved to dismiss Counts Ten and Eleven of the indictment in the above captioned case on the grounds that the government failed to obtain the indictment before the applicable statute of limitations period had expired. Those counts allege violations of 26 U.S.C. §§ 7206(1) and 7201 respectively. For the reasons discussed below, this mot...
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MEMORANDUM Plaintiff initiated this employment discrimination action in June 1990, alleging that defendant violated the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“§ 1981”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Pennsylvania Human Relations Act (“PHRA”). Before the court is defendant’s Motion to Dismiss the claim alleging discriminatory term...
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MEMORANDUM AND ORDER Plaintiff, proceeding in forma pauperis, filed a Notice of Appeal from an unfavorable judgment entered by this Court after a non-jury trial on the merits of his civil rights action brought pursuant to 42 U.S.C. § 1983. He now seeks an order from this Court directing the United States to supply a transcript of opening and closing statements and all witness t...
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MEMORANDUM This suit considers whether an insurance carrier must defend an insured landlord against its tenants’ claim for breach of the implied warranty of habitability. The Broad Form Comprehensive General Liability Endorsement (the “Broad Form Endorsement”) issued to the landlord here covers “personal injury,” defined in the endorsement to include “wrongful entry or eviction or other i...
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MEMORANDUM OPINION AND ORDER Gallo Equipment Co. (“Gallo”) brought a third-party complaint against GR-Amtec, a subsidiary of General Refractories Co. (“General Refractories”), 1 seeking indemnification and contribution for any judgment rendered against it in the primary litigation. General Refractories now moves for Rule 12(b)(6) dismissal for failure to state a claim upon whic...
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MEMORANDUM OPINION This is a trespass action for damages to plaintiff’s land located in Wise County, Virginia. Plaintiff, Emil Sowards, is a Maryland resident. Defendant, Switch Energy Co., Inc., (hereinafter “Switch Energy”) is a Kentucky corporation with its principal place of business in that state. Defendant, Kelly Energy Company, Inc., (hereinafter “Kelly Energy”) is a Virginia corpo...
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ORDER I.INTRODUCTION Both of the defendants have filed separate motions that are now before the court. Defendant General Accident Insurance Company (“General Accident”) has moved for summary judgment, and defendant K & T, Inc. d/b/a Budget Rent-a-Car of Salt Lake City (“Budget”) has made a motion to dismiss alleging that the plaintiff, Canadian Indemnity Company (“Canadian Indemnity”...
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MEMORANDUM OPINION I. Introduction In this action, plaintiffs, We the People, Inc., of the United States (“We the People”) and Stephen B. Comley, allege that defendants, the Nuclear Regulatory Commission (“NRC”) and its chairman, have violated their first amendment right to free expression by banning their display of political posters and bumper stickers at public NRC meeting...
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MEMORANDUM OPINION AND ORDER Now before the court is the defendants’ motion to dismiss, or in the alternative for summary judgment. The plaintiffs complaint requests declaratory and injunctive relief, alleging the following: the defendants’ application of 8 U.S.C. § 1252(a)(2) amounts to the imposition of excessive bail and violates the Eighth Amendment to the United States Constitution; ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDINGS OF FACT 1. Plaintiff Genny Buskus is a white female who was employed as a directory representative for Southwestern Bell Yellow Pages, Inc. from January 20,1988 until January 27, 1989. 2. As a probationary employee, the plaintiff was required to meet either the sales objectives for each book set by Southwestern Bell Yellow Pages or, at least,...
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MEMORANDUM AND ORDER In this action, plaintiff, Nippon Emo-Trans Co., Ltd. (“NET”), seeks recognition of a judgment it obtained against defendant, Emo-Trans, Inc. (“ETI”), in the Tokyo District Court of Japan. Currently before the Court are (i) NET’s motion to confirm an attachment pursuant to Sections 6211 and 6212 of the New York Civil Practice Law and Rules, N.Y.Civ.Prac.Law & R. §§ 62...
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MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on the Motion for Partial Summary Judgment filed December 30, 1987 by Plaintiffs, the Motion to Dismiss and in the Alternative for Summary Judgment Based on Lack of Jurisdiction filed December 30, 1987 by “federal” defendants and joined and supplemented February 3, 1988 by “interior” defendants, all responses thereto, an...
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MEMORANDUM OPINION The factual background of this case is set forth in the previous memorandum opinion filed on June 21, 1990. For the present it is sufficient to state that plaintiff initiated an action under 42 U.S.C. § 1983, alleging that he was incarcerated in the Sebastian County Jail for several months awaiting trial on charges stemming from a “hot check cashing” scam. Plaintiff all...
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746 F. Supp. 200 (1990) UNITED STATES of America, v. Rayful EDMOND, III, et al. Crim. No. 89-0162. United States District Court, District of Columbia. September 17, 1990. Jay B. Stephens, U.S. Atty., District of Columbia, Asst. U.S. Attys. John P. Dominguez and David Schertler, Washington, D.C., for the U.S. Daniel Ellenbogan, Kensington, Md., for defendant Rayful Edmond, III. Cynthia Lobo, Washi...
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*419 MEMORANDUM OPINION AND ORDER This action involves claims pursuant to the Bankruptcy Code, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), state tort law, and state contract law. Jurisdiction is founded on 28 U.S.C. § 1331 and principles of pendent jurisdiction. Now before the court is the Report and Recommendation of Magistrate Joel J. Tyler (hereinafter “R ...
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ORDER The above matter was before the undersigned United States Magistrate on May 7, 1990 on defendants Cliff Road Properties and Hoffman Development Group, Inc.’s motion for disqualification of Dorsey & Whitney as counsel for plaintiffs. Plaintiff was represented by John D. Levine, Esq. Defendants Cliff Road Properties and Hoffman Development Group, Inc. were represented by Joseph W. Anthony, Es...
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MEMORANDUM OPINION AND ORDER This is an appeal of the Bankruptcy Court’s decision denying appellant Hattie *414 Brown’s (“Brown”) motion to set aside a judicial foreclosure sale as a fraudulent conveyance under 11 U.S.C. § 548, 104 B.R. 609 (1989). BACKGROUND On August 27, 1979, the appellant and her husband purchased property at 830 223rd Street Bronx, New York (th...
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MEMORANDUM OPINION AND ORDER Pending before the Court are the federal defendants’1 motions to dismiss, the British defendants’2 motions to dismiss, and *62plaintiff’s oppositions thereto. For the reasons set forth below, defendants’ motions are granted and this case is dismissed. I. BACKGROUND Plaintiff Alex Herbage is currently an inmate at the Federal Medical Center in Rochester, Minnesota. In ...
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746 F. Supp. 241 (1990) Sandra SARGEANT v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION 478 HEALTH BENEFITS AND INSURANCE FUND. Civ. No. H-89-457 (PCD). United States District Court, D. Connecticut. September 17, 1990. *242 Ross T. Lessack, Edward T. Dodd, Jr., Waterbury, Conn., for plaintiff. Norman Zolot, New Haven, Conn., for defendant. *243 RULING ON CROSS-MOTIONS FOR SUMMARY JUD...
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ORDER This matter came before the Court on plaintiffs’ motion for reconsideration on May 31, 1990. On June 25, 1990 the parties submitted additional data and information upon request of the Court. After careful consideration of all written and oral arguments, and supporting documents, the Court grants in part, and denies in part, plaintiffs’ motion for the reasons set forth below. ...
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*1502 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I. Background On June 28, 1989, plaintiff Electrical and Magneto Service Company, Inc. (EMS) filed its First Amended Complaint against defendant AMBAC International Corporation (AMBAC) seeking damages for defendant’s alleged violation of the notice requirement of the Missouri Franchise Statute, Mo.Rev. Stat...
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OPINION This action comes before the Court on defendant’s motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction. For the reasons set forth below, we hold that this Court lacks jurisdiction over the subject matter of the present action and, accordingly, defendant’s motion shall be granted. I. FACTUAL AND PROCEDURAL HISTORY Plaintiff, Michae...
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MEMORANDUM ORDER This matter is before the court on the plaintiffs motion to remand the above-styled civil action to the Circuit Court of Kanawha County, West Virginia. I. The Case Plaintiff originally commenced this action on October 23, 1989, in the Circuit Court of Kanawha County, West Virginia. An amended complaint was filed on November 1, 1989. 1 Defendan...
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This case arose out of an automobile accident on January 16,1988, in which Kevin Bartucco was killed. Plaintiffs Eugene F. Bartucco and Linda F. Bartucco are the father and mother of Kevin Bartucco. Eugene Bartucco brought a survival action as personal representative of the Estate of Kevin Bartucco. In addition, both Plaintiffs sued in their personal capacities in a wrongful death action. By vi...
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MEMORANDUM OPINION I. Statement of the Case On March 24, 1989, plaintiff, Melvin White, brought suit against defendants, Natalee Schay and B. Jeffery Pence, under the provisions of 42 U.S.C. § 1982 and Title VIII of the Civil Rights Act of 1968 (The Fair Housing Act), 42 U.S.C. § 3601 et seq., alleging that the defendants discriminated against him because of his ra...
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MEMORANDUM OPINION FACTS The plaintiff, David W. Murray (Murray), was working as a deckhand for the Bertuc-ci Construction Company (Bertucci) aboard the M/V BARBARA ANN. On October 7, 1987, Murray was injured when moving a cable from an empty rock barge to the crane barge AB-11. Rocks had accumulated on the deck of the AB-11 that the plaintiff attempted to climb over to secure the cable. He s...
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OPINION This litigation stems from an accident which took the life of Thomas Allen Clem*267ent, an employee of defendant Pennsylvania Truck Lines, Inc. (“PTL”), who drove a pick-up truck into a chassis which was situated alongside Track D in defendant Consolidated Rail Corporation’s Trailvan Terminal in South Kearny, New Jersey. The defendants are presently before the court moving for summary jud...
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ORDER This cause is before the Court upon the defendants’ Motion for Relief from Judgment filed pursuant to Rule 60(b)(5), Federal Rules of Civil Procedure, wherein defendants seek to modify the Judgment of this Court dated March 12, 1982. 536 F.Supp. 1048. The Court has heard oral argument on behalf of all parties. Motions pursuant to Federal Rule of Civil Procedure 60(b)(5) are directed to the ...
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OPINION Selma Geder was an inmate at the Graham Correctional Center who refused to submit to a visual body cavity search required by the correctional center officials to maintain institutional security. Because he refused to voluntarily submit, the search was executed forcibly. Geder, unhappy about being forced to submit, brought suit against the involved prison officials under 42 U.S.C. § 19...
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This case presents the important issue of to what extent Rule 4.2 of the American Bar Association Model Rules of Professional Conduct regulates a defendant’s ex parte contacts with former employees of a plaintiff corporation. The question comes to this Court on an appeal from an Order entered on April 25, 1990 by Ronald J. Hedges, United States Magistrate. The subject Order required ...
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MEMORANDUM OPINION This case is an appeal from final orders of the United States Bankruptcy Court for the Western District of Virginia. The appealed orders confirm a Chapter 13 plan of the debtor and dispose of objections to that plan. The court has jurisdiction over this case pursuant to 28 U.S.C. § 158(a). FACTUAL AND PROCEDURAL BACKGROUND On November 22, 1988, Ira and Shirley...
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*1018 MEMORANDUM OF DECISION AND ORDER This removed diversity action is before the court on defendant’s motion for summary judgment, or, alternatively, for summary adjudication of issues, and plaintiff’s cross-motion for partial summary judgment. The motions were heard on the court’s regularly scheduled Motions Calendar of August 4, 1989, and, after supplemental briefing on ...
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OPINION AND ORDER This civil action for foreclosure is before the court on the motion for summary judgment of defendants James and Delores Cleasby. Defendants contend that this action should not be maintained against them, but that they should be permitted to take advantage of the debt restructuring provisions of the Agricultural Credit Act of 1987. The government denies that the Cleasbys are elig...
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OPINION AND ORDER Plaintiff Ajay P. Garg brings this action pursuant to the federal civil rights laws, 42 U.S.C. § 1981-1983 (1982) and the Fourth [sic] and Fourteenth Amendments of the United States Constitution. See Complaint at ¶ First. In this action plaintiff seeks a declaratory judgment that defendants violated “plaintiffs rights to equal educational opportunity and other...
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ORDER This matter is before the Court on motion of defendant Lance Roberson (“Roberson”) to dismiss him from this action pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. No response has been submitted to the motion and the motion has therefore been determined on the record before the Court without oral argument in accordance with Local ...
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MEMORANDUM This cause of action came before the Court on August 31, 1990, on Gaines’ Application for Temporary Restraining Order *740 and Preliminary Injunction. This Court denied the Motion for a Temporary Restraining Order on that date. In the September 13 hearing on Gaines’ Motion for a Preliminary Injunction, Gaines urged this Court to enjoin the Defendants from enforcing...
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MEMORANDUM OPINION Plaintiff Regina Darby (“Darby”) has moved for default judgment against the “Meridien Copacabana” and “Meridien Ho*355tels, Inc.” incorrectly named in the caption as “Societe Des Hotels Meridien, d/b/a Meridien Hotels, Inc.” and for intervention of a magistrate to oversee and compel discovery. For the reasons set forth below the default motion is denied with leave to renew after...
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This products liability case is before the court for resolution of the defendant’s motion to dismiss for lack of personal jurisdiction and, alternatively, for summary judgment based on the plaintiffs failure to state a claim. I. FACTS On December 5, 1982, plaintiff Oliver Bond was engaged in active service with the National Guard at the Elberton, Georgia, Armory and was washing an M57...
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OPINION AND ORDER This personal injury action arises from injuries sustained by now-deceased boxer Billy Ray Collins, Jr., during a 1983 bout with Luis Resto promoted by defendant Top Rank at Madison Square Garden (MSG). 1 The criminal case has established that Collins’ injuries resulted from his trainer’s removing padding from Resto’s boxing gloves. 2 MSG and Top Rank now move for summary ...
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ORDER RE DISCOVERY On September 12, 1990 the Court held a hearing on the parties positions with respect to provisions in a proposed protective order and conducted a discovery planning conference. After considering the parties’ substantial written and oral submissions on all issues, the court hereby enters the following ORDERS: PROVISIONS IN THE PROTECTIVE ORDER 1. Burden of persuasion/showing goo...
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ORDER ENTITLING RELATORS TO SHARE IN THE RECOVERED PROCEEDS BACKGROUND On June 16, 1987, the Department of Health and Human Services (HHS), Office of Inspector General (OIG), initiated a review of Comprehensive American Care (CAC), a Health Maintenance Organization, and its affiliated providers. Based on this review, HHS-OIG found that CAC and two of its affiliated providers had been...
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ORDER Dr. Gresham Orrison and Susan P. Douglass, the plaintiffs in this securities fraud action, filed a motion for class certification on May 17, 1990. The court then set a discovery schedule on the issue of class certification. The parties were directed to complete discovery by August 31, 1990, Since neither plaintiff is an Illinois resident, the parties experienced difficulty in scheduling a mu...
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OPINION Plaintiff pro se, inmate Leonard Lott (“Lott”), has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, for a declaration of the abandonment of certain of his claims as set *227 forth below, and for a motion in limine. Defendants Donald Selsky (“Selsky”), Director of Special Housing and Inmate Disciplinary Programs for th...
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Compre Comm, Inc. was a corporation that did business in Champaign and whose president was Michael Johnson. The plaintiffs, Marine Bank and Busey Bank, extended a line of credit to the corporation and held as security an interest in Compre Comm’s accounts receivable. Compre Comm failed to pay payroll taxes to the United States for the last two quarters of 1983 and the first two quarters of 1984. ...
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OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION David Williams, a former inmate confined at the Federal Correctional Institution at Otisville, New York (“Otisville”), seeks recovery of damages in the amount of $1,500,000 against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(d), 2671, et seq. for a below-the-knee amputation of his righ...
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OPINION Defendant, The Westgate Group, Inc. (“Westgate”), has moved pursuant to Federal Rule of Civil Procedure 12(b)(2) to dismiss the complaint for lack of jurisdiction over the person or, alternatively, pursuant to 28 U.S.C. § 1404(a) to transfer this action to the United States District Court for the Northern District of Texas. For the reasons set forth below, the motion is granted in...
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MEMORANDUM This action was brought on September 25, 1989, by the plaintiff, Beth Ann Brown, seeking a review of the administrative finding on the issue of defendant’s financial liability for the plaintiff’s educational placement under the Education for All Handicapped Children Act. On July 16, 18, and 20, 1989, the plaintiff’s parents went before Administrative Law Judge J. Randall L...
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MEMORANDUM OPINION AND ORDER This case involves a challenge to a landmark ordinance enacted by the City of Chicago, Illinois, that precludes the designation of religious buildings as landmarks without the consent of the building’s owner. The plaintiffs, Rebecca Alger, Lisa Marini, Joan Smuda, The Landmarks Preservation Council of Illinois (the “Landmarks Council”), and The National Trust ...
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MEMORANDUM Now before the Court are identical motions by three television stations in Nashville, Channels Two, Four and Five, as well as Don Aaron of Channel Four, to copy a videotape made by the United States, pursuant to a search warrant, of the defendant LaFayette “Fate” Thomas’ residence (filed July 19, 24 and 25, 1990; Docket Entry Nos. 599, 609 and 612). Defendant Thomas filed responses on J...
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ORDER OF DISMISSAL THIS CAUSE is before the Court upon Defendants’ Motion to Dismiss, first filed on August 8, 1988. The Court has twice taken extensive argument concerning this difficult motion. This action now arises from a five-count Amended Complaint charging Defendants with (1) wrongful death, (2) battery, (3) intentional infliction of emotional distress, (4) violation of Article 3 o...
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OPINION Third-party defendant Utica Mutual Insurance Company (“Utica”) has moved to dismiss the third-party claim of third-party plaintiff Marine Midland Bank, N.A. (“the Bank”) for lack of subject matter jurisdiction. 1 Because the claim falls within the court’s pendent party jurisdiction, the motion is denied. The Facts The United States filed the underlying com...
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OPINION AND ORDER In August of 1989 defendants filed a motion to dismiss or, alternatively, for summary judgment, which now pends before the Court. Eight months later, after a period that saw the parties awaiting for the First Circuit’s decision in the case of Agosto-DeFeliciano v. Aponte-Roque, 889 F.2d 1209 (1st Cir.1989), plaintiffs filed their opposition to defendants’ motion to dismiss. On J...
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MEMORANDUM OPINION BACKGROUND The Chapter 11 reorganization proceedings of the eleven subsidiaries of Lincoln Savings and Loan Association (Lincoln subsidiaries) are before this Court pursuant to a withdrawal of the reference on February 2, 1990. Arthur Young & Company and its successor in interest Ernst & Young (hereinafter “Arthur Young”) have filed proofs of claim against eac...
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MEMORANDUM ORDER Plaintiff Jayson Investments, Inc. (“Jayson”) filed the instant action seeking to compel the Department of Housing and Urban Development (“HUD”) to perform certain acts relating to the financing and operation of a particular real estate project in which Jayson has a substantial financial interest. First, Jayson seeks to compel HUD to issue its final endorsement of a mortg...
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MEMORANDUM THIS MATTER comes before the Court on motion of defendants Leon Ronald Arens d/b/a Latitude 18 (“Arens”) and Dr. Donald Young (“Young”) pursuant to Fed. R. Civ. P. 60(a) for the Court to clarify Judge O’Brien’s Order of Dismissal issued March 23, 1989. For the reasons that follow, the Court determines that the Order of Dismissal issued March 23, 1989, only dismissed paragraphs 8, 11, an...
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MEMORANDUM ORDER United States Magistrate Sharon E. Gru-bin has filed a Report and Recommendation dated August 15, 1990, which recommends that petitioner’s motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, be denied. See also Rule 32 of the Civil Rules of this Court and Rule 4 of the Rules for Proceedings Before Magistrates. After reviewing the petitioner’s claims, i...
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MEMORANDUM Plaintiff H. Thomas Foley initiated this action against his former employer, the Presbyterian Ministers’ Fund (Fund). His complaint alleges violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (Count I), the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. (Count II), and the Employee Retirement Income Securi...
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MEMORANDUM Before the Court are defendants’ motion to dismiss and plaintiffs’ motion for partial summary judgment in a long-running dispute over plaintiffs’ claims to refunds for excess payments on rail shipments of scrap aluminum within California in 1981 and 1982. For the reasons stated below, the Court will deny plaintiffs’ motion for partial summary judgment and grant defendants’ moti...
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MEMORANDUM The parties have cross-moved for summary judgement pursuant to Fed.R.Civ. Pro. 56. Plaintiff, Anheuser-Busch, Inc., challenges certain Pennsylvania Liquor Control Board (LCB) regulations, set forth in 40 Pa.Code §§ 11.201 and 11.202, as precluding price competition between manufacturers in violation of the Sherman Act, 15 U.S.C. § 1 et seq. Plaintiff requests an inju...
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ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON COUNTS I AND III AND DISMISSING COUNT II On May 26, 1989, Charlene Prewitt filed a three-count action against her former employer, Factory Motors Parts, Inc. (Factory Motor). Factory Motor sells automobile parts on a wholesale basis. Plaintiff began working at Factory Motor on November 26, 1979, and...
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MEMORANDUM This is the third of three related actions brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq., to obtain documents pertaining to the regime of Rafael Trujillo, head of state of the Dominican Republic until 1961. The instant action seeks information from the U.S. Secret Service and the Federal Bureau of Investigation regarding an alleged plot by agents of the Tr...
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*507 DECISION AND ORDER On May 3, 1989, the United States commenced this civil action under 21 U.S.C. § 881(a)(7) seeking the forfeiture in rem of a four-acre tract of real property located at 6250 Ledge Road, Egg Harbor, Wisconsin. On the scheduled trial date, June 4, 1990, the parties agreed in open court to waive a trial and to submit the matter to the court for dis...
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MEMORANDUM AND ORDER This matter is before the Court on plaintiff’s request for a jury trial. Defendant has filed a motion for a briefing schedule, for expedited hearing and for whether this Court will accept pendent jurisdiction on certain state law claims. During a status conference on this matter, the defendant argued that plaintiff did not have standing to bring this action because its franch...
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ORDER This case is presently before the court on the plaintiffs’ motion for summary judgment. Summary judgment is only proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ....
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MEMORANDUM & ORDER Pension Benefit Guaranty Corporation (“PBGC”) moves for summary judgment on its ERISA claims. For reasons which follow, the motion is granted in part and denied in part. BACKGROUND 1 Defendant West Side Bakery, Inc. (“West Side”) is a closely held corporation owned and operated by Rocco, Phillip and Pasquale Cassone (“the Cassone brothers”), who togeth...
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ORDER DENYING UNITED STATES’ MOTION FOR CERTIFICATE OF REASONABLE CAUSE The United States’ Motion for Certificate of Reasonable Cause came on for hearing before this court on September 10, 1990. The court, having reviewed the motion and the memoranda in support thereof and in opposition thereto, having heard oral arguments of counsel, and being fully advised as to the premises herein, den...
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*1099ORDER In this case, plaintiff is a distributor of soft drinks including Buffalo Rock Ginge-rale, Snapplé, Grapico, and Cajun Cola in seven South Carolina counties designed in the complaint as “plaintiffs distribution area”. These counties include Anderson, Greenville, and the surrounding counties of Oconee, Pickens, Laurens, Abbeville and Greenwood. The defendants include the distributors of...
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ORDER I. INTRODUCTION Before the court is defendant’s motion to suppress evidence obtained through the execution of a search warrant. The court took evidence and heard oral argument regarding this motion on July 5, 6, 9, 10, 1990. The court ruled that the search warrant together with the supporting affidavits was sufficient and lawful. The court was concerned, however, that the affid...
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In times when judicial resources are increasingly at a premium, judicial patience with parties who obstruct rather than assist the prosecution of claims is put to the greater test. Although trial courts must be cautious lest their concerns over crowded dockets override considerations of fairness, in some cases courts cannot and should not tolerate parties’ behavior. This is such a case. This is an...
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*22SUPPLEMENTAL ORDER XIV On March 30, 1988, this Court issued a Memorandum Opinion and Order concerning the rights of certain aliens who entered this country illegally but who now claim eligibility for legalization or amnesty under the Immigration Reform and Control Act of 1986. Ayuda, Inc. v. Meese, 687 F.Supp. 650 (D.D.C.1988), vacated sub nom Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1...
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AMENDED OPINION 1 This matter is before the Court on defendant Tyler’s motion in limine to preclude admission at trial of correspondence between defendant Tyler and “attorney” Melvin Deutsch. Defendant Tyler requests an order precluding the government from introducing at trial, either directly or indirectly, correspondence between himself and Melvin Deutsch, or evidence of the con...
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OPINION This matter is before the Court on defendant’s motion for summary judgment. Defendant, J.C. Penney Company, Inc. (“Penney”), brings it motion pursuant to Federal Rule of Civil Procedure 56(b). The instant action was filed in Berrien County in December of 1988, and properly removed to this Court by the defendant in January of 1989 on the basis of diversity jurisdiction. The action is a wro...
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MEMORANDUM AND ORDER Before the Court is defendant’s motion to dismiss this gray market goods case. The action seeks a declaratory judgment that Customs Regulation 133.21(c)(2) is invalid and that plaintiff is entitled to a genuine goods exclusion order from the Customs Service. For the reasons stated below, the Court grants the motion in part and denies it in part. Background ...
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OPINION This case comes before the Court on two cross motions for summary judgment. On January 25, 1988, defendants, Thomas Solvent Company and Richard Thomas, filed a motion for summary judgment on their counterclaim against Grand Trunk Western Railroad. Defendant, Grand Trunk Western Railroad, filed a motion two days later on January 27, 1988 for partial summary judgment on counts I & I...
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OPINION The facts of this case are fully set out in the court’s earlier opinion, reported as Railway Labor Executives’ Association v. Port Authority Trans-Hudson Corp., 695 F.Supp. 124 (S.D.N.Y.1988) (Carter, J.), with which familiarity is assumed. In that opinion, the court found that the decision by Metro-North Commuter Railroad Company (“Metro-North”) to require urinalysis d...
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MEMORANDUM AND ORDER The court has before it motions to dismiss portions of the “second amended consolidated and supplemental complaint,” referred to hereafter as “the Complaint.” The court dismissed parts of an earlier pleading, the “consolidated and amended complaint” (hereafter called “the First Complaint), by Memoranda and Orders dated December 30, 1988, Bernstein v. Crazy Eddie...
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MEMORANDUM This matter is before the Court on motion of plaintiff Jaz Limited partnership (“Jaz”) for injunctive relief. Jaz requests a preliminary injunction enjoining defendants Marie Bass (Recorder of Deeds) and the Government of the Virgin Islands (“Government”) from recording any documents regarding the taking of the real estate described as Parcel No. 3A-17 Estate St. Peter, No. 2 Little Nor...
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MEMORANDUM OPINION This case is concluded, and counsel for the plaintiff class have submitted their final petitions for fees. They have previously received $3.13 million in interim payments. They now request an additional $5.87 million in fees and $1.15 million in interest. This opinion will consider those requests. 1 *873 i FACTUAL BACKGROUND This class ac...
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MEMORANDUM OPINION AND ORDER Petitioner in the above-captioned action applied to this court requesting credit towards his sentence for the period of time prior to his guilty plea that he was under house arrest. The Government opposed this application on the ground that this Court lacks jurisdiction.1 For the reasons that follow, the petition is dismissed. BACKGROUND On July 26, 1989, this Court se...
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OPINION This securities fraud case 1 arises out of the acquisition of Columbia Pictures Entertainment, Inc. (“Columbia”) by Sony USA, Inc. (“Sony USA”), a wholly owned subsidiary of the Sony Corporation (“Sony Japan”). Plaintiffs are former stockholders of Columbia who seek to maintain a class action on behalf of all persons who sold shares of Columbia common stock or call options between March 2...
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OPINION & ORDER Defendants Edmund Abramson and Ralph Weiser and defendants Gary and Scott Nordheimer have moved pursuant to Federal Rule of Civil Procedure 12(b)(2) to dismiss this action on the ground that the Court lacks in personam jurisdiction. The action against the Nordheimers has been automatically stayed because involuntary bankruptcy proceedings have been filed against them. For ...
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OPINION AND ORDER Defendant R.R. Donnelley & Sons Company (Donnelley) moves to transfer this action for a declaratory judgment to the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a). The action arises out of a purchase, maintenance and license agreement between the parties dated as of September 9, 1988 pursuant to which plaintiff Advanced...
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MEMORANDUM AND ORDER This action arises from an order under 21 U.S.C. § 881(a)(7) of the Comprehensive Drug Abuse and Control Act of 1970 authorizing seizure of a condominium alleged to have been used to “facilitate” two cocaine sales. Claimant Edward Levin moves to dismiss the complaint. The United States cross-moves for summary judgment. Levin argues that his property was not used ...
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OPINION The matters before the court are: 1. the motion for summary judgment (# 65) of defendants Underwriters at Lloyd’s, London, subscribing to policies numbered SL 3391/SLC 5411 and SL 3831/SLC 5843 (Lloyd’s); Excess Ins. Co. Ltd. (Excess); Yasuda Fire & Marine Ins. Co. Ltd. (U.K.) (Yasuda); Terra Nova Ins. Co. Ltd. (Terra Nova); and Universal Reinsurance Corp. (Universal) (collec...
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RULING As its name implies, Premium Finance Company, Inc. loans money to would-be insureds so they can acquire or retain insurance. Premium was approached by Andre Coco as chief operating officer of the Edgar Coco Agency, Inc., a general insurance agent, to arrange financing for some of the Coco Agency customers. Andre Coco submitted seemingly valid paperwork to Premium and based on that seemingly...
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ORDER GRANTING CLAIMANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING CLAIMANTS’ MOTION TO STRIKE THE AFFIDAVIT OF AGENT KEMPSHALL Claimants’ motion for summary judgment and motion to strike the affidavit of Agent Richard Kempshall were heard by this court on May 14, 1990. The court, having reviewed the motions, memoranda and affidavits submitted in support of and in opposition to claimants’ motion...
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MEMORANDUM OPINION This action is before the court on appeal by the government of an order of the bankruptcy court allowing the debtor, Silent Partner, Inc., to assume a previously entered-into contract with the government. FACTS Silent Partner, Inc. (SPI) entered into a contract with the United States to supply fragmentation vests (frag vests) for the military. Contract 316 between SPI and t...
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RULING From 1984-1986 Thomas Platt Quirk executed several collateral mortgage notes to the Calcasieu Marine National Bank encumbering lots 11, 12, 13 and 14 of Dreamland subdivision and lot 13 of Slumberland subdivision (lots 12, 13, and 14 of Dreamland comprise “The Reef” restaurant). Mr. Quirk was married to Karen Lacroix Quirk when the collateral mortgages were executed, and signatures...
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746 F. Supp. 934 (1990) Glenda JACKSON, Individually and on behalf of others similarly situated, Plaintiff, v. William R. RAPPS, Individually and as Director of the Missouri Division of Child Support Enforcement, Defendant. No. 89-4022-CV-C-5. United States District Court, W.D. Missouri, C.D. August 13, 1990. *935 *936 Jim R. Bruce, Kennett, Mo., for plaintiff. William Cornwell, B.J. Jones, Misso...
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ORDER This matter is before me on the defendant’s motion to dismiss, or in the alternative, for summary judgment. For the reasons set forth herein, the court grants summary judgment in favor of the defendant. Plaintiff Rita L. Hines (Hines), alleges that the defendant United Parcel Service, Inc. (UPS) terminated her employment as a package delivery driver in retaliation for *676 her having ...
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OPINION This case is before the Court on five motions relating to United States’ claims for response costs and other costs involving the contamination at the Verona Well Field and surrounding areas. On January 7, 1988, the United States filed a motion for a ruling as to the appropriate standard and scope of review of agency action under CERCLA. Defendant Grand Trunk Western Railroad respo...
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MEMORANDUM ORDER Finding that the Chapter 11 petition in bankruptcy filed by debtor-appellant N.R. Guaranteed Retirement, Inc. (“N.R.”) presented a classic case of the “new debtor syndrome,” the bankruptcy court dismissed the petition for being filed without good faith. 112 B.R. 263. N.R. now appeals the bankruptcy court’s decision to this court. For the reasons stated herein, the judgmen...
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ORDER Pending before the Court is Defendant’s motion to dismiss for lack of personal jurisdiction. After careful consideration of the motion, response and oral argument by counsel, the Court is of the opinion that it has personal jurisdiction over Defendant. Plaintiff is a Texas corporation and Defendant is a corporate citizen of Japan. The parties entered into several contracts whereby Defendant...
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MEMORANDUM AND ORDER Plaintiff brought this action following her termination from employment. The defendants are Saint John’s Queens Hospital (the Hospital), Local 1199, Drug, Hospital and Health Care Employees Union, RWSDSU, AFL-CIO (the Union), and two individuals, Mary Kelly Quinn and Winifred Paul. Plaintiff, a member of the Union, alleges she was employed as a nurse by the Hospi...
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MEMORANDUM Defendants, John Galinac and Roberta Pisle, Swatara Township police officers, have filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff, Todd M. Grier,- initiated this action under 42 U.S.C. § 1981 after the defendants detained him during their investigation of a bank robbery. Plaintiff contends that they were motivated by racial animus in doing so. The plaintiff i...
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MEMORANDUM AND ORDER This is an action brought pursuant to section 1631(c) of the Supplemental Security Income Act (“SSI”), 42 U.S.C. § 1383(c), to review the decision of the Secretary of Health and Human Services (the “Secretary”), denying plaintiffs application for SSI benefits. Plaintiff seeks reversal of the Secretary’s decision and an award of disability benefits. The Secretary moves for a ju...
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ORDER The plaintiff, Betty Peckmann, is a traditional midwife who has been practicing midwifery since the mid-1950’s. Peck-mann’s co-plaintiff, Kim Perry, seeks to enter the practice of traditional midwifery and is currently serving as an apprentice to a traditional midwife. Peckmann’s other co-plaintiffs, William and Kimberly Dick, are a couple that wish to have children with the aid of a trad...
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MEMORANDUM On February 23,1990, Plaintiff, Irving T. Schwartz, filed a Complaint for Declaratory Judgment. Plaintiff seeks a declaration that the Order of Forfeiture entered pursuant to a final judgment in the criminal prosecution United States v. Mandel, et al., was void ab initio, and, on the basis of that determination and again in reference to the criminal case, ...
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MEMORANDUM The plaintiffs in this civil rights action, a married couple and their minor child, seek declaratory and injunctive relief against *1130 Children and Youth Services of Delaware County (“CYS”), the County of Delaware (“County”), several county officials, and the Secretary of the Department of Public Welfare for the Commonwealth of Pennsylvania (“DPW” or “Department”...
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*302ORDER THIS CAUSE has come before the Court for review upon the defendants’ motion for a protective order. Fed.R.Civ.P. 26(c). The defendants also move for costs. The cause for this motion is the plaintiffs’ deposition subpoena of the defendants’ attorneys, William J. Capito and Richard Grad-dock. FACTS An issue in this case is the nature of the plaintiff’s interest in certain parcels of land ...
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ORDER I. INTRODUCTION. We are presented with cross-motions for summary judgment in four related cases involving application of the Internal Revenue Code’s tax benefit rule, 26 U.S.C. § 58(h), to the determination of tax liability under the alternative minimum tax (“AMT”) scheme set forth in 26 U.S.C. § 55. 1 Plaintiffs in these four cases are 1) Howard and Lenore Weiser; 2...
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*181MEMORANDUM AND ORDER: Plaintiffs are four sellers of crude oil which have brought a RICO action against Koch Industries, Inc. (“Koch”) seeking to have a class certified pursuant to Rule 23 of the Federal Rules of Civil Procedure. All parties have completed extensive and exhaustive discovery; have submitted thorough briefs and have agreed that the Court may consider all depositions, affidavits...
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ORDER I. INTRODUCTION. The parties come before the court on plaintiff Aetna Casualty & Surety Company’s (“Aetna”) motion for summary judgment or, in the alternative, partial summary judgment. This is an action for declaratory relief in which Aetna seeks a ruling from the court that it is not obligated to defend or indemnify defendant Trans World Assurance Company (“Trans World”) for ...
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OPINION Plaintiff Cook Chocolate Company (“Cook”) has moved under Sections 10(b) and 10(c) of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 10(b), 10(c), to vacate an arbitration award entered in favor of defendants Salomon Inc. (“Salomon”), Phillip Brothers, Inc. (“PBI”), Phillip Brothers Trading Corporation (“PBTC”), Phillip Brothers Commodity Corporation (“PBCC”), Cocoa Merchants, L...
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OPINION Defendant Consolidated Edison Company of New York, Inc. (“Con Ed”) has moved for summary judgment in accordance with Rule 56, Fed.R.Civ.P., to dismiss the action *1022against it brought by plaintiff Henry J. Helmer (“Helmer”) to obtain reinstatement by Con Ed. The motion was heard and submitted on July 6, 1990 and in accordance with facts and conclusions set forth below is granted. This m...
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747 F. Supp. 299 (1990) Jack COLGAN, Plaintiff, v. FISHER SCIENTIFIC COMPANY, Defendant. Civ. A. No. 88-2645. United States District Court, W.D. Pennsylvania. August 29, 1990. James W. Carroll, Jr., Pittsburgh, Pa., for plaintiff. Edward N. Stoner, II, Pittsburgh, Pa., for defendant. OPINION D. BROOKS SMITH, J. Plaintiff brought this age discrimination lawsuit alleging that his termination from ...
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MEMORANDUM Maurice Whitfield turned himself in to the Federal Bureau of Investigation after FBI agents investigating a theft of $43,000 visited his home and, upon the consent of his mother to search the house, found $16,-000. Defendant moves to suppress evidence taken from his room in his mother’s house on the grounds that his mother did not have authority to consent to the search. In addition,...
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MEMORANDUM AND ORDER Defendants appeal from an order of the bankruptcy court granting summary judgment in favor of plaintiff-trustee. For the reasons set forth below, that order is affirmed. FACTS On July 29, 1985 debtor and his wife transferred their interest in certain residential property for an alleged total consideration of $150,000.00. The breakdown in payment by defendant buyers (the...
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ORDER On June 29, 1990, the Plaintiff, Andrew Huntley Paxton 1 entered a plea of guilty for possession with intent to deliver approximately one pound of marijuana in a state court in violation of Mich.Comp.Laws § 333.7401(2)(c) (1980) 2 . Thereafter, he *1263 was sentenced to serve 90 days in the Ma-comb County (Michigan) Jail, followed by a two year pro...
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OPINION AND ORDER This case is before the Court pursuant to defendants’ Ormet Corporation, Duane Bohrer, Robert Emery and Local Union # 5724, United Steelworkers of America, motions for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure and Ohio Revised Code § 4121.80(C), in their favor on the Complaint filed by plaintiffs, Michael Marshall and Yvonne Marshall. ...
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MEMORANDUM OPINION AND ORDER Before the Court is defendant’s motion to transfer. The Court held a hearing on the motion at which counsel for both sides presented oral arguments, though no formal testimony was offered. Since the hearing, affidavits of the plaintiffs have been filed with the Court. This is a diversity action based upon franchise agreements which plaintiffs entered into...
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MEMORANDUM AND ORDER Before me is the City of Philadelphia’s motion for partial summary judgment and defendants’ cross-motion for summary judgment. Plaintiff seeks a judgment stating that as a matter of law, it has met its burden under Section 107(a)(2)(B), of the Comprehensive Environmental Response, Compensation and Liability Act (“CERC-LA”), 42 U.S.C. § 9607(a)(2)(B), of showing that t...
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FINDINGS AND RECOMMENDATION The instant matters have been referred to the United States Magistrate for Findings and Recommendation pursuant to 28 U.S.C. Section 636. Presently before the Court is defendant’s motion to vacate the default pursuant to Fed.R.Civ.P. 55(c) and *35defendant’s motion to vacate the default judgment pursuant to Fed.R.Civ.P. 60(b). STATEMENT OF FACTS The record in the ins...
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*233 MEMORANDUM AND ORDER This rambling civil rights complaint from Hugh C. Duffy (“Duffy”), a pro se prisoner in state custody, raises three identifiable claims. First, that he was denied procedural and substantive due process in the conduct of certain disciplinary proceedings; second, that certain of the defendants displayed deliberate indifference to his serious medical needs in violation ...
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MEMORANDUM OF DECISION AND ORDER REJECTING THE RECOMMENDED DECISION OF THE MAGISTRATE AND GRANTING DEFENDANTS’ MOTION TO DISMISS The issue presented by this objection to the Recommended Decision of the United States Magistrate, the Honorable David M. Cohen, is whether Plaintiffs’ amended complaint alleges that Defendants have engaged in conduct that constitutes a “pattern of racketeering activi...
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MEMORANDUM OPINION AND ORDER Before me is defendant Dennis P. Ciech-na’s motion to set aside entry of default. Oral argument was held on September 21, 1990. For the reasons set forth below, the motion is denied. I. FACTS On December 11, 1987 the First Federal Savings and Loan Association of Colorado Springs (the S & L) loaned $1,940,000 to the Colorado 126 partnership. Defendant...
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MEMORANDUM OPINION AND ORDER This matter is before me on two motions by Joe R. and Josephine K. Stoltz. The first is for a temporary restraining order and a permanent injunction and the second is for replevin of property. Both motions arise out of the August 29, 1990 search of the Stoltzes’ premises and seizure of property pursuant to the levy and distraint provisions of § 6331 of the Int...
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FINDINGS AND RECOMMENDATION The instant matters have been referred to the United States Magistrate for Findings and Recommendation pursuant to 28 U.S.C. § 636. Presently before the Court are defendants’ motions to extend the time for filing a notice of appeal pursuant to Fed.R.App.P. 4(a)(5), and for relief from judgment pursuant to Fed.R.Civ.P. 60(b). In addition, plaintiff, Rhode Island Hospita...
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MEMORANDUM OF DECISION AND ORDER This matter comes before the Court on Defendants’ motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Plaintiffs’ Complaint for failure to state a claim upon which relief can be granted. The motion will be denied for the reasons set forth below. I. BACKGROUND Plaintiffs City Cab Co., Don-Dee-Cin Corporation (d/b/a Two-in-One ...
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745 F.Supp. 578 (1990) INTERNATIONAL FIDELITY INSURANCE COMPANY, Plaintiff, v. UNITED STATES of America, Defendant. No. 89-0310C(6). United States District Court, E.D. Missouri, E.D. September 26, 1990. Thomas M. Dee, Husch, Eppenberger, Donohue, Cornfeld & Jenkins, St. Louis, Mo., G. Steven Ruprecht, Husch, Eppenberger, Donohue, Cornfeld & Jenkins, Kansas City, Mo., for plaintiff. Wesley...
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MEMORANDUM DECISION AND ORDER Following a jury trial, on January 25, 1990, the defendants in the above entitled case were found guilty of the offense of distributing “crack” cocaine and of two counts of possession with the intent to distribute “crack” cocaine. Defendant Williams was represented by Harry Caston and defendant Patt was represented by Donald C. Hughes, Jr. Counsel for the gov...
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MEMORANDUM This case is before the Court on the defendant’s, Robert E. Baggs, ■ Jr. (“Baggs”), motion to dismiss the plaintiffs’ claims for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The plaintiffs, Kuney International, S.A. (“Kuney”), First Continental, Ltd., and Ardash Saran, commenced this action against defendants to recover damages allegedly cau...
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MEMORANDUM OPINION AND ORDER This is a review of administrative action under the Administrative Procedures Act (APA), 5 U.S.C. § 706(2). Plaintiff challenges the Defense Fuel Supply Center’s (DFSC) decision to refuse to suspend a contract that is the subject of an unresolved protest before the Office of General Accounting. For the reasons discussed below plaintiffs request for relief is d...
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MEMORANDUM AND ORDER Before the Court is the respondent Environmental Protection Agency’s (“EPA”) motion pursuant to Fed.R.Civ.P. 12(e) to compel the petitioner, All Regions Chemical Lab (“All Regions”), to file a more definite statement. All Regions opposes the government’s motion. On July 2, 1990, the Administrator of the EPA assessed an $89,840 fine against All Regions for violations of the Com...
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MEMORANDUM OPINION AND ORDER Currently pending are the parties’ cross-motions for summary judgment. There are no factual disputes in this matter, only questions of law. Therefore, ruling by summary judgment is appropriate. Defendant Fred W. Bland is a self-employed plumber who operates a business named Bland’s Mechanical. He has no other employees. In September, 1977, Mr. Bland becam...
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OPINION AND ORDER The singular issue before the court is whether DNA profiling is admissible in a criminal case when proffered by the prosecution to prove identity. 1 The defendant is charged with kidnapping. The United States claims that he abducted a woman from' an Interstate 91 rest area in Westminster, Vermont, forced her into the back of a tractor-trailer truck, drove to a...
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ORDER INTRODUCTION In this diversity action brought by Mid-America Bank of Chaska (“Mid-America”) against American Casualty Company of Reading, Pennsylvania (“American Casualty”) based upon an insurance contract, defendant moves for summary judgment. For the reasons set forth below, defendant’s motion is denied. BACKGROUND American Casualty issued a “Banker’s Blanket Bond” (“the bond”) to...
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MEMORANDUM AND ORDER This is an appeal by the United States of the Bankruptcy Court’s decision determining that the debtors’ 1983 federal income taxes are dischargeable in their Chapter 7 bankruptcy proceeding. This Court has jurisdiction over the final order of the Bankruptcy Court pursuant to 28 U.S.C. §§ 158(a) and 1334. Because there are no factual disputes the Bankruptcy Court’s decision w...
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OPINION This class action arises from the initial public offering of securities in Hughes Capital Corporation (“Hughes Capital”) on or prior to 25 August 1986 pursuant to a registration statement (the “Hughes Registration Statement") declared effective by *1269 the Securities Exchange Commission (the “SEC”) on 5 May 1986 and amended by post-effective filings on 8 May, 6 June ...
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FINDINGS AND RECOMMENDATION The instant matters have been referred to the United States Magistrate for Findings and Recommendation pursuant to 28 U.S.C. Section 636. All four defendants, Francis C. Vignati (Vignati), Thomas Austin (Austin), Joseph Martino (Martino), and Burton A. Greenspan (Greenspan) have moved to dismiss the complaint for lack of personal jurisdiction pursuant to Fed.R. Civ.P. ...
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MEMORANDUM This cause of action is before this Court on the April 12, 1990 Motion by the United States Trustee for Region VIII For Leave To Appeal Order On Consolidated Hearing On Applications For Authority To Employ Real Estate Agent. For the following reasons, this Court grants the Motion For Leave To Appeal and reverses the Order On Consolidated Hearing On Applications For Authority To...
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MEMORANDUM Presently pending before the Court in the above-captioned case is the appeal of defendant, Isam Fattaleh, from the judgment and conviction for possession of phen-cyclidine 1 entered by United States Magistrate James I. Kenkel. BACKGROUND On December 16, 1987, the United States Park Police arrested Mr. Fattaleh and charged him with possession of phencycli-dine (hereinafter “PCP”...
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This ruling addresses the novel question of whether a conviction in a federal court of a crime punishable by more than one year imprisonment, for which all rights have been restored under state law, can serve as a predicate offense for a violation of 18 U.S.C. § 922(g)(1), which forbids possession of firearms by those who have been convicted of a crime punishable by more than one year imprisonmen...
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OPINION AND ORDER This is a motion by defendants to dismiss plaintiff’s complaint pursuant to Fed.R. Civ.P. 9 and 12(b)(6) for failure to state a claim upon which relief can be granted and on the grounds of forum non conveniens. Plaintiff’s complaint herein alleges the following facts. Plaintiff is a fashion designer and a German national with a residence in New York. All defendants ...
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OPINION AND ORDER Ida Hakkila sues Consolidated Edison of New York (“Con Edison”) for damages for an alleged injury from an electrical shock that she received from a subway grating. At a pre-trial conference on March 21, 1990, counsel for Con Edison requested an order dismissing this action on the ground that there is no diversity of citizenship between Hakkila and Con Edison and thu...
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ORDER AND REASONS The court addresses here the plaintiffs’ request for discovery of the defendant’s experts. The defense experts include some who are expected to testify at trial and some who are not expected to testify at trial. The court finds that while discovery of experts expected to testify at trial is premature, the plaintiffs are not entitled to any discovery of experts not expected to te...
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ORDER AND REASONS This matter is before the Court on defendant’s motion for summary judgment on the issue of the lack of any obligation of continuous operation on the part of Wal-Mart for the remaining term of its lease at plaintiff’s Houma Shopping Center. Wal-Mart is still operating on plaintiff’s premises but has indicated an intention to relocate to another nearby shopping center, and plain...
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OPINION At issue in this case is whether, as a matter of public policy, Plaintiff can collect on money orders paid to discharge a gambling debt. Initially, Defendant Travelers Express sought dismissal pursuant to Fed.R.Civ.P. 12(b)(6) of Count II of the complaint, which alleges breach of Drawee’s contract, and summary judgment pursuant to Fed.R. Civ.P. 56 on Counts I and III of the complaint,...
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ORDER Defendants Felipe Martin, Candelario Gutierrez, and Jose Medina are charged with participating in a drug conspiracy. These defendants have filed a number of pretrial motions. The court will now consider each motion separately. I. Motions to Adopt Gutierrez and Medina move to adopt the pretrial motions filed by Martin. 1 To the extent Martin’s pretrial motions are applicable to Gut...
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Plaintiffs Maestro Raffaele, South Moda, Weber Moda, Paradise Moda, Terry Moda and Pizzi Pazzi, clothing manufacturers whose principal places of business are located in Italy, bring this diversity action against defendant Designers Break, Inc., d/b/a Chalvar (“Designers Break”), a New York corporation that imports and wholesales clothing, to collect payment for goods allegedly ordered, delivere...
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OPINION Ranjit Singh Gill (“Gill”) and Sukhminder Singh Sandhu (“Sandhu”) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. By issuance of such writ, they seek to prevent their extradition to India to stand trial on murder charges (and, in the case of Sandhu, other crimes) characterized by the government of India as terrorist acts. For the reasons set forth bel...
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MEMORANDUM OPINION AND ORDER One of the basic issues between the insurers, International Insurance Company, (International), Underwriters of London (Underwriters), Lloyds and Walbrook Insurance Company (Walbrook), on the one hand, and Peabody International Corporation (Peabody), the insured, on the other hand, is the question of whether or not the claim of Santee Cooper against Peabody, a...
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MEMORANDUM OPINION AND ORDER Maryland Insurance Company (“Maryland”) has filed a declaratory judgment action against Attorneys’ Liability Assurance Society, Ltd. (“ALAS”) as to their respective rights and duties in connection with a lawsuit pending against a party that may or may not be covered by one of Maryland’s insurance policies. ALAS has moved (1) to dismiss the action for lack of a...
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MEMORANDUM AND ORDER *339 Pending before the Court in the above-captioned case are two motions: Defendant Carlo Nasi’s motion to quash service of process and dismiss complaint for lack of in personam jurisdiction and for defective service of process; and Plaintiffs motion to remand the action to state court. Both motions have been responded to and the Court is now prepared to rul...
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ORDER DISMISSING SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS This cause is before the Court on a Petition for Writ of Habeas Corpus by a Person in State Custody, filed herein on September 18, 1990, by JAMES WILLIAM HAMBLEN (“petitioner”), a death row inmate at Florida State Prison in Starke, Florida. The petition seeks relief from petitioner’s execution, scheduled for 7:00 a.m., Friday, Septemb...
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OPINION AND ORDER This matter is before the Court on a Motion of Defendants, Ed Hinton, Jr., William Willis, and Janice Viau, for Summary Judgment. (Fed.Rule of Civ.Pro. 56). Plaintiffs allege that the defendants’ action constituted an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution, violated their property and liberty interests protected ...
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743 F. Supp. 499 (1990) COAL-MAC, INC., et al., Plaintiffs, v. JRM COAL COMPANY, INC., et al., Defendants. Civ. A. No. 86-154. United States District Court, E.D. Kentucky, Pikeville Division. July 24, 1990. Will T. Scott and John Doug Hays, Stratton, May & Hays, Pikeville, Ky., for plaintiffs. Hermaw W. Lester, Pikeville, Ky., for plaintiff, Raymond Pete Barker. Bernard Pafunda, Pikeville, Ky...
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MEMORANDUM OPINION AND ORDER John Stone-El (“Stone-El”) asks leave to file his pro se civil rights Complaint under 42 U.S.C. § 1983 (“Section 1983”) without prepayment of the filing fee., As supplemented by an informally-framed Motion To Amend filed September 14, 1990,1 Stone-El’s Complaint seeks to challenge the constitutionality of two state court convictions, respectively entered on May 5, 1972...
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MEMORANDUM AND ORDER This is a pro se petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the court denies the petition in its entirety. On October 30, 1989, petitioner was convicted in the County Court of Nassau County of attempted grand larceny in the third degree (N.Y.Penal Law § 110.00, 155.30 (McKinney 1989)), possession of burgla...
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OPINION The plaintiffs, Leon Weiss and Timothy Engel, brought this suit against the defendant, the Parker Hannifan Corporation, for claims of employment discrimination under Title VII, 42 U.S.C. § 2000e et seq., and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. Weiss has brought a claim involving his failure to receive a promotion allegedly due to his religion. Both p...
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OPINION I. INTRODUCTION One of the most precious rights enjoyed by citizens of this great country is free *277 access to its courts. Armed only with pen and paper, aggrieved individuals may submit claims to a court that are treated with the same respect and accorded the same consideration as claims filed by several-hundred-member law firms on behalf of Fortune 500 corpor...
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*735 ORDER OF DISMISSAL I. INTRODUCTION Ralph and Elsie Erickson, who represent themselves as plaintiffs in this action, have filed a complaint challenging tax liens under which personal and real property of theirs was seized and sold by the Internal Revenue Service (“IRS”). They seek an order quieting title in the seized property and ordering the IRS to return it; rele...
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OPINION Plaintiffs are twenty former crew members of the M/V SOUTHERN ASTER and the Federated Korean’s Seamen’s Union (FKSU). All plaintiffs are citizens of Korea. Plaintiffs seek to recover back wages and penalties pursuant to 46 U.S.C. § 10313 as well as compensatory and punitive damages for alleged fraudulent labor practices. On February 21, 1990, plaintiffs filed a complaint with this...
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MEMORANDUM AND ORDER Defendants move to dismiss plaintiff’s complaint pursuant to Federal Rule 12(b)(1) and (6) of Civil Procedure. For the reasons stated below, this motion is granted. Relevant Background Plaintiff J.F.K. Customs Broker Association, Inc., is a non-profit corporation representing the interests of custom brokers doing business in and around J.F.K. International Airport. In Octob...
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ORDER DENYING PETITIONER’S MOTION FOR RELIEF FROM JUDGMENT/ORDER PURSUANT TO FED. R.CIV.P. 60(B)(5) AND/OR (6), ETC. This cause is before the Court on petitioner’s Motion for Relief from Judgment/Order Pursuant to Fed.R.Civ.P. 60(b)(5) and/or (6) in Case No. 89-567-Civ-J-12 on the Basis of the Claim Herein Discussed, and Consolidated Notice that the Claim Herein Discussed Should Be Considered a...
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748 F.Supp. 603 (1990) UNITED STATES of America ex rel. Homer E. HANRAHAN, Petitioner, v. James H. THIERET, Warden, Respondent. No. 86 C 244. United States District Court, N.D. Illinois, E.D. September 19, 1990. Cynthia Grant Bowman, Suzanne Isaacson, Sr. Law Student, Chicago, Ill., for petitioner. Neil F. Hartigan, Atty. Gen. of Ill., Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for responde...
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ORDER This case reached this Court by appeal from a bankruptcy court. In a final judgment, the bankruptcy court held that the Employee Retirement Income Security Act (“ERISA”) preempts § 42.002(a) of the Texas Property Code. Based on this holding, the bankruptcy court concluded that the Debtor’s, Marshall James Dyke, pension plan is property of the bankruptcy estate under 11 U.S.C. § 541(...
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ORDER This action to recover on a note is before the court on Plaintiffs motion for summary judgment. On July 1, 1987, Defendant and two other individuals signed a one million dollar real estate note with the Great Southern Federal Savings and Loan Association (“Great Southern”). Apparently, the note was renewed several times. On June 21, 1989, the Federal Savings and Loan Insurance ...
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MEMORANDUM OPINION AND ORDER This Court has already appointed two lawyers rather than one to represent Anthony Davis (“Davis”), against whom the United States seeks the death penalty under 21 U.S.C. § 848(e)(1)(A) 1 and who is financially unable to pay for such legal representation himself. Defense counsel have moved under Section 848(q)(10) for an enhanced rate of compensation...
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MEMORANDUM DECISION AND ORDER Appellant Stephen D. Swindle (“Swindle”) appeals from a May 5, 1989 order of the United States Bankruptcy Court for the District of Utah. Oral argument on this appeal was heard on February 12, 1990. Swindle was represented by William G. Fowler and Ronald W. Goss. Appellee John Douglas Fossey (“debtor”) was represented by Mona Lyman and appellee Patti S. Fosse...
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OPINION AND ORDER Plaintiffs Davidoff Extension S.A. (“Da-vidoff Extension”) and Davidoff Et Cie. have filed the instant case under the provisions of the Lanham Act, 15 U.S.C. §§ 1051-1127 (“the Act,”) seeking .monetary and equitable relief for defendants’ alleged trademark infringement of the federally registered trademark “DAVIDOFF.” Plaintiffs also claim relief under the laws of Puerto...
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ORDER The issues before the court concern whether the City of Cochran, Georgia may be held liable for the actions of its then mayor, “Happy” Howard Williamson, in terminating the employment of the city’s fire chief, Barry Lee Payung, without affording him a pre-termination hearing. After a pretrial conference held on February 28, 1990, the parties filed memoranda and submitted the issue o...
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MEMORANDUM This matter is before the Court on respondent United States Parole Commission’s motion to dismiss or, in the alternative, to transfer. The motion has been fully briefed and is ripe for disposition. Jurisdiction is premised on 28 U.S.C. § 2241. Background Petitioner Carter Gray Bowers seeks a writ of habeas corpus, releasing him from eight months of incarceration on the grounds that th...
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OPINION AND ORDER This is an action seeking damages and injunctive relief as a result of the Cerromar Beach Hotel’s refusal to allow admittance into its premises to co-plaintiffs Miguel No-gueras and Barbara Blanco at a time when they were planning to visit co-plaintiffs and registered guests Astrid Castro and Annette Nogueras. In plaintiffs’ view of things, the incident was based on raci...
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ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE AND DENYING PLAINTIFFS’ MOTION FOR CHANGE OF VENUE PURSUANT TO 28 U.S.C. § 1406(a) The Honorable David M. Cohen, United States Magistrate, filed with this Court on June 27, 1990, with copies to counsel, his Recommended Decision on Motion to Dismiss of Defendant Ekves Service Center, Inc. Plaintiffs timely filed on July 13, 1990 their Obje...
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MEMORANDUM AND ORDER Plaintiff, Jerome Joseph, filed suit in state court alleging employment discrimination against him by defendant, Chase Manhattan Bank (“Chase” or the “Bank”). Chase removed the action to this Court on the ground that plaintiff’s complaint states a cause of action under ERISA and possibly Title VII. This matter is before the Court on Chase’s motion for summary judgment...
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR STAY OF EXECUTION This cause is before the Court on a Petition for Writ of Habeas Corpus by Person in State Custody and a Motion for Stay of Execution (as supplemented by the Application for Stay of Execution), filed herein by JAMES WILLIAM HAMBLEN (“petitioner”), a death-row inmate at Florida State Prison, together w...
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ORDER Before the court is defendant’s motion to dismiss or in the alternative to transfer this case to the United States District Court for the District of Kansas. For the reasons noted below, the court denies the motions. I. Facts On July 23, 1990, plaintiff (“KCP & L”), 1 an electric utility corporation with its principal place of business in Missouri commen...
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MEMORANDUM The Pennsylvania Liquor Control Board appeals from the bankruptcy court’s order of April 13, 1990 directing the renewal of debtor’s previously expired liquor license. *22 112 B.R. 714. The bankruptcy court ruled that the 10-month grace period for license renewal allowed by the Pennsylvania Liquor Code, 47 P.S. § 4-470(a), constituted property of the debtor’s estate — and that the b...
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OPINION AND ORDER This is an action for breach of contract based on an insurance policy issued by defendant to plaintiff. Defendant has moved to disqualify Ahuva Genack and the law firm of Schlam, Stone & Dolan from acting as pre-trial counsel in this action.1 For the reasons set forth below, defendant’s motion to disqualify is granted. The Mutual Life Insurance Company of New York (“MONY”) purch...
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OPINION Plaintiff Gibbs & Hill, Inc. (“Gibbs”) has moved by order to show cause for a stay of defendant Harbert International, Inc. (“Harbert”) from prosecuting an action commenced in the United States District Court for the Northern District of Alabama (the “Alabama Action”). The motion to stay is denied. The opposition to this motion has been considered a motion to transfer, to Alabama ...
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MEMORANDUM Before the court is a Motion to Dismiss the Appeal of Deloitte & Touche, brought by debtor Valley Forge Plaza Associates. For the reasons set forth below, the court shall grant the Motion to Dismiss. I. FACTUAL BACKGROUND On March 28, 1989, Valley Forge Plaza Associates, a Pennsylvania Limited Partnership (“Debtor”), filed a voluntary petition for reorganization under...
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ORDER Previously pending on this court’s law and motion calendar for August 24, 1990, was plaintiffs’ motion to compel discovery. The parties to the action properly submitted a stipulation pursuant to E.D.Cal.R. 251. After reviewing the stipulation, considering the record, and hearing oral argument from respective counsel, the court issued its tentative order from the bench. The court now issues ...
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MEMORANDUM OPINION Mr. Griffin, through his mother, claims that he was mistreated by various Chicago police officers. He filed a complaint against them and the city alleging various state and federal claims. This court dismissed Mr. Griffin’s “Monell ” claim against the city earlier this year, because he failed to allege any facts supporting it. Mr. Griffin filed an amended complaint, which named...
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748 F. Supp. 296 (1990) Richard A. MEIER v. HAMILTON STANDARD ELECTRONIC SYSTEMS, INC., TELEDYNAMICS DIVISION and Michael G. Bowen. Civ. A. No. 89-4852. United States District Court, E.D. Pennsylvania. September 28, 1990. *297 Jeffrey Alan Reed, Philadelphia, Pa., for plaintiff. *298 John E. Quinn, James B. Herman, Philadelphia, Pa., for defendants. MEMORANDUM AND ORDER DITTER, District Judge. T...
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MEMORANDUM AND ORDER This is the last of a series of veteran preference cases filed in this Court. It is before the Court on defendants’ motions to dismiss for failure to state a claim for which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Upon due consideration, defendants’ motions are granted for the reasons hereinafter set forth. In this case, plaintiffs, sixteen telephone company...
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*1232OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff brought this action to redress alleged violations of the Fair Labor Standards Act of 1938 (the “Act”), as amended, 29 U.S.C. § 201, et seq. Before the Court today are cross-motions for summary judgment raising the following issue: Is defendant Morefield Con...
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Plaintiff Bonnie Barkley commenced this action against the United Postal Service to contest its denial of her request for reinstatement. The defendant now moves pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the complaint on jurisdictional grounds. For the reasons discussed below, the defendant’s motion is granted. Plaintiff Bonnie Barkley was initially hired as a postal letter carrier in May of 198...
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OPINION AND ORDER This matter is before the Court on appeal from the December 19, 1989, decision of *431 the United States Bankruptcy Court for the Southern District of New York (Buschman, J.) permanently enjoining defendant PSS Steamship Company (“PSS”) under the automatic stay provision of 11 U.S.C. § 362(a)(3) from claiming a worthless stock deduction under the Internal Re...
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OPINION Defendant Nicholas Delia (“Delia”) has moved pursuant to Rule 29(a) for judgment of acquittal on Counts Two through Four charging violations of Title 18 U.S.C. Sections 513(a) and 2 because of the government’s failure to prove that venue properly lies in the Southern District of New York. For the reasons set forth below, and stated in open court on September 13, 1990, Delia’s motion is de...
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OPINION AND ORDER This is an action alleging violations of the Investment Company Act of 1940 (“the Act”), 15 U.S.C. § 80a-l et seq., and various state law violations. By order dated December 4, 1989, 726 F.Supp. 87, this Court dismissed plaintiffs’ claims based on sections 13(a)(4), 20(a), 25(a) and 34(b) of the Act pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief...
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OPINION Petitioner Wai Ho Tsang (“Tsang”) has moved pursuant to Title 28, § 2255, to vacate the sentence imposed upon him on August 1, 1986 on the grounds that his plea of guilty was entered in the absence of his understanding concerning the charges against him and the consequence of his plea. For the reasons set forth below, the motion is denied. Prior Proceedings The petition arises from Tsan...
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OPINION This is a securities fraud case arising from the purchase by plaintiff Robert M. *364Deutschman of call option contracts on Beneficial Corporation stock during the fall of 1986. In his amended complaint, Deutschman asserts causes of action for violation of federal securities laws and common law negligent misrepresentation and alleges the following against defendant Beneficial Corporation ...
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MEMORANDUM ORDER AND NOW, to wit, this 27th day of September, 1990, upon consideration of defendant’s motion for summary judgment, IT IS ORDERED that defendant’s motion is granted. PACTS Plaintiff is a paramedic at the Mercy Catholic Medical Center. Defendant is the manufacturer and distributor of the Sharps Disposable Container, Model 8980, a device designed and manufac...
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MEMORANDUM OF DECISION This is an appeal from a June 13, 1989 Order of the Bankruptcy Court. The appellant is the attorney for the debtor in a Chapter 13 case. The relevant facts are as follows. On April 11, 1989, appellant filed an application for attorney’s fees in the amount of $1700. On May 4, 1989, the Bankruptcy Court granted appellant’s application, but *469 only ...
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DECISION AND ORDER Plaintiffs, Carpenters Health and Welfare Fund of Philadelphia and Vicinity, Carpenters Pension and Annuity Fund of Philadelphia and Vicinity, Carpenters Joint Apprentice Committee, General Building Contractors Association Industry Advancement Program, Metropolitan District Council of Carpenters of Philadelphia and Vicinity, United Brotherhood of Carpenters and Joiners ...
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MEMORANDUM AND ORDER Plaintiff Nicholas A. Clemente (“Clem-ente”) instituted this action against defendant Arnaldo F. Espinosa (“Espinosa”) on March 1, 1989 in the Philadelphia Court of Common Pleas, alleging causes of action for defamation and intentional infliction of emotional distress. The case subsequently was removed to this Court pursuant to its diversity jurisdiction under 28 U.S....
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Friends, I thank you for your patience in the long gestation of this matter. I also thank you for coming in this morning. It’s my intention this morning to rule on the matters that have been waiting decision. What is at issue is a decision of Judge Scholl’s in September of 1988, at which he made three rulings with respect to an adversary proceeding which had been instituted by the trustee ...
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*1073 ORDER Before the Court are the parties’ cross-motions for summary judgment on the Plaintiff’s claims for declaratory and in-junctive relief. The Plaintiff seeks a determination and declaration that the District Director of the Immigration and Naturalization Service (“INS”) acted unlawfully in denying the Plaintiff’s request for work authorization. Aliens’ requests for ...
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OPINION Rolando Coronado petitions this Court ;pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order dated April 16, 1987, the petition was referred to the Honorable Joel J. Tyler, United States Magistrate, to hear and report pursuant to 28 U.S.C. § 636(b)(1) and Rule 4 of the Local Rules for Proceedings Before Magistrates. On September 7, 1989, Magistrate Tyler filed a Re...
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ORDER Before the Court are cross-motions for summary judgment, and each party has responded to the other’s motion. After review of the relevant law and briefs of counsel, the Court now partially grants plaintiff’s motion and denies defendant’s motion for the following reasons. Background This lawsuit stems from an underlying case that was settled. Plaintiff paid $1,500,000 to Bi...
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MEMORANDUM This case is before the Court on the defendant’s, Risdon Corporation (“Ris-don”), motion to dismiss the plaintiff’s claims for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Jurisdiction is founded upon diversity of citizenship, and the amount in controversy exceeds $50,000. The plaintiff, Robert J. Bolen (“Bolen”), brought this action against defen...
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MEMORANDUM-DECISION & ORDER In this employment discrimination claim arising under Title YII of the Civil Rights Act of 1964 and 42 U.S.C. § 2000e-5 et seq., the defendants have moved for an order dismissing the plaintiffs second cause of action arising under the Age Discrimination in Employment Act of 1974. In addition the defendant has asked for Fed. R.Civ.P. Rule 11 sanctions against th...
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MEMORANDUM AND ORDER This action was originally filed in the Superior Court of Massachusetts. Defendants sought removal to this court, filed an answer, and now move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). I For the purposes of a Rule 12(c) motion for judgment on the pleadings, this court must accept the plaintiffs’ allegations as true and draw all reasonable inferences...
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DECISION AND ORDER On February 13, 1989, the plaintiff filed the instant action claiming that he was wrongfully denied benefits due him under an employee benefit plan and that the plan failed and refused to comply with his request for information regarding the plan. Both claims are actionable under the Employee Retirement Income Security Act [ERISA], 29 U.S.C. § 1001 et seq. Prior to the schedu...
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MEMORANDUM OPINION General Electric Credit Auto Lease, Inc. (“GECAL”), and Jerome Burd have moved for summary judgment on Counts 1 and 2 of the Amended complaint of Phyllis Cline, a former employee of GECAL whom Mr. Burd supervised. Ms. Cline’s first count is a claim under the Age Discrimination in Employment Act (“ADEA”), codified at 29 U.S.C. §§ 621 et seq. (1982). In her second claim, ...
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MEMORANDUM OPINION AND ORDER Lumbermen’s Investment Corp. (“Lumbermen’s Investment”) and J & J Construction Co. (“J & J Construction”) filed a joint motion to disburse surplus proceeds from a foreclosure sale. Maria Morfi, formerly known as Maria Provo, brings in response a motion to set aside the default and default judgment that led to the foreclosure sale. For the reasons set forth below, we g...
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OPINION The matter before the court is the motion for summary judgment (# 18) of counterclaim defendant, Amwest Surety Insurance Company (Amwest). BACKGROUND This is an action by plaintiff, Great Western Coatings, Inc. (Great Western) against defendant, Carboline Company (Carboline) for breach of contract. In its complaint, Great Western claims that certain painting materials wh...
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OPINION Plaintiff, Snohomish PUD, filed this action seeking declaratory relief in a contract dispute between defendants Paeificorp, et al. and the Washington Public Power Supply System (“Supply System”). In addition, plaintiff filed motions to intervene and consolidate the present action with Pacificorp, et al. v. Washington Public Power Supply System, Civ. No. 89-1282-MA (filed Nov. 22, 1989). P...
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MEMORANDUM OPINION AND ORDER Plaintiffs Don King Productions, Inc. and Don King bring this action for inter-pleader and injunctive relief pursuant to 28 U.S.C. § 1335 and § 2361. Defendant United States moves for partial summary judgment claiming priority to the inter-pleader funds. Defendants Gidron and Jones have cross-moved claiming that they have priority to the interpleader funds. Background...
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AMENDED ORDER This matter is before the court on plaintiffs’ motion to certify a class filed pursuant to Rule 23 of the Federal Rules of Civil Procedure.1 The record before the court includes a report of a United States Magistrate prepared after his consideration of the pending motion. Additionally, this court heard oral arguments on the motion on August 9, 1990. The report and recommendation of ...
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OPINION Numerous defendants, described with greater particularity below, have moved to dismiss the complaint of plaintiffs Simeon Morin and Delano Morin (together, the “Morins”), Morin v. Trupin, No. 88 Civ. 5743, and plaintiffs in consolidated actions of Blaikie v. Trupin, No. 88 Civ. 8464, Petersen v. Trupin, No. 89 Civ. 3102, and Seal v. Trupin, ...
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MEMORANDUM OPINION AND ORDER The plaintiff, Universal Bonding Insurance Company, a New Jersey Corporation brought this contractual indemnity action against the corporate defendant, Esko & Young, Inc. (“Esko”), and the individual defendants Albert Ira Rosenberg and Theresa A. Rosenberg. Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332. The Rosenbergs have moved to dismiss the ac...
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OPINION The matters before the court are: 1. the motion of defendant Baxter Healthcare Corporation (Baxter) to dismiss for improper venue the action of plaintiff Biosyntec, Inc. (Biosyntec) and involuntary plaintiff the University of Virginia Alumni Patents Office (UVA), in which Biosyntec and UVA allege patent infringement (# 8-l); 2. Baxter’s motion for summary judgment (# 8-2...
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MEMORANDUM OPINION AND ORDER This 42 U.S.C. § 1983 (“Section 1983”) Complaint by Elton Houston (“Houston”) and Robert Brown (“Brown”) sets out a factual statement that, taken at face value (as this Court must do), recounts truly outrageous conduct on the part of Assistant State’s Attorneys — their nondisclosure and affirmative concealment of exculpatory information that caused Houston and...
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OPINION Defendants’ motion for judgment on the pleadings and plaintiffs' cross-motion for judgment on the pleadings are before the court. In their complaint, plaintiffs challenge the constitutionality of the New Jersey Fee Arbitration System (“FAS”) and charge the New Jersey Supreme Court with violations of federal antitrust laws. 1 For the reasons that follow, summary judgment...
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MEMORANDUM INSLAW, Inc. petitions for a writ of mandamus, pursuant to 28 U.S.C. § 1361, to compel the Attorney General to conduct a criminal investigation of allegations that former high-level officials of the Department of Justice conspired to injure petitioner, INSLAW, and appropriate its software for personal benefit. Respondents, the Attorney General and the United States Department of Justic...
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*883 OPINION This matter is before the Court on defendants’ motion to dismiss or, in the alternative, for partial summary judgment. Upon consideration of defendants’ motion, plaintiff’s opposition thereto, defendants’ reply, and the entire record herein, defendants’ motion is granted in part. BACKGROUND Plaintiff Jacqueline McGregor is the former Executive Director of t...
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MEMORANDUM, STIPULATION AND ORDER The stipulation set out below settles a class action on behalf of mentally-retarded residents of the Long Island Developmental Center filed some twelve years ago. At the time the action was brought visits by the court to the Center revealed a deplorable situation. Clients lay half-naked and unattended in their own urine and feces on cold floors in dismal surrou...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff brought this action against the Secretary of the Department of Energy under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 et seq. Plaintiff alleges that the agency discriminated against him on the basis of his race when, in 1978, instead of promoting him, the agency selected a black person from outside the agency to fi...
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MEMORANDUM OPINION AND ORDER Plaintiff Roderick Buffington brings this action under 42 U.S.C. § 1983 alleging that the conditions in X-House at Stateville Correctional Center where he was confined from June 20, 1989, to November 2, 1989, violated his Eighth and Fourteenth amendment rights. Before the court is defendant Michael O’Leary’s motion to dismiss the complaint pursuant to Rule 12(...
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OPINION This is a federal taxpayers’ suit in which plaintiffs challenge as a violation of the Establishment Clause of the First Amendment the appropriation and expenditure of public funds by the United States for the construction, maintenance and operation of religious schools abroad. Defendants claim that plaintiffs lack standing to bring this suit; that plaintiffs claims present non-jus...
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Plaintiffs Kenneth and Gussie Hegmann, husband and wife, bring this action for alleged malpractice suffered by Kenneth Hegmann at a Veterans Administration Hospital located in Northport, New York. Plaintiffs sue the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Presently before the Court is the government’s motion to dismiss for plaintiffs’ failure to properly serve the...
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*10 MEMORANDUM OPINION Introduction This case is presently before the Court for renewed consideration of plaintiff Carey Canada, Inc.'s motion for partial summary judgment on the “trigger of coverage” issue. We previously deferred ruling on this motion pending supplemental briefing on the issues of when and how asbestos causes property damage. 1 See Mem...
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MEMORANDUM OPINION This action is a hybrid suit under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, in which plaintiff alleges breach of a collective bargaining agreement (CBA) and breach of a duty of fair representation. Before the court are motions for summary judgment filed by both defendants. Defendant Local Union No. 614 (Local) also has moved for Rule 11 sanctions. T...
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OPINION I. Introduction This is a declaratory judgment action in which plaintiff, Oritani Savings & Loan Corporation, (“Oritani”), seeks a ruling that defendant, Fidelity & Deposit Company of Maryland, (“Fidelity”), is obligated to indemnify it under a Savings and Loan Blanket Bond. Presently before the Court is a motion by Fidelity for reconsideration of this Cour...
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ORDER This matter is before the court on Defendant Tenco’s Motion to Stay, Reconsider and to Certify Pursuant to 28 U.S.C. § 1292. Also before the court is Defendant Continental’s Motion to Amend Order, To Certify for Appeal and to Stay and Reconsider Order which is substantially the same as Tenco’s motion. Both motions contain requests for the following: that this court reconsider its order of Se...
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MEMORANDUM DECISION AND ORDER In this case the plaintiff corporation, a member of a national trade organization, alleges that the organization terminated its membership as a result of “bad faith” on the part of the organization and a competitor-member. The plaintiff seeks to be reinstated as a member, among other remedies. There is one crucial issue before the Court: Has the plaintiff established...
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ORDER DENYING PLAINTIFF’S MOTION FOR AWARD OF ATTORNEY’S FEES I.Introduction Before the court is plaintiff’s motion for award of attorney’s fees. The court heard oral argument on this motion on August 3, 1990 and took the motion under advisement. Because the decision of the Secretary denying disability benefits was substantially justified, plaintiff is not entitled to an award of...
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MEMORANDUM OPINION AND ORDER This is an action for libel. It arises out of the autobiography of defendant Ralph Abernathy, published by defendant Harper & Row Publishers, Inc. and edited by defendant Daniel Bial. Plaintiff is a resident of Memphis, Tennessee, who claims to have been defamed by a passage in the book. Defendants move to dismiss her complaint under Rule 12(b)(6), F.R.Civ.P.,...
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ORDER Before the Court is a Motion by the Plaintiff Mechanical Rubber to remand (# 22) this case to state court. Also before the Court is the issue of whether or not this Court has pendent party jurisdiction over Hagerty Brothers Company. These issues have been fully briefed. The Court denies the Plaintiffs Motion to Remand (# 22). And, the Court finds it lacks subject matter jurisdiction...
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748 F. Supp. 672 (1990) James R. O'CONNER, Plaintiff, v. COMMONWEALTH EDISON COMPANY, and London Nuclear Services, Defendants. No. 88-1272. United States District Court, C.D. Illinois. September 26, 1990. *673 Jay H. Janssen, Peoria, Ill., for plaintiff. Rex K. Linder, Peoria, Ill., Terrence E. Kiwala, Chicago, Ill., Donald E. Jose, Philadelphia, Pa., for defendants. ORDER MIHM, District Judge. ...
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MEMORANDUM OF OPINION AND ORDER Plaintiff, pro se, Jackson Leeds brings this action against the Commissioner of Patents and Trademarks under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for a declaratory judgment that the Patent and Trademark Office (PTO) has failed to index and produce certain agency decisions as required by 5 U.S.C. § 552(a)(2). By Memorandum of Opinion and Order date...
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TEMPORARY RESTRAINING ORDER LIMITING DEFENDANTS FROM TRANSFERRING ASSETS AND ORDER TO SHOW CAUSE Plaintiffs, REEBOK INTERNATIONAL LTD. and REEBOK INTERNATIONAL LIMITED (hereinafter referred to collectively, as “Reebok” or “plaintiff”), having moved ex parte for a temporary restraining order, and order to show cause, preventing the defendants MARNATECH ENTERPRISES, INC., CONATEC...
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MEMORANDUM AND ORDER Plaintiff Allan Lisse represents a class of shareholders who purchased shares of Ku-licke & Sofia Industries, Inc. (“K & S”), common stock between November 8, 1984, and March 11, 1985, inclusive. K & S develops and manufactures equipment, tools, and accessories used in the assembly of semiconductor devices. The company’s sales and profitability are directly related to...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the Motion of Defendant Wisam “Sammy” Pet-ros for an order declaring his prior state controlled substance plea taken under M.C.L. § 333.7411, the Michigan “First Offender Statute”, invalid for purposes of the enhanced penalty provisions of 21 U.S.C. § 841. Both the Defendant and the Government have filed briefs on this issue, which...
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MEMORANDUM OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW 1 Hae Yon Sin Grayson and her two small daughters perished in the early morning *856 hours of August 29, 1987, when their car sank in the deep waters surrounding Navy Pier D-3, in Key West, Florida. Ivan Grayson, tormented by the mind numbing horror of the tragedy that wiped his family from the face of the ea...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW Plaintiffs filed this litigation on an emergency basis on October 30,1989, seeking to enjoin the defendants 1 from continuing a proposed $10,800,000 renovation of its fourteen-story high-rise professional office tower, located at 1401 Brickell Avenue, Miami, Florida. In March of 1973, the Tenant Law Firm entered into the subject Lease w...
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MEMORANDUM DECISION AND ORDER The plaintiffs have filed the instant action against the defendant under 29 U.S.C. § 185 and 29 U.S.C. § 1132(e). The plaintiffs claim that Barrick Gold Exploration, Inc., a signatory to the National Bituminous Coal Wage Agreement of 1988, breached Article XX, Sections (i) and (j) of that Agreement and thereby violated 29 U.S.C. § 1145 by failing to pay certain amount...
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MEMORANDUM AND ORDER Before the Court is the plaintiff’s motion to amend its complaint or, in the alternative, for reconsideration of the Court’s Order of July 31, 1990 dismissing the complaint. 743 F.Supp. 34. For the reasons stated below, the motion is denied. I Key Airlines previously filed a complaint in this Court seeking a temporary restraining order to enjoin the National...
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ENTRY This cause comes before the Court on a petition for writ of habeas corpus and other related motions. Before discussing the numerous issues presented by this petition, the Court finds it necessary to set forth the factual and procedural background of this case. I. FACTUAL AND PROCEDURAL BACKGROUND This action involves a petition for writ of habeas corpus filed June 14, 1988, by petitioner Ken...
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MEMORANDUM AND ORDER This matter is before the court on coun-termotions for partial summary judgment between defendant/third party plaintiff Burlington Northern Railroad Co. (hereinafter, the railroad) and third party defendant Bingham Transportation, Inc. (hereinafter, Bingham). Plaintiff Robert E. Hatfield originally filed this lawsuit claiming that he sustained personal injuries a...
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MEMORANDUM The plaintiffs, an Allentown police officer and his wife, have sued the defendants, an Allentown newspaper, one of its reporters, and an unidentified Allentown police officer, under 42 U.S.C. § 1983 for violating their constitutional right to privacy by publishing the contents of a confidential police report, and under various state laws and constitutional provisions. The plain...
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OPINION AND ORDER Counsel for First Bank, N.A. and First Wisconsin National Bank of Milwaukee, two creditors of the debtors in the underlying consolidated bankruptcy actions, has asked this court to review orders of the bankruptcy court dated October 12, 1989, and May 3, 1990. 1 On October 12, 1989, the bankruptcy court denied the creditors’ Application for Compensation and Rei...
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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT This cause comes before the Court on cross-motions for summary judgment. The issues raised have been briefed and are ready for resolution. The issues raised in this motion allow no easy resolution. While the legal principles are settled, no clear guiding precedent from the Supreme Court or from the Seventh Circuit exists. After careful review of the c...
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MEMORANDUM AND ORDER The abovenamed pro se plaintiff is an inmate in New York’s corrections system. He alleges that, while confined to the Attica Correctional Facility (“Attica”) between August and November of 1986, he was harassed by the defendant corrections officers because of his Islamic faith and in violation of his constitutional rights. Compensatory and punitive damages have been sought alo...
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MEMORANDUM AND ORDER Adriaan de Coninck was employed by General Battery Corporation for six months in late 1982 and early 1983. His employment was terminated on February 4, 1983 for unsatisfactory job performance. Although he subsequently applied for several jobs, he was unable to secure any employment until September, 1985, when he began work as manager of an apartment complex in Wichita...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND OPINION THIS ACTION was tried before the court. On the evidence presented, the court finds as follows: (a) This is a suit brought by World Electronics, Inc., a Florida corporation, as the plaintiff, against Metropolitan Dade County, Florida, as the defendant, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202, for declaratory and injunctive relief. Pl...
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MEMORANDUM OPINION AND ORDER One of plaintiff’s bases for his motion for a new trial is the procedure adopted by the Court after the deliberating jury had advised it had arrived at a partial verdict 1 and sent out this message: “We seem to be at an impasse. Have been for some time. Any suggestions?” That occurred late in the afternoon, and counsel were advised to return the next morning prepa...
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MEMORANDUM OPINION Plaintiff filed this action on August 31, 1988 seeking compensatory and punitive damages from the defendant for the wrongful death of decedent, David Wilkey. Plaintiff alleges that defendant is liable for Wilkey’s death because it negligently issued an insurance policy to an individual who did not have an insurable interest in the decedent's life. In the alternative, plaintiff ...
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ORDER GRANTING MOTION TO DISMISS On October 26, 1989, a cargo vessel owned by defendant ran aground on a coral reef in the Key Largo Marine Sanctuary, off the coast of Key Largo, Florida. The vessel was en route from Gloucester, Massachusetts to Mobile, Alabama. As a result of the damage the vessel sustained, defendant submitted to the plaintiffs a claim in the amount of $191,355.22, pursuant t...
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ORDER This is an action charging the defendants with violations of the due process and just compensation provisions of the fifth amendment to the United States Constitution. On October 13, 1989, this court filed an order directing the Clerk of Court to enter judgment in the plaintiffs’ favor on the takings claim. Also, in that order consideration of the proper remedy was postponed pending...
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MEMORANDUM OPINION AND ORDER Plaintiffs, Marsha Ann Jones Foxworth and Raymond Anthony Foxworth, brought this diversity action against defendants, Durham Life Insurance Company (Durham) and United Employers Federation (UEF), asserting state law claims for breach of contract, negligence and tortious breach of contract arising out of defendants’ denial of a claim for medical benefits submit...
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MEMORANDUM AND ORDER This is a Federal Tort Claims Act case arising from a slip and fall from a loading dock at the United States Post Office at Manhattan, Kansas. After considering all the evidence presented at the trial of this case, the court hereby makes the following findings of fact and conclusions of law. *1061 1. Plaintiff is 39 years old. On June 12, 1988, a Sunday,...
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MEMORANDUM and ORDER On June 8, 1990, the Court declared a mistrial following the jury’s inability to reach a verdict on the indictment charging the Defendant Ana Feijoo-Tomala (“Fei-joo-Tomala”) with importing cocaine into the United States. Feijoo-Tomala followed *182with a motion for an order dismissing the indictment against her on the ground that the Double Jeopardy clause of the Fifth Amendm...
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MEMORANDUM OPINION AND ORDER Third-party defendant, Powerhold, has moved to dismiss Wedco’s indemnification complaint against it. The issues have been thoroughly briefed and oral argument would not be helpful. I. Facts. O’Quinn was injured while operating a lathe manufactured by Wadell. At the time of the accident, Wadell was a wholly owned subsidiary of Wedco. In the complaint, O’Quinn all...
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Defendant Marriott Essex House objects to a settlement reached by the parties in the above-captioned consolidated class actions. For reasons to be discussed, defendant Marriott Essex House’s objections to the settlement are denied in all respects. The Court adopts the settlement with respect to all the above captioned lawsuits as set out in the stipulation of settlement dated July 11, 1990. I. Ba...
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MEMORANDUM AND ORDER This is a diversity action for uninsured motorist insurance benefits. Plaintiffs are: the Estate of Thelma I. Hanshew; George W. Hanshew — husband of the late Thelma Hanshew; and three children of George and Thelma Hanshew. This case is now before the court upon a motion to dismiss. The thesis of the motion is that the estate does not have a claim which could reach or...
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ORDER This case is before the court on defendants’ Motion for Summary Judgment. The court DENIES defendants’ Motion. *875 BACKGROUND Plaintiff Bernee Cargile brings this action pursuant to 29 U.S.C. § 1132 for wrongful failure to pay health and long term disability benefits. Plaintiff worked as an application assembly clerk for Confederation Life Insurance Company (Conf...
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ORDER These are long-pending appeals from an order of the bankruptcy court sustaining the complaint of the First National Bank of Herington concerning the recovery of certain property. The appeals have been consolidated by the court. The Federal Deposit Insurance Corporation has succeeded to the interest of the First National Bank of Herington. Debtor Wilber Hanschu has been granted permission to ...
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748 F.Supp. 639 (1990) GENERAL RAILWAY SIGNAL COMPANY, A UNIT OF GENERAL SIGNAL CORPORATION, a New York corporation, Plaintiff, v. James P. CORCORAN, Superintendent of Insurance of the State of New York, as Liquidator for American Fidelity Fire Insurance Company, and Susan S. Engeleiter, Administrator of the United States Small Business Administration, Defendants. No. 89 C 9360. United States Dis...
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This matter is before the court on plaintiff’s motion for a preliminary injunction pursuant to Rule 65, Fed.R.Civ.P. Plaintiff instituted the present action by a complaint filed on August 15, 1990, in which he seeks injunctive and declaratory relief to prevent his early discharge from active duty with the United States Army for testing positive on a urinalysis test and for failing to attend a P.T....
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OPINION AND ORDER Defendant Rodolfo Rodriguez (“Rodriguez”) moves to suppress statements made at the place of his arrest and later at the offices of the Federal Bureau of Investigation (“FBI”), pursuant to Rule 12(b)(3) of *169the Federal Rules of Criminal Procedure. This Court held an evidentiary hearing on the issue of the voluntariness of the statements, on August 28 and 30, 1990. The Governmen...
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MEMORANDUM OPINION This is a class action sex discrimination case brought pursuant to the provisions of Title VII of the 1964 Civil Rights Act, 42 U.S.C. sec. 2000e et seq., and the California Fair Employment and Housing Act, California Government Code sec. 12940 et seq. The case concerns charges of discrimination by women employees at two lemon packing plants in Ven...
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MEMORANDUM OPINION I. INTRODUCTION. This action is brought pursuant to § 7(h) of the Natural Gas Act (15 U.S.C. § 717f(h)) whereby Columbia Gas Transmission Corporation seeks to condemn an underground natural gas storage easement in the Clinton Sandstone beneath a tract of land owned by Mr. and Mrs. Earl F. Arn-holt. The tract of land is within the “map area” of the natural gas stora...
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MEMORANDUM OPINION This case is before the Court upon the submission of a stipulation of facts and the briefs of the parties. The Court has reviewed the stipulated facts, the exhibits, and the arguments of both sides and has determined that, for the reasons hereinafter set forth, defendant is not liable for the charges claimed by plaintiff. Plaintiff’s husband, Kenneth Kaczmarek, has been employe...
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ORDER & OPINION This is an action for declaratory and in-junctive relief, and for monetary damages, arising from defendant Liberty Mutual Insurance Company’s (“Liberty”) alleged breaches of its contractual and fiduciary duties owed to its insured, Emons Industries, Inc. (“Emons”). Liberty comes before the Court on a motion to disqualify Emons’s counsel, Anderson, Kill, Olick & Oshinsky (“...
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MEMORANDUM This matter is before the Court upon the motion of defendant Life Investors Insurance Company of America (“Life Investors”) to dismiss and the motion of defendant Nicholas W. Humble (“Humble”) to dismiss. For the reasons set forth herein, the motions will be GRANTED IN PART and DENIED IN PART. The plaintiffs in this action are a minor child and her parents. The parents bro...
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*663 MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff-prisoner filed a pro se civil rights claim under 42 U.S.C. § 1983. Plaintiff alleges that he suffered racial discrimination and verbal abuse while incarcerated at the State Prison of Southern Michigan. Plaintiff seeks monetary relief and removal from the prison. This matter now comes before the Court...
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ORDER Trial to the bench was held on October 3, 1990 at 8:00 a.m. The following will constitute the findings and conclusions. As was probably expected by all concerned, the trial brought no surprises. Ms. Anderson’s testimony was consistent with her affidavit previously submitted, as was Ms. Brown’s deposition testimony. In fact, there is no need to alter the Order entered July 13, 1990 a...
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MEMORANDUM OPINION AND ORDER This is an action brought by National Benefit Administrators, Inc., on behalf of National Business Association Trust (NBAT), the administrator of an employee health benefits plan, seeking recovery of payments made to defendant, Mississippi Methodist Hospital and Rehabilitation Center (MMHRC), for the account of third-party defendant Derron Johnson. Jurisdictio...
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ORDER Before the court is co-defendant/cross claimant Beverly J. Whitney’s (“Whitney”) Motion for Summary Judgment, filed July 12, 1990. On August 15, 1990, co-defendant/cross claimant Richard S. Walsh (“Walsh”) filed a Memorandum in Opposition to the Motion for Summary Judgment. Whitney filed a Reply Memorandum on August 27, 1990. For the reasons set forth below, the motion will be grant...
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OPINION AND ORDER This matter is before the Court pursuant to the Plaintiffs motion to alter judgment, under Federal Rule of Civil Procedure (“Fed.R.Civ.Pro.”) 59(e); motion for amendment to judgment, under Fed.R.Civ.P. 52(b); and a motion for leave to file a third amended complaint, ■ under Fed.R.Civ.P. 14(a). The Magistrate has issued an Order as to the motion for leave to file the third amen...
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OPINION AND ORDER This matter is before the Court upon the Defendant, National Rx Services, Inc.’s, Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. In response the Plaintiff, Jogananda Hazra (“Hazra”), has filed a “Motion to Deny Defendant’s Motion for Summary Judgment”. The defendant has since filed with the Court a Reply and a Supplemental Reply. This case was brought...
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MEMORANDUM AND ORDER This matter is before the court on the defendants’ motion to dismiss, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons stated in this memorandum, the motion will be granted as to both defendants. I Mobil Oil Corporation (“Mobil”) seeks declaratory and injunctive relief against the Attorney General and the Commissioner of Agriculture and Consu...
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748 F.Supp. 768 (1990) Stew and Mary Jo CHURCHWELL, Plaintiffs, v. F. Dale ROBERTSON, J.S. Tixier, and Jack C. Griswold, Defendants. No. 90-0289-E-EJL. United States District Court, D. Idaho. October 4, 1990. *769 Eleanore S. Baxendale, Givens, Pursley, Webb & Huntley, Boise, Idaho, for plaintiffs. Marc D. Haws, Asst. U.S. Atty., Boise, Idaho, for defendants. MEMORANDUM DECISION LODGE, Distr...
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OPINION AND ORDER This matter is before the Court pursuant to both the plaintiffs, Concrete Construction Co., Inc. (“Concrete”), motion for summary judgment and the defendants’, U.S. Department of Labor, et al., motion for summary judgment. Both motions are brought under Federal Rule of Civil Procedure 56. FACTS On May 24, 1989, Concrete requested access to documents ...
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OPINION AND ORDER This matter is before the Court pursuant to Defendant Fahlgren & Swink, Inc.’s (“F & S”) motion to dismiss Count IV of Plaintiffs Complaint. The plaintiff, Nancy L. Flynn (“Flynn”) filed a memorandum in opposition to the motion, to which the defendant has filed a reply memorandum. The dismissal is sought pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure t...
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OPINION AND ORDER This matter is before the Court pursuant to Defendant, Tribble & Stephens Company’s (“T & S”) Motion for Summary Judgment. On November 7, 1989, Plaintiff, Walter S. Smith (“Smith”) filed a memorandum contra to which Defendant filed a reply memorandum and a motion to strike. This is a personal injury/products liability case that is brought before this Court by virtue of the parti...
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ORDER Placido LaBoy, Jr. is an inmate at the Cook County correctional facility. Seeking to recover monetary damages for several alleged violations of his civil rights, LaBoy asserts a variety of claims against Chicago police officers Richard P. Zuley, William Dorsch, and John Boyle. Defendants have moved to dismiss plaintiffs complaint in its entirety. For the reasons stated herein, defen...
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746 F. Supp. 1090 (1990) UNITED STATES of America v. Walter Leroy MOODY, Jr., et al., Defendants. Cr. No. 90-41-MAC (WDO). United States District Court, M.D. Georgia, Macon Division. October 4, 1990. Edward D. Tolley, Athens, Ga., Sandra J. Popson, Macon, Ga., for defendants. Samuel A. Wilson, Jr., Macon, Ga., Asst. U.S. Atty. Louis J. Freeh, Special Prosecutor, for U.S. James A. Demetry, Dow, Lo...
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MEMORANDUM AND ORDER Appellants, Arley A. Westendorf and Nebraska Security Bank, appeal the decision of the United States bankruptcy court 1 denying their motions for leave to file a proof of claim under the Chapter 9 bankruptcy filed by the appellee, Sanitary Improvement District #7. The bankruptcy court held that, although the appellants did not receive actual notice of the l...
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ORDER This order concerns defendants’ motion for summary judgment pursuant to Fed.R. Civ.P. 56. For the reasons stated herein, defendants’ motion is granted. FACTS Plaintiff Rita Hohmeier was hired by defendant Leyden High School District 212 (“District 212”) on August 8, 1979. For eight years, Hohmeier worked for District 212 as an educational secretary at West Leyden High School (“West Le...
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MEMORANDUM AND ORDER These are three consolidated cases in which the trustee in each case appeals the decision of the bankruptcy court in In re George, 85 B.R. 133 (Bkrtcy.D.Kan.1988). Each case involves the disposition of Payment in Kind (PIK) certificates; the certificates or their proceeds are in the possession of each trustee. The facts are stipulated. In its memorandum...
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MEMORANDUM Presently before the court is Defendant Penpac, Inc.’s (Penpac) “Motion for Reconsideration of Order Granting Plaintiff’s ‘Motion to Quash Notice of Removal and For Remand of Case to State Court,’ ” requesting this court to review its Memorandum and Order dated May 3, 1990. See document 10 of record. For the following reasons, the court will deny Penpac’s motion for ...
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ORDER Defendants Robert J. Bobb and Douglas Crocker II have moved to transfer venue to the Western District of Wisconsin under 28 U.S.C. § 1404(a). For the reasons stated below, defendants’ motion is denied. Plaintiff Greyhound Real Estate Finance Company (“Greyhound”) has brought this action seeking the sum of $2,865,775.28 along with attorneys’ fees, interest, and court costs from defendants in ...
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MEMORANDUM DECISION AND ORDER The plaintiff, Donald Bougé, filed the instant action against Smith’s Management Corporation claiming the defendant, a large grocery chain operator, violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Plaintiff alleged he was not compensated for overtime work and that some of the time that plaintiff worked was uncompensated. Plaintiff has also joined a cla...
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MEMORANDUM In this diversity action, plaintiff Stacy Weiss seeks damages for personal injuries allegedly incurred in a motor vehicle accident with defendant Joseph Wayes. During the discovery stage, defendant noticed the oral deposition of Dr. P. Shripathi Holla for use at trial. Two days before the scheduled deposition, plaintiff’s counsel advised defense counsel, that pursuant to Local Rule 403...
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OPINION AND ORDER This matter is before the Court upon Defendants’, Diebold Incorporated and J. Richard Winters, motion to dismiss portions of the Plaintiffs’, Edmond P. Greinader and Esther L. Greinader, Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). This matter was originally before the Court of Common Pleas of Licking County. The defendants removed the matter to federal cou...
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ORDER The plaintiffs in this class-action lawsuit are African-American citizens of Shelby County, Alabama, who claim that the at-large voting system used to elect the county’s governing commission violates § 2 of the Voting Rights Act of 1965, as amended. 1 The defendant Shelby County Commission initially denied liability, but, after trial, voted to approve a settlement agreeme...
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OPINION AND ORDER This matter is currently before the Court pursuant to Defendant’s Motion for Summary Judgment on Count III of Plaintiff’s Complaint (Doc. .46). Plaintiff has filed a motion requesting an oral hearing on the summary judgment motion (Doc. 54). Plaintiff has also filed a memorandum in opposition to Defendant’s motion (Doc. 55), to which Defendant filed a reply memorandum (D...
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MEMORANDUM OPINION AND ORDER This action comes before the Court on Defendant’s motion to dismiss Plaintiffs complaint for failure to state a cause of action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth in the opinion below, this Court denies Defendant’s motion to dismiss Count I of the complaint but grants Plaintiff thirty days to file an am...
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ORDER Before this Court are plaintiff’s Motion for Summary Judgment filed on October 20, 1989, and defendants’ Cross-Motion for Summary Judgment filed on November 8, 1989. The facts underlying this case are rather lengthy and complex. Graphics House, Inc. (Graphics House), a business owned by Jerry and Judith Cail (the Cails), obtained a loan from Nevada First Bank (NFB) in the amount of $300,000...
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MEMORANDUM OPINION AND ORDER The United States brought this action against Dairy Farm Leasing Company (Dairy Farm), Scott County sheriff William Nevin, and deputy sheriff Richard Welch (collectively “the sheriff”). 1 The complaint alleges that the sheriff unlawfully allowed Dairy farm to redeem foreclosed property when its right to redemption was inferior to the rights of plaintiff. The compl...
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MEMORANDUM OPINION AND ORDER Pending before the Court is the Defendants’ motion for summary judgment pursuant to Rule 56(c), Federal Rules of Civil Procedure. The Court grants in part the Defendants’ motion. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits on file, if any, show that t...
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OPINION AND ORDER This suit is an action for declaratory judgment brought by the University of Vermont and State Agricultural College (the “University”) against the State of Vermont (the “State”). In this action, the University seeks an order that 1987, No. 177 (Adj.Sess.), “An Act Relating to Labor Relations and [the] University of Vermont” (“H. 328”), is violative of the Supremacy Claus...
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RULING ON MOTION FOR PARTIAL SUMMARY JUDGMENT Pending is plaintiffs’ Motion for Partial Summary Judgment with respect to the defendants’ Sixth Special Defense. Having considered and rejected plaintiffs’ argument that the action is governed by common law principles instead of Connecticut General Statutes § 52-572h(c) (Order of July 30, 1990), the Court must now address the alternative grounds as...
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ORDER THIS MATTER is before the Court on Petitioner’s motion, filed September 26, 1990, for stay of execution of state sentence pending resolution by this Court of the Petition for Writ of Habeas Corpus. The record in this matter indicates a Petition for Writ of Habeas Corpus was filed by Petitioners on August 31, 1990. The Petition indicates that Petitioners were tried and convicted by a jury in ...
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MEMORANDUM OPINION AND ORDER Brian M. Freeman, Brian M. Freeman & Co., Inc., and Brian M. Freeman and Co. Investments, Inc. (Freeman) appeal an order of the bankruptcy court granting the debtors’ motion for summary judgment and disallowing the First Amended Proof of Claim (the claim) filed by Freeman. The bankruptcy court concluded that Freeman’s claim was barred by a settlement agreement which r...
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OPINION AND ORDER This matter is before the Court upon a motion for dismissal of plaintiffs Complaint on the ground that the plaintiffs Complaint fails to state a claim upon which relief can be granted and that this Court does not have subject-matter jurisdiction over the claims alleged. The motion is brought pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(h)(3), respectively...
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ORDER AND OPINION This matter is before the Court pursuant to Defendant City of Upper Arlington’s (“Upper Arlington”), and Defendant Trans-Ohio Savings Bank’s (“TransOhio”) respective motions for dismissal or in the alternative for summary judgment. These motions are brought pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, Rule 56. Because both movants have elected to a...
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ORDER Phase I Motions and Motions to Dismiss On August 23, 1990, the court heard oral argument on several related motions. Those motions were: plaintiffs’ Phase I motions regarding the scope of compensatory damage recovery; the Fund’s motion to dismiss claims of fish tenders and pro *1382 cessors; Trinidad, West, Hawker, Kee, Mathiasen’s, and GBTC’s Rule 12(b)(6) mot...
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ORDER This matter is before the Court upon Defendants’ Motion to Suppress Evidence pursuant to Rule 12(b)(3), Fed.R.Crim.P., filed on April 18, 1990. Defendants argue that the evidence to be used at trial should be suppressed because the evidence was seized via an unlawful search and seizure. Rule 12(b)(3) of the Federal Rules of Criminal Procedure provides as follows: Any defense, objection, or ...
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OPINION AND ORDER This matter is before the Court pursuant to the plaintiff’s motion for summary judgment. The Claimant has filed a memorandum contra to the summary judgment motion to which the government has filed a reply memorandum. This suit was originally brought through a Complaint for Forfeiture filed by the government on October 17, 1989. The forfeiture was brought pursuant to 21 U.S.C. § ...
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OPINION AND ORDER This matter is before the Court upon the defendant’s motion for summary judgment and the plaintiff’s cross motion for summary judgment. Defendant has filed a memorandum contra to the plaintiff’s cross motion and a reply memorandum in support of its motion for summary judgment. Plaintiff has filed a memorandum contra to the defendant’s summary judgment motion coupled with...
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ORDER The plaintiffs have filed a Motion for Order of Payment of Fees of Harold Katz. Mr. Katz has been designated as an expert witness for the plaintiffs. Defendant deposed Mr. Katz on October 25, 1989. At that deposition Mr. Katz produced numerous documents that had been requested by the defendant. Plaintiff has now filed a motion requesting that the defendant be ordered to compensate Mr. Katz ...
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OPINION AND ORDER This matter is before the Court by virtue of Defendants’ motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. On April 23, 1990, the plaintiff, Robbie L. Chaney, filed a memorandum contra to which the defendants filed a reply. FACTS The case is before this Court by a Complaint filed by the plaintiff. In the Complaint the plaintiff alleges juri...
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MEMORANDUM OPINION AND ORDER This bankruptcy appeal raises an issue for which there is a split of authority among the judges of the Bankruptcy Court in this District. The issue is whether § 522(f) of the Bankruptcy Code can be used to avoid a judicial lien on the debtor’s homestead exemption. In this case, Judge Matheson followed the position of Judge Brumbaugh as articulated in In re Fry, 83...
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DECISION AND ORDER FACTS During April 1987, a three-week jury trial was conducted in the above-captioned case in which plaintiff Katherine King (“King”) obtained a favorable special verdict against four of the six defendants. The jury awarded King $345,000 in damages. On November 21, 1988, this court granted in part and denied in part defendants’ motion for judgment notwithstanding the verdict (“...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER On July 8, 1988, plaintiff Tyrone K. Hearn (“Hearn”), proceeding pro se, filed a complaint with this court alleging that the defendant, the United States Veterans Administration (“the VA”), discriminated against him on July 17, 1985, when the VA’s Milwaukee Regional Office did not select him to fill a GS-962-10 Contact Representative (“CR”) position...
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INTRODUCTION Folio Impressions, Inc. (“Folio”), a New York corporation engaged in the importation and sale of fabric to apparel manufacturers and others, brings this action for alleged infringement of a copyright in a textile design pattern pursuant to section 501 of the Copyright Act of 1976, 17 U.S.C. § 501 (1988). Defendant Byer California (“Byer”) is a California corporation with offic...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on Defendant’s motions, filed June 18, 1990 and August 7, 1990, for partial summary judgment. I. PROCEDURAL BACKGROUND. Plaintiffs, black former and current employees of Defendant, filed this action on June 9, 1989. The named Plaintiffs also sought class certification for those persons similarly situated. On August...
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MEMORANDUM OPINION AND ORDER Idris Siddiqi, an inmate in the Illinois state prison system, filed this action under 42 U.S.C. § 1983 (1988) against Michael Lane (former director of the Department of Corrections), Michael ■ O’Leary (former warden of the Stateville Correctional Center), and James Greer (former warden of the Menard Correctional Center). Siddiqi seeks injunctive and declaratory relief ...
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RULING ON MOTION TO DISMISS OR FOR SUMMARY JUDGMENT Plaintiff, The Dacourt Group, Inc. (“Dac-ourt”), brought this action against defendants Babcock Industries, Inc. (“Babcock”), FKI Babcock PLC (“FKI”), the corporate parent of Babcock, and certain named officers of Babcock. This action arises out of a proposed $80 million sale-leaseback transaction involving commercial properties owned by Babcock...
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MEMORANDUM OPINION AND ORDER This is a personal injury action brought under diversity jurisdiction, 28 U.S.C. § 1332. Presently before the Court are plaintiff’s motion to strike several of defendant’s affirmative defenses and defendant’s cross-motion for an order dismissing the, complaint under Fed.R.Civ.P. 12(b) for lack of personal jurisdiction and venue, improper or non-service and non...
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AMENDED ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Plaintiffs’ motion for preliminary injunction came on for hearing before this court on August 20, 1990. The court, having carefully reviewed the pleadings in this matter, having heard the oral arguments of counsel and being fully advised as to the premises herein, DENIES plaintiffs’ motion. I. BACKGROUND This action arises ...
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MEMORANDUM OF DECISION AND ORDER The Los Angeles Times and the Wall Street Journal move to unseal an exhibit to Northrop’s plea agreement that was filed under seal. 1 As part of the public, written plea agreement, the government agreed “not to prosecute, file criminal charges or seek indictments in the investigations listed on Exhibit B filed under seal with this Court.” ...
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*233MEMORANDUM OPINION AND ORDER On November 28, 1989, the court entered judgment in favor of plaintiffs and against defendants Beverly Cunha (“Cunha”) and Beecher Painting and Decorating, Inc. (“Beecher”) in the amount of $28,402.32. On December 15, 1989 the Clerk of the District Court issued a garnishment summons against garnishee R.W. Edwards Construction Co. (“Edwards”) and the garnishment sum...
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MEMORANDUM AND ORDER In this adversary bankruptcy proceeding 1 , plaintiffs’ counsel seek substantial attorneys’ fees under 42 U.S.C. § 1988 and 11 U.S.C. §§ 503(b)(3)(D) and (b)(4). The bankruptcy court held that neither statute afforded the relief requested. In re St. Mary Hospital, 97 B.R. 199 (Bankr.E.D.Pa.1989) (“St. Mary II”). Before me is the appeal of the order denying attorneys’ ...
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DECISION AND ORDER On June 27, 1989, plaintiff United States of America (“United States”) commenced a civil action for forfeiture of defendant property (“the Corvette”) pursuant to Title 21 United States Code § 881(a)(4). Mario Sorrentino (“Sorrentino”) claimed a property interest in the Corvette, and this court conducted a jury trial from June 5, 1990, to June 8, 1990, to determine Sorrentino’s i...
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MEMORANDUM OPINION This matter came before the court on cross-motions for summary judgment. The case presents a constitutional challenge to a City of Alexandria ordinance that proscribes loitering for the purpose of engaging in unlawful drug transactions. Plaintiffs allege that first, the ordinance is unconstitutionally overbroad and burdens the right of assembly and association under the first...
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MEMORANDUM OPINION This matter came before the court on plaintiff’s motion to remand to the Circuit Court of Arlington County. The case arises from a personal injury action filed by the plaintiff in the Circuit Court of Arlington County and removed by the defendant to this court. Plaintiff alleges that the case was improperly removed. On November 23,1988, plaintiff filed suit in the Circuit Court...
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MEMORANDUM OPINION AND ORDER Petitioner Saverio G. Schifano, brings this petition pro se under the All Writs Act, 28 U.S.C. § 1651 “to vacate, set aside or correct [his] sentence.” Petitioner makes the following claims: 1) that he has been denied his Fifth Amendment right to due process of law and his Eighth Amendment right to be free of cruel and inhumane punishment because th...
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ORDER This matter is before the court on a Petition and Affidavit to Proceed Without Pre-Payment of Costs and Pees (“Petition”), filed on August 6, 1990, by plaintiff. By this motion, plaintiff seeks to file, without prepayment of fees, a claim for damages under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1915(d), the court must make two factual determinations before allowing a cause of action ...
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OPINION This case is before the court on defendant’s writ of error coram nobis, in which he seeks to vacate his guilty plea to tax fraud. For the reasons set forth below, the writ is denied. *386BACKGROUND In 1980, a federal grand jury began an investigation into possible tax fraud by the owners of several discotheques in New York City. Maurice Brahms, the defendant in this action, was the owner ...
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*74 MEMORANDUM OPINION Before the Court is defendants’ motion to dismiss or, in the alternative, for summary judgment on Counts II through VII of plaintiff’s amended complaint. Having considered the motion and supporting affidavits, the opposition and supporting affidavits, the hearing held on September 5, 1990, and the reasons set forth below, the Court shall deny defendants mot...
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*2 MEMORANDUM AND ORDER Plaintiffs Gregory and Marjorie Milano-vich are residents of the District of Columbia. Defendant Costa Crociere, S.p.A., is an Italian cruise ship owner, and defendant Costa Cruises, Inc., is a Florida-based New York corporation that functions as the general sales agent for cruises on Costa Croci-ere’s vessels. Mr. and Mrs. Milanovich booked passage, ...
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OPINION AND ORDER This is an action pursuant to 28 U.S.C. § 2201 seeking a declaratory judgment that a term life insurance policy issued by plaintiff on the life of Albert T. Dickson lapsed for non-payment of premiums prior to the death of the insured and that plaintiff is not obligated to pay the face amount of the policy. Defendants have interposed counterclaims and a third-party claim ...
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OPINION This matter is before the Court on defendant United Masonry, Inc., of Virginia’s (United Masonry) motion for summary judgment. Upon consideration of that motion, plaintiffs’ opposition, United Masonry’s reply, and the entire record herein, the Court grants the motion in part and denies it in part. Background The background of this longstanding case has been addressed...
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BACKGROUND Among the forms of relief it requests in its amended complaint, plaintiff State of New York (“State”) seeks $250 million in punitive damages on its common-law public-nuisance claims. The State contends that such an award is warranted in light of what it describes as the role of defendant Occidental Chemical Corporation (“OCC”) in the creation of “the public health and environmen...
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MEMORANDUM OPINION AND ORDER Petitioner Arthur Prioleau brings this petition pursuant to 28 U.S.C. § 2255 seeking to be resentenced so that the Court can specify that his sentence was intended to run concurrently with a sentence imposed by the New Jersey state courts. 1 For the *384 reasons that follow, the sentence is vacated and the Court directs that petitioner ...
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MEMORANDUM OPINION AND ORDER Presently before the Court is Timex Corporation's (“Timex”) motion to intervene as a party defendant in the above-captioned action pursuant to Fed.R.Civ.P. 24. For the reasons that follow, the motion is denied. BACKGROUND The facts relevant to the disposition of this motion are undisputed. In 1970, Marvel registered and has since used the mark “IRON MAN” in connection ...
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MEMORANDUM ORDER This matter is before the Court on defendant Swissco’s motion to vacate default, defendants Swissco’s and Dahan’s motion to dismiss, and plaintiff’s motion for sanctions. Upon consideration of the motions, the oppositions and replies thereto, and the entire record, defendants’ motions are denied, and plaintiff’s motion is denied without prejudice. Background ...
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MEMORANDUM AND ORDER This action arises out of an airplane accident on September 17, 1987 at Barksdale Air Base in Louisiana which resulted in the death of Sgt. Joseph M. Burgio. On September 16, 1988, Sgt. Burgio’s widow, Ann M. Burgio, suing under letters of administration issued in Suffolk County, New York, as executrix of his estate and in her individual capacity, brought this wrongfu...
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MEMORANDUM AND ORDER Plaintiffs, aliens permanently resident in the United States, bring this class action *992 for declaratory and injunctive relief alleging that defendants, officials of the Immigration and Naturalization Service (herein collectively “INS”), in withholding from them permanent resident cards or adequate replacements, are violating plaintiffs’ rights under fe...
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OPINION AND ORDER By use of RICO claims, plaintiffs seek to invoke this Court’s jurisdiction for the third time. Defendants, in separate motions, move for an order dismissing the Second Amended Complaint on several grounds. This Court (Walker, J.), dismissed plaintiffs’ First Amended Complaint in an Opinion and Order dated April 17, 1989, invoking Rules 12(b)(1), 12(b)(6) and 9(b) of the ...
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ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER This matter is before the Court upon the Defendant’s, Florida Atlantic University (FAU), Emergency Motion for Protective Order. A review of the Defendant’s submissions on this matter, reveals that at no time has the Defendant attempted in good faith to resolve this matter with opposing counsel without the need for judicial intervention. In this...
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OPINION AND ORDER Plaintiffs move for summary judgment pursuant to Fed.R.Civ.P. 12(c) and 56 dismissing defendant’s counterclaims, and for summary judgment on the third count of plaintiffs’ amended complaint. The following facts are undisputed. BACKGROUND Defendant Louis P. Rosenthall, an attorney admitted to practice law in New Jersey, New York and Rhode Island, is a resident of Rhode Island. In...
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MEMORANDUM OPINION AND ORDER After holding a status call in the above-captioned case and carefully considering the parties’ written and oral arguments, the Court granted the defendants’ motion and dismissed all of the federal claims (alleging various antitrust and RICO violations) in the plaintiff’s Amended Complaint. See June 27, 1990 Order. This dismissal left only non-federal claims remain...
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ENDORSED MEMORANDUM Defendant Columbia University moves for summary judgment in this action alleging discrimination. Plaintiff Nora Villa-nueva claims she was terminated from Columbia’s Sociomedical Sciences Ph.D. program due to her physical handicap of cerebral palsy. According to Columbia, plaintiff’s participation in the program was terminated after faculty members who plaintiff had invited ...
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OPINION AND ORDER This is an action for interpleader pursuant to 28 U.S.C. § 1335. Algemene Bank Nederland N.V. (“Algemene”), the issuer of a letter of credit, has paid the proceeds into court, serving notice on various contesting parties, and moves for an order of discharge and release from liability under 28 U.S.C. § 2361. The defendants fall into two camps: Defendant Soysen Tarim ...
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MEMORANDUM AND ORDER Plaintiff’s suit is bottomed on a contract with Centennial Savings & Loan (“Centennial”) that guaranteed him one year’s salary if Centennial terminated him without cause. The amount of that salary was $105,000. Based upon that contract, plaintiff sues the Federal Deposit Insurance Corporation in its corporate capacity (“FDIC Corporate”) and the Federal Deposit Insuran...
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OPINION I. INTRODUCTION This is an appeal by the New Jersey Department of Environmental Protection (“DEP”) from an order of the United States Bankruptcy Court permitting the trustee for Anthony Ferrante & Sons, Inc. (“Trustee”), to abandon a contaminated public water supply system. The bank *46 ruptcy court also denied DEP’s petition to compel the Trustee to correct all ...
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OPINION INTRODUCTION Plaintiff GRM Industries, Inc. (“GRM”) filed the present twelve-count action against defendant Wickes Manufacturing Company (“Wickes”) seeking certain response and other costs incurred when GRM removed hazardous wastes from a partially underground storage tank on property leased by GRM. Count 2 of plaintiff’s complaint alleges a private right of action under Sect...
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OPINION AND ORDER Defendants Cushman & Wakefield of New Jersey (“C & W”) and Stephen Siegel (“Siegel”) move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, claiming that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Plaintiff Scott A. Ervin (“Ervin”) brings this action 1) to rec...
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MEMORANDUM AND ORDER Defendant Michael Rullo was arrested in East Boston, Massachusetts on November 8, 1989 and indicted on November 16, 1989 for possession and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), use and carrying of a firearm durin...
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DECISION AND ORDER On April 28, 1989, the government served Oshkosh Truck Corporation [OTC] with a subpoena duces tecum to appear before the grand jury. OTC asserts that it then produced 1507 boxes containing over four million pages of information. A second grand jury subpoena duces tecum was served on OTC on August 17, 1990. In response, OTC has filed a motion to quash or, alternatively, to mo...
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OPINION AND ORDER Defendants New York State Department of Social Services (“DSS”), Cesar A. Pe-rales (“Perales”), Brooke Trent (“Trent”), Robert Donahue (“Donahue”), Carol Anne Modena (“Modena”) and Christine Singer (“Singer”) bring this motion to dismiss the complaint pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, based on the pendency of a prior state proceeding. Fed.R.Civ.P. 12...
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MEMORANDUM OPINION AND ORDER This matter is before the Court upon the motion of defendant, Peoples Bank of Fleming County [“Peoples Bank” or the “Bank”], to dismiss. The plaintiffs have filed a response objecting to the motion to which Peoples Bank has filed a reply. The motion concerns application of the statute of limitations to actions for breach of fiduciary duty arising under provisions of th...
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OPINION AND ORDER I. Introduction We are once again faced with a case of alleged political discrimination in public sector employment following Puerto Rico’s 1984 general elections. In the case before us the plaintiffs are one present and one past employee of the Puerto Rico Highway Authority. 1 Both profess to being members of the Partido Nuevo Progresista (“PNP”...
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OPINION AND ORDER Puerto Rico Tele-Com, Inc. (“PR Tele-Com”) is a corporation organized for the purpose of providing long-distance telephone service to residents of Puerto Rico. PR Tele-Com brought this action after Puerto Rico’s Department of Consumer Affairs (“DACO”) issued cease and desist orders against three PR Tele-Com advertisements which DACO determined to be misleading and inaccu...
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MEMORANDUM AND ORDER Defendants Jose C. Hidalgo and Jose R. Hijos, along with co-defendants Alejandro Host and Jesus Echemendia, were arrested on December 8, 1989 and indicted on January 4, 1990 for possession of cocaine with intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess cocaine with intent to distribute and distribution ...
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748 F. Supp. 373 (1990) CHANNEL MASTER SATELLITE, SYSTEMS, INC., Plaintiff, v. JFD ELECTRONICS CORP., Harvey Finkel, and the Unimax Corporation, Defendants. No. 88-605-CIV-5-F. United States District Court, E.D. North Carolina, Raleigh Division. September 13, 1990. *374 *375 Richard W. Ellis, Smith, Helms, Mulliss & Moore, Raleigh, N.C., for plaintiff. Cecil W. Harrison, Jr., Poyner & Spr...
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OPINION The matter before the court is the motion (# 120) of defendant, Portland General Electric Company (PGE), for summary judgment on all of plaintiffs’ claims or, in the alternative, for partial summary judgment against plaintiffs’ claims for compensatory damages, for emotional distress, and for liquidated damages, and for partial summary judgment against the contract claim of Farley ...
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748 F.Supp. 366 (1990) UNITED STATES of America, Plaintiff, v. Dewey R. GASKINS, Defendant. No. 89-79-CIV-4-F. United States District Court, E.D. North Carolina, New Bern Division. August 15, 1990. *367 Thomas P. Swaim, Asst. U.S. Atty., Raleigh, N.C., for plaintiff. Gary H. Clemmons, Stubbs, Perdue, Chesnutt, Wheeler & Clemmons, P.A., New Bern, N.C., for defendant. ORDER JAMES C. FOX, Distr...
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*669 MEMORANDUM OPINION AND ORDER This matter is before the court on Plaintiff’s motion to remand or judgment of declaratory relief. For the reasons outlined below, the Court denies the motion to remand and grants a declaratory judgment for Plaintiff, finding that Defendants are liable for the medical expenses at issue. The Court is asked to decide which of two funds are lia...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on Defendant’s motion, filed August 28, 1990, to dismiss and for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure. I. FACTUAL BACKGROUND. The record in this case indicates Plaintiff, an employee of Yellow Freight System, filed a pro se complaint on February 2, 1989 alleging that he had been subjected to racial d...
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MEMORANDUM OF OPINION The above-captioned cases are related actions which originated in state court and were removed by the Secretary of Health and Human Services (“Secretary”) to this Court. Edgepark, Inc. (“Edgepark”), a Medicare supplier of durable medical equipment, ini*697tiated this legal battle against Nationwide Mutual Insurance Company (“Nationwide”), the Part B Medicare carrier for the S...
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OPINION AND ORDER Rita Hilsen appeals from an order of the United States Bankruptcy Court for the Southern District of New York (Black-shear, J.) dated June 27, 1989, granting partial summary judgment in favor of Marc Stuart Goldberg, trustee of the estate of Jesse M. Hilsen (“debtor”). 100 B.R. 708. The Bankruptcy Court declared two real estate properties, 1 apartment 9F at 35...
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OPINION AND ORDER Defendants Morton L. Weitzner, Dorothea M. Weitzner and Isidor S. Weitzner, and Morton L. Weitzner, Dorothea M. Weitzner and Isidor S. Weitzner as Trustees of *357the Estate of Henry M. Weitzner (collectively “the Weitzners”), move to withdraw funds and to recover interest withheld by the Court pursuant to Local Rule 8(c). The plaintiff, National Railroad Passenger Corporation (“...
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MEMORANDUM OPINION AND ORDER INTRODUCTION Plaintiff-Patricia Jackson (“Jackson”) brought this action pursuant to 42 U.S.C. § 1981 alleging that defendant-Jackie A. McCleod (“McCleod”) refused to hire her as a waitress in defendant's restaurant and that the refusal was racially motivated. Plaintiff seeks declaratory relief, injunctive relief, back pay and lost benefits, punitive damag...
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MEMORANDUM AND ORDER Plaintiffs, a group of chiropractors and medical doctors, including neurologists, licensed to practice in the State of New York, and PTS Thermal Imaging, a center which performs thermographic examinations, 1 bring this action for declaratory and injunctive relief against the Superintendent of the New York State Department of Insurance (“Superintendent”) ...
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MEMORANDUM OF SENTENCING JUDGMENT I. GUIDELINES COMPUTATION A. Base Offense Level The Court FINDS, there being no objection, as follows: (a) A count charging conspiracy and a count charging any substantive offense that is the sole object of the conspiracy are, pursuant to the Guidelines, to be grouped together into a single group. Therefore, Counts I and II of the Indictment are grouped together p...
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MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS Defendant in this case is charged with possession with intent to distribute and aid *221 ing and abetting the possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He has moved to suppress an Express Mail package seized from him at the time of his arrest on the grounds that it was ille...
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MEMORANDUM AND ORDER DENYING PLAINTIFF’S APPLICATION FOR ATTORNEY’S FEES The above-captioned case was an appeal of the Secretary’s decision terminating the plaintiff’s disability benefits. On appeal, this Court determined that the Secretary used an improper standard in terminating plaintiff’s benefits, and remanded the matter to the Secretary for a further evidentia-ry hearing on the issue. Thi...
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MEMORANDUM OF OPINION RE: AWARD OF ATTORNEY FEES Presently pending before this Court is an application for attorney fees filed by plain *517 tiff’s counsel (“counsel”). Counsel seeks attorney fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, and the Social Security Act (“Act”). 42 U.S.C. § 406(b)(1), (2). 1 Plaintiff previously applied ...
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OPINION Plaintiff Catherine Masiello brings this action pursuant to the Federal Employers Liability Act (“FELA”), 45 U.S.C. § 51 et seq. (1988), against her employer Metro-North Commuter Railroad (“Metro- *201 North”), and its predecessor, Consolidated Rail Corporation (“Conrail”). Plaintiff alleges that defendants were negligent in failing to protect her from vari...
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DECISION AND ORDER Plaintiffs’ motion to remand this action to state court and defendants’ motion to compel production of documents and answers to deposition questions are before the Court. I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs filed this suit in Milwaukee County Circuit Court as Case No. 89-CV-1555453 on November 10, 1989, alleging that defendants are liable under the Wisconsin Fair De...
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MEMORANDUM AND ORDER Presently before the court is defendants’ motion to dismiss the contractual claims and the claims based on 12 U.S.C. § 371c of plaintiff Federal Deposit Insurance Corporation’s First Amended Complaint for failure to state a claim on which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This action arises out of alleg...
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MEMORANDUM AND ORDER This matter is presently before the Court on the motion of all defendants for summary judgment as to all remaining counts of the Second Amended Complaint (Counts I, II, III and V) and the motion of defendant, Allied Breweries Overseas Trading Ltd., (ABOT), for summary judgment as to Counterclaims IV, V, and VI. Factual Background This Court has previousl...
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MEMORANDUM OF DECISION AND ORDER This case is back before the Court on Third-Party Defendant Yeutter’s motion to dismiss or, in the alternative, for entry of final judgment. Secretary Yeutter, citing Lujan v. National Wildlife Federation, — U.S.-, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), argues that the complaint must be dismissed because Plaintiffs lack standing. Alternatively, if the Court determ...
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MEMORANDUM AND ORDER The case comes before the court on several dispositive motions: Kutter Products, Inc.’s motion for summary judgment; S & R Seed Company, Inc.’s motion for summary judgment; Nature’s Share, Inc.’s motion for partial summary judgment; Love Box Company’s motion to dismiss or in the alternative for partial summary judgment; and Nature’s Share, Inc.’s motion to amend the p...
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ORDER On 10 May 1990 Cumberland County filed a motion to intervene in this action, for the purpose of filing a motion to dismiss, and a motion to dismiss. The matter was referred to Magistrate Alexander B. Denson for his consideration. On 21 August 1990 he filed his order and memorandum, copy of which is attached hereto, in which he allowed the motion to intervene for the limited purpose of moving...
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MEMORANDUM OF DECISION AND ORDER This case comes before the Court on separate Motions to Dismiss by Defendants Kennebec County, Nancy Riñes, George Ja-bar, and Wesley Kieltyka (hereinafter Ken-nebec County et al.) and by Defendant Frank Hackett pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court addresses the Motions together as they raise closely related, at times ...
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OPINION Plaintiff Ricardo Leaty brought this action on March 27, 1990 to recover for personal injuries incurred when the car in which he was a passenger and driven by his mother, Justa Leaty, collided with a vehicle owned and operated by the United States Postal Service. Complaint, Count I, ¶¶ 1, 3-5. Actions were filed against Justa Leaty, the United States of America, and the United Sta...
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*483 MEMORANDUM AND OPINION This case comes before the Court some seven years after its initial filing on the Defendant’s Motion for Summary Judgment. The Plaintiff alleges that his First and Fourteenth Amendment rights, guaranteed by the United States Constitution, have been violated. The Plaintiff contends that he was racially discriminated against and that the Defendant, the C...
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ORDER Plaintiff Stephen Hudacek brings this action pursuant to 42 U.S.C. § 405(g) for review of the final decision of the defendant Secretary denying him Social Security disability insurance benefits. He asks the Court to reverse the Secretary’s decision or, in the alternative, to remand this matter to the Secretary for further evidentiary proceedings. Plaintiff first applied for disability insura...
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MEMORANDUM OPINION On July 25, 1990, after notice to the parties, a hearing was held on the plaintiffs’ motion for a preliminary injunction. At the close of that hearing, I granted the plaintiffs’ motion. This memorandum opinion supplements the findings made on the record at the hearing. Security Federal Savings Bank of Florida (Security Federal) was originally chartered in Panama City, Florida, i...
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ORDER CONCERNING OBJECTIONS TO MAGISTRATE’S ORDER This cause is before the Court on defendant’s Objections to Magistrate’s Order, filed herein on February 27, 1990. Plaintiff responded with a memorandum in opposition to the objections, filed herein on March 13, 1990. For the reasons stated herein the Court will sustain the objection on the issue of punitive damages and overrule the object...
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ORDER DISMISSING CASE This cause is before the Court on several motions. Plaintiff submitted a Motion for Summary Judgment, filed herein on April 11, 1990. Defendant Don L. Tullís and Associates, Inc. subsequently moved, on April 23, 1990, to adopt that motion. Defendant Green River Steel Corporation responded with a memorandum in opposition to the motion and a Motion for Judgment on the ...
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MEMORANDUM OPINION I. When should federal courts exercise their equitable powers to order expungement of an arrest record? This is the seldom litigated but important question presented here. More specifically, the question presented is whether the record of an arrest should be expunged where the person arrested is completely innocent of any crime and suffers significant adverse consequences a...
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CORRECTED MEMORANDUM OPINION AND ORDER 1 This is an action for infringement brought by plaintiff The Upjohn Company (“Upjohn”), claiming that defendants’ topical minoxidil formulation, MINOXIDIL PLUS, infringes two Upjohn patents on the topical use of minoxidil to treat male pattern baldness. The patents at issue are U.S. Patent No. 4,139,619 (“ ’619 patent”) and U.S. Patent No. 4...
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FINDINGS OF FACT AND OPINION Plaintiffs moved for a temporary restraining order and preliminary injunction to enjoin the United States Fish and Wildlife Service from introducing chemical lam-pricides into Lewis Creek, a stream feeding into the Vermont side of Lake Champlain, on September 23, 1990. A hearing was *1096 held and evidence was submitted on the motions on September...
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MEMORANDUM AND ORDER This matter comes before the court on the motion of plaintiff Betty Visser (hereinafter “Visser”) for a preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure. Plaintiff seeks injunc-tive and declaratory relief against the Kansas Department of Social and Rehabilitation Services (hereinafter “SRS”). Visser contends that the refusal of def...
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ORDER Defendant Jerald Wilson moves that he be designated to the Chicago Metropolitan Correctional Center (“M.C.C.”). For the reasons stated below, this court denies defendant’s motion. Defendant was found guilty of a criminal offense in a bench trial on July 10, 1990. *832Defendant appeared pro se in the case and continues to act in that capacity with the assistance of stand-by counsel. On Octobe...
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OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION, GRANTING PLAINTIFF’S MOTION FOR CLASS-WIDE PRELIMINARY INJUNCTIVE RELIEF, AND, SUA SPONTE, GRANTING FINAL DECLARATORY AND INJUNCTIVE RELIEF This action challenges, as a violation of federal law, the Michigan Department of Social Services’ [“DSS”] policy of applying a “Deduction Penalty” to certain families receiving Ai...
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OPINION On March 20,1990 the instant action was called for status conference. After discussing the issues of this case — and the arguments presented in defendants’ motion for abstention and its opposition — , defendants were granted twenty (20) days to file a motion to dismiss. Plaintiff Asociación de Pescadores de Vieques, Inc. (Pesca-dores) would then have the opportunity to file an opposition ...
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OPINION AND ORDER On November 6, 1989 plaintiff Mercedes Jenouri requested leave to file an amended complaint in order to conform her allegations to certain testimony obtained during discovery, to set forth with greater specificity the claims pertaining to defendants’ alleged failure to promote plaintiff, and to enter a demand for a jury trial pursuant to Rule 39(b) of the Federal Rules o...
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OPINION The Parent Creditors’ Committee of the LTV Corporation appeals from an order of the Bankruptcy Court (Burton R. Lifland, Chief Judge) denying the Parent Committee’s motion under Bankruptcy Rule 2004 to conduct oral depositions under oath of *708 representatives of the Debtors. The appeal to this Court is said to lie under 28 U.S.C. § 158(a). Appellant Parent Creditors’ Committee says ...
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MEMORANDUM OPINION AND ORDER This is an action under the federal securities laws and civil RICO with pendent common law claims. Plaintiffs are limited partners of a Texas limited partnership which was formed in September 1984 to acquire, develop, operate and manage an apartment complex in Austin, Texas. Defendants comprise the two general partners, their officers, corporations owing the capital...
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MEMORANDUM & ORDER Plaintiff Deerfield Specialty Papers, Inc. (“Deerfield Specialty”) moves pursuant to Fed.R.Civ.P. 56 for summary judgment as to defendant Black Clawson Company, Inc.’s (“Black Clawson”) counterclaim, and moves separately, in limine, seeking a ruling as to the applicability of the parol evidence rule relative to a contract entered between the parties. Black Clawson moves for san...
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MEMORANDUM OPINION Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Defendant Secretary of Health and Human Services (hereinafter referred to as the Secretary), denying her claim for child’s insurance benefits under 42 U.S.C. § 402(d). Plaintiff filed an application for child’s insurance benefits on behalf of her son Karlton R. Kinne...
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MEMORANDUM This case comes as an appeal from a final order of the bankruptcy court. This court has jurisdiction to hear such appeals pursuant to 28 U.S.C. § 158(a). For the reasons stated below, the court shall affirm the decision of the bankruptcy judge in part and reverse it in part. 1. Procedural Background. Valley Forge is the owner and operator of a convention cente...
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ORDER This case consists of two consolidated actions against the Defendant under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., and § 633a in particular. In both cases, the Plaintiff, Richard W. Danielson, alleges that his superiors at the National Aeronautics and Space Administration (NASA) discriminated against him on the basis of his age in failing to promote him to...
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MEMORANDUM Plaintiff GEA Power Cooling Systems, Inc., filed a “Verified Complaint In Admiralty In Rem and In Personam” on December 26, 1989, naming multiple defendants as parties. Plaintiff brought this action under the Court’s Admiralty jurisdiction pursuant to 28 U.S.C. § 1333 and within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure. Plaintiff asserts a claim for damages suffe...
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ORDER THIS MATTER is before the court on the following Motions: (1) AIR LINE PILOTS ASSOCIATION, INTERNATIONAL’S (“ALPA”) Motion for Preliminary Injunctive Relief under Count I of ALPA’s Counterclaims; (2) ALPA’s Motion for Summary Judgment; and (3) EASTERN AIR LINES, INC.’s Motion for Summary Judgment. I. BACKGROUND The facts material to the issue presently befor...
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ORDER Before the court is Defendants’ Motion to Dismiss and/or for Summary Judgment. Also before the court is Plaintiff’s Motion for Partial Summary Judgment on Counts I . and III of his Complaint. Plaintiff James D. MacMillan (“MacMil-lan”), an amateur radio operator, licensed by the Federal Communication Commission, brings this action against the City of Rocky River, the Building C...
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MEMORANDUM AND ORDER Defendant Thomas N. Petro filed a second motion to dismiss and for reconsideration of this court’s Memorandum and Order dated June 26, 1990, 741 F.Supp. 1179. In this motion defendant Petro reiterates his prior argument that plaintiff, as a subro-gated surety, does not have standing to assert a cause of action under RICO. However, defendant Petro also raises another i...
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MEMORANDUM—ORDER Plaintiff filed this breach of contract action on January 11,1990. Defendants filed their Motion to Strike Plaintiff’s Objections to Deposition Questions and Request for Sanctions on August 2, 1990. On June 28, 1990, defendants attempted to depose Harold A. Siegel, Jr. At that time, counsel for Teltron, Inc., the plaintiff corporation, invoked the attorney-client privilege in obj...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This securities fraud lawsuit was brought on behalf of the purchaser of certain securities by her husband, who is also the administrator of her estate. Pending is defendants’ motion for decertification of the class. For the reasons stated below, defendant’s motion is granted. II. FACTS Plaintiff filed this class action securities fraud lawsuit on Septe...
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MEMORANDUM OPINION INTRODUCTION This dispute arose out of the planned participation by the defendant, City of Niles (“City), in the 1989 Summer Youth Employment Training Program (“SYETP”). SYETP, which is authorized and funded by the Job Training Partnership Act of 1982 (“JTPA”), is administered by defendant, The Private Industry Council (“PIC”). Defendant City requested SYET'P participants to wo...
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ORDER This matter is before the court on Defendant’s Motion for Summary Judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant moves for summary judgment on the ground that plaintiff has no standing to seek a declaratory judgment against defendant. Plaintiff brought this declaratory judgment action as a result of an automobile collision which occurred in Aiken County...
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MEMORANDUM AND ORDER Presently before the court is defendant Carlos Fernandez’s (“Fernandez”) motion to determine that 21 U.S.C. § 845a(a) does not mandate, in and of itself, the imposition of imprisonment for a first offender and the government’s response. For the following reasons, the defendant’s motion is GRANTED. FACTS Fernandez was indicted in this case on June 14, 1989 for his alleged invol...
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MEMORANDUM AND ORDER Seeking to prevent the construction of a 21-story apartment building in their neighborhood, plaintiffs, a condominium association and several of its members (collectively “Cornell”), have filed this action against the United States Department of Housing and Urban Development and two of its officials (collectively “HUD”), alleging that HUD’s decision to award this proj...
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OPINION The matters before the court are: 1) the motion (#21-1) of defendants, George Killinger and the United States of America (the government), to dismiss the complaint of plaintiff, Douglas Gary Hous-ley, for failure to exhaust administrative remedies or for failure to state a claim upon which relief can be granted; and 2) the alternative motion (# 21-2) of the government for summary judgment....
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MEMORANDUM OPINION Plaintiff Susan Long Little brought this action against St. Mary Magdalene Parish (the Parish) as a result of the Parish’s decision in April of 1987 not to renew Little’s employment contract for the 1987-88 school year. Plaintiff’s suit alleged that the Parish’s decision not to renew her employment contract violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e...
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*1371OPINION These consolidated actions alleging constitutional and statutory violations arising from racial discrimination and harassment in employment practices were settled pursuant to a Consent Decree filed May 20, 1988. The matter is now before the court on plaintiff-intervenors’ motion to establish the appropriate interest rate on certain backpay awarded pursuant to the consent decree and o...
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OPINION AND ORDER Plaintiff Mavis Budd (“Budd”), a former part-time college assistant, brings this action against the City University of New York, Baruch College (“Baruch”) for employment discrimination based on her being a black of Jamaican ancestry, and against District Council 37 (“the Union”) for breach of the duty of fair representation. Plaintiff sues to recover under 42 U.S.C. Sect...
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ORDER THIS CAUSE has come before the Court upon the report and recommendation of the September 12, 1990, Hon. Lurana S. Snow, United States Magistrate for the Southern District of Florida. The magistrate’s report recommended that the defendant’s motion for summary judgment be granted. Having reviewed, de novo, the Magistrate’s report of September 12, 1990, the record, and the being otherwis...
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ORDER ACCEPTING MAGISTRATE’S REPORT AND RECOMMENDATION This Court has received and reviewed the report and recommendation issued by Magistrate Sharon E. Grubin on September 12, 1990 in the above-captioned action. No timely objections to the Report and Recommendation have been received from the parties in this action. The Court has considered the report and agrees with its recommendations....
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OPINION & ORDER Tri-Star Pictures, Inc. (“Tri-Star”) brought this declaratory judgment action *1245 to resolve a contract dispute between TriStar and Leisure Time Productions, B.V. (“Leisure Time”) involving the planned release of a motion picture entitled “Return From The River Kwai.” Tri-Star also brought a second declaratory judgment action, 88 Civ. 9129 (DNE), which seeks...
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MEMORANDUM OPINION AND ORDER OF COURT Defendants Midwestern Distribution, Leaseway Transportation and George McCune, filed a motion requesting an extension of discovery and permission to depose the plaintiffs’ experts, pursuant to Fed.R.Civ.P. 26(b)(4)(A)(ii). On or about March 5, 1990, Defendants, Fruehauf and Hobbs Trailers filed a Motion *37to Reopen Discovery for the purpose of deposing the ex...
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OPINION AND ORDER The plaintiffs in these consolidated cases are three corporations engaged in the gasoline wholesaling business in Puerto Rico. They brought this suit pursuant to 42 U.S.C. section 1983 contesting the regulation of wholesale gasoline prices by Puerto Rico’s Department of Consumer Affairs (“DACO”). The case is submitted on cross-motions for summary judgment. We dispose of ...
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OPINION Plaintiff Remington Arms Company (“Remington”) seeks a declaratory judgment as to whether comprehensive general liability policies and first layer excess insurance policies issued by Liberty Mutual Insurance Company (“Liberty Mutual”) require Liberty Mutual to defend and indemnify Remington in actions brought against Remington by the federal and state governments and private parti...
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ORDER This matter is before the court on appeal from the United States Bankruptcy Court for the Northern District of Ohio pursuant to 28 U.S.C. § 158. Appellant United States of America (hereinafter Appellant) has asserted that the bankruptcy court erred in granting summary judgment in favor of appellees, Co-Disposition Assets Trustees Samuel Krugliak and Richard L. Phillips (hereinafter ...
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ORDER DENYING DEFENDANTS’ MOTIONS FOR SEVERANCE THIS CAUSE is before the Court on the severance motions of codefendants Manuel Antonio Noriega, Luis Del Cid, Brian Davi-dow, and William Saldarriaga. The defendants are named in a twelve-count indictment charging them with various narcotics-related offenses. Defendants Noriega and Del Cid are jointly charged in four counts: conspiracy ...
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OPINION & ORDER Plaintiff Compania Transatlántica Espa-ñola, S.A. (“CTE”) brings this action against defendants Hartford Accident & Indemnity Company (“Hartford”), National Union Fire Insurance Company of Pittsburgh, PA. (“National Union”), and Fireman’s Fund Indemnity Corporation (“Fireman’s Fund”) seeking a declaratory judgment that certain insurance policies issued by the defendants provide co...
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748 F.Supp. 1416 (1990) UNITED STATES of America, Plaintiff, v. The CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. San Francisco Firefighters Local 798, et al., Defendants, In Intervention. Fontaine DAVIS, et al., Plaintiffs, In Intervention. v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. San Francisco Firefighters Local 798, et al., Defendants, In Intervention. Nos. C-84-7089 MH...
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MEMORANDUM OPINION AND ORDER Each side in this hard-fought patent suit 1 seeks summary disposition of part of the other side’s prayer for relief. Defendants-Counterplaintiffs Sodick Company, Ltd., Sodick, Inc. and KGK International Corp. (collectively “Sodick”) have moved alternatively (1) for partial summary judgment under Fed.R.Civ.P. (“Rule”) 56 upholding Sodick’s Countercla...
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*1531 ORDER GRANTING PLAINTIFFS/IN-TERVENORS LEACH & GARNER COMPANY AND WESTWAY METALS CORPORATIONS’ MOTIONS FOR SUMMARY JUDGMENT AND ADDRESSING DEFENDANT LLOYDS UNDERWRITERS’ MOTIONS FOR SUMMARY JUDGMENT AND/OR OTHER RELIEF REQUESTED THIS CAUSE came before the Court upon nine motions for summary judgment now fully briefed and at issue in this Cause, and upon several motions rela...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION The Securities and Exchange Commission (“SEC”) charges in this action that defendant B. Francis Saul, III (“Saul III”) disclosed non-public information about a publicly-traded stock which he obtained from his father, B. Francis Saul, II (“Saul II”), to defendant Peter David Garvy (“Garvy”) and that Garvy and others traded in this stock to their substant...
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ORDER THIS CAUSE has come before the Court upon the defendant Weekly World News, Inc.’s Motion To Dismiss Count IV of the plaintiff Klinger’s complaint and Klinger’s Motion To Dismiss Count V of Weekly World News, Inc.’s counterclaim. The motions are now ripe for disposition. I. FACTS Rafael Klinger is a writer who has brought suit against his former employer, the Weekly World N...
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ORDER This matter was referred to United States Magistrate (now United States District Judge) Carol Bagley Amon pursuant to 28 U.S.C. § 636 and Rule 1 of the Magistrate’s Rules for the Eastern District of New York, to prepare a Report and Recommendation on the defendants’ motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), or in the alternative, for summary judgment purs...
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After full briefing and oral argument, the Court adopts and approves the Order of Nov. 15, 1989. So ordered. KATHLEEN A. ROBERTS, United States Magistrate: Presently before me is a motion by plaintiff for an order precluding disclosure by the State of certain documents claimed to be privileged. For the reasons set forth below, plaintiffs motion is granted in part and denied in part. BACKGROUND The...
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MEMORANDUM OPINION Defendant requests summary judgment and sanctions in this job discrimination suit. Fed.R.Civ.P. 56, 11. Plaintiff, who is acting pro se, was notified in a letter by the Clerk of this Court on March 5,1990, that a motion for summary judgment had been filed and that a “failure to respond or file affidavits or evidence in rebuttal within the allowed time may cause the court to conc...
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MEMORANDUM OF DECISION AND ORDER These actions (the “Bukhari ” action) are based on substantially the same franchise and security agreements that form the basis of CV 90-1375 (Mir/Ali franchisees), CV 90-1377 (Nasim franchisee), and CV 90-1379 (Mir/Mir franchisees), and the actions related thereto which were removed from New York State Supreme Court. The court issues a separate memorandum of deci...
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OPINION AND ORDER Tommie L. Toliver (“Toliver”), a pro se litigant, brings this action for employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 and the N.Y. Executive Law §§ 292-301 (“Human Rights Law”), alleging that he was fired from his job with the Sullivan Diagnostic Treatment Center (“SDTC”) due to his race and colo...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the motion of defendants to dismiss this action for failure to state a claim. The plaintiff has filed a response objecting to the motion. The motion concerns the availability of a state law remedy for breach of contract and its effect on the maintenance of this federal action for age discrimination. FACTUAL BACKGROUND The plaintiff is...
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ORDER THIS MATTER is before the Court on a Motion to Intervene, filed May 30, 1990. The persons seeking intervention into this action are the class of Plaintiffs in Teague v. Bakker (hereafter “the Teague Plaintiffs”), which has been assigned the case number C-C-87-514-M and is pending before the Honorable James B. McMillan, Senior Judge of the Western District of North Carolina (hereafter “the T...
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ORDER Approved and adopted as an order of this court. REPORT AND RECOMMENDATION ON DEFENDANT RICHARD C. JOHNSON’S MOTION TO DISMISS COUNT FOUR OF THE INDICTMENT (# 66) AND DEFENDANT MARTIN P. QUIGLEY’S MOTION TO DISMISS COUNT FOUR OF THE INDICTMENT (# 11) April 9, 1990 ROBERT B. COLLINGS, United States Magistrate. Introduction The defendants Johnson and Quigley...
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MEMORANDUM OPINION This contract dispute, which involves hundreds of thousands of dollars and the shipment of goods in international commerce, is actually the story of Little Red Riding Hood. Or so the defendant in this case apparently believes. The defendant describes itself as a small, American trading company. (See D.I. 13 at 10.) The plaintiff, on the other hand, although m...
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MEMORANDUM OF DECISION AND ORDER The above named defendants are franchisees of 7-ELEVEN convenience stores under franchises granted by The Southland Corporation (“Southland”) as follows (the dates indicating the date of the franchise agreement): Mir/Ali 355 Boyle Road, Selden, N.Y. September 8, 1988 for a term of ten (10) years Asim Nasim 2140 Motor Parkway, Hauppauge, N.Y. Marc...
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MEMORANDUM OPINION This ease comes before the court on consideration of defendants Richard Boyd, McKay, Stevenson and Forest Boyd’s motion to dismiss and for partial summary judgment, 1 and the opposition and reply thereto. Defendants’ motion to dismiss is based on their position that plaintiffs have not adequately pled their case and that plaintiffs have failed to state a clai...
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ORDER Approved and adopted as an order of this court. REPORT AND RECOMMENDATION In Count III of the four-count superseding indictment, it is charged that the defendants, in the District of Massachusetts and elsewhere within the jurisdiction of the United States, ... did knowingly and willfully combine, conspire and agree to injure and destroy specific property belonging to the government ...
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MEMORANDUM The individual plaintiffs, along with defendants City of Philadelphia and its Personnel Director (City defendants), seek ju *511 dicial approval of a proposed Consent Order designed to settle this action, which assails as racially discriminatory the City’s written examination for police officer recruits. The Court convened a hearing on September 12, 1990 to conside...
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FURTHER FINDINGS AFTER REMAND RE AFFIRMATIVE DEFENSE OF INEQUITABLE CONDUCT AND ORDER THEREON I. INTRODUCTION AND BACKGROUND On March 18, 1988, summary judgment on the validity of United States Reissue Patent No. 31,684 (the “Yeiser reissue patent”) claims 10-12 was granted in favor of plaintiff Hewlett-Packard Company (“HP”). The Court refused to rule on the enforceability of claims...
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OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE Unfortunately, this case is yet another skirmish in the seemingly never-ending war (at least in this jurisdiction) pitting the public school system against handicapped children and their parents on the battlefield of the Education of the Handicapped Act (“EHA”), 20 U.S.C. § 1400 et seq. Stephen Block (a thirteen-year-old learning disab...
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*1533 MEMORANDUM DECISION The above-entitled matter came before the court for trial on April 20, 1990. The court, having considered the evidence presented at trial, the pre-trial and post-trial briefs submitted by the parties, and being fully advised in this matter, enters the following decision containing the court’s factual findings and legal conclusions. FACTS This is a civil action by...
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OPINION AND ORDER Plaintiff customers Elmer J. and Carolyn G. Trott have filed suit against their broker, defendant Dominick Paciolla, and his two successive employers, Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”) and Prudential-Bache Securities, Inc. (“Prudential”) alleging statutory violations of the Securities Exchange Act of 1934, § 10(b), 15 U.S.C.A. § 78j(b) (West 1...
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MEMORANDUM OPINION This cause is before the court on cross motions for summary judgment filed by the parties. The plaintiffs (hereinafter sometimes referred to collectively as “the Burford employees”) filed motions for partial summary judgment on January 17, 1989, and April 23, 1990. They filed memorandum briefs in support thereof on January 18, 1989, February 14, 1989, and June 28, ...
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MEMORANDUM OPINION AND ORDER Simon Arnold, Jr. (“Arnold”) requests leave to file his pro se petition (the “Petition”) under 28 U.S.C. § 2254 (“Section 2254”) without prepayment of the filing fee. For the reason briefly stated in this memorandum opinion and order, this Court grants such leave but summarily dismisses the Petition without prejudice to its future refiling if and when Arnold cures the ...
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MEMORANDUM Plaintiff Step-Saver Data Systems, Inc. (“Step-Saver”) commenced this diversity action against defendants Wyse Technology (“Wyse”) and The Software Link, Inc., (“Software Link”) on October 5, 1990. The Court in this memorandum will address the plaintiff’s allegations as set forth in plaintiff’s Post-Trial Motion for a New Trial. 1 Step-Saver’s complaint alleged six...
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United States Trust Company of New York (“U.S. Trust”), Robson & Miller (“Robson”), Bader and Bader (“Bader”) and William Kuntz, III (“Kuntz”) appeal from the decision of Bankruptcy Judge Cornelius Blackshear in the W.T. Grant Company (“Grant”) bankruptcy case denying the requests for fees and reimbursement of expenses of Robson, Bader and Kuntz, and awarding U.S. Trust substantially less than ...
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MEMORANDUM AND ORDER Defendants move for dismissal pursuant to Fed.R.Civ.P. 12(b). Defendants base their motion on the following grounds: lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2); improper venue, Fed.R.Civ.P. 12(b)(3); insufficiency of service of process, Fed.R.Civ.P. 12(b)(5); and failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). For reasons to...
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MEMORANDUM AND ORDER DENYING PRELIMINARY INJUNCTION This matter comes before the Court on plaintiffs motion for a preliminary injunction. Having given careful consideration to the parties’ written and oral presentations, and having reviewed the extensive administrative record, the Court concludes that plaintiff has not satisfied the standard for imposing interim injunctive relief. The dis...
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MEMORANDUM OPINION On October 23, 1985, plaintiff John Baldwin was injured while using a paper cutter manufactured by the defendant, Harris Corporation. Plaintiff, on December 23, 1987, brought this diversity case against Harris alleging negligent product design, strict liability, and failure to adequately warn. Currently before the Court is defendant’s renewed motion for summary judgment. 1 ...
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MEMORANDUM AND ORDER This matter is before the court on motion of defendants, the United States of America, Federal Emergency Management Agency (“FEMA”), and Robert H. Morris as Acting Director of FEMA, to dismiss or, in the alternative for summary judgment. Defendants make several contentions in support of their motion. First, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Proce...
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MEMORANDUM AND ORDER This matter is before the court on motion of defendant Richard D. Rooney (“Rooney”) for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. This is a tort action arising out of the alleged negligence of an insurance agent with respect to the issuance of a life insurance policy by Massachusetts Mutual Life Insurance Company (“Massachusetts Mu...
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ORDER Before the Court is the defendant’s Motion for Summary Judgment. The plaintiff has responded and the matter is now ripe for determination. In plaintiffs complaint, plaintiff alleges that on October 10, 1989, he was “judged against for failure to enroll my 7 year-old child in school.” Plaintiff admits in his complaint that his child is not in school, and that he is in transgression of the law...
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ORDER This franchise termination case is currently before the court as a result of the plaintiff’s request for a preliminary injunction. The parties filed briefs and this matter was set for a hearing on September 6, 1990. At the hearing, the court was prepared to deny the request; however, the plaintiff requested an opportunity to depose the person employed by the defendant who prepared the financ...
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ORDER AND REASONS The court addresses here the motions of the plaintiff, Zapata Gulf Marine Corporation (Zapata), for costs and for prejudgment interest against the defendant, Trailer Marine Transport Corporation (TMT). The plaintiff filed this private antitrust suit for treble damages under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2 on July 10, 1986. On January 8, 1990, approximate...
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OPINION The matters before the court are: 1. the motion of counterclaim defendant Beijing Ever Bright Ind. Co. (Ever Bright) for relief from default judgment (# 223); 2. the motion of Ever Bright for a protective order restricting discovery by defendant/ counterclaim plaintiff, Timber Falling Consultants, Inc. (TFC), (# 224); and 3. the motion of TFC to compel discovery from Ever Bright (...
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MEMORANDUM OPINION In this case, plaintiffs allege numerous causes of action against Tony Alamo. 1 They assert, first, that Mr. Alamo violated the federal Fair Labor Standards Act of 1938, 29 U.S.C. §§ 206(a)(1) and 207(a)(1), because plaintiffs performed work for him for which they were not paid. Plaintiffs claim, secondly, that Mr. Alamo purported to divorce Robert Miller and Carey Miller f...
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MEMORANDUM OPINION In June, 1989, Martha Mansfield was fired from her job as a national accounts manager for AT & T. She sues her former supervisor and AT & T, alleging wrongful discharge, breach of contract, breach of covenant of good faith and fair dealing, outrage, slander, and discrimination on account of age, gender, and political views. The defendants now move for summary judgm...
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OPINION Jurisdiction is based on the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. The plaintiff, Charles Bois, born January 3, 1932 (now age 58), was a patient at the Veterans Administration Medical Center. He is married to the plaintiff Catherine Bois and is the father of two adult children. In the year 1979 he developed a cancerous lesion in the vicinity of the right pyri-f...
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MEMORANDUM OPINION AND ORDER This is a civil rights action 1 that has been brought by the Plaintiff, Barbara Walton, on her own behalf, and as the next friend of her teenage daughter, Kamara, and her minor granddaughter, Courtney, for damages that were sustained by each of them as the result of a series of alleged violations of their Constitutional rights by the City of Southfi...
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This is a diversity case filed to determine who owns the mineral rights to 249 acres of land owned by Claude and Willie Irene Parker in Wilkinson County, Georgia. In 1965, Claude Parker leased the mineral rights to Reynolds Mining Corporation and now seeks to regain them through adverse possession as permitted by O.C.G.A. § 44-5-168. Both parties have filed motions for summary judgment. Under Rule...
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OPINION This is a motion by defendants Detective McComiskey (“McComiskey”) and Police Officer O’Brien (“O’Brien”) pursuant to Rule 50 of the Federal Rules of Civil Procedure for (a) a directed verdict and (b) for judgment notwithstanding the verdict and, pursuant to Rule 59 of the Federal Rules of Civil Procedure, for a new trial. Fed.R. Civ.P. 50, 59. For the reasons set forth below, the...
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MEMORANDUM AND ORDER This matter is before the Court on plaintiffs motion for a preliminary injunction and defendants’ opposition thereto. Oral arguments were presented to this Court on December 8, 1989. This Court has jurisdiction pursuant to 28 U.S.C. § 1381; 28 U.S.C. § 2201. For the following reasons, the plaintiff’s motion is granted in part and denied in part. FACTS Plaintiff commenced this ...
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OPINION This cause is now before the Court on Plaintiff’s Motion for Summary Judgment filed herein June 22, 1990; on Defendants’ Motion for Summary Judgment filed herein June 25, 1990; and on the materials submitted in support of and in opposition to said motions. This Court has jurisdiction of this cause pursuant to 28 U.S.C. § 1332. This case arises out of the self-inflicted death ...
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DECISION AND ORDER The ten named plaintiffs commenced this suit in 1987 against Buffalo Brass Company (Brass) and Atlantic Richfield Company (ARCO). Pursuant to a stipulation of settlement entered August 10, 1989, all substantive claims have been settled among the parties. The only issues that remain, pursuant to the stipulation of settlement, concern plaintiffs’ application for attorneys...
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MEMORANDUM DECISION AND ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT The Court has reviewed and considered the moving and opposing papers, the record of the case, the arguments of counsel, the applicable authorities and good cause appearing therefor: IT IS HEREBY ORDERED that the defendants’ and counterclaimant’s motion for summary judgment is GRANTED. The United States’ motion for pa...
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AMENDED ORDER This matter involves allegations of governmental misconduct that arise from the purported unauthorized disclosure of secret information and materials concerning a federal grand jury investigation in progress in this district. The petitioners 1 contend that unknown federal officials, agents, or attorneys have intentionally released confidential grand jury informati...
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*275 OPINION Presently pending before the Court is plaintiffs’ motion for reconsideration of this Court’s grant of summary judgment as to all claims under 42 U.S.C. § 1983 for money damages against the Attorney General defendants. 1 Plaintiffs also request a clarification of that part of this Court’s order of the same date dealing with the denial of summary judgment of...
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MEMORANDUM OPINION AND ORDER Defendant Henry Andrews, one of 38 defendants in this case, moves pursuant to Federal Rules of Criminal Procedure 7(d) to strike surplusage from the indictment. For the following reasons, this motion is denied. DISCUSSION On the motion of a defendant, it is within a court’s discretion to strike, as surplusage, “immaterial or irrelevant allegations .....
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MEMORANDUM AND ORDER On February 24, 1989, this court heard oral argument on the defendant National Mediation Board’s (NMB) motion to dismiss this action or, in the alternative, grant summary judgment in its favor. The court denied the motion orally, at the conclusion of the argument and thereafter memorialized its decision in a Memorandum and Order dated March 1, 1989 (1989 WL 20612), which reci...
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MEMORANDUM OPINION AND ORDER This matter came on for consideration on plaintiffs’ motion for a preliminary and permanent injunction, plaintiffs’ motion to have this action certified as a class action, and defendants’ motion for declaratory judgment. A hearing was held on the application for preliminary injunction on December 6, 7, 20 and 21, 1989. A trial on the merits was advanced and co...
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MEMORANDUM OPINION AND ORDER The defendant, the Secretary of Health and Human Services (“the Secretary”), has moved this court for summary judgment, seeking an affirmance of the Secretary’s decision that the plaintiff’s Social Security disability insurance benefits were subject to offset due to the plaintiff’s receipt of a separate public disability benefit in the amount of $1,189.71 per month....
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MEMORANDUM OPINION I. Introduction Plaintiff Robert J. Rydeen brings this action seeking review of a final decision of the defendant, Commissioner of Patents and Trademarks, refusing to accept late payment of a maintenance fee required to maintain plaintiff’s patent in force. Defendant denied plaintiff’s request for a waiver, finding that plaintiff’s delay in’ paying the main...
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MEMORANDUM OPINION AND ORDER On October 27, 1989, the grand jury returned a 175 count indictment against the 38 defendants in this case. Counts One and Two of this indictment allege violations of the Racketeering Influenced and Corrupt Organizations Act (“RICO”) under 18 U.S.C. § 1962(c) and (d). Six of the defendants, namely Henry Andrews, Jerome Crowder, Roland Lewis, Felix Mayes, Noah Robins...
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OPINION Presently before this court is the appeal of the United States, on behalf of Farmers Home Administration, from a decision rendered in the United States Bankruptcy Court. This appeal is filed pursuant to 28 U.S.C. § 158, which affords the district court jurisdiction to hear an appeal of a final order of the Bankruptcy Court. I. FACTS AND PROCEDURE Rose Gaskin, debtor, assumed a note ...
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OPINION This is a diversity action involving the sale and lease of ten heavy equipment trailers. Thiele, Inc. manufactured ten trailers, which were sold to VanKal Truck Equipment and Service, a dealer. VanKal sold the trailers to Larsen Leasing, Inc., who in turn leased them to S.M.E. Leasing, Inc. All matters in this case have been settled with the exception of one disputed claim between...
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MEMORANDUM OPINION On October 10, 1985, the M/V LA MAR-QUESA was docked in the Port of Beaumont, Texas. Plaintiff Raymond Alphin, a grain inspector, was performing his job aboard the vessel in the course of the grain-loading operation. After walking through wet grain dust, Alphin slipped as he was stepping up to the gangway. Al-phin alleged he sustained back injuries as a results of this fall. Al...
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Plaintiffs, pharmacies located in the Southern District of New York, bring these actions pursuant to the equal protection and due process clauses of the United States Constitution, and Article I, § 11 of the New York State Constitution, which prohibits the denial of equal protection of the laws of the State. Preliminarily, plaintiffs seek an order directing defendant to show cause why this Court s...
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ORDER This case involves claims made under 42 U.S.C. § 1983 against two Chicago police officers and another individual. Plaintiffs Alfredo Carreon, Javier Marchan, Etelvina Jiminez, and Robert Jimenez assert in Count I of their amended complaint that defendant police officers Leroy Baumann and Eugene Simpson along with Robert Williamson violated their fourth, fifth and fourteenth amendment righ...
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OPINION Defendant, Helen Schlear, seeks the dismissal of Plaintiffs’ Complaint pursuant to Fed.R.Civ.P. 12(b)(5). For the following reasons the motion will be granted. I. FACTS AND PROCEDURE Plaintiffs filed a complaint on April 10, 1989, alleging that Defendant’s negligent operation of her automobile injured the Plaintiffs. This court notified Plaintiffs by letter on April 20, 1989, that their Co...
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ORDER Before the court are three motions: plaintiff Akari Imeji Company’s (“AIC”) motion for default judgment, and defendant Casio Computer Ltd.’s (“Casio Computer”) motions to set aside entry of default, and to quash service of process. For the reasons discussed below, AIC’s motion is denied and both of Casio Computer’s motions are granted. FACTS On January 23, 1989, AIC filed suit against...
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OPINION This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. Plaintiff is presently incarcerated at the Ionia Maximum Correctional Facility (IMCF). Defendants are a resident unit manager (Bouck), an assistant resident unit manager (Bearss), and an assistant deputy warden (Tyszkiewicz) at IMCF. In its entirety, plaintiff’s pro se complaint alle...
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OPINION BACKGROUND Sharon Wilson (“debtor”) filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code on April 12, 1989. The United States Trustee (“Trustee”) moved to dismiss debtor’s petition pursuant to 11 U.S.C. § 707(a) and (b). On September 27, 1989, the Honorable Jo Ann C. Stevenson, United States Bankruptcy Judge, held a hearing on Trustee’s motion to dismi...
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ORDER This case involves allegations of breach in asset purchase and consulting agreements. Defendants DeClassis and L.T. Corporation, Inc. have moved to interpose their counterclaim as a complaint. Plaintiffs Fink and the Peterson Corporation have moved for reconsideration of denial of leave to file an amended complaint. Defendants’ motion to interpose their counterclaim is denied. Plaintiffs ar...
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This case is now before the court on motions to dismiss by all defendants and a third-party claim by one of them. While reviewing the motions to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) the court must take the allegations of the complaint as true, Walker Process Equip. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-49, 15 L.Ed....
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ORDER After pleading guilty to murder, Vicente Rodriguez was sentenced to a 40-year term of imprisonment. Dissatisfied with this sentence, Rodriguez now petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Rodriguez claims that his conviction is invalid because he entered an involuntary plea of guilty. This court disagrees, and denies his petition for a writ of habeas cor...
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OPINION OF THE COURT This case presents complementary actions for declaratory judgment concerning the parameters of an insurer’s contractual duty to defend claims brought against the insured. Specifically, the fundamental questions posed may be stated as follows: Where the insurer assumes its contractual duty to defend but reserves its right to contest its liability to indemnify the insur...
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ORDER Plaintiffs’ complaint contains claims of common law fraud as well as gratuitous counts of Racketeer Influenced and Corrupt Organizations Act (RICO) violations. Defendants David C. Lome and Phoenix Real Estate Corp. have moved to dismiss the complaint in its entirety. Defendants Richard Deck and Enterprise Savings Bank have moved to dismiss Counts I — III of the complaint. For the re...
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MEMORANDUM OPINION AND ORDER BACKGROUND This action was initiated in the Circuit Court of Dallas County, Alabama, with plaintiff seeking recovery of benefits under an employee benefit plan and also asserting claims for bad faith refusal to pay and fraud. Because plaintiff claimed benefits under an “employee benefit plan” as defined in ERISA, 29 U.S.C. § 1002(3), defendants invoked th...
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ORDER By agreement of the parties, this matter is before the Court upon cross-motions for summary judgment. The Court does hereby set forth its findings of fact, opinion, and conclusions of law. Findings of Fact (1) Plaintiff James B. Burger is the administrator of the estate of Marsha Burger, deceased. (2) The defendant in this action is the United States Parole Commission (Parole Commission)....
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MEMORANDUM DECISION AND ORDER This matter came on regularly on March 23, 1990 for hearing on Plaintiffs’ Motion to Remand to State Court and on Defendants’ Motion for Partial Summary Judgment. Plaintiffs were represented by L. Zane Gill and defendants were represented by W. Mark Gavre. After briefing by the parties and oral argument, the court took the motions under advisement. Post-argum...
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OPINION and ORDER On February 18, 1989, a cargo plane of the Flying Tiger Line crashed in Kuala Lumpur, Malaysia. The pilot, co-pilot, and flight engineer were killed, as was Leonard Sulewski, an aircraft mechanic in the employ of Flying Tiger. The central question in this ease is whether Mr. Sulewski was travelling at the time of his death as a passenger or an on-duty employee of the airline. ...
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MEMORANDUM AND ORDER The complaint in this action seeks, among other things, to enjoin an arbitration which has been ordered by the courts of New Jersey in litigation arising out of the sale of a corporation known as Lorent-zen-Levolor, Inc. (hereinafter “the corporation”). Plaintiff Eric Lorentzen (hereinafter “Lorentzen”) now moves for a preliminary injunction which would in effect countermand ...
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ORDER & OPINION Petitioner, Jean Yvonne Chung, (“Chung” or “petitioner”), an alien currently held in custody pending deportation proceedings, is before the Court seeking a writ of habeas corpus. Chung is being held without bail as an aggravated felon under the “no bail” provisions of 8 U.S.C. § 1252(a)(2). Petitioner asks that the Court issue a writ of habeas corpus requiring her immediate releas...
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MEMORANDUM OPINION This matter is before the court on plaintiff’s motion for summary judgment and defendant’s motion for partial summary judgment. Defendant’s motion to dismiss is also before the court. The parties have agreed there are no material facts in dispute as to the question of the right of withdrawal. The Farm Credit Administration (“FCA”) does contend that further hearings must be held...
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ENTRY DENYING DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND DENYING DEFENDANT’S MOTION FOR CHANGE OF VENUE This matter came before the court on the Defendant’s Request for an Evidentiary Hearing. On September 28, 1990, this court heard evidence from both parties bearing on the twin issues of whether this court has subject matter jurisdiction over Defendant and ...
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MEMORANDUM OPINION This is a diversity case, in which the plaintiff, a disappointed testamentary beneficiary, brings a third-party malpractice suit against the attorney who drafted the 1987 Last Will and Testament of Dr. Thomas A. Hurney. The matter is before the Court on a summary judgment motion directed to be filed by the Court when it reviewed the pretrial order and questioned whether there w...
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OPINION First City National Bank and Trust Company (“FCNB” or “the Bank”), a defendant in Thornock v. Kinderhill Corp., 87 Civ. 7737 (“Thornock”) and a plaintiff in the six cases, First City National Bank and Trust Co. v. Ratkowski, 88 Civ. 6154, First City National Bank and Trust Co. v. Dawson, 88 Civ. 6155, First City National Bank and T...
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MEMORANDUM Defendant Tepfer has filed a Motion Under 28 U.S.C. § 2255 to Vacate Sentence. The Court of Appeals affirmed his conviction after a jury trial for Conspiracy in Restraint of Trade (Count 1) and Conspiracy to Defraud the United States (Count 2). This Court had sentenced defendant Tep-fer, a second offender, as follows: On Count 1, defendant is committed to the custody of the Attorney Ge...
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OPINION Plaintiff-appellant, State of New Jersey, Department of Human Services (hereinafter “State”), appeals from two final decisions of the Departmental Appeals Board (Board), acting on behalf of the defendant-respondent, Secretary of Health and Human Services (hereinafter “Secretary”), which sustained a disallowance of federal funds for costs claimed by the State under Title XIX of the Social S...
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ORDER OF FINAL SUMMARY JUDGMENT THIS CAUSE has come before the Court on the parties’ cross-motions for summary judgment. At issue in the case is the constitutionality of Article V, Section 12 of the Florida Constitution in so far as it bars the disclosure of the fact that a complaint against a judge has been filed with the Florida Judicial Qualifications Commission (hereinafter “JQC”). The su...
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OPINION Defendant Robert Lindquist has filed two Fed.R.Civ.P. 12(b) motions. The first deals with whether this court has jurisdiction over his person, while the other alleges that plaintiff has failed to state a claim upon which relief can be granted. PROCEDURAL BACKGROUND This cause is based on the alleged wrongful termination of a general agency agreement between plaintiff South Central Insuran...
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OPINION A question of criminal contempt. By an attorney. On July 22, 1988, Douglas Payton filed an action against the City of Mattoon, Illinois, seeking to recover for severe personal injuries. Payton v. City of Mattoon, 88-3218 (C.D.Ill.1988). Mr. Payton’s only attorney of record was Howard B. Becker. Mr. Becker filed all documents on behalf of Mr. Payton and appeared for the final pretrial confe...
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ORDER Under consideration are motions to dismiss filed by Tom Sherrill in his representative capacity, John Thompson in his representative capacity, and defendant John Thompson individually. The motions are grounded in Rule 12(b)(6), F.R.Civ.P., for failure to state a claim upon which relief can be granted. The plaintiff has responded and the issues are ready for determination. The Court notes it...
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MEMORANDUM OPINION AND ORDER This case arises from an automobile collision involving the plaintiff, Gene C. Baker (Baker) and an uninsured motorist, Christopher L. Ball (Ball). The plaintiff had stopped for traffic on Mt. Rushmore Road *717 in Rapid City, South Dakota, when he was struck from behind by Ball. Ball stated to the officer at the scene that he was going too fast t...
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ORDER A criminal complaint was filed against defendant Héctor Méndez Hernández (a/k/a Rafael Vázquez) on September 25, 1990 charging him with violation of 8 U.S.C. section 1326. 1 Defendant is before the court on an appeal from the Detention Without Bail Order issued by Magistrate Schmidt-Monge on October 1, 1990. After conducting a hearing on October 15, 1990, we ordered the immediate releas...
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OPINION This matter is before the Court on the cross motions of the plaintiffs Lorenzo and Angela Fenner and the defendant City of Newport News. The Fenners contend, among other varied claims against diverse parties, that two so-called “no-knock” entries made by Newport News police officers in the course of executing search warrants violated their rights under the Fourth Amendment. After ...
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MEMORANDUM OF OPINION THIS MATTER is before the Court on motion of the Defendant to arrest judgment. For the reasons hereinafter stated, that motion will be denied. The motion decided here will be the Court’s motion for judgment of acquittal. The Defendant was brought to trial on May 15, 1990, before a jury in Asheville, North Carolina. The jury returned a verdict of guilty on May 16...
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ORDER This matter is before the court on defendant John Morrell & Co.’s resisted motion for partial summary judgment, filed March 2, 1990. The motion asks that this court determine whether Iowa or South Dakota law applies to various issues presented in this matter. Facts The facts of this matter are as follows. The parties do not dispute the facts necessary for the resolutio...
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ORDER Presently before the Court is plaintiff’s motion for a temporary restraining order. For the reasons set forth below, the Court will grant plaintiff's motion. I. Background Plaintiff Walker Chandler (“Chandler”), Libertarian candidate for lieutenant governor of Georgia, and intervenor Carole Ann Rand (“Rand”), Libertarian gubernatorial candidate, seek to enjoin Georgia ...
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ORDER INTRODUCTION In this diversity action arising out of the destruction of plaintiffs personal property while in transit within the State of Washington, defendants move to dismiss for lack of personal jurisdiction, or in the alternative to transfer to the Western District of Washington. Defendants’ motion is denied for the reasons set forth below. BACKGROUND In the summer of 1988, plai...
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MEMORANDUM OPINION AND ORDER Currently pending are the parties cross-motions for summary judgment. Said matters, having been fully briefed, are ripe for disposition. The material facts underlying this declaratory judgment action are as follows: 1. The defendant, Garry Wayne Sham-baugh, (“Mr. Shambaugh”), is the named insured under an automobile policy held by the plaintiff, Aetna Casualty a...
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MEMORANDUM AND ORDERS ON PLAINTIFFS’ MOTION AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT In this action the plaintiffs seek an injunction against the defendant’s manufacture and sale of packing braid made with more warp fibers on the outside than on the inside, which plaintiffs claim infringe a patent issued to George Champlin, assigned to the plaintiff Seal Company of New England and of which t...
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MEMORANDUM AND ORDER On July 23, 1983, Pierson Construction Company, Inc. (Pierson) and Anna Ready Mix, Inc. (ARM) entered into an agreement for the purchase of concrete. Pursuant to the agreement, ARM was to provide concrete for use by Pierson in constructing grain silos at two sites in Mound City, Illinois. The agreement specified that the concrete, unless otherwise agreed, would have a...
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MEMORANDUM OPINION AND ORDER Plaintiff Bodi Lukasewych, a professional photographer, brings this action against defendants Wells, Rich, Greene, Inc. (“WRG”), an advertising agency, and ITT Sheraton Corporation, a hotel chain and WRG’s client. The action arises out of defendants’ use of copyrighted commercial photographs taken by plaintiff. Plaintiff asserts subject matter jurisdiction und...
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RULING ON PENDING MOTIONS Introduction This is a case in which the plaintiff, Bernard C. Duse, Jr., alleges that the defendants, the International Business Machines Corporation, (“IBM”), and several individually named IBM officials including former Chief Executive Officer John Opel, discriminated against him on the basis of his race, and that upon complaining of such treatment, h...
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MEMORANDUM AND ORDER On November 26, 1986, this court denied the motions of four defendants to dismiss plaintiff Brenda Wooten’s complaint for failure to state a claim upon which relief can be granted. Wooten v. Loshbough, 649 F.Supp. 531 (N.D.Ind.1986). Bankruptcy proceedings involving several defendants have slowed the progress of the liti *315 gation, and the in...
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OPINION AND ORDER Plaintiff Bernice Ortiz is a New York State and Local Retirement Systems pensioner. In this action, under 42 U.S.C. § 1983, she claims, inter alia, that by arbitrarily cutting off and later reducing her monthly retirement benefits without notice and an opportunity to challenge the action, defendants New York State and Local Retirement Systems (NYSLRS) and Edwa...
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MEMORANDUM ORDER This matter is before the Court on defendants’ motion to dismiss. Upon consideration of the motion, plaintiff’s opposition, and the entire record, the Court concludes that the motion should be granted. Plaintiff is an inmate at the federal penitentiary in Leavenworth, Kansas. He filed this action claiming that defendants violated his Eighth Amendment right to adequate medical...
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MEMORANDUM OPINION AND ORDER On April 26, 1990 defendant Ronald Rivera was arrested pursuant to an arrest warrant issued on April 4, 1990 and charged with one count of violating 18 U.S.C. §§ 2113(d) and 2 in connection with the armed robbery of the Manufacturer’s Hanover Trust Company, 230 Second Avenue, New York, New York on October 18, 1989. Defendant moves to suppress an inculpa-t...
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749 F. Supp. 15 (1990) FINARD & COMPANY, INC., Plaintiff, v. CAPITOL 801 CORPORATION, Defendant. Civ. A. No. 88-3109. United States District Court, District of Columbia. October 18, 1990. Jeffrey W. Harab, Harab and Rosenberg, P.C., Washington, D.C., for plaintiff. Judah Lifschitz, Gerald W. Heller and Randal W. Wax, Laxalt, Washington, Perito & Dubuc, Washington, D.C., for defendant. ME...
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ORDER AMENDING SENTENCE This matter comes before the court on Dannie Billings (“Billings”) motion under 28 U.S.C. § 2255 to dismiss part of an imposed sentence. For the reasons below, the judgment and order of sentence, filed January 11, 1988, commanding “... defendant serve a period of supervised release for four years” is hereby AMENDED to read, “[i]t is further ordered that the defendant serve ...
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ORDER This cause is before the Court on the motion of Defendant G.D. Searle for summary judgement on the first six counts of Plaintiff’s complaint. For the reasons discussed below, Defendant’s motion is denied as to Counts I-V, and granted as to Count VI. I. BACKGROUND Plaintiff brings this suit for injuries that she alleges were caused by her use of an intrauterine copper contr...
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OPINION AND ORDER Defendant has objected to the Memorandum and Order dated June 7, 1990 of the Honorable Leonard Bernikow, United States Magistrate, permitting plaintiff to seek, as damages for copyright infringement of a floor lamp, the value of lost sales on non-infringed items marketed as part of the line of merchandise that included the infringed item. For the reasons set forth below,...
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MEMORANDUM AND OPINION I. Background The unusual factual development of this case has highlighted an ambiguity in the provisions of the Foreign Service Act of 1980, 22 U.S.C. § 3901 et seq. This ambiguity involves the interplay of the Secretary of State’s (“Secretary”) authority to terminate nontenured members of the Foreign Service at any time and the authority of the Foreign Service Grievance B...
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MEMORANDUM Plaintiff instituted this suit under the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”), 38 U.S.C.A. §§ 2021-24 (West 1979 & Supp.1989). He has moved that this Court enter an order permitting him to proceed on appeal without prepayment of costs and directing the Court to remit the filing fee which he paid when he filed the action. 38 U.S.C.A. § 2022 provides ...
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ORDER Before the court is the amended preliminary injunction motion of plaintiffs Richard Grotemeyer, Richard Eckstrom, and Myer-strom Industries, Inc. For the reasons discussed below, the motion is denied. FACTS On February 1, 1983, Lake Shore Oil Company, the corporate predecessor to defendant Lake Shore Petrocorp. (“Lake Shore”), entered into a Dealer’s Lease Agreement (the “...
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MEMORANDUM This case arises from the refusal of defendant Masco Industries Employee Benefit Plan to reimburse plaintiffs, James and Edith Martin, for certain medical expenses. A complaint was originally filed in state court but defendant removed the case to this court pursuant to 28 U.S.C. § 1441, on the ground that the plan at issue is governed by the Employee Retirement Income Security ...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT BELL HELICOPTER’S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant Bell Helicopters Textron, Inc.’s motion for partial summary judgment as to Counts I (crashworthiness) and III (breach of warranty) of plaintiffs’ complaint came on for hearing before this court on October 9, 1990. James H. Hershey, Esq. and Burnham H. Greeley, Esq. appeared...
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MEMORANDUM Plaintiff Margaret A. Kinnally, a former employee of Bell Telephone Company of Pennsylvania (“Bell”), filed this suit against Bell and three of its employees. Her amended complaint alleges violations of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., including discrimination on the basis of sex (Count I) and retaliatory discharge (Count II), and vi...
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MEMORANDUM OPINION AND ORDER This matter comes before the court on defendants’, Richard and Elaine Ditton, motion to dismiss plaintiff’s, P & P Marketing, Inc. (“P & P”), complaint for failure to state a cause of action or in the alternative to stay the proceedings pending resolution of a related state-court action. This action arises out of certain allegedly fraudulent transactions betwe...
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ORDER THIS MATTER is before the Court on a Memorandum and Recommendation (hereinafter “M & R”) filed by United States Magistrate Paul B. Taylor on July 31, 1990. The M & R was filed in response to Defendant’s motion, filed June 6, 1990, to suppress approximately 104 grams of cocaine base seized from Defendant’s person at the Charlotte airport. The Government filed a response to the motion on June...
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ORDER THIS MATTER is before the Court on Defendant’s motion, filed August 3, 1990, to suppress heroin and a firearm seized by the arresting police officer. Defendant is charged in a bill of indictment, filed April 2, 1990, for the use of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(...
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ORDER This cause is before the Court on cross motions for summary judgment. I. INTRODUCTION Plaintiffs Mr. and Mrs. Amore bring this suit for injuries that Mrs. Amore allegedly sustained through her use of an intrauterine copper contraceptive (hereinafter "Cu-7”) manufactured by Defendant G.D. *847 Searle & Company. The Cu-7 is an intrauterine copper cont...
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OPINION SUMMARY This is a breach of contract claim involving the sale of stock in an English corporation. The Plaintiffs allege that the Defendant is liable for the contract price of the stock. The Defendant denies liability and alleges fraud and breach of warranties by the Plaintiffs or the Plaintiffs’ agent. The Defendant asserts that most of the evidence necessary for the defense ...
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ORDER FINAL JUDGMENT FOR PLAINTIFF This Cause is before the Court on Plaintiff’s motion for summary judgment in which Plaintiff seeks the return- of $526,-281.00 which it claims was seized from its account in violation of the Due Process Clause of the United States Constitution. I. BACKGROUND On April 6, 1987, a warrant was issued by the Honorable Samuel J. Smargon authorizing the seizure of $526...
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MEMORANDUM Plaintiffs bring this appeal under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a), for the sole purpose of recovering costs and fees that they incurred in successfully defending themselves in prior administrative proceedings. Plaintiffs work in the maritime business as “docking masters.” In June of 1988, they were cited by the Coast Guard for allegedly docking boats with...
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MEMORANDUM Plaintiffs petition for reconsideration of order dated June 13, 1990 granting defendant Pan American World Airways, Inc.’s motion for summary judgment. Fed.R. Civ.P. 56, 59(e). Summarized, plaintiffs’ contentions are as follows: 1. The Warsaw Convention does not govern the transportation of human remains inasmuch as they should not be classified as “marchandises” — i.e., g...
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MEMORANDUM OPINION This matter is before the Court on an appeal from a judgment of conviction for violation of 36 C.F.R. § 4.23(a)(1989) entered by United States Magistrate James E. Kenkel on September 6, 1990. The only issue on appeal is whether the magistrate erred in accepting into evidence the results of a breath test for alcohol performed by the arresting officer. Appellant reli...
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MEMORANDUM AND ORDER The named plaintiff in this case, Lee Squitieri, has moved, pursuant to Rule 23 of the Federal Rules of Civil Procedure, that this action be maintained as a class action. On October 4, 1990, the parties stipulated and agreed that the claims in Count I of the Amended Class Action Complaint (the “Amended Complaint”), which are based upon violations of the federal securities law...
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MEMORANDUM & ORDER Plaintiff, O & K Trojan, Inc. (“Trojan”), seeks, inter alia, general and punitive damages from defendants Municipal & Contractors Equipment Corporation (“Contractors”), Municipal Machinery Company, Inc. (“Machinery Co.”), Joseph Muratore Jr., and Joseph Muratore Sr. (collectively, “Municipal defendants”), based on alleged violations of: (1) the Racketeer Influenced and ...
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MEMORANDUM OPINION AND ORDER Phoenix Canada Oil Company, Ltd. (“Phoenix”), a Canadian corporation, brings this diversity action for breach of contract *527 and fraud against Texaco Inc. and its subsidiary Texaco Petroleum Company (together, “Texaco”), both Delaware corporations. In essence, Phoenix alleges that Texaco owes Phoenix royalty payments dating back to 1976 for oil ...
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ORDER Before the court is a review of the Bankruptcy Court’s Report and Recommendation issued in relation to the adversary proceeding referenced above. The Bankruptcy Court’s recommendation is that it abstain from hearing the current adversary *125 proceeding because the issues raised concern primarily state law. The parties have objected to the Bankruptcy Court’s recommendat...
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ORDER ON APPEAL I. INTRODUCTION This cause is before the court on appeal from a final judgment entered by United States Magistrate Samuel J. Smargon upon *249 conclusion of a non-jury trial. 1 The magistrate entered final judgment for damages in the amount of $28,424.75 in favor of the appellee, defendant below, Fuente Cigar, Ltd. [“Fuente” or “the shipper”] a...
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MEMORANDUM AND ORDER This matter is presently before the Court on the separate motions to dismiss of defendant Regine and defendants Henry V. Rosciti, Anthony F. Rosciti, Michael A. Cin-quegrano, Providence Marine Realty, Inc. and Barge In, Inc. Failure to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6), failure to satisfy the strictures of Fed.R.Civ.P. 9(b), an...
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Plaintiffs are all prison inmates currently serving in the Maryland state correctional system. Defendants are James N. Rollins, Warden of the Maryland Penitentiary; Bishop L. Robinson, Secretary of the Department of Public Safety and Correctional Services for the State of Maryland; Arnold J. Hopkins, former Commissioner of the Division of Correction; and all officers, agents and employees of th...
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MEMORANDUM On September 28, 1990, this Court held a hearing on Plaintiff’s Motion For A Ruling That T.C.A. § 29-26-115(b) Will Not Preclude The Testimony Of Two New York Physicians In This Case. Having denied plaintiffs Motion from the bench, the Court issues this Opinion explaining the reasons for denying the requested relief. I. The underlying action is a medical malpractice c...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON COVERAGE AND STRIKING MOTION FOR BIFURCATION THIS MATTER comes before the court on plaintiff’s and defendant’s cross-motions for summary judgment. Having reviewed the motions, together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows: *231 I. BACKGROU...
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748 F. Supp. 445 (1990) PRUDENTIAL INSURANCE COMPANY OF AMERICA v. Sheila Dianne Fowler HARRIS, et al. Civ. A. No. 89-404-B. United States District Court, M.D. Louisiana. September 24, 1990. *446 David R. Kelly, Breazeale, Sachse & Wilson, Baton Rouge, La., for plaintiffs. G. Allen Walsh, Baton Rouge, La., for defendants. RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT POLOZOLA, District J...
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*341 RULING ON DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S DEMAND FOR JURY TRIAL Plaintiff filed this suit in state court seeking past due retirement benefits under an ERISA-regulated employee benefit plan. 1 The action was timely removed to federal court on grounds of diversity and federal question jurisdiction. 2 Plaintiffs demand included a demand for a jury...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of defendants Mike Moore, Attorney General of the State of Mississippi, and Jim Warren, Special Assistant Attorney General, in their individual capacities, to dismiss or, in the alternative, for summary judgment pursuant to Rules 12 and 56 of the Federal Rules of Civil Procedure, respectively. Plaintiffs Metro Chari...
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OPINION This matter is before the Court on plaintiffs motion to remand. Defendant has filed a response to this motion. In accordance with Local Rule 17(i)(2), the Court shall decide this motion without hearing. This action was originally filed in Wayne County Circuit Court on May 24, 1990. Defendant removed the action to this Court on June 29, 1990. On July 30, 1990, plaintiff filed ...
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MEMORANDUM OPINION Before the Court is defendant’s motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the *7Federal Rules of Civil Procedure. In consideration of the motion, and the responses filed thereto, the Court shall dismiss plaintiffs complaint for failure to have filed with the EEOC within the statute of limitations. Plaintiff Lawrence W. Harper brought...
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ORDER This diversity contract matter is before the court on motion of defendant North-bridge Park Co-Op, Inc. (“Northbridge”) for summary judgment and on cross-motion of plaintiff Air Master Sales Co. (“Air Master”) for summary judgment. Jurisdiction appears to be appropriate. See 28 U.S.C. § 1332. For the reasons set forth below, the motion by Northbridge is granted; the cross...
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ORDER GRANTING MOTION FOR JUDGMENT OF ACQUITTAL AND DENYING MOTION FOR NEW TRIAL This cause came before the Court upon the Defendants’ motions for judgment of acquittal and new trial pursuant to Federal Rules of Criminal Procedure 29 and 38. 1 The Defendants were charged with violating 1) the Cuban Assets Control Regulations, 31 C.F.R. § 515.201(b)(1), promulgated pursuant to t...
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MEMORANDUM ORDER This matter is before the Court on plaintiffs motion for a preliminary injunction and defendants’ motion to dismiss. Upon review of both motions, the parties’ oppositions, and the entire record, the Court grants defendants’ motion to dismiss and denies plaintiff’s motion as moot. Background Although specifics are in dispute, the basic facts in this case are relatively clear. Lat...
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MEMORANDUM OPINION AND ORDER Defendant, Louis W. Sullivan, M.D., Secretary of Health and Human Services (“Secretary”), moves to alter or amend the court’s decision granting plaintiff’s supplemental motion for attorney’s fees under the Equal Access to Justice Act (“EAJA”), *1282 28 U.S.C. § 2412. The question turns on how to define “final judgment” under the EAJA. This issue h...
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MEMORANDUM OPINION AND ORDER Harold S. Hemstreet holds two patents relating to “character recognition device” technology. When put to practical effect, this technology permits a machine to automatically read and sort written documents. BancTec, Inc. (“BancTec”), for example, sells its character recognition devices to major banks for use in processing checks and other commercial paper. Hemstreet f...
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ORDER For over two years, defendant Carl Porto has managed to avoid satisfying a judgment entered against him and in favor of *672 the Securities and Exchange Commission (“SEC”). Pursuant to the final judgment entered by this court in 1988, Porto was required to disgorge $150,000 in ill-gotten funds. Payment was to be made into the Registry of the Court in eighteen separate m...
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This action involves two consolidated eases, both of which are before the Court on two motions for summary judgment by Whirlpool Corp. (hereinafter “Whirlpool”), against UMCO International (hereinafter “UMCO”). I. Background In late 1984, UMCO entered into negotiations with Whirlpool to establish a distributorship in Puerto Rico for Whirlpool products. UMCO’s stated objective was to t...
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MEMORANDUM OPINION AND ORDER Plaintiff First National Bank in Alamo-sa’s (“the Bank’s”) lawsuit against Ford Motor Credit Company (“Ford”) is based on Ford’s refusal to honor nine sight drafts presented to Ford, as acceptor or drawee, and directing it to pay a total of $93,144.86. The drafts were drawn on Ford by Clark/Cravens Alamosa Motors, Inc. (the Bank’s customer and a car dealer ass...
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Anthony Medina pled guilty to a violation of the narcotic laws. In 1988 he was sentenced to ten years in the custody of the Attorney General, execution was suspended, and he was given five years probation. As a condition of probation, he was required to refrain from using any narcotic. In November of 1989, probationer tested positive for cocaine under a routinely administered drug urine an...
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ORDER DISQUALIFYING DEFENDANT’S COUNSEL THIS CAUSE IS before the court upon three motions of the parties, namely, plaintiff’s motion to disqualify defendant’s counsel, and defendant’s motions for summary judgment on both the concurrent and former representation aspects of plaintiff’s motion to disqualify. The court, in consolidating treatment of the three pending motions, has addressed th...
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748 F.Supp. 277 (1990) Syed K. HUSSAIN, M.D., Plaintiff, v. SECRETARY OF HEALTH & HUMAN RESOURCES, Defendant. Civ. No. 90-4244(SSB). United States District Court, D. New Jersey. October 23, 1990. Montano, Summers, Mullen, Manuel, Owens & Gregorio by Arthur Montano, Cherry Hill, N.J., for plaintiff. Michael Chertoff, U.S. Atty. by Paul Blane, Asst. U.S. Atty., Camden, N.J., for defendant. ...
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MEMORANDUM AND ORDER Defendant moves to enforce certain subpoenas issued to six government agents, four from the Drug Enforcement Administration (“DEA”) and two from the Immigration and Naturalization Service (“INS”). Defendant has subpoenaed these agents to testify at his suppression hearing, which is scheduled for September 25, 1990. Defendant claims that the testimony of each of these agents is...
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*82 FACTS On June 3, 1986, at about 9:00 p.m., plaintiff Emmett L. Turner was involved in an accident on the vessel “Samuel Wilke-son” wherein he tripped over a rope on the deck and fell through an open hatch of the engine compartment, sustaining serious permanent injuries resulting in quadriplegia. At the time of the accident, Mr. Turner was employed by the defendant Niagara Fro...
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MEMORANDUM OPINION Plaintiff, Studiengesellschaft Kohle, mbH (hereinafter “SGK”) brought this action against Hercules, Inc., Himont U.S.A., Inc., and Himont Incorporated (hereinafter “Hercules, et al.”) for patent infringement and breach of contract. Defendants, Hercules, et al. counterclaim that SGK has breached an existing license agreement and violated the antitrust laws by enforcing, ...
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MEMORANDUM OPINION AND ORDER Ron G. McCoy (“McCoy”) has filed a Complaint against his ex-employer WGN Television (“WGN”), 1 asserting violations of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634. McCoy makes three claims: ' 1. WGN transferred him to a different position within its organization on account of his age. 2 2. WGN la...
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MEMORANDUM OPINION AND ORDER Daniel A. Zazove (“Zazove”), attorney for debtor-appellant Excello Press, Inc. (“Excello”) appeals from an order of the United States Bankruptcy Court for the Northern District of Illinois, imposing sanctions against him pursuant to Bankr.R. 9011. BACKGROUND Robert Schrayer Company, now known as Associated Agencies, Inc. (“Associated”), is an Illinois...
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MEMORANDUM ORDER This matter is before the Court on plaintiff’s motion for partial summary judgment, defendants’ motion to dismiss, and defendants’ motion for summary judgment. Upon consideration of the motions, the oppositions and replies thereto, and the entire record herein, plaintiff’s motion is denied and defendants’ motion for summary judgment is granted. Background Pl...
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MEMORANDUM-DECISION & ORDER In June of 1985, the United States Veterans Administration (“the VA”) entered into a contract with Bhandari Constructors & Consultants, Inc. and Joseph Davis, Inc. (“Bhandari-Davis”), who agreed to perform general construction and asbestos abatement work at the Veterans Administration Medical Center (“VAMC”) in Syracuse, New York. Bhandari-Davis in turn subcont...
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ORDER Before the Court are a Motion by the Plaintiff (“Regent”) for summary judgment (# 7) and a Cross-Motion by the Defendant (“Economy”) for summary judgment (# 9). The Court denies the Plaintiff’s Motion (#7) and grants the Defendant’s Motion (# 9). BACKGROUND This litigation involves a Complaint for a declaratory judgment brought under Rule *192 57 of the Federa...
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ORDER Pursuant to 28 U.S.C. § 1404(a), the Brotherhood of Locomotive Engineers (“BLE”) has moved to transfer this railway labor action to the United States District Court for the District of Kansas. For the reasons stated herein, the court transfers this case to the District of Kansas. I. FACTS This lawsuit involves a labor dispute between various railroads and the unions repres...
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OPINION AND ORDER On September 7, 1990, the United States of America (“the Government”) on behalf of the Small Business Administration (“SBA”) commenced this action against Clinton Capital Corporation (“Clinton”), a small business investment company (“SBIC”) under Section 301 of the Small Business Investment Act, 15 U.S.C. § 661 et seq., claiming jurisdiction pursuant to 28 U.S.C. § 1345, 15 U.S.C...
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ORDER On December 7, 1989, plaintiffs filed a petition for review of a decision by Elaine M. Dudley, Secretary designee of the United States Department of Housing and Urban Development (“HUD”), wherein plaintiffs were debarred from contracting with any department in the executive branch of government for three years. Plaintiffs filed their brief in support of their petition on February 26, 1990; ...
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OPINION AND ORDER This is a motion to suppress physical evidence consisting of a gun seized from the automobile of defendant Nestor Rodriguez on the ground that the evidence was obtained as a result of an unlawful search and seizure. No hearing is necessary because the parties do not dispute any material facts. See United States v. Munoz, 738 F.Supp. 800, 801 (S.D.N.Y.1990). Because the automobile...
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OPINION This matter is before the Court on defendant Detroit Lions, Inc.’s June 27, 1990 motions to dismiss the lawsuits filed against it by plaintiffs Angelo T. King (case no. 90-CV-71253-DT) and Stanley Edwards (case no. 90-CV-71273-DT). Since these eases involve similar allegations and requests for relief, plaintiffs filed a single response to defendant’s motions on August 8, 1990. In ...
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MEMORANDUM OPINION Plaintiffs, Maureen and John Hoth, have brought this 7 count action against American States Insurance (“ASI”) based upon several theories of liability. The first two counts of this complaint allege that Maureen Hoth was discharged in retaliation for her filing of a workers’ compensation claim. Counts 3 and 4 are also based on a theory of retaliatory discharge, and allege that...
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ORDER THIS MATTER comes on for hearing on Defendants’ Motion for Summary Judgment on Plaintiff’s First Claim for Relief. The record reflects the Plaintiff tendered his Second Amended Complaint in response to Defendants’ original Motion to Dismiss. On February 27, 1989, this Court, by Judge Richard P. Matsch, granted Plaintiff leave to file his Second Amended Complaint and in the same order dismiss...
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OPINION This matter is before the Court on plaintiff’s motion for summary judgment and on *3 defendant’s cross-motion for summary-judgment. Upon consideration of the motions, the oppositions thereto, and the entire record herein, defendant’s motion is granted and plaintiff’s motion is denied. Background In December 1979, the U.S. Department of Health, Education and Welfare (“HEW”) hired...
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OPINION The Read Corporation and F.T. Read & Sons, Inc. (“Read”) brought this action, charging willful infringement by defendant Portee, Inc. (“Portee”) of two patents: United States Patent 4,197,194 (“the ’194 patent”) and United States Design Patent 263,836 (“the ’836 patent”). Plaintiff F.T. Read & Sons, Inc., is the assignee of the two patents, and plaintiff F.T. Read Corporation is t...
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ORDER Before the Court is the Government’s Verified Complaint for Forfeiture, which is based on the claim that the Respondent Porsche Carrera 911 (“Respondent”) was used to facilitate the distribution of 3,4-me- *1182 thylene-dioxymethamphetamine, otherwise known as “ecstasy,” a controlled substance under 21 U.S.C. § 801 et seq., and that Respondent was purchased w...
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MEMORANDUM AND ORDER On June 7, 1990 the defendant pleaded guilty to a violation of 8 U.S.C. § 1324(a)(1)(D) in that he encouraged the entry of an alien into the United States knowing that the alien was not lawfully entitled to enter. He was sentenced to a term of three years on probation. Thereafter, a motion was filed on his behalf pursuant to 8 U.S.C. § 1251(b) requesting this Court to recommen...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on Defendants Norman Katz, Warren Katz and Edith Katz’ motion to dismiss for lack of personal jurisdiction. All Defendants are residents of Miami, Florida. Defendants Norman Katz and Warren Katz are the President and General Manager, respectively, of Auto Supply Company (Auto Supply). Defendant Edith Katz is the wife of Warren Katz. Plai...
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MEMORANDUM AND ORDER This matter is before the court on the plaintiff’s motion for summary judgment (Doc. 14) and the defendant’s motion to affirm the decision of the Secretary (Doc. 19). This is a proceeding under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. On December 8, 1986, plaintiff filed an application for disability benefits under Title II. Tr. 36-39. Plaintiff’s claim ...
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ORDER The plaintiff, Patrick Dillon, was arrested by San Francisco police officers on September 22, 1988. Plaintiff maintains that the arresting officers violated his constitutional rights by using excessive force in executing his arrest. While the plaintiff originally brought causes of action under the Civil Rights Act of 1864, 42 U.S.C. § 1983 and California tort law, plaintiff’s counse...
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ORDER THIS MATTER comes before the Court on Defendant Dow Chemical’s motion for summary judgment, filed January 31, 1990. Oral argument on the motion was heard August 13, 1990. PROCEDURAL BACKGROUND Defendant Dow Chemical 1 bases its brief in support of summary judgment on three contentions: (1) the alleged failure to warn on the part of Defendant Dow, if any, did not...
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OPINION Plaintiff New York State Association of Career Schools (“NYSACS”) and certain schools which are members of the NYSACS have moved for a preliminary injunction pursuant to Rule 65, Federal Rules of Civil Procedure against the defendants State Education Department of the State of New York (“SED”), its Commissioner and certain of its officers and employees (collectively “SED”). Based ...
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MEMORANDUM AND ORDER The plaintiffs moved this court pursuant to 42 U.S.C. § 3613(c)(2) for an order awarding them costs and attorneys’ fees. This action was commenced by the filing of a complaint on February 23, 1981 alleging that the defendants violated the plaintiffs’ rights under the Fair Housing Act, 42 U.S.C. § 3601-3619 (Title VIII of the Civil Rights Act) by applying their zo...
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Before the court are the following motions: (1) Motion of Plaintiff, Transcontinental Gas Pipe Line Corporation (“Tran-sco”), for Partial Summary Judgment. De *368 fendants, John W. Stone Oil Distributor, Inc. (“Stone”), and Wilhemina Martin Heltz, Solange Martin Faucheux, Hazel Martin Simon, Doris Mae Laiche Martin, Richard Heltz, Ferducie Faucheux, and Francis Simon (collectively...
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OPINION The issue presented in this case is whether a district court should dismiss an action, rather than transfer it, where (1) the cause of action would be timely filed under the choice of law and internal law of the state in which this court sits, (2) there is no personal jurisdiction in this court, and (3) the action would be time-barred under the law of the state in which the prospe...
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ORDER This action has been submitted to the Court on the Magistrate’s Report and Recommendation. The plaintiff has filed an objection. This Court has performed a careful de novo review of the record, and for the reasons stated below AFFIRMS the Magistrate’s holding. I. THE COURT’S RULING ON THE MAGISTRATE’S REPORT AND RECOMMENDATION The Court adopts the Statement of F...
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MEMORANDUM ORDER This matter is before the Court on defendant’s motion to dismiss, plaintiffs’ motion for summary judgment, and defendant’s motion to stay consideration of plaintiffs’ motion. Upon review of the motions, the parties’ oppositions, supplements, and the entire record, the Court grants defendant’s motion to dismiss and denies the plaintiffs’ motion, as well as denying defendant’s moti...
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MEMORANDUM ORDER This matter is before the Court on defendant’s motion to dismiss. Upon consideration of the motion, plaintiff’s opposition thereto, and the entire record herein, the Court grants defendant’s motion. Background Plaintiff North Cambria Fuel Company conducts surface mining operations in southwestern Pennsylvania and maintains a place of business in Pennsylvania. Between 1974 and 19...
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MEMORANDUM OPINION Facts In the early 1980’s, the City of Fayette-ville and other governmental units in the Northwest Arkansas area began consideration of alternatives to solid waste disposal utilizing land fills. On August 30, 1980, Northwest Arkansas Resource Recovery Authority (hereinafter referred to as “the Authority”) was formed under the provisions of Act 699 of the Acts o...
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OPINION Plaintiffs, Florence Skierski and Joseph Skierski, bring this action to recover damages for injuries Florence Skierski allegedly sustained in a slip and fall accident at property owned by defendant, Vonn Investment Company, (“VIC”) and leased by defendant, Internal Revenue Service (“IRS”). Plaintiffs filed their complaint in the Oakland Circuit Court on October 3, 1989. IRS filed a Notice...
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MEMORANDUM AND ORDER This action involves a real estate development project in Jersey City, New Jersey and its financing by certain savings and loan associations, some of which are now in receivership. Since the Court finds that it does not have subject matter jurisdiction of the claims asserted against an indispensable party to this action, the complaint is dismissed in its entirety. ...
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DECISION AND ORDER For over two hundred years our Country has prospered under the principle that all men and women should have an equal opportunity to enjoy “life, liberty and the pursuit of happiness.” There was a time when the disabled did not have the same opportunities and were relegated to a kind of second class status in employment, housing and transportation. That circumstance...
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MEMORANDUM OPINION This case was filed on March 16, 1990. Plaintiff alleges that this court has jurisdiction by virtue of 28 U.S.C. § 1332 (1985). Plaintiff, Capital Mercury Shirt Corporation, has approximately 1500 employees located in the State of Arkansas for whom it provides health and accident benefits on a shared cost basis. The employee benefit program is funded 50% by Capital and ...
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*119 OPINION This ease is before the court on three motions: 1) defendants’ August 15,1990 Motion for Dismissal of Remaining Claims Against Defendants Smietanka and Pekrul 1 or in the Alternative Motion for Summary-Judgment; 2) plaintiffs September 12, 1990 Appeal from Magistrate Rowland’s Order denying plaintiffs motion to disqualify Judge Enslen; and 3) plaintiff...
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MEMORANDUM OF DECISION AND ORDER Defendant moves for summary judgment, dismissing the complaint. Plaintiff opposes the motion. *285 BACKGROUND The following facts are undisputed or conceded: Plaintiff, Elroy Enterprises, Inc. (“Elroy”), is a New York corporation. Defendant, Roadway Express, Inc. (“Roadway”), is an interstate motor carrier engaged in the business of...
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ORDER APPOINTING CLASS COUNSEL Four of the law firms representing Oracle shareholders1 have bid to serve as class counsel. This order describes and compares those bids, and then selects class counsel on the basis of the bidders’qualifications and fee proposals. In addition, the order modifies the method contemplated in the August 3 order for reimbursing class counsel’s out-of-pocket expenses and ...
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MEMORANDUM The defendant Funds and their Trustees 1 have filed a motion to strike plaintiffs’ jury demand. The Fund defendants and their Trustees argue that the remaining claims in this case arise under section 502(a)(2), 29 U.S.C. § 1132(a)(2), and section 409(a), 29 U.S.C. § 1109(a), of the Employment Retirement Income Security Act [ERISA]. The defendants also contend th...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the plaintiff’s motion for summary judgement and the defendant’s countermotion *1528 for summary judgement. The plaintiff moves for summary judgement on the ground that the defendant’s policy, denying enforcement of certain provisions of the California Labor Code to Plaintiff on the basis of her coverage under...
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MEMORANDUM OF DECISION AND ORDER Plaintiffs, Anthony Uryevick and Arthur Wickers, former police officers of the Nassau County Police Department, bring these consolidated actions pursuant to 42 U.S.C. §§ 1983, 1985 and 1988 against the Police Department, the Commissioner thereof (the “Commissioner”) and Nassau County, seeking compensatory and punitive damages for the alleged deprivation of...
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*39 OPINION AND ORDER In the last few years legislators and citizens have paid increasing attention to the lyrical content of popular music. The interest is not entirely new, for “rulers have long known [music’s] capacity to appeal to the intellect and to the emotions and have censored musical compositions to serve the needs of the state.” Ward v. Rock Against Racism, — U.S. -, 109 S.Ct. 27...
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RULING ON PENDING MOTIONS The three plaintiffs, Ricky Adams, Alonzo Bolden, and Clinton Colbert, commenced these actions against their former employer, Shulton, Inc., U.S.A. Division (“Shul-ton”), as well as River City Security (“River City”) and McLynnard Bond (“Bond”). Each one alleged that he was defamed by these defendants during the course of an investigation by Shulton concerning the loss...
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RULING ON PLAINTIFF’S MOTION TO REMAND This matter is before the Court on plaintiff’s motion to remand, which was filed pursuant to 28 U.S.C. § 1447(c). Plaintiffs contend that the notice of removal was not filed within the 30 day time limit of 28 U.S.C. § 1446(b). Plaintiff further contends that the notice of removal was defective in that it did not specify defendant’s principal place of busin...
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RULING ON DEFENDANT’S MOTION TO DISMISS, OR TO TRANSFER This matter is before the Court on a motion to dismiss for lack of venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure, or, in the alternative, to transfer this suit to the United States District Court for the Eastern District of Louisiana under 28 U.S.C. § 1406(a). Defendant contends that venue in the Middle District is not pr...
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MEMORANDUM This matter is before the Court on plaintiffs' motion for summary judgment pursuant to Fed.R.Civ.P. 56. The matter has been fully briefed and is ripe for disposition. Jurisdiction is based on 28 U.S.C. § 1338(a). Background Plaintiffs are suing defendants for copyright infringement under the Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq. Bro...
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RULING This case arises out of the death of Zim-blis Scott, a veteran with a long history of mental illness. On 1 April 1987 Scott was released from the Veterans Administration Medical Center in Alexandria, Louisiana; two days later, he was found lying dead by the Interstate highway in Jefferson Davis Parish. Plaintiffs, Scott’s parents, initially pursued an administrative tort claim agai...
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MEMORANDUM This matter is before the Court on plaintiff’s motion to remand this action to state court. Two of the defendants, The Home Insurance Company and Insurance Company of North America, have filed an opposition to plaintiff’s motion. No oral hearing is needed. Local Rule 105.6, D.Md. Background Plaintiff, Harford County, Maryland, commenced this insurance coverage action against defendan...
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AMENDED PRELIMINARY MEMORANDUM AND ORDER APPOINTING COUNSEL FOR PROPOSED CLASS MEMBERS AND SPECIAL SETTLEMENT MASTER Eagle-Picher Industries, Inc., (“EaglePicher”) is a defendant in each of the above-captioned cases and many others. It has moved for certification of a class pursuant to Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure on behalf of all persons who: (1) have been exposed to ...
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ORDER AND REASONS Before the Court is the motion of defendant, Timmy Cobbins, to declare the Sentencing Guidelines unconstitutional under the Fifth Amendment as a violation of his right to due process of law. The defendant further requests this Court to employ preexisting law to his sentencing. Cobbins’ co-defendants, Henry Lee and Fitzgerald Johnson, join in the motion. After reviewing the mot...
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OPINION AND ORDER Defendant Ismael Robles (Robles) seeks to recover attorney fees and costs following a jury verdict in his favor in this trademark infringement action. Robles requests fees from plaintiff La Amiga del Pueblo (La Amiga) pursuant to Rule 44.1 of the Puerto Rico Rules of Civil Procedure, 32 L.P.R.A.App. Ill, R. 44.1 (1983). La Amiga, however, filed its trademark infringement...
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ORDER THIS MATTER is before the Court on a motion, filed August 13, 1990, to dismiss for the reason that this Court does not have personal jurisdiction over Defendant National Business Systems, Inc., a Canadian Corporation (hereinafter “NBS, Canada”). On September 6, 1990, Plaintiff Bar-clays Leasing, Inc. (hereinafter “Plaintiff”) filed a response to NBS, Canada’s motion to dismiss. ...
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MEMORANDUM The Court is in receipt of the Report and Recommendation issued by the Magistrate *571 regarding the defendants’ motions for summary judgment, and the plaintiffs objections to the Report and Recommendation. PACTS The plaintiff Raymond Jackson, an inmate at the DeBerry Correctional Institute (Deberry), filed this suit under 42 U.S.C. § 1983 alleging that h...
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OPINION AND ORDER In this action the Court must determine whether the Secretary of Education, the Director of School Security Corp., the high school teacher and the acting principal of the República de Colombia School are liable under 42 U.S.C. Section 1983 for the tragic accidental death of Eddie Muriel Román, who was shot in a classroom by a fellow classmate. While we sympathize with th...
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RULING ON TAKO TOWING, INC.’S MOTION FOR SUMMARY JUDGMENT AND PLIMSOLL MARINE, INC.’S MOTION FOR SUMMARY JUDGMENT Allen and Rhonda Dunbar filed this suit to recover for injuries sustained when Allen Dunbar tripped over a covered object on the deck of the barge on which he was working. Plimsoll Marine, Inc. (Plimsoll) and Tako Towing, Inc. (Tako) have now filed a motion for summary. On January 27,...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT Before the court is the second motion for summary judgment of defendants Mark Fox, Sherry Folse, David Dodd, Peter Turk, and Andrew Kaplan. Plaintiff Billy Thompson filed a medical malpractice action against these defendants, the University of Tennessee Physicians Foundation, the Regional Medical Center at Memphis (The Med), and other doctors for alleg...
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RULING ON MOTION TO DISMISS OR, ■ ALTERNATIVELY FOR SUMMARY JUDGMENT BY UNITED STATES POSTAL SERVICE AND MOTION FOR SUMMARY JUDGMENT BY DEFENDANT NATIONAL POST OFFICE MAIL HANDLERS, WATCHMEN, MESSENGERS AND GROUP LEADERS DIVISION OF THE LABORERS’ INTERNATIONAL UNION, LOCAL 312 I. Background Donald L. Bottoms was employed as a mailhandler with the United States Postal Service (“USPS”) in Baton Rou...
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RULING ON DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS Collective Federal Savings Bank (Collective) 1 is seeking damages under 18 U.S.C. § 1962(c) and 1962(d), alleging that various defendants engaged in a fraudulent scheme to cause Collective to extend real estate loans to various parties. Named as one of the defendants in this case was Glusman, Moore, Wilkinson, Arbour, B...
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ORDER Plaintiff Lee Brick and Tile Company, Inc. moves to compel discovery prior to being required to respond to defendant’s motion to dismiss. The defendant (government) contends such discovery is unnecessary, seeks a protective order against answering it or against further discovery and requests that plaintiff respond forthwith to the motion to dismiss. The resolution of this discovery dispute ...
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OPINION This case is now before this Court on a motion for a preliminary injunction by defendants/third-party plaintiffs David La-Roche, Q.L.C.R.I., Inc., and the LaRoche *384 Grantor Income Trust (collectively Q.L.C.R. I.). Q.L.C.R.I. seeks an injunction ordering the third-party defendants, the present homeowners and lot owners in the Sherwood Park development, to reimburse Q.L. C.R.I. for t...
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MEMORANDUM AND ORDER The court has received a motion to enjoin state court proceedings filed by claimant, Dravo Corporation (“Dravo”), in the above-captioned matter. Having considered claimant Dravo’s memoranda, the opposition memoranda filed by representatives of two deceased employees of Southern Shipbuilding Corporation (“Southern”) and Aet-na Casualty & Surety Company (“Aetna”), and the appli...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on the Government’s motion, filed July 17, *1161990, to dismiss this matter. Plaintiff filed a response on August 22, 1990. The record in this case indicates that Plaintiff was employed by the Equal Employment Opportunity Commission (EEOC) in Charlotte, North Carolina as an Equal Opportunity Specialist. A hearing was conducted by an ...
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MEMORANDUM OPINION AND ORDER OF DISMISSAL This matter is before the Court on cross-motions for summary judgment. There is no real factual dispute, and summary judgment can be entered for the defendant for the reasons set out below. FACTS Randy Goldammer became an insurance agent for Aid Association for Lutherans (AAL) in 1984. As an agent he was insured by AAL’s Agents’ Income Protection Plan (Pl...
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ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This is an action brought in the General Sessions Court of Shelby County, Tennessee, for “failure to act in good faith and breach of contract.” Defendant removed the case to this court, pursuant to 28 U.S.C. § 1441, on the basis that the plaintiff’s claim is one for pension benefits governed by the federal Employee Retirement Income Securit...
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OPINION AND ORDER Sidney Clark is incarcerated in the Adult Correctional Institution (“ACI”), serving a life sentence after being convicted of the 1974 murder of Claude Saunders, a fellow inmate at the ACI. Clark challenges several aspects of his trial in his present petition for a writ of habeas corpus. Claude Saunders was stabbed to death in his cell at the ACI in November 1974. Ap...
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ORDER THIS MATTER is before the Court on Plaintiff United States of America’s (hereinafter “the Government”) motions, filed August 24, 1990, for summary judgment and the entry of default judgment. The Government also filed a brief in support of the motions on August 24, 1990. Neither of the claimants, Belton Lamont Platt (hereinafter “Claimant B. Platt”) or Delores Platt (hereinafter “Cla...
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OPINION Defendant Virgin Islands Seaplane Shuttle (hereinafter “VISS”) has filed a motion to transfer venue pursuant to 28 U.S.C. § 1404(a) from this District to the District Court of Puerto Rico or the District Court for the Southern District of New York. Defendant’s motion is denied as this civil action could not have been brought in either court. I. FACTS AND PROCEDURE A jury ...
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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO REMAND Plaintiff’s Motion to Remand and Objection to Removal came on for hearing before this court on December 4, 1989. Elizabeth Jubin Fujiwara, Esq. appeared on behalf of plaintiff, and Ronald Leong, Esq. appeared on behalf of defendants. The court having reviewed the motion and the memoranda in support thereof and in oppo...
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ORDER GRANTING SUMMARY JUDGMENT Before the Court is the Motion of Defendant Northern Insurance Company of New York (“Northern”) for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that there is no dispute as to any material fact and that the Defendant should be granted judgment as a matter of law. In his Response to the Defendant’s Motion for Summary Jud...
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Plaintiff was allowed to proceed in for-ma pauperis on his equal protection claim against defendants Kenneth Moritsugu and James Reed on October 25, 1989. He alleges in his complaint that defendant Reed did not allow him to work in food service in accordance with a policy issued by defendant Moritsugu because he had tested positive for HIV. On February 15, 1990 defendants filed ...
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OPINION AND ORDER This matter is before the Court on the motion for summary judgment of defendants International United Automobile, Aerospace and Agricultural Implement Workers of America (International) and United Automobile, Aerospace, and Agricultural Implement Workers of America, Local 14 (Local 14); plaintiffs’ opposition, defendants’ reply, and plaintiffs’ supplemental authority in oppositio...
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MEMORANDUM OF OPINION AND ORDER GRANTING SUMMARY JUDGMENT This is a civil action for wrongful discharge arising under the provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132 and 1140. This action was filed in Superior Court in Sonoma, and was removed to federal court by defendants in April, 1990. Plaintiff Mary Lou Siddoway alleges four causes of ...
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ORDER On July 30, 1990, the United States Magistrate’s Findings and Recommendation was filed and notice was served on the parties pursuant to 28 U.S.C. § 636. Thereafter, the Court received plaintiffs’ objections to the Magistrate’s Findings and Recommendation. The Court has appropriately reviewed plaintiffs’ objections de novo and finds they do not change the substance of the Magist...
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MEMORANDUM OPINION AND ORDER In this diversity action, defendant National Medical Services (NMS) moves to dismiss for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. For the reasons stated below, NMS’s motion to dismiss for lack of personal jurisdiction is granted. I. A plaintiff bears the burden of establishing personal jurisdict...
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MEMORANDUM DECISION This is an action arising under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) & 2671 et seq., and was tried to the court on liability only. This Memorandum Decision constitutes the court’s findings of facts and conclusions of law under F.R.Civ.P. 52(a) on those issues. FACTS On August 13, 1983, plaintiff, together with a number of his fa...
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ORDER Before this Court is the Plaintiffs Motion for Reconsideration of this Court’s Order of June 5, 1990, denying the Plaintiff’s Motion to Remand to State Court. The Defendant has filed a Response to the Plaintiff’s Motion for Reconsideration and a Motion to Strike the Plaintiff’s Motion for Reconsideration, to which the Plaintiff has responded. The background of the case is as follows: On Marc...
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ORDER This matter comes before the Court on respondent’s request for reconsideration of this Court’s January 19, 1990 Order. In that Order, the Court found that the Internal Revenue Service (IRS) was entitled to enforcement of its third-party summons (26 U.S.C. § 7609) seeking records from respondent, Attorney Gary D. Henderson, with respect to financial payments, transfers and disbursements conc...
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DECISION AND ORDER BACKGROUND On November 16, 1989, plaintiff Victoria S. Blum (“Blum”) commenced an action in this court pursuant to Title 42 U.S.C. § 1983 against defendant Waukesha County (“Waukesha”). Blum claims that Waukesha violated her federal constitutional rights by: (1) obtaining from the Wauke-sha County Circuit Court on May 12, 1989, a capias for her arrest; (2) having Blum arrested ...
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Memorandum and Order Denying ■ Request for Preliminary Injunction The plaintiff in this action, requesting preliminary injunctive relief, offers section 43 of the Lanham Act as the basis for one theory of liability. It is claimed that the defendant has been doing business under the name North American Directories, Inc., that defendant is thereby using plaintiff's corporate and trade name, or one s...
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MEMORANDUM OPINION AND ORDER This case arises out of an oral business relationship between a marketer of consumer products through syndicators of direct mail advertisers, CEO Marketing Promotions Company (“CEO”), and a syndicator, Heartland Promotions, Inc. (“Heartland”), that specialized in direct mail advertising through Bankcard companies. FACTS CEO had an exclusive license t...
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RULING ON DEFENDANTS’ MOTION TO COMPEL This matter is before the court on defendants’ motion to compel plaintiff, Resolution Trust Corporation (RTC) to answer interrogatories and to respond to a request for production of documents propounded on May 1, 1990.1 The RTC opposes the motion. The RTC responded to the discovery requests, but defendants contend that Interrogatory Nos. 4-18 and Request for...
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OPINION AND ORDER This is a declaratory judgment action seeking to declare unconstitutional Section 375 of Chapter 190 of the Laws of New York of 1990 which establishes a lag payroll for nonjudicial employees of the Unified Court System hired on or after April 7, 1983. Plaintiffs by order to show cause moved for a preliminary injunction pursuant to Fed.R.Civ.P. 65 enjoining defendants from implem...
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MEMORANDUM OPINION AND ORDER On February 6, 1990 defendant James Nicholas was indicted along with nineteen co-defendants. Nicholas was charged with conspiracy to conduct an illegal gambling business, conducting an illegal gambling business and criminal contempt of court. Nicholas was released on bail pursuant to certain conditions, the first of which was that Nicholas was not to commit a federal, ...
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OPINION Plaintiff, the law firm of Stinson, Lyons, Gerlin & Bustamante (“the law firm”), has commenced this suit under the qui tam1 provisions of the False Claims Act, (“the FCA”) 31 U.S.C. § 3730(b) et seq. The law firm seeks damages and civil penalties arising from alleged false statements and claims made by defendant, The Prudential Insurance Company of America (“Prudential”) in violation of t...
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*254 FINAL MEMORANDUM ORDER In United States v. City of Chicago, 870 F.2d 1256 (7th Cir.1989), Ann Erwin and her colleagues persuaded the Court of Appeals for this circuit that I erred when I denied their motion to intervene in Bigby v. City of Chicago, 80 C 5246. They sought to challenge the standardization of scores on the 1987 lieutenants’ examination which had a disparate impact on th...
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*437 MEMORANDUM & ORDER Plaintiff, Vigilant Insurance Company, (“Vigilant”), brings this action claiming violations of: (1) § 10(b) and rule 10b-5 promulgated thereunder, of the Securities and Exchange Act of 1934 (“1934 Act”), 15 U.S.C. § 78j (1982); (2) 18 U.S.C. §§ 1961 et seq. of the Racketeer Influenced and Corrupt Organizations Act (“RICO”); (3) common law fraud;...
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MEMORANDUM AND ORDER This matter came before the Court for hearing on June 29, 1990 on the matter of uneonscionability. Jurisdiction is pursuant to 28 U.S.C. § 1331. BACKGROUND Asgrow Seed Company (“Asgrow”) sold approximately 12,700 pounds of hybrid tomato seed, Lot # WTP767(7)-61026 (“767”) which was labeled as Sunny to plaintiff J & B Tomato (“J & B”) in January 1987. The pur...
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Plaintiff brings this suit pro se under Title VII, Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., against his employer, Polytechnical University of New York, the Equal Employment Opportunity Commission (“EEOC”), and the New York Division of Human Rights, for religious discrimination. The grounds for the suit against the EEOC is that its referral of the suit to the New York Division of H...
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MEMORANDUM AND ORDER This matter is before the Court on the motion of defendants Gary C. Ringen (“Ringen”) and Ringen Financial Corporation (“RFC”) to dismiss the complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. 1 Plaintiffs contend that this Court has personal jurisdiction over Ringen because service of process was ...
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OPINION AND ORDER This is an action by the Rhode Island Higher Education Assistance Authority (“RIHEAA” or the “Authority”) to enjoin the Secretary of the United States Department of Education (the “Secretary”) from withholding reimbursements for losses incurred in connection with student loans guaranteed by the Authority pursuant to the federal Guaranteed Student Loan (“GSL”) Program. It is pres...
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MEMORANDUM OPINION AND ORDER Plaintiff Donald Bennett brought this action under 42 U.S.C. § 1983 against defendants Village of Oak Park (the “Village”), Village Police Chief Keith Bergstrom, Village Attorney Raymond Heise, and Police Officers David Chapman and Brian Slowiak alleging that defendants subjected plaintiff to selective prosecution as well as threats and harassment in violation of pl...
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MEMORANDUM On September 21, 1986, plaintiff Emil Schillachi, Jr., was racing his Honda All-Terrain Vehicle (“ATV”) in an ATV race at the Flying Dutchman Race-Track. An accident occurred in which plaintiff suffered severe injuries. Plaintiff filed the above action on September 16, 1988, alleging that his injuries were, in part, the result of the failure of defendants Flying Dutchman Motorc...
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MEMORANDUM AND ORDER GRANTING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES This matter is before the Court on plaintiffs’ motion for attorneys’ fees, expert witness fees, and costs pursuant to the Petroleum Marketing Practices Act, 15 U.S.C. § 2805(d)(1). In support of the motion, plaintiffs have submitted computerized records itemizing the time spent and services rendered by their attorneys an...
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MEMORANDUM AND ORDER This matter is before the Court on defendant, Asgrow Seed Company’s (“Asgrow”), motion for summary judgment and plaintiffs’ opposition thereto. This Court has jurisdiction pursuant to 28 U.S.C. § 1332 and 7 U.S.C. § 1551. Plaintiffs are tomato growers, who along with J & B Tomato, Inc. (“J & B”), are suing Asgrow for allegedly defective tomato seeds. J...
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ORDER In October, 1987, plaintiff, Julia Taylor, acting as special administrator of the estate of Johnny Taylor (“Taylor”), filed this two-count action against Chicago police officers Efren Castaneda and Pamela Burmistrz and the City of Chicago (“City”). Count I, the allegations of which are not at issue here, is directed against the two individual officers. In Count I, plaintiff alleges that offi...
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MEMORANDUM These matters are before the Court on the motion of United Mine Workers of America, International Union; United Mine Workers of America, District 14; and United Mine Workers of America, Local 7688 (collectively “the Union”) for a temporary restraining order. On October 15, 1990 this Court heard oral argument and received testimony from both parties in support of their respective positi...
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MEMORANDUM AND ORDER On August 9, 1990, a federal grand jury returned four indictments, charging a total of 51 individuals with cocaine trafficking and related charges. Defendants John J. Shea, a/k/a “Red,” John K. Mackie and George E. Hogan (“defendants”) were each charged in one indictment involving 20 other defendants with engaging in a conspiracy to traffic in cocaine. Defendant Shea ...
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MEMORANDUM OPINION The action presently before the Court is the motion to remand the case to the Circuit Court of Fluvanna County, Virginia, filed by the plaintiffs, Joseph and Julia Bellone, on June 12, 1990. According to the plaintiffs, the case was improperly removed and is not within the jurisdiction of this Court due to the fact that one of the two defendants, Roxbury Homes, Inc. (he...
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ORDER This matter is before the Court on cross-motions for summary judgment. For reasons stated below, defendant’s motion for summary judgment will be denied, plaintiffs motion for summary judgment will be granted, and judgment will be entered for plaintiff. I The plaintiff in this case is Joanne W. Coleman. The defendant is Nationwide Life Insurance Company (“Nationwide”). Cole...
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MEMORANDUM AND ORDER The case comes before the court on appeal of the bankruptcy court’s journal entry of judgment filed August 3,1989, in the adversary proceeding. For the reasons stated from the bench, the bankruptcy court held that the debtor’s payments to the defendant Kansas Drywall Supply Company, Inc. (Kansas Drywall), totalling $6,158.98, were preferential transfers recoverable by...
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MEMORANDUM AND ORDER I. BACKGROUND The plaintiff United States brings this forfeiture claim against the defendant 198X Mustang VIN 1FAB42E5JF290177 (“Mustang”) before this Court pursuant to 21 U.S.C. § 881(a)(4), which reads as follows: (a) The following shall be subject to forfeiture to the United States and no property right shall exist in them: (1) All controlled substan...
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MEMORANDUM OPINION AND ORDER Before me are defense motions to dismiss counts, to require the government to make an election, to strike language from the Indictment, and for separate trials. Following hearing, I took the motions under advisement. Below is my ruling on those motions. On January 26, 1990, twelve defendants in this case were indicted in the District of Colorado on fifty-...
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MEMORANDUM This matter is before the Court on the motions of the two remaining Defendants 1 , Dr. Stuart Cohen and Lederle Laboratories, for summary judgment. This ease is a product liability suit. Plaintiff, Kimberly Marie Snawder (“Plaintiff”), allegedly contracted poliomyelitis from an oral vaccine manufactured by Lederle Laboratories (“Lederle”) and administered ...
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MEMORANDUM OPINION By a previous Order of this Court, a plaintiffs’ class was certified in this case pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. On July 20, 1990, notice of the class action was mailed to all prospective class members pursuant to Rule 23(c)(2), and in order to allow potential members to exclude themselves from class litigation, a “Request for Exclusion From ...
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OPINION AND ORDER GRANTING SUMMARY JUDGMENT Plaintiff Donald Bogue brings this action under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq., claiming that defendants wrongfully denied him severance benefits, breached their fiduciary duties, and interfered with his protected rights. Defendants have moved for summary judgment on all claims alleged...
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MEMORANDUM OPINION The matter presently before the Court is defendant Jamal Issa Ali’s motion for a judicial recommendation against deportation and exclusion that was filed on September 17, 1990. In the motion, Jamal Issa Ali, through counsel, asks this Court to enter a recommendation, binding upon the Attorney General pursuant to 8 U.S.C. § 1251(b) (1970), that he should not be deported from thi...
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MEMORANDUM OPINION AND ORDER The above-captioned habeas corpus petition, filed pursuant to 28 U.S.C. § 2254 (1988), was referred to Magistrate Naomi Reice Buchwald for a report and recommendation and the Magistrate recommended that the petition be dismissed. For the reasons that follow, the report is adopted insofar as it recommends that the petition be dismissed because petitioner has conceded...
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OPINION Petitioner, Alberto Fell, currently incarcerated at the East Jersey State Prison, has brought a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 In support of his application, petitioner alleges (1) that the failure of the *625prosecutor to reveal a secret arrangement for leniency with the State’s key witness violated petitioner’s Fourteenth Amendment due process...
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MEMORANDUM AND ORDER This cause is before the court on cross-appeals filed by creditor, the United States Internal Revenue Service (“IRS”), and debtor James Luther Stowe from a decision of the bankruptcy court on June 29, 1987 with respect to the IRS’s claim against Mr. Stowe’s assets. The IRS seeks fulfillment of unpaid taxes and delinquencies assessed against the debtor for several tax ...
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MEMORANDUM OPINION Plaintiffs in these consolidated actions own land in the town of Front Royal, Virginia. As a result of the town’s failure to supply the plaintiffs’ properties with sewer and water service in a timely fashion, as required by a decree of a state annexation court, this court previously held as a matter of law that the defendants had effectuated a taking of the plaintiffs’ ...
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OPINION This case comes before the Court on defendants’ motions for reconsideration or objections to Magistrate Rowland’s June 1, 1990 Opinion and Order regarding realignment of the parties and subject matter jurisdiction. On June 15, 1990, Auto-Owners Insurance Company (Auto-Owners) filed Objections in Memorandum Brief Regarding Magistrate’s Opinion and Order, Dated June 1,1990. Grand Trunk West...
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746 F. Supp. 520 (1990) ALLEN-MYLAND, INC. v. INTERNATIONAL BUSINESS MACHINES CORPORATION. Civ. A. No. 85-6166. United States District Court, E.D. Pennsylvania. September 6, 1990. *521 *522 *523 *524 Robert G. Levy, and Frank, Bernstein, Conaway and Goldman, Baltimore, Md., for Allen-Myland, Inc. Evan R. Chesler, Cravath, Swaine and Moore, New York City, for International Business Machines Corp. ...
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MEMORANDUM OPINION Presently before this Court are motions for summary judgment filed by both parties. In ruling on a motion for summary judgment, this Court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Inc. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir.1990). Summary judgment may be granted only if “the...
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OPINION Presently before the court is the motion of defendants Firstrust Savings Bank (Fir-strust); Neil I. Rodin, North Atlantic Investment Corporation (NAIC), Rodin Realty Investment Corporation (RRIC), Rodin Management, Inc., Rodin Enterprises, Inc., and Ivan J. Krouk (collectively, the Rodin Defendants); Blank, Rome, Comiskey and McCauley (Blank, Rome); Joseph Dennis Pasquarella & Com...
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MEMORANDUM ORDER The plaintiff filed the above action in December of 1988 alleging that defendant, Equibank, breached a contract to employ him in the position of Senior Vice President of Equibank and Liberty Bank for a minimum term of one year. Plaintiff contends that he was approached by the defendant corporation in February of 1988 through members of defendant’s management team. At the time, pla...
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ORDER This case is presently before the court on the defendant’s motion for summary judgment. After considering the entire record and the arguments of the parties, the court *100concludes that it is appropriate to enter judgment as a matter of law. Accordingly, for the reasons set forth below, the defendant’s motion for summary judgment is granted. Factual Background The plaintiff Richard K. Huch...
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DECISION AND ORDER BACKGROUND On March 6, 1989, pro se plaintiff Carlton Pugh (“Pugh”) an African-American filed a complaint in this court against the State of Wisconsin Department of Natural Resources (“DNR”) alleging that the DNR discriminated against him because of his race in violation of Title VII of the Civil Rights Act of 1964, Title 42 U.S.C. § 2000e et seq. Specifically, Pug...
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ORDER AND REASONS This matter is before the Court on the Motion of Pelican Homestead And Savings Association (Pelican) for Preliminary and Permanent Injunction against the plaintiffs, enjoining them, their attorneys, agents or employees from taking any steps in prosecution of the matter entitled “John V. Santopadre v. Pelican Homestead and Savings Association,” Case No. 90-17541, Division “B” of ...
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MEMORANDUM OPINION This action was brought by plaintiffs Roy and Debra Brown, on October 28, 1988, in the 60th District Court of Jefferson County, Texas. The Southern Pacific Transportation Company was a defendant, and in the original state court petition the Browns sued “The Estate of Wanda Carol Griffin.” No service was sought or perfected against the “Estate.” Defendant Southern Pacific was se...
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MEMORANDUM The gravamen of plaintiffs complaint is that on November 23, 1989, a sculpture that plaintiff shipped from London to Philadelphia via British Airways was irreparably damaged during a Customs inspection. Plaintiff subsequently filed two actions addressed to the alleged misfeasance of the Customs officials: 1 the first, civil action 89-5822, seeks damages from the Customs officials p...
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ORDER The above entitled matter came before the court on September 14, 1990 on defendants’ summary judgment motion pursuant to Federal Rule of Civil Procedure 56(b). I. STANDARD OF REVIEW The Supreme Court has held that summary judgment is to be used as a tool to isolate and dispose of claims or defenses which are either factually unsupported or which are based on undisputed facts. Celotex...
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MEMORANDUM The individual plaintiffs in this consolidated class action seek, pursuant to Federal Rule of Civil Procedure 23, judicial approval of a negotiated settlement agreement in which the defendants agreed to pay class members the sum of $22 million. Plaintiffs’ lead counsel have filed a joint petition for reimbursement of expenses and an award of attorneys’ fees. As part of the latt...
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*458 MEMORANDUM OPINION This cause comes before the court on the plaintiffs motion to remand pursuant to 28 U.S.C. § 1447. Defendant Bunch Trucking Company, Inc. [Bunch] removed this wrongful death action from the Circuit Court of the First Judicial District of Talla-hatchie County, Mississippi, over two years after commencement in state court and less than sixty days before the ...
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MEMORANDUM ORDER Plaintiffs Carolyn Greathouse (Great-house), appearing individually and as executrix of the Estate of C.R. Greathouse (C.R. Greathouse), Deceased, and as next friend of David Greathouse (David), a minor child; and Michael Greathouse (Michael); and Craig Greathouse (Craig), brought this suit under various state and federal theories, seeking recovery of benefits the plaintiffs claim...
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Plaintiff, Taj Mahal Enterprises, Ltd., brought this action against defendants, Donald J. Trump, Trump Taj Mahal Associates Limited Partnership and Trump Taj Mahal, Inc., for service mark infringement and unfair competition under the Lanham Act, 15 U.S.C. § 1051 et seq. Plaintiff has a registered mark for the name TAJ MA-HAL, and it alleges that defendants have infringed this mark by...
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OPINION The matter before the court is the motion (# 15) of defendants, Mentor Graphics Corporation (Mentor Graphics), Thomas H. Bruggere, Gerald H. Langeler, David C. Moffenbeier, Brian C. Henry, and Marvin S. Wolfson, to dismiss the uncertified class action complaint of plaintiff, Rolex Employees Retirement Trust (Rolex); to dismiss the first claim for failure to plead fraud with the pa...
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ORDER Defendant and third-party plaintiff, Fidelity Bank (“New Fidelity”), filed a motion for summary judgment. The plaintiff, Old Stone Bank (“Old Stone”), and the third-party defendant, Federal Deposit Insurance Corporation (“FDIC”), as Receiver for Fidelity National Bank of Fort Worth (“Old Fidelity”), have responded thereto. The FDIC filed its motion for summary judgment and Old Stone...
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MEMORANDUM OPINION AND ORDER Before the Court are Plaintiff’s and Defendants’ motions for summary judgment. Fed.R.Civ.P. 56(c) states that a motion for summary judgment shall be rendered if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. A moving party for summary judgment must “establish the right to judgment with such clarity ...
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OPINION AND ORDER Chrysler Motors Corporation (CMC) has commenced the above-captioned case against the International Union, Allied Industrial Workers of America, AFL-CIO, and Local 793 (the Unions) seeking an order vacating an arbitrator’s award issued on July 24, 1989, because it is contrary to public policy. The defendant Unions have answered by denying that the award should be vacated ...
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*924 MEMORANDUM OPINION The Eighth Circuit Court of Appeals remanded this matter for computation of back pay and front pay by an order dated April 2, 1990. 899 F.2d 745. Pursuant to the April 2, 1990 order this court has reviewed this matter at length. The two issues before this court will be discussed separately. FRONT PAY The Eighth Circuit directed that the Watson Chapel School Distric...
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749 F. Supp. 1128 (1990) Lawrence LIPSCOMB, Plaintiff, v. TRANSAC, INC., Defendant. No. C.A. 89-227-2-MAC (WDO). United States District Court, M.D. Georgia, Macon Division. October 30, 1990. *1129 Janet E. Hill, Kenneth A. Tapscott, Nelson & Hill, Athens, Ga., for plaintiff. W. Melvin Haas, III, Jeffery L. Thompson, Haynsworth, Baldwin, Johnson & Harper, Macon, Ga., Paul T. Ryan, Haynswor...
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OPINION This matter is before the Court upon Plaintiffs Complaint seeking declaratory judgment and preliminary and permanent injunctions against Defendants from enforcing 8 U.S.C. § 1252 in detaining Plaintiff. Plaintiff was sentenced by Judge Dug-gan of this Court on October 17, 1989 to a term of three months, with a special recommendation that he be incarcerated in an institution w...
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MEMORANDUM OPINION AND ORDER Plaintiffs Philip, Seth, Daniel and Lucy Owusu filed their amended complaint in this case alleging that members of the Chicago, Dolton and Riverdale police forces unlawfully entered their home and arrested Philip, Seth and Daniel. Plaintiffs have named as defendants the individual officers who entered plaintiffs’ home and were present during the arrests, as well as ...
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ORDER Before the Court is the defendant City of Chicago’s (“City”) motion to dismiss the plaintiffs’ amended complaint. For the following reasons, the motion is granted. The amended complaint challenges the constitutionality of the City’s parking ticket enforcement system, including the City’s practices of demanding excess penalties for overdue tickets, of immobilizing or “booting” automobile...
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OPINION This breach of contract and tort action is presently before the Court on plaintiffs’ Motion for Partial Summary Judgment and defendant’s Motion to Dismiss. I. FACTUAL HISTORY A. The Parties Plaintiffs, Tuxedo Beach Club Corporation (“Tuxedo Beach”), and its president, Edmund C. Wideman, III (“Wideman”) (collectively “Plaintiffs”) initiated a lender liability act...
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OPINION On March 27, 1990, this Court issued an Order allowing the plaintiff Mark Allen to reapply for an interim award of attorney’s fees. Pursuant to that Order, the plaintiff filed a Second Application for an Interim Award of Attorney’s Fees and Costs and papers supporting the application. The defendants filed papers in which they do not oppose an interim award, but contest the amount of the p...
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This Cause is before the Court upon the defendant Russell Reed’s (“REED”) Motion for Immediate Discharge from Custody. After carefully reviewing the record and applicable case authority, the Court is prepared to rule. I. FACTUAL BACKGROUND Reed has brought to this Court a criminal resume containing several dubious entries. Among such entries is a 1980 conviction in the Eastern District of New York...
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ORDER This action involves copyright claims to several assertedly unpublished works of James Agee, the celebrated twentieth century American author. Plaintiff, an author who seeks to use the works in a book on James Agee, requests a declaration that the manuscripts are in the public domain and that therefore, the defendant, the present Trustee of the James Agee Trust, cannot prevent him f...
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DECISION AND ORDER Plaintiffs Edward Murtagh Dempsey and Mark S. Curenton brought these two actions pursuant to 42 U.S.C. §§ 1981, 1983, 1985 and 1988 to recover damages allegedly suffered when defendant officers of the Brighton, New York, Police Department mistakenly detained them upon suspicion of bank robbery. Plaintiffs move for partial summary judgment on their claims of false a...
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OPINION This case raises the question of whether a public housing tenant must be afforded an administrative grievance hearing before eviction proceedings may be brought against her in state court. The tenant in this case has brought a counterclaim and a third party complaint challenging a determination of the Secretary of the United States Department of Housing and Urban Development, whic...
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MEMORANDUM OPINION This Cause is before the Court upon the parties’ cross-motions for summary judgment, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure, and stipulation of facts. The plaintiffs, as Trustees of the Laborers Health and Welfare Trust Fund of South Florida, (“Trust Fund”), have instituted this action pursuant to Sec *521 tion 502(a)(3)(B) of the...
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OPINION I.Status Plaintiff, an inmate of the Florida penal system proceeding pro se, initiated this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983. The Court, on August 14,1989, ordered Plaintiff to file an amended complaint. Plaintiff filed an amended complaint on August 29, 1989. He names as the Defendants Dr. E. Romero and Dr. Hanoch Talmon, emergency room doctors at t...
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MEMORANDUM DECISION AND ORDER Is a municipality liable for the failure to post signs warning of the existence of a construction fence erected by private persons on private property, when the fence allegedly obstructs the view of motorists at the intersection where the accident occurred? Since the Court declines to impose such a duty upon municipalities and, in any event, the plaintiff has failed ...
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*513 MEMORANDUM OPINION The plaintiff United States of America has brought this action pursuant to the False Claims Act. 31 U.S.C. 3729-3731. Reduced to its least common denominator, this case involves a calculated plan by three individuals and an international banking institution to defraud the United States Government out of a substantial amount of money. Specifically, the frau...
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ORDER Defendant’s motion for summary judgment (D-20) contends that this Court does not have subject matter jurisdiction over plaintiffs claim, and that defendant is entitled to judgment as a matter of law. Plaintiffs response to defendant’s motion (D-78) agrees that there is no genuine issue of material fact pertinent to the question of subject matter jurisdiction, and that therefore the Court ...
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MEMORANDUM OPINION AND ORDER This matter comes before this court on appeal from the United States Bankruptcy Court for the Northern District of Illinois. Defendant/Appellant William Greaves appeals Judge John D. Schwartz’s order of October 19, 1988 denying Greaves’ motion to quash an alias summons issued on January 28, 1988, and to vacate the default judgement entered on April 26, 1988. F...
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MEMORANDUM OPINION AND ORDER Plaintiffs brought suit in the United States District Court for the Southern District of Texas, Houston Division. The complaint alleged breach of insurance policy agreement by the defendant insurer, *449Government Employees Insurance Company (GEICO). Defendant has moved to dismiss under rule 37(d) of the Federal Rules of Civil Procedure. A brief description of the proc...
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MEMORANDUM OPINION This cause is before the Court upon a motion for final, or in the alternative, partial summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff, Employers Insurance of Wausau (“Wausau”), has instituted this action based upon a General Indemnity Agreement executed and issued by defendants Able Green, Inc., Robert Stanley and Dorothy S...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION This cause is before the 'Court on defendants’ motion for summary judgment, filed March 1, 1990, to which response was due April 1, 1990. On April 23, this Court issued an order cautioning plaintiffs that they must respond to the motion on or before May 18, and that failure to respond could result in the granting of defendants’ mot...
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ORDER GRANTING DEFENDANT DOLLAR’S MOTION FOR SUMMARY JUDGMENT AND DENYING ITS MOTION FOR ATTORNEYS’ FEES The motion for summary judgment of defendant Pacific International Services Corporation, dba Dollar Rent-a-Car, came on for hearing before this court on October 22, 1990. Burton D. Gould, Esq. appeared for plaintiff Jan Roland Nielson (“plaintiff”). John H. Price, Esq. appeared on beha...
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MEMORANDUM OPINION This Cause is before the Court upon the defendant’s motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. As a result of a lease dispute, Bayshore Executive Plaza (“EXECUTIVE PLAZA”), the lessor, instituted this action against the lessee’s liquidator, the Federal Deposit Insurance Corporation (“FDIC”). In essence, Executive Plaza...
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OPINION On May 18, 1989, the Federal Energy Regulatory Commission (FERC or Commission) granted Tennessee Gas Pipeline Company (Tennessee Gas) a Certificate of Public Convenience and Necessity authorizing construction of a 36 mile high-pressure natural gas pipeline extension from Worcester County in Massachusetts to a southern terminus in Cranston, Rhode Island. The certificate was issued ...
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ORDER Plaintiff Jerry L. Maietta (“Maietta”) brings this action against his former employer, United Parcel Service, Inc. (“UPS”). Maietta alleges diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). It appears jurisdiction is appropriate. Maietta filed his complaint on 8 March 1988 and amended it twice. His Second Amended Complaint and Jury Demand (the “Second Amended Complaint”) ...
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ORDER Before this Court is the motion of one of five defendants, a brokerage firm, for summary judgment as to one of six plaintiffs, all of whom were stock market investors. The action is one arising out of the alleged violations of federal and state securities laws, and violation of state common laws committed by a former employee of the movant brokerage firm. In accordance with the foll...
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*929 MEMORANDUM OPINION AND ORDER LTV Steel Company, Inc. (“LTV”) has filed its Notice of Removal (the “Notice”) to this District Court of an action originally brought in the Circuit Court of Cook County by Maria Navarro as Administrator of the Estate of Ramon Sanchez, Deceased (“Navarro”). Based on its customary initial review of the Notice and Navarro’s underlying Complaint at ...
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MEMORANDUM AND ORDER Applicant Richard Zeller filed an application to this Court dated October 31, 1990 seeking review of an October 24, 1990 decision of the Independent Administrator, .90-Elec.App.-4. In his application Zeller, a member of Local 435 in Denver Colorado, moves this Court for a preliminary injunction overturning the October 24, 1990 decision of the Independent Administrator. For rea...
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MEMORANDUM OPINION AND ORDER Petitioner Charles Butler filed a petition for writ of habeas corpus with the Court on the grounds of equal protection, ineffective assistance of trial counsel and due process. The petition was referred to Magistrate Bernikow. Magistrate Bernikow filed his Report and Recommendation (hereinafter “R & R”) with the Court, recommending that the writ be granted as to the t...
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OPINION I. Introduction This action arises out of the arrest and detention of plaintiff Ramon Ospina. In his complaint Ospina asserts a number of claims under 42 U.S.C. § 1983 and under Delaware law. The defendants in this suit include Robert Durnan, the Delaware State Policeman who made the arrest; Clifford Graviet, the Superintendent of the Delaware State Police; and the De...
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AMENDED OPINION AND ORDER This matter is before the Court upon a Motion for Withdrawal of Reference by E. James Hopple, for defendants Fred R. Langley, et al. Appellants invoke this Court’s jurisdiction pursuant to 28 U.S.C. § 157(d), Bankruptcy Rule 5011(a) and L.B.R. 6.6. Upon consideration and being duly advised, this Court holds that the Seventh Amendment entitles petitioners to ...
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749 F. Supp. 1013 (1990) NATIONAL CENTER FOR YOUTH LAW, Plaintiff, v. LEGAL SERVICES CORPORATION and Terrance J. Wear, Defendants. No. C-90-0383 DLJ. United States District Court, N.D. California. September 10, 1990. *1014 Jack W. Londen and Samantha J. Smith of Morrison & Foerster, and John F. O'Toole, Counsel for the Natl. Center for Youth Law, San Francisco, for plaintiff. Hugh J. Cadden o...
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MEMORANDUM OPINION This matter came before the Court on plaintiffs’ motion for an award of liquidated damages and for a declaration that defendant willfully violated the Fair Labor Standards Act. As discussed below, the Court will grant plaintiffs’ motion and order the relief requested. I. Background Plaintiffs are eleven supervisory housing inspectors who work for the municipal government of the...
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MEMORANDUM OPINION AND ORDER Plaintiff, Havoco of America, Ltd. (“Ha-voco”), has filed this diversity action against defendants Hilco, Inc. (“Hilco”), Elmer C. Hill (“Hill”), and Sumitomo Shoji America, Inc. (“Sumitomo”). 1 Havoco’s complaint, as amended, consists of seven counts and alleges a variety of claims. Specifically, Havoco charges all of the defendants with conspiracy...
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ORDER After plaintiff Placido LaBoy, Jr. was convicted of armed robbery and attempted criminal sexual assault, he filed this civil action against three Chicago police officers who were involved in his arrest. Asserting a variety of constitutional violations, La-Boy contends that he was unlawfully arrested and convicted. Defendants moved to dismiss LaBoy’s complaint in its entirety. On October 4, 1...
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MEMORANDUM & ORDER Plaintiff Felipa Polanco, a seventy-four year old widow, originally commenced this action against defendants 21 Arden Realty Corporation (“21 Arden Realty”), Harry Greenbaum, and the New York City Department of Housing Preservation and Development (“DHPD”), seeking to compel repairs of certain conditions existing in Po-lanco’s apartment as a result of fire, rendering th...
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MEMORANDUM OPINION These actions arise out of a tragic airplane accident which occurred in Cove Neck, New York, on January 25, 1990. 1 As a result of this unfortunate event, the Court is presented with its first opportunity to consider whether the Warsaw Convention, 49 Stat. 3000, reprinted at 49 U.S. C.App. 1502 (1976) 2 provides the exclusive cause of action for th...
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MEMORANDUM AND ORDER The abovenamed individual, by his assigned attorney, moved to suppress as trial evidence a quantity of cocaine found in his personal luggage and statements made by him. Involved is the scenario which has been often dealt with by the undersigned and other judges of this Court. See, U.S. v. St. Kitts, 742 F.Supp. 1218 (W.D.N.Y.1990), U.S. v. Montilla, 733 F.Supp. 579 (W.D...
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OPINION The defendant in the above-captioned case has filed a motion to suppress physical evidence and incriminating statements. He argues that the search warrant, whose execution triggered this prosecution, was defective because: (i) the supporting affidavit contained material false statements; (ii) the supporting affidavit did not establish probable cause; and (iii) the warrant was not sufficie...
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MEMORANDUM AND ORDER This case is before the court on plaintiffs Motion for a Protective Order (Doc. 93). The motion concerns eight pages of documents for which the plaintiff claims the protection of the attorney-client privilege, and which plaintiff states were inadvertently produced to the defendant on August 14 and August 16, 1989. Plaintiff seeks an order requiring the defendant to return the...
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ORDER Before the court is the motion of defendant, Sears, Roebuck and Co., to dismiss or in the alternative for summary judgment *455on the first amended complaint of plaintiff, Kenneth Sarsha. Sears’ motion will be treated as a motion for summary judgment, pursuant to Fed.R.Civ.P. 56(b).1 Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment “shall be rendered forthw...
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OPINION Plaintiff Lee Daniel White brings this civil rights action against the city of Mus-kegon under Title 42 United States Code Section 1983. Now pending before this Court is defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, defendant’s m...
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MEMORANDUM OPINION AND ORDER Plaintiff Beverly Scott’s husband died in an automobile accident on October 13, 1987. Because defendant United of Omaha Life Insurance Company failed to pay death benefits on her husband’s life insurance policy, the plaintiff filed this action alleging breach of contract, fraud and bad faith refusal to honor an insurance contract. The defendant has filed a mot...
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ORDER This ease is before the court on plaintiffs request for: (1) a declaration that Georgia’s Applicant Drug Screening Act and related implementing regulations are unconstitutional; and (2) a permanent injunction against the enforcement and implementation of the Applicant Drug Screening Act and related implementing regulations. The court GRANTS plaintiffs requests. INTRODUCTION ...
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MEMORANDUM OPINION AND ORDER OF THE COURT ON ISSUES OF REINSTATEMENT AND FRONT PAY Presently before this Court are the issues relating to future relief, i.e., reinstatement and front pay, which the Court reserved to itself for decision following the July 1990 jury trial in this wrongful discharge/breach of employment contract lawsuit. 1 The parties have briefed their respective...
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DECISION AND ORDER This is a petition by Thayer Fayerweather for a writ of habeas corpus pursuant to Title 28 U.S.C. § 2254. It is presently before the Court for consideration of Fayer-weather’s appeal from a Magistrate’s Report and Recommendation issued pursuant to Title 28 U.S.C. § 636 which recommends denial of the petition. The issue presented is whether Fayerweather was denied his Sixth Am...
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MEMORANDUM AND ORDER This diversity of citizenship case comes before the court upon claimant Mutual Reinsurance Bureau’s (MRB) motion, pursuant to 9 U.S.C. § 9, seeking to confirm the arbitration award entered on December 13, 1988, in its favor and against respondent Great Plains Mutual Insurance Company, Inc. (GPM). MRB is an Illinois corporation which, at all times relevant to this...
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MEMORANDUM AND ORDER Presently before the court are post trial motions to stay garnishment proceedings pending appeal; to vacate sanctions imposed upon defendants’ counsel by the magistrate; and to impose sanctions upon plaintiff’s counsel. This matter was tried to a jury and resulted in a finding of liability against defendants for actual and punitive damages in the amount $756,795.33. T...
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MEMORANDUM AND ORDER Plaintiffs filed claims against defendant in this court for breach of contract and negligence (legal malpractice). Defendant responded with an answer and a motion to dismiss. The case now comes before the court on defendant’s Renewed Motion To Dismiss (Doc. 14), wherein defendant raises several Fed.R.Civ.P. 12(b) defenses. Plaintiffs have responded and oppose defendan...
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MEMORANDUM AND ORDER This is an action by the Federal Deposit Insurance Corporation (“FDIC”), in its corporate capacity as assignee of Farmer’s State Bank of Selden, Kansas (the “Bank”), against the former directors and officers of the Bank in which the FDIC seeks recovery for the damages claimed to have been sustained by the Bank as a result of the defendants’ alleged negligence, breach ...
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OPINION The plaintiff Elizabeth V. Bogosian, as owner of one third of the capital stock of Woloohojian Realty Corporation, filed a petition on January 19, 1989 in part to liquidate the defendant corporation under the provisions of Rhode Island incorporation law. Plaintiff’s brothers, James and Harry Woloohojian, also named as defendants, each owned one third of the corporation’s capital s...
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MEMORANDUM OPINION I. STATEMENT OF FACTS Faysound Limited (“Faysound”), a Hong Kong corporation, purchased a Falcon aircraft, the subject of this lawsuit, from the manufacturer at a cost of over nine million dollars. The plane was then leased to a Philippine corporation, United Coconut Chemicals (“UNICHEM”) for a period of five years on October 23, 1982. Paragraph 6.1 of the lease ag...
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ORDER Plaintiff’s complaint speaks of securities law and state law violations in connection with purchases of stock in a savings and loan association. Defendants move to dismiss the complaint in its entirety. With respect to Count I, defendants’ motion is granted in part and denied in part. With respect to Count II, defendants’ motion is granted. Defendants’ motion is denied as to Counts III-VII....
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ORDER & REASONS CHARLES SCHWARTZ, Jr., District Judge. Pursuant to Paragraph 3 of the Order of September 21, 1990 [R.Doc. No. 541], the parties have submitted in writing any objections to the proposed remedial order attached as Exhibit A of that Order (the “Proposed New Plan”).1 The Court rules as follows. The following parties have responded to the Order: the United States of America; the State o...
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OPINION This matter is before the Court on plaintiffs’ motion for a preliminary injunction. Plaintiffs, the American Federation of Government Employees, AFL-CIO, (“AFGE”) and its affiliates, on behalf of all AFGE bargaining unit civilian employees in the Defense Logistics Agency (“DLA”), seek an agency-wide injunction of random urinalysis drug testing. They also seek to enjoin implementation of...
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*137 ORDER On this date came on for consideration by the Court petitioner’s application for writ of habeas corpus filed pursuant to Title 28 U.S.C. Section 2254 seeking to vacate a state court order holding petitioner in civil contempt. Under consideration by the Court are the Findings and Recommendation of the United States Magistrate John W. Primomo as well as the objections thereto. Having...
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ORDER DENYING PETITIONER’S MOTION PURSUANT TO 28 U.S.C. § 2255 I. BACKGROUND On November 4, 1988, defendant Fabian Maya entered guilty pleas to conspiring to distribute cocaine in violation of 21 U.S.C. § 846 (Count One), and to the distribution of 1007.1 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) (Count Two). In Count I, defendant was accused of conspiring “on a date unknown to the Gr...
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MEMORANDUM OPINION AND ORDER The defendants, National Organization for Women, Inc. (“NOW”), Molly Yard (“Yard”), and Patricia Ireland (“Ireland”) are before this court on a motion to dismiss plaintiff Joseph M. Scheidler’s (“Scheidler”) second amended complaint. The defendants allege lack of personal jurisdiction over Yard, lack of jurisdiction over NOW, improper service of process, and t...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Court’s own motion to show cause why the matter should not be remanded back to Superior Court. The question presented is whether 28 U.S.C. § 1332(c) operates to defeat the Court’s subject matter jurisdiction over the case. For the reasons set forth below, the Court finds that § 1332(c) defeats the Court’s diversity jur...
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MEMORANDUM OPINION AND ORDER On October 9, 1990, plaintiff, Koos, Inc. (“Koos”) filed a verified complaint, along with a motion for a temporary restraining order, against defendant, Performance Industries, Inc. (“PII”). In response, PII filed a verified answer and raised certain defenses. Both parties also submitted affidavits. The Court scheduled a hearing on plaintiffs motion for a temporary ...
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MEMORANDUM AND ORDER This matter is before the court on an appeal from the bankruptcy court. Appellant Dr. Thomas Hicklin (Dr. Hicklin) challenges the bankruptcy court’s finding that his guaranty of a debt from Midwest Die-cast, Inc. (Midwest Diecast) to appellee Arkansas Aluminum Alloys, Inc. (AAA) was not dischargeable pursuant to 11 U.S.C. § 523(a)(2)(B). More specifically, Dr. Hick-li...
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793 F.Supp. 1457 (1990) Curtiss COBB, et al., Plaintiffs, v. ANHEUSER BUSCH, INC., et al., Defendants. No. 87-982C(1). United States District Court, E.D. Missouri, E.D. October 24, 1990. *1458 *1459 *1460 Mary Anne Sedey, St. Louis, Mo., for plaintiffs. Bryan, Cave, McPheeters & McRoberts, Vanessa L. Whiting, Dennis C. Donnelly, St. Louis, Mo., for defendant Anheuser-Busch. Jerome Diekemper, ...
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ORDER Introduction This case involves a claim by plaintiff that her decedent died as a result of excessive force utilized by police during an arrest of her decedent. On Friday August 17, 1990, the parties appeared in this court to argue plaintiff’s motion to produce documents from the Stockton police personnel and Internal Affairs files. Claudia W. Brisson represented the plaintiff; J. Anthony A...
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OPINION Plaintiff Linda Prak seeks to preliminarily enjoin defendant James S. Gregart, the Prosecuting Attorney of Kalamazoo County, from prosecuting her under a state law making it a misdemeanor to “use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child.” Mich.Comp.Laws § 750.337. The charge against plaintiff allegedly arose when she resp...
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MEMORANDUM AND ORDER This case comes before the court on the motion of defendant Security Insurance Company of Hartford (Security) for summary judgment pursuant to Fed.R.Civ.P. 56(b) (Doc. 31). Plaintiff has responded and opposes defendant Security’s motion (Doc. 38). For the reasons stated below, the motion is granted. Originally, this declaratory judgment action involved two succee...
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MEMORANDUM OF DECISION AND ORDER Plaintiffs, the United States of America and the State of New York (“Regulators”), move either for an order finding the defendants, County of Nassau and Nassau County Department of Public Works (“Nassau”), in contempt of provisions of the Consent Decree and Enforcement Agreement (“Decree”), or for modification of the Decree. Nassau cross-moves for an order to comp...
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MEMORANDUM OPINION AND ORDER Plaintiff has appealed the decision of the Secretary of Health and Human Services denying her application for disability insurance benefits. The parties cross-moved before Magistrate Michael Dolinger for judgment on the pleadings. Magistrate Doling-er has submitted a Report and Recommendation, which recommends that plaintiffs motion be granted, that defendant’s motion...
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MEMORANDUM ORDER The defendants removed this case from the 336th Judicial District Court, Grayson County, Texas, alleging fraudulent joinder of the two non-diverse defendants, Keith Petrick (Petrick) and Guy Nichols (Nichols). Simultaneous with the removal, the defendants filed a motion to dismiss, seeking the dismissal of the plaintiffs’ suit as to Petrick and Nichols. The plaintiffs have moved t...
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MEMORANDUM and ORDER Debtor Winston Inn & Restaurant Corporation appeals the dismissal of its action against defendants Agosto DeMichiel, Al- *632 fons 0. Krautz and Donald H. Capobianco for failure to satisfy the conditions precedent to a sale to them of certain bankruptcy assets. See Bankruptcy Rule 8001 and 28 U.S.C. § 158 (1988). The bankruptcy court correctly ...
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749 F.Supp. 979 (1990) Mary E. GANNON, Plaintiff, v. SHERWOOD MEDICAL COMPANY, Defendant. No. 89-1971C(6). United States District Court, E.D. Missouri, E.D. November 1, 1990. *980 John Bleckman, St. Louis, Mo., for plaintiff. Thomas O. McCarthy, McMahon, Berger, Hanna, Linihan, Cody & McCarthy, St. Louis, Mo., Peggy Rabkin, New York City, for defendant. MEMORANDUM GUNN, District Judge. This ...
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OPINION AND ORDER ON THE REPRESENTATION OF THE STATE This case is before the Court on the motion of the Attorney General of the State of Louisiana to Designate Counsel for the State and Withdraw Designation of Additional Counsel [Record Document No. (R.Doc.) 517A]. Civil Action No. 90-4109 is also before the Court on the motion of the Attorney General to remand to state court [R.Doc. 9]. The Atto...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Defendants are charged under the Assi-milative Crimes Act, 18 U.S.C. § 13, 1 with conspiracy to commit murder and aggravated battery (punishable by Ill.Rev.Stat. ch. 38 MI 8-2, 9-1 and 12-4) and solicitation of murder (punishable by Ill.Rev.Stat. ch. 38 ¶¶ 8-1 and 9-1). Pending are various pretrial motions brought by defendants. This opinion addr...
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ORDER Pending before the Court is plaintiffs Motion for Summary Judgment. Having considered the entire record herein, the Court concludes that plaintiff is entitled to the entry of judgment in its favor. The issue before the Court concerns whether plaintiffs purchase money mortgage lien has priority over defendant, Valley Acceptance’s (Valley) lien. Plaintiff argues, and the court agrees, that pur...
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ORDER In a thorough and comprehensive report and recommendation entered herein on September 8, 1990, the United States Magistrate recommended dismissal of plaintiffs’ claim that defendant Ros failed to provide plaintiff Donald Hopkins with a safe place of employment as required by Wis.Stat. § 101.11(1). The magistrate also recommended denial of defendants’ alternative motion for summary judgment....
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749 F. Supp. 714 (1990) Mei-Mei VENNERS and John Venners, Plaintiffs, v. KIMBALL INTERNATIONAL, INC., Kimball Office Furniture Co., and Frank Sessa, Defendants. Civ. A. No. 90-836-A. United States District Court, E.D. Virginia, Alexandria Division. September 27, 1990. Scott William Woehr, Washington, D.C., for plaintiffs. Kathryn Amelia Ledig, Oakton, Va., for defendants. MEMORANDUM OPINION HILT...
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MEMORANDUM AND ORDER Emerado Public School District No. 127 (Emerado) filed an action against Mark Sanford, Grand Forks Public School District No. 1 (Grand Forks), Kathryn Haltli and three other defendants 1 on May 23, 1990. Before the court is defendants’ motion to dismiss for lack of subject matter jurisdiction.2 The burden of establishing jurisdiction is on the plaintiff. Schmidt v. United Stat...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs motion for a preliminary injunction and a prejudgment attachment order pursuant to Rules 64 and 65 of the Federal Rules of Civil Procedure. Plaintiff requests equitable relief in the form of an injunction preventing defendant Atchison Grain Company, Inc. (“Atchison Grain”) from selling any of its assets prior to final judg...
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OPINION AND ORDER This action is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., for employment discrimination and retaliation. Defendant, United States Postal Service, moves for summary judgment pursuant to Fed.R. Civ.P. 56(c). For the reasons set forth below, defendant’s motion is granted in part and denied in part. 1 B...
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MEMORANDUM OPINION Plaintiffs filed this action in state court, naming as defendants Coastal Financial Management Co., Commonwealth Mortgage Company of America, L.P. (“CMCALP”) and Commonwealth Mortgage Corporation of America (“CMCA”). 1 CMCALP and CMCA are subsidiaries of Commonwealth Savings Association (“CSA”), which was not named as a defendant to this action. The Federal D...
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OPINION Plaintiff Jill Annette Krause filed the present three-count action in the Ingham County Circuit Court, State of Michigan, against defendant Kimberly-Clark Corporation alleging negligence, failure to provide an adequate warning, and breach of implied warranties. Plaintiffs action arises out of claims that while using defendant's KOTEX Security Super Tampons, she suffered toxic shoc...
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OPINION AND ORDER This civil rights matter comes before us for consideration of a Motion to Quash filed by the Pennsylvania state police, who are not a party to this action. Oral argument was held by telephone conference on October 30, 1990. It is our judgment that said motion should be denied. The plaintiffs have scheduled discovery and seek access to certain records concerning an incide...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT THE FACTS Plaintiff International Brotherhood of Electrical Workers, Local 2286 (the Union) and Defendant Gulf States Utilities Compa*778ny (the Company) have filed cross motions for summary judgment. This lawsuit is before the court because the parties cannot agree on the meaning of their Collect...
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OPINION Plaintiff, Robert Hamilton, brought this action against his former employer, defendant, Air Jamaica, Ltd., seeking additional severance pay under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1002 et seq., and additional vacation pay under Pennsylvania contract law. After conducting a bench trial on the merits of these claims, I find for pla...
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MEMORANDUM OPINION AND ORDER Presently before the court is Defendant Union Oil Company of California’s (“Unocal”) second motion for partial summary judgment. Unocal seeks dismissal with prejudice of state law claims for intentional infliction of emotional distress and conspiracy to intentionally inflict emotional distress filed as part of the amended complaint of Plaintiff Buel L. Sauls, ...
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*316 MEMORANDUM ORDER Plaintiff Vikonics, Inc. (“Vikonics”) filed this “disappointed bidder” suit on October 2, 1990. By Order filed October 4, 1990, the Court denied Vikonics’ motion for a temporary restraining order. The case is now before the Court on Vikonics’ Motion for a Preliminary Injunction, filed on October 11, 1990. The Court heard argument on the motion on October 23, 1990. After ...
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MEMORANDUM ORDER This matter comes before the court on plaintiff’s demand for a trial by jury. On August 16, 1989, plaintiff filed this action pursuant to 42 U.S.C. § 1983. Defendants Thereault, Hundley, and Koziol filed signed answers and grounds of defense on January 19, 1990,1 2and each filing included a certificate of service signed by counsel and dated January 19, 1990. Defendants Dorson, Ta...
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MEMORANDUM OPINION This matter is before the Court on plaintiff’s motion for a preliminary injunction (Filing No. 3). This is an action for deprivation of Constitutional rights brought pursuant to 42 U.S.C. § 1983, for violation of the Federal Communications Act, 47 U.S.C. § 201 et seq., and for violation of state law. 1 Jurisdiction of this Court is premised on 28 U...
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OPINION AND ORDER Plaintiff Betys Greenspon moves pursuant to Rule 50 of the Federal Rules of Civil Procedure to set aside the jury’s verdict granting damages to the plaintiff in the amount of $431,000, and for a new trial. Defendant cross moves for an order pursuant to Rule 59(e) amending the verdict to effect a reduction of $112,000. Plaintiff points to the jury’s failure to award damages for pa...
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On Appeal from the Territorial Court of the Virgin Islands BEFORE: STANLEY S. BROTMAN, Acting Chief Judge, District Court of the Virgin Islands, Judge of the United States District Court for the District of New Jersey, Sitting By Designation, JOSEPH J. FARNAN, JR., Judge of the United States District Court for the District of Delaware, Sitting by Designation, and IVE A. SWAN, Judge of the Territor...
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RULING Before the court are Cross Motions for Partial Summary Judgment. One motion is filed by plaintiff Kiva Construction & Engineering, Inc. (Kiva). The other motion is filed by defendant Southern Natural Gas Company (Southern). In September 1986, Kiva contracted with Southern to perform bank stabilization/restoration work on the Bogue Chitto River near Franklinton, Louisiana. Pursuant to the co...
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*717 MEMORANDUM OPINION Introduction This suit by a psychiatrist to enjoin the State of Virginia from revoking her medical license raises an unsettled question under the Younger abstention doctrine. 1 Plaintiff, a Virginia resident, is licensed by the Virginia Board of Medicine (the “Board”) to practice psychiatry in the Commonwealth. She seeks inju...
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MEMORANDUM AND ORDER This is a Federal Tort Claims Act case. Plaintiff is bringing this action as an individual, as a representative of the heirs of Kenneth Edwards, and as the administra-trix of the Estate of Kenneth Edwards. Plaintiff alleges that Kenneth Edwards died as a result of medical malpractice at the Colmery-O’Neil Veterans Administra *1071 tion Medical Center (VAMC) in Topeka, Kan...
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OPINION Reconsideration of detention orders of July 31, 1989 for defendants Joseph Gatto, Alan Grecco, and Stefano Mazzola This matter comes before the court on the renewed applications of defendants Joseph Gatto, Alan Grecco, and Stefano Maz-zola for reconsideration of their orders of detention. For the reasons stated below, the court has reconsidered its detention decisions and now...
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MEMORANDUM AND ORDER This action presents a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody. The petitioner, Val Mayfield, is a prison inmate at the Massachusetts Correctional Institution (“MCI”) — Cedar Junction. The named respondent, Michael Maloney, is the Superintendent of MCI-Cedar Junction.1 The petitioner asserts four constitutional challenges to his...
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MEMORANDUM Before the Court are four motions to sever or strike parts of the indictment in this action. On February 28, 1990, defendant Lafayette “Fate” Thomas filed a motion to sever Count 35, which relates to the Hobbs Act, pursuant to Rule 14, Fed.R. Crim.P. (Docket Entry No. 104). On April 9,1990, defendant Thomas filed a motion to strike racketeering acts four and 14 of Counts One and Two re...
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MEMORANDUM The petitioner, an inmate presently incarcerated at FPC-Allenwood, Pennsylvania, filed the above-captioned petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on March 27, 1990. See document 1 of record. Petitioner contended that the Parole Commission improperly computed his severity rating by incorrectly construing 28 C.F.R. § 2.20 (hereinafter Section 2.20). After this co...
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On Appeal from the Territorial Court of the Virgin Islands BEFORE: STANLEY S. BROTMAN, Acting Chief Judge, District Court of the Virgin Islands, Judge of the United States District Court for the District of New Jersey, Sitting By Designation, JOSEPH J. FARNAN, JR., Judge of the United States District Court for the District of Delaware, Sitting by Designation, and IVE A. SWAN, Judge of the Territor...
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MEMORANDUM This case is now before the Court on defendant Keith Maling’s motion to suppress certain physical evidence seized by the New Jersey State Police from an automobile operated by the defendant on Interstate 80 in New Jersey. On February 26, 1982, Keith Maling was driving a 1979 Ford LTD automobile registered in Massachusetts to a Scott Arey. Keith Maling, the driver, was accompanied by ...
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MEMORANDUM OF DECISION AND ORDER Defendants, County of Nassau and the Nassau County Department of Public Works (“Nassau”), move to modify the August 2, 1989 Consent Decree and Enforcement Agreement (“Decree”) by replacing *464paragraphs V.4, V.5, and V.6, which require Nassau to award contracts for and commence construction of sewage sludge dewatering equipment and facilities, with a paragraph pe...
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MEMORANDUM DECISION AND ORDER This matter is before the court on cross-motions for partial summary judgment. A hearing was held on June 1, 1990, at which the plaintiff was represented by Randall S. Peil and the defendants were represented by Keith E. Taylor, Spencer E. Austin and Douglas R. Davis. The court had carefully read the relevant documents submitted by the parties before the hearing, a...
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MEMORANDUM ORDER This action is now before the Court on defendants’ motion to dismiss for lack of subject matter jurisdiction. For the reasons set forth below, defendants’ motion is denied. Background On June 9, 1989, a jury in the United States District Court for the Southern District of New York found defendant Paul A. Bilzerian guilty on nine counts which charged violations of the federal se...
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ORDER LIMITING DISCOVERY The Amended Complaint (# 9), filed March 27, 1990, on behalf of Plaintiff Rebel Oil Company, Inc., and Auto Flite Oil Company, Inc. (hereinafter “REBEL”) alleges three claims for relief against Defendant Atlantic Richfield Company (hereinafter “ARCO”). REBEL brings this action under Section 4 of the Clayton Act seeking treble damages of at least $10,000,000 under three ca...
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OPINION AND ORDER Joseph Patrick Thomas Doherty, an illegal alien in custody pending deportation, petitions for a writ of habeas corpus on a narrow ground. He contends that the due process clause of the Fifth Amendment of the Constitution prohibits his prolonged detention and mandates his release on bond notwithstanding that the Board of Immigration Appeals (“BIA”) has fairly and reasonab...
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MEMORANDUM ORDER This matter is before the Court on defendant’s motion for summary judgment. Plaintiff brings this action alleging negligence on the part of the defendant in connection with a slip-and-fall incident on September 26, 1987, at the Grand Hyatt Hotel. On that date, plaintiff was modeling clothes for Woodward & Lothrop, which had leased space from the defendant for a fashion show. Whil...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This matter is before the Court on defendants’ motion to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). Defendants C. Robert Ivey and Ineco, Ltd. assert that this Court lacks jurisdiction over them. They contend that jurisdiction over them, by terms of plaintiffs complaint, is based upon the Comprehensive Environ...
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ORDER & OPINION This is an action for declaratory and in-junctive relief, and for monetary damages, arising from defendant Liberty Mutual Insurance Company’s (“Liberty”) alleged breaches of its contractual and fiduciary duties owed to its insured, Emons Industries, Inc. (“Emons”). Emons now comes before the Court on a motion for a preliminary injunction enjoining Liberty from interfering ...
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MEMORANDUM DECISION AND ORDER This ERISA claim is before the Court for decision following a bench trial. Plaintiffs are trustees of the Local 807 Labor Management Health Fund (the “Fund”). Defendant, Brink’s, Inc. (“Brink’s”), withdrew recognition from Local 807 upon expiration of their last collective bargaining agreement. Plaintiffs seek to compel defendant to make benefit contributions to the ...
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ORDER & OPINION Plaintiff seeks $62,500 for damage to a machine that allegedly occurred while the machine was in transit between Busan, Korea, and South Kearny, New Jersey. Defendant Consolidated Rail Corporation (“Conrail”), has moved for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking to limit its potential liability to $500 under 46 U.S.C.App. §§ 1300-...
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MEMORANDUM AND ORDER Geoffrey Baker, the Hawk Corporation, and Walter Wright brought this securities fraud claim against BP America, Inc., under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5; the complaint also in-eludes pendant state law claims for fraud and breach of contract. BP responded wit...
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ORDER INTRODUCTION In this diversity action based upon the Minnesota Franchise Act, Minn.Stat. § 80C.01 et seq., defendants Rexair, Inc. (“Rexair”), Thomas Lamb (“Lamb”), J.V. Sanders (“Sanders”), and Douglas Cunningham (“Cunningham”) move pursuant to Fed.R.Civ.P. 12(b)(3) to dismiss plaintiff Jonathon Knutson’s complaint for improper venue or, alternatively, to transfer t...
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ORDER ON DEFENDANT PROFESSIONAL NUMISMATISTS GUILD, INC.’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION This is an action brought by two couples against a rare coin dealer and a numismatic organization for breach of warranty, mis *278 representation, unfair and deceptive trade practices, and negligence. The defendant Professional Numismatists Guild, Inc. (“PNG”) has moved to dismiss th...
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OPINION This is an action arising under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”).1 1. Factual Background Daeshik Seo, a Korean, came to this country in 1976 with a wife and four children. In Korea, Mr. Seo earned a master’s degree, and had been, among other things, a teacher of biology and art, a boxing champion, one of three world grand masters in the ...
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ORDER Plaintiffs Walter and Diane Carlson brought this medical malpractice action against defendant, Dr. John Grobman. This Court, in an Order dated July 3, 1990, granted defendant’s motion for summary judgment. Currently before the Court are plaintiffs’ motion for reconsideration and plaintiffs’ motion for leave to file supplemental response to expert interrogatories. For the reasons stated here...
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MEMORANDUM OPINION This is an action for unfair competition in which the plaintiff (Ferrari) alleges that its unregistered trademarks have been infringed by the defendant (Roberts). 1 The trademarks at issue are claimed in the exterior *1140 shapes and features of two of Ferrari’s automobile models, the 365 GTB/4 (Dayto-na Spyder) and the Testarossa. Accused of inf...
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Plaintiff, Ralph Heineman, brought this action against individual and corporate defendants, seeking damages for federal securities and common law fraud, violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), breach of plaintiffs employment contract, and a derivative action for waste of corporate assets. Jurisdiction was predicated on the federal law claims and diversity ...
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RULING ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT The plaintiff, a black citizen, originally filed this action on March 13, 1986; his second amended complaint alleges that defendants Robert Raymond and Dow Chemical Company violated Title 42 U.S.C. § 1981, and that Dow also violated Title VII (42 U.S.C. §§ 2000e-2 and 2000e-3), by discriminating against him on the basis of his race. He cl...
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743 F. Supp. 1237 (1990) Herbert C. LINDER, Plaintiff, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant. Civ. No. A-87-CA-834. United States District Court, W.D. Texas, Austin Division. April 19, 1990. *1238 Terry Davis, Austin, Tex., for plaintiff. Tony P. Rosenstein, Carol R. Helliker, Baker & Botts, Houston, Tex., for defendant. FINDINGS OF FACT AND CONCLUSIONS OF LAW WALTER S. S...
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ORDER Plaintiff Polyclad Laminates, Inc. (Poly-clad) objects to and moves for reconsideration of the Magistrate’s April 18, 1990, Report and Recommendation in which the Magistrate proposed that the Court stay the pending lawsuit in favor of arbitration. 1. Background In 1982 Polyclad, a manufacturer of printed electronic circuit boards, began negotiations to purchase a “cust...
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ORDER This action arises out of injuries sustained by the Plaintiff during construction of an aircraft maintenance facility at Fort Hood, Texas. Plaintiff sues the United States, and in particular, the United States Army Corps of Engineers alleging that his injuries were the result of the Defendant’s defective design and engineering work, negligently conducted geotechnical work, and negli...
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MEMORANDUM AND ORDER This matter is before the Court on the motion of the debtor to stay an order of the bankruptcy court, pending appeal. The bankruptcy court’s September 24 order is at issue here, in which that court granted the motion of Community Federal to set aside the automatic stay and to proceed with a foreclosure sale scheduled for November 9, 1990. 119 B.R. 695 (E.D.Mo. 1990). ...
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ORDER This is an action commenced by plaintiff, First Northern Bank (FNB) seeking recovery of holdback payments from Imperial Savings Association (ISA). First Northern Bank initially filed suit in New Hampshire State Court alleging that ISA refused to release appropriate holdback amounts pursuant to certain agreements between FNB and ISA. On January 9, 1989, pursuant to 28 U.S.C. §§ 1332 ...
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ORDER This case presents a labor dispute between Local 271-M of the Manchester Printing Pressmen and Assistants Union (“Local 271-M”) and the Union Leader Corporation, publisher of the Union Leader, a daily newspaper published in New Hampshire. The Court has previously denied Local 271-M’s motion for a temporary restraining order because Local 271-M failed to comply with Rule 65, Fed.R.Civ.P. Pre...
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ORDER On February 2, 1990, plaintiff, David Kissell, filed a small claims complaint against defendant, Gene Mann, Supervisor of Manchester Postal Unit No. 4. Plaintiff’s complaint alleged “failure to exibit (sic) reasonable care in delivering a package. The packge (sic) was stolen.” Pursuant to 28 U.S.C. §§ 1441, 1442(a)(1) and 1446, defendant removed the case to this Court. Currently before th...
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MEMORANDUM AND ORDER For consideration and decision by the court this 8th day of March, 1990 is the motion of the third party defendant, Garden National Bank (GNB), for a protective order and stay of discovery (Dkt. # 157 filed September 5, 1989) and the motion for protective order filed by defendant and third party plaintiff, Kirchner Moore and Company (KMC), on September 7, 1989 (Dkt. # 161) fo...
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ORDER 21 In response to Order 20, plaintiffs have stated to the court that they “do not and will not seek to recover lost profits,” and that their damages will be measured in this price-fixing case by “calculating the extent of unlawful overcharges imposed by defendants.” Based on these statements, and upon the authorities discussed in the supporting and opposing memoranda filed in connection with...
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*11MEMORANDUM AND ORDER I. BACKGROUND This case is before the Court on cross motions for summary judgment. The plaintiff, a health care provider doing business as Laurel Ridge Hospital, provides inpatient psychiatric services under the Civilian Health and Military Program of the Uniformed Services (“CHAMPUS”). In its complaint, the plaintiff claims that it has been paid lower rates than those requ...
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DECISION AND ORDER In an October 23, 1989 Decision and Order, this Court granted plaintiff’s summary judgment motion to enforce a guaranty agreement executed in connection with an issue of industrial development revenue bonds. Pursuant to the letter of the loan agreement, the Court granted plaintiff $24,049.74 in attorneys’ fees, costs, and expenses to enforce the guaranty, id. at pp. 22-23, and r...
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ORDER Pending before us is an appeal from the March 3, 1989 order of the bankruptcy court confirming the reorganization plan of a debtor under Chapter 11 of the Bankruptcy Code. (Title 11 U.S.C.). Appellant, Efectos Litografíeos, S.A. is an unsecured creditor of debtor, the appellee, National Paper & Type Company of Puerto Rico (National Paper). National Paper is in the business of distri...
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MEMORANDUM AND ORDER Plaintiffs brought this action for, among other things, an order (a) enjoining any further construction or planning for construction on certain land known as Site 4 in Williamsburg Urban Renewal Area I (Area I), and (b) rescinding the sale of the land by the City of New York (the City). Plaintiffs are Southside Fair Housing Committee (the Housing Committee) and eighteen perso...
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OPINION THIS CAUSE is before the court on the motion for summary judgment of defendants Florida Fuels, Inc. (“Florida Fuels”), Douglas R. Lathrop, Todd W. Huinker, International Marine Sales, Inc., Stig Host, Davidson D. Williams, Lathrop and Associates, and Florida Marine Towing, Inc., filed May 19, 1989. 1 Having carefully reviewed the record, the parties’ exhaustive memo-ran...
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OPINION Appellants Oregon State Scholarship Commission, Hemar Insurance Corporation of America, and Higher Education Assistance Foundation (objecting creditors) appeal the bankruptcy court’s order confirming debtor Laurie Ann Selden’s (debtor) chapter 13 plan. Appellants contend the bankruptcy court erred in finding that debtor filed the plan in good faith and failed to follow controlling...
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Reginald Lewis (“Lewis”) moves to remand this case to the Supreme Court of the State of New York, and for costs and legal fees incurred in making this motion. The motion to remand is granted, but the motion for costs and fees is denied. I Lewis filed this action alleging libel, slander, and intentional infliction of emotional distress in New York state court against Travelers and defe...
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MEMORANDUM OPINION AND ORDER Plaintiff Earl M. Cadwell, a black male, brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1988), alleging that the defendants did not appoint him to a position as a correction officer for racially discriminatory reasons. Defendants move for summary judgment dismissing the complaint. For the reasons that follow, defe...
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OPINION This matter is before the Court on plaintiff’s motion for summary judgment and on defendant’s and defendant-intervenor’s cross-motions for summary judgment. Plaintiff seeks a declaratory judgment that a Copyright Office regulation is invalid for its failure to retroactively assess interest on late royalty payments. Defendant and intervenor seek to uphold the regulation as valid. F...
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OPINION Shortly after I issued Vas-Cath Inc. v. Mahurkar, 745 F.Supp. 517 (N.D.Ill.1990), the Judicial Panel on Multidistrict Litigation transferred to me two related cases. A fourth case was transferred from within the Northern District of Illinois. On October 29, 1990, I held an initial conference to set schedules for the consolidated pretrial proceedings, and combined this with oral argument o...
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MEMORANDUM AND ORDER Defendants in this action have pled guilty to violations of the Uniformed Controlled Substances Act. Mr. Shabazz entered a guilty plea to one count of Unlawful Conspiracy to Distribute Dilaudid (hydromorphone hydrochloride) in violation of 18 U.S.C. § 371, and Mr. McNiel pled guilty to one count of Distribution of Dilaudid in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C). The...
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OPINION Defendants-Appellants International Association of Machinists and Aerospace Workers, AFL-CIO et al. (collectively “IAM”) appeal from an injunction order entered by the Bankruptcy Court for the Southern District of New York on an application from Eastern Air Lines, Inc. (“Eastern”). In re Ionosphere Clubs, Inc., 108 B.R. 901, 948 (Bkrtcy.S.D.N.Y.1989). The inj...
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OPINION Terry Winfield Kellman (“Kellman”) has petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Kell-man is currently being held under detention by the Immigration and Naturalization Service (“INS”) while awaiting the outcome of deportation hearings. He has challenged the constitutionality of Section 242(a)(2) of the Immigration and Nationality Act of 1952, ...
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MEMORANDUM OPINION Plaintiff Jean O. David is an employee of defendant United States Postal Service (“USPS”) in St. Thomas. Plaintiff alleges that on November 6, 1985, his supervisor, defendant Terecita Rivera, reassigned him from the Veteran’s Drive Annex Post Office to the General Post Office at Sugar Estate, because of his sex and in reprisal for his having filed a previous equal employment opp...
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OPINION Prom October 2 to October 5, 1990, Irvin Brodie, half brother of the defendant Carl Everton Simon, was on trial before this Court for first-degree murder, use of an unlicensed handgun in a crime of violence, and flight to avoid prosecution. Government v. Brodie, Crim. *409 Nos. 90-59 & 90-87 (Carter, J.). While at her home on the evening of October 3,1990, Angelí Turbe...
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MEMORANDUM AND ORDER Defendants’ motion to dismiss the complaint for lack of subject matter jurisdiction is denied. Fed.R.Civ.P. 12(b)(1). Defendants’ motion for summary judgment is denied. Fed.R.Civ.P. 56. BACKGROUND On April 4, 1983, Steven John Donahue entered into a plea agreement with the United States Attorney for the District of New Jersey, in which he agreed to truthfull...
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MEMORANDUM & ORDER I. On April 6, 1990, the Defendant gave notice pursuant to Rule 12.2 of the Federal Rules of Criminal Procedure that he intended to avail himself of an insanity defense. In this motion the Defendant, who is charged with numerous counts of bank and wire fraud, is seeking to challenge the constitutionality of the Insanity Defense Reform Act of 1984 (“IDRA” or “Act”)....
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ORDER This diversity action alleging libel, fraud and tortious interference with contractual relations is before the court on Plaintiff’s motion to amend its complaint and Defendant Western Iowa Farms Co.’s (“Western”) motion to dismiss for lack of personal jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted or, alternatively, for s...
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OPINION AND ORDER I. Introduction This is an action brought by former board members of the Bennington School District and officials of the Southwest Vermont Supervisory Union for a declaratory judgment that insurance coverage exists for them under a board of education liability insurance policy issued by Continental Casualty Company to the Southwest Vermont Supervisory Union and ...
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ORDER DENYING DEFENDANT CITY OF MIAMI’S MOTION TO DISMISS AMENDED COMPLAINT Plaintiff JOHNNY BELL files this civil rights suit under 42 U.S.C. Section 1983 against the City of Miami and unknown members of the Miami Police Department. In his Amended Complaint, Plaintiff alleg *1476 es that on November 13, 1985, the unknown Defendants burst into his apartment fully armed and pushed him from his...
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MEMORANDUM OF DECISION AND ORDER This case returns to the Court on Plaintiff Augusta News Company’s Motion for Preliminary Injunction. For the reasons discussed below, the Motion is denied. I. BACKGROUND Augusta News Company (d/b/a Kenne-bec News Company, hereinafter Plaintiff) is a Maine corporation engaged in the wholesale distribution of periodicals in *29 Maine....
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MEMORANDUM OPINION AND ORDER Consolidated Rail Corporation (“Conrail”) filed an Amended Complaint against ACF Industries, Inc. (“ACF”), charging that ACF owes Conrail $29,378.47 in freight charges for the transportation of 22 empty cars owned by ACF. ACF now moves for summary judgment under Fed.R.Civ.P. (“Rule”) 56.1 For the reasons stated in this memorandum opinion and order, ACF’s motion is gra...
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ORDER This case arises out of a bicycle accident on August 30, 1987, when Plaintiff Thomp *300 son collided with a water hose that allegedly had been negligently placed along a bicycle path near the Vietnam Memorial. Pursuant to the Federal Tort Claims Act, the plaintiff timely filed a Standard Form 95 (SF-95) on August 25, 1989. Although the SF-95 did not state a sum certain amount for dam...
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MEMORANDUM OPINION AND ORDER I. Defendant is charged with robbery in the second degree and possession of stolen property. These crimes allegedly occurred on January 21, 1990. Defendant was arrested on March 29, 1990 and arraigned on March 30, 1990. A two-count information was filed on April 4, 1990. On May 10, 1990, the day set for trial, the government moved in open court to dismiss the informati...
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MEMORANDUM OF DECISION AND ORDER This case is before the Court on Plaintiff’s Motion for Approval of Attachment and Trustee Process against the individual Defendant Dwight Raymond. For the reasons discussed below, Plaintiff’s Motion will be denied. I. BACKGROUND Hilton Sea, Inc. (hereinafter Plaintiff) is a Florida corporation which contracted on February 3, 1989 with DMR Yachts...
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MEMORANDUM OF DECISION AND ORDER This case comes to the Court on Defendant Wendell Atkinson’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the Motion is granted. I. BACKGROUND Harold Glidden (hereinafter Plaintiff), a prisoner at the Maine State Prison (hereinafter Prison), was a participant in the Prison’s craftroom program. Appar...
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ORDER Pending before the Court are motions by Third Party Defendants to dismiss both the Third Party Complaint and the Plaintiff’s Amended Complaint against them for lack of subject matter jurisdiction. For the reasons stated below, these motions are denied. FACTUAL BACKGROUND On May 6, 1988 a Burlington Northern Railroad (“Burlington”) train was traveling eastbound near Kewanee...
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MEMORANDUM OPINION Mr. Kien originally filed this action pro se against the United States, the Secretary of the Navy (Navy), the Director of the Office of Personnel Management (OPM), the Secretary of Labor, the Chairman of the Merit System Protection Board (MSPB), and the Chairman of the Equal Opportunity Employment Commission (EEOC). Mr. Kien’s complaint arose out of his termi...
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MEMORANDUM OPINION AND ORDER Plaintiff 87 South Rothschild Liquor Mart, Inc. (“Liquor Mart”) seeks declaratory and injunctive relief against Walter S. Kozubowski, City Clerk of the City of Chicago (“Kozubowski”), the Board of Election Commissioners of the City of Chicago (“Election Board”), Richard M. Daley, May- or of the City of Chicago (“Daley”), the Local Liquor Control Commission of the Ci...
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749 F. Supp. 1094 (1990) AMERICAN PERFORMANCE, INC., a Colorado Corporation, Plaintiff, v. Robert S. SANFORD and Bruner R. Dicus, Defendants. Civ. A. No. 90-T-385-S. United States District Court, M.D. Alabama, S.D. August 24, 1990. Simeon F. Penton, Montgomery, Ala., for plaintiff. Joe S. Pittman, J. Stafford Pittman, Enterprise, Ala., for defendants. MEMORANDUM OPINION MYRON H. THOMPSON, Distri...
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ORDER This matter is before the court on appeal by plaintiff from an Order of the Bankruptcy Court of 20 March 1990 denying the relief sought and dismissing the action. 120 B.R. 827. Plaintiff, appearing pro se, instituted this action against Peggy Deans, the clerk of the Bankruptcy Court of this District, seeking to compel her to deliver to him, upon the payment of “a reasonable copying fee”, cer...
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MEMORANDUM OPINION AND ORDER This case involves entitlement to oil shale mining patents by plaintiffs, owners of real estate in Western Colorado, and is the latest phase of extensive litigation concerning validity of claims to oil shale patents. 1 Questions presented are whether plaintiffs have complied with all requirements necessary for issuance of patents and whether defenda...
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MEMORANDUM RULING ON MOTION FOR SUMMARY JUDGMENT Plaintiffs instituted this suit under the Jones Act for negligence and the general maritime law for unseaworthiness and negligence. Kennedy was injured on May 26, 1987. He was employed by Gulf Crews as a seaman aboard the M/V Jillian. The vessel was owned by Service Boat Rentals, Inc. Roderick Primeaux, the captain of the M/V Jillian at the time ...
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ORDER REMANDING CASE TO STATE COURT On May 4, 1990, plaintiff Thomas E. Workman initiated this personal injury action by filing a Complaint against defendants Kawasaki Motors Corporation, U.S.A. (Kawasaki) and Cheek Enterprises, Inc. in the Circuit Court of Clay County, Missouri. At the request of Kawasaki, this case was removed to the United States District Court for the Western District of Mi...
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MEMORANDUM OPINION AND ORDER In this action under the Copyright Act between two music publishers, plaintiff seeks a declaration that defendant’s rights in certain songs have been terminated and an accounting. Defendant moves under Rule 56, Fed.R.Civ.P., for summary judgment dismissing the complaint. Background Plaintiff Larry Spier, Inc. (“Spier”) and defendant Bourne Co. (“...
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ORDER COMPELLING ARBITRATION This cause is before the Court on the following: Defendant Shearson Lehman Hutton, Inc.’s motion to compel arbitration of Plaintiff Bradford C. Hagerman’s Complaint and to stay this action pending the outcome of the arbitration. Defendant’s motion was filed May 10, 1989. Plaintiff’s response to Defendant Hutton’s motion to compel arbitration, filed May 24...
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OPINION Two separate but factually related cases have been brought by the Railway Labor Executives’ Association (“RLEA”). The first case is an action for declaratory judgment and injunction, captioned Railway Labor Executives’ Association v. DiCello, Trustee, Civil Action 89-169 (hereinafter “the declaratory judgment action”); the second case is an appeal from a decision of the United States Bank...
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MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT In this diversity action, which arises out of the alleged breach of an employment contract, the Magistrate has recommended that the Court grant summary judgment for Defendant Towery on Counts II, VIII, IX, and that part of Count IV based on 26 M.R.S.A. §§ 626 and 626-A 1 and for De...
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ORDER This cause is before the Court on the following: 1. Motion to Dismiss Plaintiff’s Complaint and Motion to Strike Plaintiff’s Request for Attorneys’ Fees and Punitive Damages, filed April 4, 1990, by Defendant Shearson Lehman Hutton, Inc. (Hutton) 2. Response of Plaintiff Mildred Knight (Knight) To Defendant’s Motion To Dismiss, filed May 10, 1990 Defendant’s motion to...
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OPINION AND ORDER Defendant Middleton had this sexual harassment case removed to federal court and plaintiffs seek a remand to state court (and costs) pursuant to 28 U.S.C. § 1447(c). That statute provides in part that a case shall be remanded if “it appears that the district court lacks subject matter jurisdiction.” Furthermore: “An order remanding the case may require payment of just costs and ...
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ORDER Before the court is defendant Federal Insurance Company’s (“Federal”) motion for summary judgment. For the reasons discussed below, the motion is denied. FACTS In 1972, plaintiff Foote, Cone and Beld-ing Communications, Inc. (“FCB”), a corporate holding company for a number of marketing communications firms, hired James T. Arnold (“Arnold”) to work as a field representative in one of ...
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SECOND AMENDED OPINION Petitioner MELVIN MEFFREY WADE (WADE) has filed a Petition For Writ of Habeas Corpus By a Person In State Custody alleging his conviction and death sentence for: murder; torture special circumstance, and heinous, atrocious and cruel special circumstances is unconstitutional on various grounds; They are: *932 1. Ineffective Assistance of Counsel at Voir Dire 2. Ineff...
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ORDER AND REASONS This matter is before the Court on the plaintiff’s motion for re-hearing on defendant’s motion for summary judgment [Record Document No. 30]. Determining in its discretion that oral argument is unnecessary, the Court CANCELED the hearing on the motion, previously set for October 24, 1990. For the following reasons, the Court now DENIES the motion. This is a mar...
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MEMORANDUM AND ORDER The plaintiff obtained an order of this court directing the defendant HUD to show cause why it should not be directed to (1) pay to the plaintiff the sum of $618,015.88 in full satisfaction of a supplemental judgment against HUD entered on June 6, 1990; (2) pay the costs and attorneys’ fees incurred in seeking the relief. The background of this case leading up to...
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*217ORDER In response to the remand of the Court of Appeals, this Court has held a further evidentiary hearing and finds as follows: (1) The plaintiffs have a substantial likelihood of prevailing on the merits of their claim against the District of Columbia because denial of their right to march the full route from the Monument to the Capitol would deny them their First Amendment right to express ...
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MEMORANDUM AND ORDER This Court presently revisits the question whether a state regulatory agency which “disapproves” a contract between a public utility and a private person pursuant to its statutory authority but without affording notice of its accompanying proceedings to the person violates such person’s Fourteenth Amendment due process rights. Briefly and by way of background, the plaintiff, ...
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ORDER This cause is before the Court on the following: *496 Dkt. 19 Motion to dismiss Amended Complaint by Defendants, Gabriel D’Ambra and Gladys D’Ambra, filed May 18, 1990 Dkt. 20 Motion for summary .judgment by Defendants Gabriel D’Ambra and Gladys D’Ambra, filed May 18, 1990 Dkt. 22 Motion by Plaintiffs, Frank Ciaramello, Jr. and Anna Dimuccio requesting the Co...
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ORDER THIS CAUSE is before the Court on motions to dismiss Plaintiffs’ Third Amended Complaint filed by Defendants, BARNETT BANK OF POLK COUNTY, a Florida bank and BARNETT BANKS, INC., a Florida corporation. This case involves allegations of securities fraud, RICO violations, Florida Criminal Practices Act violations, common law fraud, conspiracy and breach of fiduciary duty. Plainti...
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ORDER ON MOTIONS This cause is before the Court on the following: Dkt. 45 Motion for summary judgment on Count I of amended complaint by defendant, filed August 8, 1988 Dkt. 47 Motion to drop parties by defendant, filed August 8, 1988 Dkt. 51 Memorandum of law in opposition to defendant’s motion to drop parties by plaintiffs, filed August 23, 1988 Dkt. 55 Memorandum of...
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Consolidated Rail Corporation (“Conrail”) petitions this court seeking an injunction against Francis P. Dicello, trustee of the Delaware and Hudson Railway Corporation (“D & H”), and a stay in the bankruptcy proceedings of D & H. Conrail seeks to prevent the bankruptcy court from declaring that D & H has the right to operate its trains over a thirty-mile section of Conrail track running north from...
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ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT This cause is before the Court on the following: Defendant AT & T’s motion for summary judgment against plaintiff, Joseph Russell, as to Count I of plaintiff’s third amended complaint. Motion for summary judgment filed February 27, 1990 Defendant AT & T’s motion for summary judgment on Crossclaim of Columbus-McKinnon Corporation, filed February 27, 1990 ...
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ORDER This matter is before the Court on the Motion for Sanctions filed by the defendant, Northern Indiana Public Service Company, on August 28,1990. For the reasons set forth below, the Motion is DENIED. All too frequently, this Court is confronted with a case which refuses to die a natural death. This is one such case. On June 19, 1989, the plaintiff filed a complaint invoking the diversity jur...
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OPINION AND ORDER The United States Court of Appeals for the First Circuit has remanded the instant case to this court with instructions to consider the effect that its decision in United States v. Lyons, 898 F.2d 210 (1st Cir.1990) may have with regard to the proceedings which led to petitioner Felipe Bonilla Romero’s convictions in 1986. Finding fundamental compliance with the Lyons doctrine, w...
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ORDER This court entered summary judgment in favor of defendants, and the Court of Appeals affirmed. Nash v. CBS, Inc., 899 F.2d 1537 (7th Cir.1990). Pending before the court is defendants’ motion for costs in the amount of $11,813.55. The motion will be allowed. All of the costs, with the possible exception of $209.67 in miscellaneous charges (Tab 7 to motion), are of the kind usually allo...
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MEMORANDUM OPINION AND ORDER University of Illinois’ Board of Trustees *1376 (“U of I”) 1 seek alternative relief here — either issuance of a declaratory judgment as to the limits of an insurance policy (the “Policy”) issued to U of I by Insurance Corporation of Ireland, Ltd. (“ICI”) or reformation of the Policy to reflect the parties’ original intent. U of I now m...
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ORDER This matter is before the Court on defendant’s Motion Pursuant To 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. The motion has been fully briefed, and the Court determines that oral argument would not be of material assistance in rendering a decision. On December 15, 1988, after a jury trial in this Court, defendant Mike Miranda was convicted...
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OPINION AND ORDER Defendants Carlos Alvarado and José R. Cobián, former officials of the Puerto Rico Electric Power Authority (“PREPA”), request that this Court alter its judgment of September 13, 1990 pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Defendants claim that PREPA is entitled to eleventh amendment immunity and request that this action be dismissed for lack of jurisd...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS CAROL WYRICK AS NEXT FRIEND OF JONATHAN MEYER AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiff Jonathan Meyer, by and through his next friend Carol Wyrick, brought this action under The Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1988, and the Fourteenth Amendment. Plaintiff also invokes this court’s pe...
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OPINION This is a hazardous waste cleanup case brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. The matter is before the court on a motion filed by the United States (“the government”) to dismiss a counterclaim brought-by Defendant CPC International, Inc. (“CPC”), and CPC’s motion to remand the administra...
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MEMORANDUM Plaintiffs are the general partners of Thurlow Highlands Development Group, a Massachusetts general partnership. Plaintiffs owned real estate in Plymouth, New Hampshire and borrowed $889,000 from the defendant, Numérica Savings Bank, FSB, to finance the development of that real estate. Defendant is a savings bank chartered under the laws of the United States with a principal pl...
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ORDER GRANTING DEFENDANTS’ JOINT MOTION FOR SUMMARY JUDGMENT Plaintiff brings this action under 42 U.S.C. § 1983 alleging that his Fourteenth Amendment rights to equal protection and due process were violated when he was incarcerated in January 1989, for failure to pay a jail bill. Plaintiff contends that the county’s remedy for failure to pay a jail bill was to levy his property and sell it to s...
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MEMORANDUM AND ORDER In April, 1989, plaintiff’s decedent, Raymond Vadnais, brought this suit against the defendants, alleging discrimination in violation of § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. § 794. Specifically, Mr. Vadnais claimed that the defendants refused to perform elective ear surgery on him because he had tested positive for Human Immunod...
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MEMORANDUM AND ORDER This matter is presently before the Court on the motion of defendant Massbank for Savings (“Massbank”) to dismiss the complaint of Eastland Bank (“Eastland”) for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Because this Court concludes that it has specific in personam jurisdiction over Massbank, the motion is denied....
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MEMORANDUM AND PROCEDURAL ORDER Given the number of defendants, the number of counts and estimates of probable length of trial, the court has an obligation to take steps early in the life of this ease to ensure the goals enumerated in Rule Two of the Federal Rules of Criminal Procedure: These rules are intended to provide for the just determination of every criminal proceeding. They shall b...
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ORDER Seeking monetary damages, plaintiff Pamela Ludwig filed this wrongful discharge action against defendant C & A Wallcoverings, Inc., d/b/a Kinney Wallcov-erings (“Kinney”). Although Ludwig initially filed suit in the Circuit Court of Cook County, Kinney removed the case to federal court based on diversity jurisdiction. With the date set for trial rapidly approaching, Kinney has moved...
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ORDER Petitioner Ajibola J. Edun moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner was found guilty in a bench trial of conspiring to import heroin; conspiring to possess heroin with intent to distribute; using or carrying a firearm during and in relation to a drug trafficking crime; and using a communication facility to commit these of*338fenses. His con...
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OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, Michael Vhalantones, brought this breach of marine insurance contract action in Wayne Circuit Court on May 10, 1990, against defendant, Zurich-American Insurance Company. The action was removed to this Court on the ground that it is within its admiralty jurisdiction. See 46 U.S.C.App. § 740, 28 U.S.C....
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ORDER This matter is before the Court on the Motion for Review of Clerk’s Taxation of Costs filed by the plaintiff on August 20, 1990. For the reasons set forth below, the Motion is GRANTED. Federal Rule of Civil Procedure 54(d) provides: Except when express provision therefore is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing...
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MEMORANDUM OPINION AND ORDER Plaintiff brought this action against a large number of defendants alleging liability under the Comprehensive Environmental Response Compensation and Liability Act, (CERCLA), 42 U.S.C. §§ 9601-75, and the Minnesota Environmental Response and Liability Act (MERLA), Minn.Stat. §§ 115B.01-.37. Many defendants impleaded third-party defendants. Jurisdiction is alleged purs...
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MEMORANDUM Plaintiff Nationwide Mutual Fire Insurance Company (Nationwide) initiated this declaratory judgment action wherein plaintiff has requested this Court to declare the rights of the parties under a certain policy of insurance with respect to fire claims made by Walter Fleming and Teresa Fleming. Defendants counterclaimed for the loss occasioned by the fire. Plaintiff’s complaint proceeded...
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WRITTEN REASONS ON MOTION TO DISSOLVE INJUNCTION On September 28, 1990, the United States Court of Appeals for the Fifth Circuit rendered an en banc decision in League of United Latin American Citizens v. Clements, 914 F.2d 620, a case involving a challenge to at-large election of Texas trial judges. The majority opinion held that the 1982 amendment to Section 2 of the Voting Rights Act (42 U...
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MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Plaintiffs bring this diversity action against a Maine attorney and his malpractice liability insurance carrier, seeking recovery for damages they allegedly suffered as a consequence of a real estate transaction turned sour. Plaintiffs claim that the carrier, The Home Insurance Company (Home), is liable on theories of ...
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*608ORDER Notwithstanding factual distinctions between Louisiana’s and Mississippi’s public higher education systems, see, e.g., United States v. Louisiana, 692 F.Supp. 642, 656 n. 69 (E.D.La.1988), and respectfully disagreeing with the majority’s conclusion in Ayers v. Allain, 914 F.2d 676 (5th Cir.1990) (en banc), this Court nonetheless finds that Ayers is both binding and controlling in this c...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This action was commenced by Edward and Brigitte Graham and their daughters Elizabeth, Angelica and Jean to recover for personal injuries and property damages which they allege resulted from the application of herbicides by the defendant Canadian National Railway Company (CNR) along its right of way adjacent to the Graham home place. Edward Graham d...
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MEMORANDUM OPINION The matter presently before the Court is the defendant’s appeal, pursuant to 18 U.S.C. § 3402 (1990), from her conviction, on January 18, 1990, by United States Magistrate B. Waugh Crigler of operating a motor vehicle while under the influence of an alcoholic beverage in violation of 36 C.F.R. § 4.23(a)(1) (1989). The defendant challenges two aspects of Magistrate Cri-g...
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*723 MEMORANDUM OPINION This action is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. 1 Testimony in the case was adduced on July 10 and 11, 1990. Findings of Fact 1. The plaintiff is a 46 year old black male who went to work for the defendant, First Virginia Banks, Inc., on September 18, 1988. He had previously served in the United Sta...
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MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT Bench trial of this case was conducted for 12 days in November of 1989 and 2 days in April and May of 1990. Plaintiff, a tenured associate professor in the College of Medicine’s department of anatomy, University of Iowa, asserts a sex discrimination in employment claim under Title VII of the Civil Rights Act ...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiff John Renner, M.D. (Renner), brings this action against four individuals, Kurt Donsbach (Donsbach), Peter Joseph Lisa (Lisa), Maureen Salaman (Salaman) and Clinton Miller (Miller). Additionally, plaintiff brings this action against International Institute of Natural Health Sciences, Inc. (IINHS) an...
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ORDER Before the Court is a Motion by Douglas A. Brager, as Counter-Defendant, to dismiss subparagraphs 2(g) and 2(h) of Betty Fee’s Counterclaim for Contribution. The Court grants this Motion (# 41). *365 BACKGROUND This case was originally brought by the Plaintiffs, who are all citizens of the State of Illinois, against the Defendant Betty Fee, who is a citizen of the...
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MEMORANDUM Plaintiff brought this action for age and sex discrimination 1 against defendants Town of Danvers and Paul Kenny. Defendant Town of Danvers employed plaintiff, now 62 years old, as a legal secretary from April 28, 1971 until June 22, 1989. Defendant Paul Kenny (“Kenny”) served as Town Counsel during that period. Plaintiff’s complaint essentially alleges that Kenny constructively di...
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MEMORANDUM OPINION AND ORDER This matter came on for consideration on plaintiff’s motion for partial summary judgment regarding the unauthorized practice of law. Having considered the motion and response and being otherwise fully advised in the premises, I find that the motion is well taken and it will be granted. BACKGROUND Plaintiff brought his action alleging a series and pattern of debt...
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ORDER This controversy results from a 1980 IRS assessment against Fred R. Esser, P.C. (“taxpayer or corporation”), a small business corporation formed by Fred R. Esser (“Esser”) in 1979 to provide legal services. Esser was the sole incorporator, president, secretary, sole member of the board of directors, and the only attorney providing legal services for the corporation. Esser’s wife, Margaret...
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ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This case involves the death of Mark Steffenhagen, an inmate of the Missouri State Penitentiary who was killed by a fellow inmate. In their Amended Complaint, Steffenhagen’s parents assert a 42 U.S.C. § 1983 claim against officials of the Missouri State Penitentiary. They seek damages for the violation of both their son’s constitutional rights...
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MEMORANDUM OPINION I. Background The unsettled question of Virginia law raised in this diversity malpractice case is whether the statute of limitations tolling provision for a minor’s claim applies also to a parent’s claims for medical expenses and emotional distress stemming from the same incident of alleged malpractice. The pertinent facts may be simply stated. In 1978...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR DIRECTED VERDICT This is a slip and fall case brought within the diversity jurisdiction of this court. Plaintiff Allen Swann slipped and fell while exiting from the Sheraton Tara Hotel in Framingham on December 20, 1987, receiving substantial injuries.1 Defendant Thomas J. Flatley, d/b/a The Flatley Company, in its answers, concedes that the Sheraton ...
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MEMORANDUM This matter is before the Court on the motion of The Daily Press, Inc. (“The Daily Press”), not a party to the above action, to quash a subpoena duces tecum served upon it by the defendant, General Rental Co., Inc. It has been fully briefed and argued, and is ripe for disposition. This lawsuit is the result of an accident which occurred on February 14, 1989, at ...
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MEMORANDUM OPINION AND ORDER Plaintiffs, Viola Taylor, Shawn Paris, Cleveland Hodges and Louise Brookins, have brought this action for declaratory and injunctive relief against John White, Jr. in his official capacity as Secretary of Public Welfare of the Commonwealth of Pennsylvania, Michael H. Hershock, in his official capacity as Secretary of the Budget and N. Mark Richards, M.D., in his offic...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on in limine motions by Trans World Airlines, Inc. and Catalog Media Corporation seeking a ruling with respect to the calculation of damages in this action. TWA’s claims relate to a promotional campaign involving coupons redeemable for a 25% discount on TWA airfare or an upgrade to the next fare class or service level. It is alleged tha...
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Plaintiff, George J. Courville, moves the Court to remand case number 89-3865 to the 23rd Judicial District Court in Matagor-da County, Texas. Case number 89-3865 is identical to case number 88-3084. The cases have been consolidated on the Court’s docket. For the reasons given below, the Court DENIES the Motion to Remand. PROCEDURAL HISTORY (1) George J. Courville originally filed this civil actio...
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OPINION Defendant, Express Funding Corporation, sued herein as Express Equities Corporation a/k/a Express Equities Corporation, moves to dismiss the complaint for lack of personal jurisdiction and failure to prosecute pursuant to Rules 12(b)(2), 12(b)(4), 12(b)(5), and 41(b), in the alternative, for summary judgment pursuant to Rule 56, Fed.R.Civ.P. For the reasons set forth below, the motion is d...
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MEMORANDUM & ORDER Plaintiff Coach Leatherware Company, Inc. (“Coach”) commenced this action for trademark infringement and statutory and common law unfair competition against defendants AnnTaylor, Inc. (“AnnTaylor”), Laura Leather Goods, Inc. (“Laura”), A & R Handbag, Inc. (“A & R”), and Ron’s Elegance Center, Inc. (“Ron’s”), alleging that defendants produced certain knockoffs of known C...
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MEMORANDUM AND ORDER Petitioner, Melun Industries, Inc. (“Me-lun”), moves to confirm an arbitration award of $519,018 in its favor against respondent Michael A. Strange. Strange erossmoves to vacate the award on the grounds that the arbitrator exceeded the authority granted him under an agreement between the parties. Background This action concerns disputed adjustments to the pu...
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OPINION The matter before the court is plaintiff’s motion for remand (#4). BACKGROUND Plaintiff, Thomas Hendrickson, a resident of the State of Oregon, was a sales representative for defendant, Xerox Corporation (Xerox), a New York corporation, from September 26, 1967 until April 5, 1990. At that time, Xerox terminated Hen-drickson’s employment. Subsequently, Hendrickson filed a complaint a...
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OPINION The matter before the court is the motion of defendant, Jeffrey Todd Hanson, to dismiss the indictment pending against him for violation of Title 18, United States Code, Section 2113(a). STIPULATED FACTS On August 6, 1990, at approximately 2:13 a.m., Jeffrey Todd Hanson, along with a second individual, pried loose the metal plate of the night depository box at Security Pacific Bank of Oreg...
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MEMORANDUM OPINION AND ORDER This is a lender liability case between a Texas lender and the guarantor of a loan to a Colorado corporation engaged in real estate development. The lender, the First Texas Service Corporation (First Texas), commenced this action against Jay C. Rou-lier, the guarantor, for judgment on Roulier’s guaranty of a loan by First Texas to the Terrace Place Corporation...
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MEMORANDUM & ORDER Edna Coonan moves for reconsideration of her motion for a new trial under Rule 33 or in the alternative for a reduction of sentence under Rule 35, which I denied in its entirety in my Memorandum & Order of August 3, 1990, 1990 WL 116758. The government asserts that the court is without jurisdiction to entertain the instant application in so far as it seeks reconsiderati...
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MEMORANDUM AND ORDER Plaintiffs, trustees of an employee pension and profit sharing plan, bring this action against a brokerage firm and one of its account executives alleging breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.; violations of federal and state securities laws; breach of contract; violations of state corpor...
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OPINION AND ORDER Plaintiffs Hygrade Operators, Inc., Bush-ey Towing Co., Inc. and Tanker Ira S. Bushey, Inc. move for summary judgment pursuant to Fed.R.Civ.P. 56 to vacate, and defendant Local 333, United Marine Division, I.L.A., AFL-CIO (the “Union”) cross moves to affirm, an Arbitral Award (“A.A.”) dated December 28, 1989, finding plaintiffs had violated the no-lockout provision of a ...
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MEMORANDUM OPINION Plaintiff Ronnie Ackerman brings suit against Defendant National Railroad Passenger Corporation (“Amtrak”) and individual Defendants who are or were employees of Amtrak, alleging violation of their constitutional rights and of their rights under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (“Title VII”). Plaintiff alleges that Defendants engaged...
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MEMORANDUM OPINION AND ORDER This matter is before the court on remand from the court of appeals for further proceedings to determine whether a Jencks Act violation occurred in this case. The court has conducted an evidentiary hearing. Upon review of the record, the court has concluded that there was a failure to disclose Jencks Act testimony, but that the nondisclosure was unintentional, that ...
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ORDER DENYING EMERGENCY MOTION TO STAY SALE The criminal case defendant filed an emergency motion today to stay the sale of three of his forfeited airplanes at a joint U.S. Marshal-Broward County Sheriff’s sale tomorrow morning. No published case law has been found and a clear conflict between the applicable statute and a Rule of Procedure exists. Defendant was convicted by the jury of a continuin...
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OPINION .AND ORDER This matter is before the Court upon a Motion for Withdrawal of Reference by Deborah P. Ecker, for Defendant Onyx Motor Car Corporation. Defendants make this motion pursuant to 28 U.S.C. § 157(d) and Bankruptcy Rule 5011. Upon consideration and being duly advised, this Court finds the Motion for Withdrawal of Reference, the request by defendants to consolidate the ...
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MEMORANDUM I. Introduction. Currently before the court are two motions pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss this civil rights action initiated by plaintiff, DeWitt A. Lowe. One motion has been filed by the “county defendants”: Dauphin County, Gerald Frey, the Warden of the Dauphin County Prison, the Dauphin County Board of Probation and Parole, Miles Miller, a probation officer, two J...
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OPINION AND ORDER This matter is before the Court upon Notices of Appeal and Cross Appeal pursuant to 28 U.S.C. § 158(a). Upon careful consideration and being duly advised, this Court finds these appeals not well taken and are DENIED. FACTS The pertinent facts are as follows: Debtors filed their petition under Chapter 13 of the Bankruptcy Code on February 8, 1985. Concurrently with the ...
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MEMORANDUM OPINION The plaintiffs have moved to amend their complaint to include an additional theory of liability. This alternative theory will be referred to throughout this opinion as the “modern rule of reason.” This court must now determine whether to give the plaintiffs leave to amend under rule 15(a) of the Federal Rules of Civil Procedure. The focus of this decision is on whether the defe...
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ORDER This case is before the Court on the plaintiff’s Motion to Remand, filed on May 18, 1990. The defendant filed its response in opposition on June 8, 1990. Pursuant to the Court’s Order of June 5, 1990, the Attorney General of Florida was permitted to file a memorandum of law addressing the issues raised in the plaintiff’s motion. The Court heard oral argument on July 26, 1990. Also p...
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MEMORANDUM OPINION AND ORDER Kenneth Cole (“Cole”) was convicted in the Circuit Court of Cook County of murder and armed violence (based on the same occurrence). After Cole was sentenced to 28 years in prison for those crimes, both his conviction and sentence were affirmed by the Illinois Appellate Court (People v. Cole, 170 Ill.App.3d 912, 120 Ill.Dec. 744, 524 N.E.2d 926 (1st Dist.1988)), and hi...
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DECISION AND ORDER FACTS On June 22, 1990, this court dismissed plaintiffs Robert and Sylvia Eckstein’s (“the Ecksteins”) federal securities law complaint because it failed to allege reliance which is an essential element of a claim brought pursuant to section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commission (“Rule 10b-5”...
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OPINION AND ORDER This matter comes before the court upon the defendants’ motion to dismiss the complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) or, in the alternative, to transfer this action to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1404(a). The ease at bar is based solely upon diversity jurisdiction and concerns alle...
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ORDER THIS CAUSE IS before the court on Defendant Manuel Noriega’s motion to enjoin Cable News Network, Inc. and its corporate parent, Turner Broadcasting System, Inc. (collectively “CNN”) from broadcasting tape recordings of privileged telephone conversations between Noriega and his defense team. DISCUSSION This issue at bar presents the court with the unfortunate and difficult task of res...
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OPINION Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of a final determination by the Secretary of Health and Human Services (“Secretary”) to offset plaintiff’s disability insurance benefits due to his receipt of a lump sum worker’s compensation award. Plaintiff contends that the Secretary's decision to prorate the lump sum award based on the periodic rate of benefits he previ...
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MEMORANDUM OPINION The plaintiff in this case, Alan Jay Sava-da, was employed as a cartographer by the Defense Mapping Agency, a component of the Department of Defense, from April 1979 until April 1987. This position required that the plaintiff have a very high *241level of security clearance known as “SCI” clearance, or clearance for access to Sensitive Compartmental Information. On March 4, 1987...
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OPINION ON DENIAL OF A WRIT OF HABEAS CORPUS 1. Introduction. Ann T. Johnston has applied for a writ of habeas corpus contesting the validity of her conviction for the involuntary manslaughter of a young woman in a car wreck. Johnston complains that she was incapacitated at the time of trial. Her complaint is simple: Because she was in a self-induced alcohol and drug stupor during the trial...
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MEMORANDUM AND ORDER In the instant case, brought pursuant to 42 U.S.C. § 1983, several officers of the Chicago Police Department challenge the constitutionality of the procedures used when officers are suspended incident to the filing of internal departmental charges, particularly when the officers suspended are the subject of an investigation that could lead to both criminal and departm...
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OPINION This case is before the court following a bench trial held June 25 and 26, 1990. This court has jurisdiction over the parties and the subject matter under 35 U.S.C. § 145 and § 306 (1988). The plaintiff, Joy Technologies, Inc. (Joy), brought this action against the defendant, the Commissioner of Patents and Trademarks (Commissioner), 1 under 35 U.S.C. § 145 (1988) chall...
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MEMORANDUM OPINION AND ORDER The plaintiff class’ attorneys’ motion for the award of final counsel fees and expenses is before the court. Before addressing the merits of the motion, the court will provide a brief summary of the history of this litigation and the related litigation in the Illinois state courts. I. FACTS This class action arose out of a public offering of stock of...
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MEMORANDUM OPINION AND ORDER In this one-count diversity action, plaintiff Cheryl Robinson sues the Town of Madison, Wisconsin (“Madison”), the Madison police department, Wayne Romeis, and unnamed Madison police officers (collectively “defendants”) for defamation. The defendants move to dismiss the complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). BACKGRO...
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*456ORDER ACCEPTING MAGISTRATE’S REPORT AND RECOMMENDATION The Court has reviewed the Magistrate’s Report and Recommendation submitted in this case and any objections filed thereto. The Magistrate's Report and Recommendation is hereby accepted as the findings and conclusion of the Court. Accordingly, IT IS ORDERED that defendants’ motion to terminate this lawsuit is GRANTED, and the derivative cl...
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MEMORANDUM AND ORDER Plaintiff filed this suit seeking declaratory judgment that the State of Montana (State) has no authority to regulate hunting and fishing on the Flathead Indian Reservation (Reservation), and that regulation of hunting and fishing within the exterior boundaries of the Reservation is exclusively vested in the Confederated Salish and Kootenai Tribes of the Flathead Indi...
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FINAL JUDGMENT AND DECREE This matter came before the court on the final report of Special Master Frank I. Has-well and the final progress reports and briefs from the parties. The court has carefully reviewed and considered these submissions, and all prior proceedings herein, and now ORDERS, ADJUDGES and DECREES: 1) The terms of the following are hereby incorporated into this Judgment and D...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on appeal by the United States Trustee from the order of the United States Bankruptcy Court 1 dated January 29, 1990. In this order, the bankruptcy court ruled on a motion of the trustee for reconsideration of a previous order of the bankruptcy court which authorized the employment of accountants and the procedure for their payment....
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MEMORANDUM OPINION Plaintiffs, the Georgia Association of Realtors, Inc., Calhoun, Sikes, Flournoy and Bell, filed a complaint and motion for preliminary and permanent injunction on April 4, 1990, requesting that the Court enjoin defendants the Alabama Real Estate Commission and the individual commissioners, from enforcing certain statutes and regulations on the basis that these provision...
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MEMORANDUM OPINION OF THE COURT Plaintiff filed the above action against the defendants on theories of negligence, strict liability and breach of warranty, following the death of her husband, Thomas Barlow, (“Decedent”) on April 8, 1988. At the time he sustained the fatal injuries, Decedent was employed by Dulaney Oil Producers (“Dulaney”) and serviced a number of oil wells in Greene Coun...
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MEMORANDUM OPINION AND ORDER Plaintiffs claim defendant Jacobs Suchard, Inc., their former employer, discriminated against them because of their age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Plaintiffs are members of an “opt-in class,” see 29 U.S.C. § 216(b),1 and are represented by retained attorneys. The Equal Employment Opportunity Commission (“...
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OPINION The matter before the court is the motion for summary judgment (# 49) of defendant, General Bank. This is an action by plaintiff, Timber Falling Consultants, Inc. (TFC), an Oregon corporation, against General Bank, a California corporation. TFC alleges three claims against General Bank: a claim for the wrongful dishonor of a letter of credit; a claim for the wrongful dishonor...
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DECISION AND ORDER In this action, plaintiffs seek damages in product liability arising out of an injury to a small child. Defendant contends that the *434plaintiff parents “negligently entrusted” the product to its operator, another person. Discovery proceedings have been referred to me pursuant to 28 U.S.C. § 636(b)(1)(A). Plaintiff moves for a protective order pursuant to Fed.R.Civ.P. 26(c), i...
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MEMORANDUM DECISION AND ORDER This matter came on regularly on September 20, 1990 for hearing on Cross Motions for Summary Judgment pursuant to a Joint Stipulation of Facts. Plaintiff was represented by Billy L. Walker and defendant was represented by W. Cullen Battle. After briefing by the parties and oral argument, the court took the motions under advisement. Now, being fully advised, the court...
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MEMORANDUM AND ORDER This case arises under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (“FELA”). In his complaint, plaintiff Gi-ammona alleges that exposure to asbestos fibers has initiated a “scarring process” in his lung tissue, and seeks to recover damages for emotional harm and the costs of continuous medical treatment caused by defendant’s negligence or o...
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ORDER AND REASONS This matter is before the Court on defendants’ Motion for Partial Summary Judgment on plaintiffs’ claims for lost profits and attorney’s fees under Count I, 1 and for lost profits under Counts VI, VII and VIII, 2 of plaintiffs’ Fourth Amended Complaint. Defendants also Motion to Strike plaintiffs’ claims for punitive damages and attorney’s fees from...
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MEMORANDUM This matter is before the Court on plaintiff’s request for prejudgment interest and attorney fees. The Court having previously found for plaintiff on the merits of its claim after a trial to the Court. (Memorandum and order April 16, 1990). Plaintiff’s action was for breach of the parties’ “assignment of Sales Proceeds,” when defendants refused to tender a portion of stock in Nuclear Si...
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MEMORANDUM OPINION On April 27, 1989, the Honorable Steven W. Rhodes, United States Bankruptcy Judge, sitting by designation in the United States Bankruptcy Court for the Eastern District of Tennessee, granted a judgment in favor of the plaintiff Thomas E. DuVoi-sin, Liquidating Trustee of Plan and Creditors’ Liquidation Trust, Southern Industrial Banking Corporation [SIBC], finding that ...
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OPINION This matter is before the Court on defendant’s motion for summary judgment. Defendant argues that plaintiff Equal Employment Opportunity Commission failed to fulfill its statutory duty to engage in conciliation of the matter prior to commencing a lawsuit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. For the reasons expressed in this opin...
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*369 MEMORANDUM AND ORDER Before the Court is the defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint (Document No. 19). The defendants argue for dismissal on the grounds that (1) the plaintiffs’ claims are pre-empted by the National Labor Relations Act; (2) the plaintiffs have failed to satisfy the pleading requirements under the Racketeer Influenced and Corrupt Organiza...
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MEMORANDUM OPINION This case is before the court on cross-motions for summary judgment. The court has jurisdiction pursuant to 30 U.S.C. § 1232(e) and 28 U.S.C. §§ 1331 and 1345. FACTUAL AND PROCEDURAL BACKGROUND On November 23, 1981, the court entered a money judgment in Civil Action no. 81-0151-B (“original action”) against Ringley and Mancuso Coal Producers, a Virginia genera...
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MEMORANDUM OPINION AND ORDER This litigation concerns the principal sum of $390,579.48, and accrued interest thereon, deposited into the registry of the court pursuant to the court’s orders. Defendant J.B. Bonelli (Bonelli) alleges that, as a condition to setting aside a default judgment against him, he was required to deposit the funds with the clerk of this court. The court’s order of December ...
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MEMORANDUM AND ORDER Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he received ineffective assistance of his appointed appellate counsel in violation of his Sixth Amendment rights. Petitioner was convicted in the Supreme Court of the State of New York, Kings County, of burglary in the second degree, petit larceny, and criminal possession of stolen property in...
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MEMORANDUM OPINION On August 15, 1988 Mildred Glick Friedman committed suicide. Plaintiff brings this action on behalf of the decedent’s estate and the decedent’s incompetent daughter, charging that defendant caused Ms. Friedman to take her own life. The case began in the Court of Common Pleas, McKean County, Pennsylvania, where a summons was filed on April 19, 1990. Defendant then remove...
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MEMORANDUM AND ORDER This civil action is before the Court on motions by plaintiff and four defendants. Plaintiff moves to recover his costs of personal service under Fed.R.Civ.P. 4(c)(2)(D). Defendants William Blackwell, The Distance, Inc., Punch Enterprises and Capitol Records, Inc., all move to dismiss the complaint based on two grounds: failure to state a claim for which relief can be grant...
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MEMORANDUM The plaintiff, District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, affiliated with District 2, Marine Engineers Beneficial Association-Associated Maritime Officers, AFL-CIO (“District 2A”), filed its complaint on November 10, 1988. It sought a declaratory judgment pursuant to 28 U.S.C. § 2201 and 24 V.I.C. § 383, specific performance, injunctive re...
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MEMORANDUM DECISION AND ORDER This matter came regularly before the court on defendant’s Motion to Dismiss or Transfer Venue. Plaintiff was represented by Brian S. King and Ronald E. Nehring. Defendant was represented by James S. Jardine and Anthony B. Quinn. The parties submitted briefs on the matter and presented oral argument after which the court took the matter under advisement. Now ...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION R.E. Davis Chemical Corporation, the plaintiff in this action (“Davis Chemical” or “plaintiff”), alleges that the defendants, Nalco Chemical Company (“Nalco”), Clarence R. Davis (“Clarence Davis”), John C. Kisalus (“Kisalus”), Robert W. Reynolds (“Reynolds”), and Wesley E. Cravey (“Cra-vey”), misappropriated Davis Chemical’s formula for a ...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff filed a claim under the Michigan Handicappers’ Civil Rights Act (MHCRA), M.C.L. §§ 37.1101-1607 (1979), 1 for injuries allegedly suffered as a result of his termination of employment. Plaintiff alleges that defendant wrongfully discharged him because of his epileptic condition. Plaintiff seeks monetary relief. Thi...
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ORDER AND REASONS Before the Court are the plaintiffs’ motion to remand and defendant Chemcat Corporation’s motion to sever. For the reasons which follow, the motion to sever is DENIED, plaintiffs’ motion to remand is GRANTED. However, plaintiffs’ request for an award of attorneys’ fees and costs is DENIED. I This case arises from an alleged series of emissions of toxic pollutan...
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MEMORANDUM OPINION AND ORDER Plaintiff in this putative class action 1 challenges the failure of directors and officers of UAL Corporation to immediately make public the alleged receipt of a takeover proposal from investor Marvin Davis on August 1, 1989. On August 4, 1989, plaintiff sold UAL stock on the open market for a price of approximately $170 per share. The takeover prop...
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MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT I. FACTS AND PROCEDURE The above-entitled action was brought by the government in September of 1984 to enjoin the defendant, Lamar Burnett, from trespassing on unpatented mining claims in the Nez Perce National Forest. The government also seeks to have certain buildings, structures, and personal property which the defe...
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MEMORANDUM AND ORDER This matter is before the Court on defendant W.R. Grace’s motion for summary judgment and for certification of questions of law to the Minnesota Supreme Court. FACTS This is an action for recovery of costs associated with removal of asbestos-containing fireproofing from Henry Sibley High School in Mendota Heights, Minnesota. Defendant W.R. Grace & Co. — Conn...
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MEMORANDUM OPINION AND ORDER This matter comes before the court on motions by defendants Mitsui Mining & Smelting Company, Ltd. (Mitsui) and Pechi-ney Ugine Kuhlmann/Trefimetaux (Pechi-ney/Trefimetaux), to dismiss the complaint filed by Gould, Inc. (Gould). The parties having fully briefed the issues, the court will rule on these motions, in part, without conducting oral argument. S...
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MEMORANDUM OPINION AND ORDER This action involves two appeals by secured creditor Superior Bank FSB (“Superi- *73or”) from orders entered on July 3, 1990 1 by Bankruptcy Judge Eugene Wedoff in this now-dismissed Chapter 11 case2 that had been filed by debtor N.R. Guaranteed Retirement, Inc. (“N.R.”):3 1. one denying in part Superior’s motion to prohibit the use by N.R. of what may or may not be “...
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MEMORANDUM OPINION AND ORDER This Court’s October 23, 1990 memorandum opinion and order (the “Opinion”, 750 F.Supp. 928) remanded this action to the state court sua sponte, because the Complaint at Law filed by Maria Navarro as Administrator of the Estate of Ramon Sanchez, Deceased (“Navarro”) had not set out one of the essential components of federal diversity-of-citizenship jurisdiction...
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ORDER ON MOTIONS FOR PRELIMINARY INJUNCTION AND TO DISMISS I. BACKGROUND Plaintiff Gregory H. Bowers, a professional engineer, filed this suit pro se. He seeks review of the decision of defendant James J. Jura, Administrator of the Bonneville Power Administration (“BPA”), to proceed with the Oregon portion of the Third AC Intertie Project (“Third AC”). The Third AC is a high-voltage electric tran...
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MEMORANDUM DECISION AND ORDER This matter is before the court on defendant Zions First National Bank’s (“Zions”) motion for summary judgment on plaintiff Lion Hill Mines’ ("Lion Hill”) claim for breach of fiduciary duty. That motion focused on the issue of proximate cause. A hearing on that motion was held October 25, 1990. Following the hearing, the court requested the parties to identif...
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MEMORANDUM AND ORDER This case arises out of an alleged sale of bar silver. Plaintiffs contend that the defendants misrepresented the quality of their merchandise and that instead of receiving valuable bar silver in exchange for the cash they tendered, they received as *58 sorted silverware and trinkets. The plaintiffs’ complaint alleges a cause of action under 15 U.S.C. § 29...
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MEMORANDUM AND ORDER The background of this case is set out in this Court’s opinion and order of May 18, 1990, Friends of Sakonnet v. Dutra, 738 F.Supp. 623 (D.R.I.1990), and need not be repeated here. Currently before the Court are three motions involving defendant Davisville Credit Union (Davisville): 1) defendant’s motion to dismiss; 2) plaintiffs motion to amend the complai...
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*373 MEMORANDUM OPINION AND ORDER This matter is before the court on the Motion for Summary Judgment, filed August 3, 1990, by the defendant, Elgin, Joliet & Eastern Railway Company (hereinafter referred to as “EJ & E”). Pursuant to Local Rule 9(a) of the General Rules of the United States District Court for the Northern District of Indiana, the plaintiff, Modesto Ricard (hereina...
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MEMORANDUM I. Introduction This matter is before the Court on appeal from orders for relief entered against Harriet Rimell and Albert Rimell by the United *255 States Bankruptcy Court for the Eastern District of Missouri. This Court has jurisdiction to hear this appeal under 28 U.S.C. § 1334. By motion of appellees, the Court consolidated for appeal the causes of...
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RULING ON DEFENDANT’S MOTION TO DISMISS These lawsuits were precipitated by the February 14, 1990 public announcement that quantities of benzene, a petro-chemical and possible carcinogen, had been identified in a widely consumed, sparkling mineral water. See Malone Deck at Exh. A. Plaintiffs filed suits in various districts around the country, asserting claims relating to defen...
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MEMORANDUM OPINION AND ORDER This action is a product of the savings and loan crisis. Plaintiff Century Federal Savings Bank (“Century”) claims that new minimum capital requirements promulgated by defendant Office of Thrift Supervision (“OTS”) authorize defendant Timothy Ryan, as OTS Director (“the OTS director”) to place Century in receivership. On July 12, 1990, Century filed a complain...
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*279MEMORANDUM AND ORDER In this insurance dispute, Ervinwood Marina, Inc., brought suit in the Lake County Court of Common Pleas against Fireman’s Fund Insurance Company for failing to compensate Ervinwood for losses experienced after flooding and a severe storm, and against Ervinwood’s insurance agent, James B. Oswald Company, for negligently failing to secure adequate coverage. Oswald contended...
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MEMORANDUM OPINION AND ORDER Claimant, International Travel Arrangers (“ITA”), appeals the decision of the Bankruptcy Court denying its claim for breach of contract against debtor, Frontier Airlines (“Frontier”). ITA filed its claim against the bankruptcy estate of Frontier. Jurisdiction exists according to' 28 U.S.C. § 158(a). In its appeal, ITA argues: 1) ITA and Frontier had an enforceable a...
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MEMORANDUM OPINION AND ORDER This is an appeal from a final decision of the Merit Systems Protection Board (Board). The issue before me is whether the plaintiff, Elsie Hodgson, has the right to trial de novo on her claim of age discrimination and harassment by the Air Force, or whether she waived that right by stipulating that the matter would be heard solely on the administrative record. Hodgs...
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ORDER ON APPEAL OF SECRETARY’S DENIAL OF BENEFITS This social security appeal is before the Court on the complaint of the plaintiff for review of the Secretary’s denial of disability insurance benefits (DIB) under sections 216(i) and 223 of the Social Security Act (Act). 42 U.S.C. § 405(g). The issues raised have been briefed and are ready for resolution. As set forth, the Court REVERSES the Se...
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ORDER This case was remanded by the Eighth Circuit for resentencing under the Sentencing Guidelines. Now before the Court are defendant’s Motion and Amended Motion for Reconsideration of Sentence under Federal Rule of Criminal Procedure 35(b). In addition, the government has moved for a downward departure from the sentencing range pursuant to § 5K1.1 of the United States Commission, ...
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ORDER DENYING DEFENDANT’S MOTION FOR REVOCATION OR AMENDMENT OF CHIEF MAGISTRATE’S DETENTION ORDER AND COMMITTING DEFENDANT TO CUSTODY PENDING TRIAL Pursuant to 18 U.S.C. § 3145(b), defendant moves for revocation or amendment of Chief Magistrate Calvin K. Hamilton’s October 16, 1990, detention order. An evi-dentiary hearing regarding this issue was held before this court on October 29, 19...
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MEMORANDUM AND ORDER Debtors William and Wanda Candelaria appeal without opposition from an order of Bankruptcy Judge Marvin A. Holland denying leave to reopen their Chapter 7 bankruptcy case for the purpose of listing an omitted creditor. In re Candelaria, 109 B.R. 600 (Bankr.E.D.N.Y.1990). This court reverses and remands the case for proceedings consistent with this opinion. ...
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ORDER This case concerns two parties involved in a franchise relationship. Plaintiff Janice Maloney, an individual d/b/a Service Medical, and Janice Maloney as Special Administrator of the Estate of James Maloney (“Service”) filed a complaint and a motion for a temporary restraining order in state court on September 28, 1990. Plaintiff sought to bar defendant Gesco International, Inc. (“G...
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743 F. Supp. 693 (1990) AMERICA WEST AIRLINES, INC., Edward R. Beauvais and Michael J. Conway, Plaintiffs, v. NATIONAL MEDIATION BOARD, Defendant. No. CIV 90-925 PHX EHC. United States District Court, D. Arizona. July 20, 1990. *694 Robert Siegel, Dan M. Durrant, for plaintiffs. Scott Simpson, Ronald M. Etters, for defendant. MEMORANDUM OPINION (PRELIMINARY INJUNCTION) CARROLL, District Judge. O...
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ORDER ON MOTION FOR SUMMARY JUDGMENT The cause is before the Court on Defendant’s motion for summary judgment and request for oral argument, filed May 10, 1990, and Plaintiff’s response thereto, filed May 23, 1990. STANDARD OF REVIEW This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a ...
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OPINION This is an appeal from an order of the bankruptcy court, dated March 18, 1990. 116 B.R. 406. The bankruptcy court held that, inter alia, the United Jersey Bank/Central, N.A., (the “Bank”) did not waive its security interest in the proceeds of certain accounts of its debtor, Collated Products Corporation (“Collated”) and the Bank does not have a security interest in a ce...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Janis Cox, a former employee of Defendant Electronic Data Systems Corporation (“EDS” or the “company”), instituted this wrongful discharge action against her former employer in Wayne County Circuit Court on November 6, 1989. EDS timely removed the action to this Court on December 7, 1989 on diversity ...
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MEMORANDUM AND ORDER This ease is before the court on a motion by plaintiffs Amcast Industrial Corporation (“Amcast”) and its wholly owned subsidiary, Elkhart Products Corporation (“EPC”), for leave to file an amended complaint. For the reasons which follow, the court concludes that the motion must be denied. Background After it purchased all of the shares in EPC, what is now Amcast learned that ...
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ORDER Plaintiffs Peter and Diane Kokaras allege that on May 8,1987, in Hampton, New Hampshire, a United States Postal Service employee negligently caused a collision with their car. Plaintiffs seek recovery for damages to their car and for injuries to the driver (Peter Kokaras) and the passenger *543 (Diane Kokaras). Additionally, both claimants seek damages for loss of conso...
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ORDER Before the court is defendant’s motion to suppress and for return of seized money discovered and seized as the result of a search of his residence by Bureau of Alcohol, Tobacco, and Firearms (“ATF”) agents. A hearing was held on this matter on August 24, 1990. The court, having considered the evidence presented at the hearing, the briefs filed by the parties, the arguments contained therein ...
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MEMORANDUM OPINION The Court, at the commencement of the trial on September 17, 1990, noted that it had very serious reservations about going forward with the hearing on plaintiff’s retaliation claims because those claims appeared to be barred as a matter of law. Nevertheless, it chose to proceed with the hearing because of its uncertainty as to the meaning and effect of the remand opinion of t...
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ORDER Claimant Mario Reyes has moved to vacate the default judgment entered against him in this forfeiture action. The motion was referred to a magistrate for his report and recommendation. In his report, the magistrate recommended that the motion to vacate be granted. Additionally, the magistrate suggested that the court follow a bifurcated procedure. The court would rule first on claimant’s moti...
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OPINION AND ORDER This Court denied plaintiffs’ motion for class certification pursuant to Fed.R.Civ.P. 23(a) by Opinion and Order dated August 10, 1990. Plaintiffs now move for reargument. For the reasons set forth below, plaintiffs’ motion is denied. This is an action alleging discrimination on the basis of sex, race and national origin in violation of Title VII of the Civil Rights Act of 1964,...
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This case is before the Court to examine articles of the Louisiana Civil Code and its source provisions to determine whether an injured party may lawfully assign or donate a personal injury claim to another party or whether such an assignment or donation is null and void. The Court must further determine whether the injured party may be substituted as the real party in interest under Rule 17 of...
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ORDER Plaintiff Guy Elliott, Sr., brings this civil action alleging that defendants deprived his son, Guy Elliott, Jr. (“Guy”), of his constitutional rights in violation of 42 U.S.C. § 1983. Plaintiff alleges that defendants are responsible for Guy's suicide while a pretrial detainee in the Cheshire County House of Corrections. Jurisdiction is based on 28 U.S.C. § 1343(a). Before the Cour...
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ORDER Plaintiff Eneas D’Aquino alleges that defendant Citicorp/Diner’s Club Inc. discriminated against him on account of his age. Plaintiff began employment with Diner’s Club, now Citicorp/Diner’s Club Inc. (“Citi-corp”), on November 8, 1971. Plaintiff filed suit against Citicorp on February 27, 1990 alleging that, after plaintiff turned 60 years of age, he received unfavorable evaluations which ...
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ORDER In this action, plaintiff appeals the April 20, 1990 decision of a New Hampshire Department of Education hearing officer which concludes that (1) both the 1989-90 Individual Education Plan (“IEP”) and the 1989-90 placement proposed for Ian W., defendants’ son, were inappropriate; (2) that defendants’ unilateral placement of their son in the Landmark School in Pride’s Crossing, Massachuset...
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ORDER ON DEFENDANTS’ MOTION TO TRANSFER This is an action to enforce a covenant not to compete and to enjoin the unauthorized use of the plaintiff’s alleged trade secrets, and for damages. The plaintiff is a Massachusetts corporation which has its executive offices in Boston. The defendants are two former employees of the plaintiff’s Illinois facility. They are both residents of Illinois. They ...
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MEMORANDUM AND ORDER This matter comes to the Court on defendant’s motion to dismiss for lack of subject matter jurisdiction. Plaintiffs have responded to the motion. For the reasons discussed below, defendant’s motion to dismiss will be granted. I.FACTS Plaintiffs’ lawsuit alleges slander, intentional infliction of emotional distress and other claims arising from plaintiffs’ re...
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OPINION AND ORDER Defendants Miguel Munoz (“Munoz”) and Marilyn Montalvo (“Montalvo,” a/k/a “Ramona Munoz”), joined by all the remaining defendants, move pursuant to Rules 41 and 12(b)(3) of the Federal Rules of Criminal Procedure to suppress evidence obtained as a result of a search conducted on February 6, 1990 by agents of the Federal Bureau of Investigation (“FBI”), and for an evidentiary hear...
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OPINION AND ORDER Plaintiff has sued defendants under Rule 10b-5, 17 C.F.R. § 240.10b-5, § 12(2) of the Securities Act of 1933, 15 U.S.C. § 77l, RICO, 18 U.S.C. § 1962, and state law based on alleged overcharges for commissions on his purchases of over-the-counter stock. Defendants have moved to dismiss, raising a host of issues including the statute of limitations, the reach of § 12(2), ...
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MEMORANDUM OPINION This cause comes on to be heard on defendant’s Motion for Summary Judgment filed on August 10, 1990. The plaintiff has voluntarily dismissed all its claims except those pursuant to § 12(2) of the 1933 Securities Act 1 and § 8-6-19 of the Alabama Blue Sky Law. Both parties acknowledge that the basic elements of the federal and state causes of action are the sa...
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MEMORANDUM The parties are before the Court on Defendant’s Motion to Transfer and Defendant’s Motion to Dismiss. The parties have fully briefed these issues and they are ripe for decision. This Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1). BACKGROUND This is an action for the unlawful appropriation of Plaintiff Richard Nossen’s name, reput...
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OPINION AND ORDER On October 9, 1990 a hearing was held for the purpose of supplementing the findings of fact of the Court as contained in its opinion of June 5, 1990. Thereafter, the Court has received letters from counsel for the plaintiff class and counsel for the defendants. Based on the evidence presented by the plaintiffs and defendants, the Court makes the following findings of fact with...
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ORDER THIS CAUSE comes on for consideration of Plaintiff Equal Employment Opportunity Commission’s (“EEOC”) Emergency Motion for Protective Order to Prohibit the Deposition of John Saputo Without the Presence of EEOC Counsel (Dkt. 155) and Plaintiff Equal Employment Opportunity Commission’s (“EEOC”) Emergency Motion to Compel Defendant’s Compliance With Rule 4-4.2 of the Florida Rules of Professio...
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ORDER THIS CAUSE comes on for consideration upon the magistrate’s report and recommendation recommending that the above styled petition be dismissed with prejudice. All parties previously have been furnished copies of the report and recommendation and have been afforded an opportunity to file objections pursuant to Section 636(b)(1), Title 28, United States Code. Upon consideration of the report a...
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ORDER The Zuni Indians, as a part of their religion, make a regular periodic pilgrimage at the time of the summer solstice, on foot or horseback, from their reservation in northwest New Mexico to the mountain area the tribe calls Kohlu/wala:wa which is located in northeast Arizona. It is believed by the Zuni Indians that Kohlu/wala:wa is their place of origin, the basis for their religiou...
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MEMORANDUM OPINION This matter is before the Court on plaintiffs’ appeal from the Magistrate’s Order denying plaintiffs’ motion to compel and granting defendant Williams’ request for a protective order against the taking of any discovery in derogation of defendant’s Fifth Amendment privilege against self-incrimination. The specific question presented is whether a party may invoke the Fift...
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RULING ON THE RESOLUTION TRUST CORPORATION’S MOTION FOR SUMMARY JUDGMENT On June 28, 1984, A.C.V., Inc. (ACV) executed a loan agreement and a secured promissory note with Commercial Federal Savings & Loan Association (Commercial Federal) in the principal amount of $3,200,-000.00 bearing an annual interest rate of 15% and payable upon demand. 1 The secured promissory note was so...
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MEMORANDUM OPINION This is an in rem civil action in which the United States is seeking forfeiture of currency in the amount of $639,558 seized from Christopher Todd Bleiehfeld, who has filed a claim for return of the currency. The government contends that forfeiture is justified due to Mr. Bleichfeld’s involvement in drug law and money laundering violations. Claimant has petitioned this Court to ...
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MEMORANDUM OF DECISION AND ORDER GRANTING PLAINTIFFS’ MOTIONS FOR CLASS CERTIFICATION, SUMMARY JUDGMENT AND ENTRY OF PERMANENT INJUNCTION I. Background By memorandum of decision and order filed May 31, 1990, this Court held that the accounting information provided by defendant United Teachers-Los Angeles (“UTLA”) in its agency fee notice was constitutionally deficient owing to the fa...
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MEMORANDUM OPINION AND ORDER Plaintiff has brought claims against certain Denver police officers, the City and County of Denver, its mayor, its manager of safety, and its chief of police. The lawsuit is in federal court because the claims include allegations that defendants have violated plaintiff’s civil rights and are thus liable for damages under 42 U.S.C. § 1983 (1988). The case is no...
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RULING ON CF INDUSTRIES’ MOTION FOR SUMMARY JUDGMENT ON ITS THIRD PARTY DEMANDS AGAINST BARNARD & BURK AND EMPLOYERS NATIONAL Damon Thomas filed suit against CF Industries, Inc. (CFI) for damages sustained while performing work on CFI’s premises pursuant to a contract between CFI and Barnard & Burk (B & B). CFI then filed a Third Party Complaint against B & B and its insurer, Employers National I...
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MEMORANDUM OPINION AND ORDER When the Court reversed summary judgment in favor of all defendants in Harkins Amusement Enterprises v. General Cinema Corporation, 850 F.2d 477 (9th Cir.1988), it noted at Footnote 4: “The distributors brought their partial summary judgment motion jointly, and have not attempted to argue that some are entitled to judgment on certain claims while others are not. At thi...
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MEMORANDUM OPINION AND ORDER Commencing on January 4, 1989, the plaintiffs have filed a number of motions seeking the imposition of sanctions against the distributor defendants for the destruction of evidence. At a hearing on August 2, 1989, the Court ruled that “some sanctions” were appropriate but not defaulting the distributor defendants. Plaintiffs were invited to submit an additional proposal...
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*762 FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW, AND ORDER TABLE OF CONTENTS TABLE OF CONTENTS.......................................................762 FINDINGS OF FACT.........................................................763 I. Parties.................................................................763 II. Patents-in-Suit...............................
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MEMORANDUM OPINION AND ORDER Susanne Littlefield, who is white, sued Malcolm McGuffey for refusing to rent an apartment to her and for harassing and intimidating her because she has a black boyfriend. She sued for violation of the civil rights laws and the Fair Housing Act under 42 U.S.C. §§ 1982, 3604, 3613, and 3617 and for intentional infliction of emotional distress under Illinois com...
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MEMORANDUM OPINION AND ORDER STATEMENT OF FACTS Plaintiffs bring this action under 42 U.S.C. § 1983, seeking injunctive and declaratory relief. Plaintiffs are signatories to nominating petitions for candidates to the Harold Washington Party (“HWP”). Those candidates were disqualified from appearing on the ballot for county-wide elections to take place November 6, 1990. Finding that the HWP ha...
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RULING ON DEFENDANTS’ MOTION TO DISMISS BACKGROUND Plaintiff, Alphonse Rauccio, commenced this action against Anthony Frank in his official capacity as Postmaster General of the United States Postal Service and against various other Postal Service employees in both their official and individual capacities. Defendants filed a Certification of Scope of Employment and a Notice of Substi...
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*279 MEMORANDUM OPINION AND ORDER Plaintiff, Pine Top Insurance Company (“Pine Top”), in Liquidation, brought this action against defendants, Bank of Amer-ica National Trust and Savings Association (the “Bank”) and Republic Western Insurance Company (“Republic”), to recover the proceeds of allegedly preferential transfers in violation of Section 204 of the Illinois Insurance Code...
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MEMORANDUM Before the Court are a motion by defendant Tennessee Valley Authority (“TVA”) to dismiss or for summary judgment and a cross motion by plaintiff Tennessee Valley Trades & Labor Council (“Council”) for summary judgment. The dispute concerns whether the Council is entitled to an injunc-tive order directing that TVA promptly cooperate with the Council in the process of mediation and volun...
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MEMORANDUM OPINION AND ORDER The plaintiff Malcolm Maurice Cemond brought this pro se action alleging numerous civil rights violations and seeking compensatory and injunctive relief under 42 U.S.C. § 1983 (1988). On May 31, 1990, we dismissed all of Cemond’s claims under Rule 12(b)(6) except for an excessive post-arrest detention claim against defendant Robert Smith, an officer of the Oak Lawn Pol...
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ORDER ON PLAINTIFFS’ MOTION FOR EXPENSES FOR SERVICE OF PROCESS (# 56) Rule 4(c)(2)(D), Fed.R.Civ.P., provides: Unless good cause is shown for not doing so the court shall order the payment of costs of personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgement of receipt of summons. In the instant case, defendants ...
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MEMORANDUM AND ORDER In a one-count Indictment the aboven-amed individual (“the defendant”) is charged with having, while under oath and as to matters material to an investigation then being conducted by a United States Grand Jury, knowingly given false testimony. The matter said in the Indictment to have been thus under investigation was the making of false returns, statements and other documents...
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MEMORANDUM This matter is before the Court on the motion of defendant, the City of Louisiana, Missouri (City), to dismiss plaintiff’s complaint, or in the alternative, to make more definite and certain. Plaintiff, a former employee of the City Board of Public Works, brings this two count complaint alleging due process violations and breach of contract in connection with his discharge from employm...
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On Appeal from the Territorial Court of the Virgin Islands BEFORE: STANLEY S. BROTMAN, Acting Chief Judge, District Court of the Virgin Islands, Judge of the United States District Court for the District of New Jersey, Sitting by Designation: BENJAMIN F. GIBSON, Judge of the United States District Court for the Western District of Michigan, Sitting by Designation: and...
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ORDER THIS CAUSE came before the Court upon the joint Motion To Dismiss filed by the Fort Lauderdale Police Department and the Fort Lauderdale Building and Zoning Department. A. Summary In Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that “municipalities and other local government *1132 units” are “persons” subject to lia...
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MEMORANDUM AND ORDER Plaintiffs Peter J. Rochford, Carmen De-Santo, Andrew Gretchokoff 1 and Ralph Elliot, file this action individually and on behalf of a class of plaintiffs who were denied pension benefits by defendants allegedly due to various restrictive vesting requirements. These restrictive practices include a requirement to accumulate twenty years of covered employment...
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*185 OPINION The matter before the court is the motion (# 5-2) of defendant, Michael J. Williams, to transfer venue from the United States District Court for the District of Oregon to the United States District Court for the Northern District of California. BACKGROUND Plaintiff, Findley Adhesives, Inc. (Find-ley), is a Delaware corporation that sells glue and other adhe...
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OPINION AND ORDER The Court has before it various post-trial motions including defendant’s Rule 50 Motion for Judgment Notwithstanding the Verdict (judgment n.o.v.). This is an age discrimination case filed by Francisco Wat-lington pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. *322 (“ADEA”). Mr. Watlington alleged that the University of...
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Plaintiffs, Delays Brock and Sharilyn Brock, filed the above-captioned action against Chevron Chemical Company (“Chevron”) for injuries allegedly sustained by Delays Brock on August 28, 1989, when he slipped and fell in oil or grease at Chevron's Oak Point plant near Belle Chasse, Louisiana. At the time of his alleged acci *780 dent, Mr. Brock was working as a fire-watch hand for J...
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I. INTRODUCTION The Court is called upon to resolve a conundrum concerning the insurance coverages contracted for by several competing parties. In order to resolve the problem, the Court will first describe the parties in this matter. The Court will then describe the accident that triggered this matter and the procedural history of this action. Next, the Court will examine the law applicab...
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MEMORANDUM OPINION The Court must decide whether a property owner has a right to a jury trial in an in rem civil forfeiture action instituted by the government. I On October 31, 1989, the government filed a civil forfeiture action in rem against the named property in Saginaw, Michigan. The government alleges that the property served during 1987-88 as a drug distribution center and is th...
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ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION (# 114) Plaintiff seeks reconsideration of my Order, Etc. (# 109) on General Motors Corporation’s Rule 37(b)(2) Motion For Sanctions (# 103). Odie v. General Motors Corporation, 131 F.R.D. 365 (D.Mass.1990). After a review of all filings on General Motors’ motion which were filed before my Order, Etc. (# 109) and all pleadings on the same subject wh...
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MEMORANDUM OPINION AND ORDER This case arises out of a series of transactions between First Union Real Estate Equity and Mortgage Investments (hereinafter First Union), an Ohio real estate trust, and Mellon Bank (hereinafter Mellon). In the fall of 1981, Mellon was badly in need of space for expanded office facilities, and approached First Union to explore the possibility of acquiring fro...
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790 F. Supp. 1017 (1990) Neita C. WHITE, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant. No. CV-S-90-0325-PMP (LRL). United States District Court, D. Nevada. November 6, 1990. *1018 Neita C. White, in pro. per. Brian J. Feldman, Trial Atty., Tax Div., Washington, D.C., for defendant. ORDER PRO, District Judge. In this action, pro se Plaintiff seeks the return of property seized by the Interna...
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ORDER The plaintiffs in this patent infringement action, Sun-Flex Company and Daca International B.V., have moved to strike an affirmative defense asserted by defendants Softview Computer Products Corp. and Robert King. In paragraph 21 of the amended answer, defendants attack the enforceability of the disputed patent on the ground that plaintiffs engaged in “inequitable conduct” before th...
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OPINION INTRODUCTION Plaintiffs United States of America, Frank J. Kelley, Attorney General for the State of Michigan, the Michigan Natural Resources Commission, and Gordon E. Guyer, Director of the Michigan Department of Natural Resources (collectively the “government”), filed the present action for permanent injunctive relief and imposition of civil penalties against defendants Pro...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT This cause is before the court on the motions for summary judgment filed by Defendants Lee County, the Lee County Sheriff Office, and Sheriff Frank N. Wanic-ka, individually and in his official capacity, and Plaintiff’s response thereto. Plaintiff claims that he was injured and deprived of his civil rights as a result of a policy that the De...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT This cause is before the court on the motion for summary judgment of Defendant Michael Ciolino, and Plaintiff’s response thereto. *1560Plaintiff claims that he was deprived of his civil rights pursuant to 42 U.S.C. § 1983 when he was shot by a deputy sheriff of the Lee County Sheriff Office during an investigatory stop by the deputy. This circuit clearly h...
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MEMORANDUM AND ORDER Before me is plaintiffs’ motion to dismiss count 5 of defendant’s counterclaim pursuant to Fed.R.Civ.P. 12(b)(6). In count 5, Paper Manufacturing Co. asserts that Liberty Mutual Insurance Co., Liberty Mutual Fire Insurance Co., and Liberty Insurance Co., (collectively “Liberty”), engaged in bad faith conduct towards it. Paper contends that as a result it is entitled t...
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ORDER Before the court is the petition of William Jackson for a writ of habeas corpus. For the following reasons, the court finds that this petition constitutes an abuse of the writ and, pursuant to Rule 9(b), the petition is denied. *363Petitioner alleges that his November 11, 1977 murder conviction is unconstitutional, due to ineffective assistance of both trial and appellate counsel. The petiti...
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OPINION ON REIMBURSEMENT 1. Introduction. The National Training Fund for the Sheet Metal and Air Conditioning Industry and the Houston Area Sheet Metal Joint Apprenticeship Committee have sued Zane Maddux to recover the cost of his training. Maddux went to work for a noncontributing employer, and under the training contract’s work-or-pay term, he owes the Funds. The worker complains that it...
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754 F. Supp. 596 (1990) CONWAY CORPORATION, Plaintiff, v. Carl H. AHLEMEYER, Sash A. Spencer and Charles I. Merrick, Defendants. No. 89 C 8727. United States District Court, N.D. Illinois, E.D. November 16, 1990. John J. Verscaj, Bell, Boyd & Lloyd, Chicago, Ill., for plaintiff. Robert J. Kriss, Kurt D. Williams, Mayer, Brown & Platt, Chicago, Ill., for defendants. MEMORANDUM OPINION AND...
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MEMORANDUM OPINION AND ORDER In this case the plaintiff, Rex Hughes, was injured., when he fell off the tug boat Conti-Karla into the Mississippi River on June 28, 1986. Hughes filed suit against *222ContiCarriers and Terminals, Inc., the owner of the tug, seeking compensatory and punitive damages under the Jones Act, 46 U.S.C.App. section 688 and under general maritime law. This case was tried t...
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MEMORANDUM OPINION AND ORDER This is an action in which the FDIC is seeking to recover on two promissory notes it assumed when it took over the insolvent South Denver National Bank. The FDIC has moved for summary judgment, arguing that the maker of the notes, James L. Horn, has no defenses to this collection action. Horn responded to the motion for summary judgment by alleging there is a ...
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MEMORANDUM AND ORDER This matter is before the Court on defendant’s motions for sanctions and for reconsideration of its motion for sanctions for breach of protective order, and on plaintiff’s motion to reduce or strike attorney’s fees and costs. In its motion for sanctions, defendant claims that it is entitled to sanctions pursuant to Fed.R.Civ.P. 11, by virtue of the filing of this case by the p...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff, Jones-Hamilton Company, has brought this action pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. Plaintiff alleges that defendants, Kop-Coat, Inc., Beazer Materials a...
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OPINION ON FORUM NON CONVENIENS 1. Introduction. Raja Jeha was a Lebanese employee of Aramco, working in Saudi Arabia. His wife, Selwa Jeha was treated in Saudi Arabia by doctors employed by Aramco. The Jehas have filed a medical malpractice claim out of the treatment given to Mrs. Jeha in Saudi Arabia. On Aramco’s motion, the case will be dismissed because this is an inconve...
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OPINION ON SUMMARY JUDGMENT Robert Ontiveros sued MBank Houston, N.A., to recover $125,000 owed to him under a lease. MBank breached the lease, and it must pay him. The Federal Deposit Insurance Corporation, as MBank’s receiver, bears the liability. 1. Background. In February 1981, Robert Ontiveros signed a lease with Denitex International, Inc., for a space in a shoppin...
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MEMORANDUM AND ORDER Plaintiff Moskowitz is the individual representative of a class action suit against defendants Vitalink Communications Corporation (“Vitalink”) and George Archule-ta. Plaintiff sues (1) for violation of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j; 17 C.F.R. § 240.10b-5, and (2) for common law negligent misrepresentation. Defendant Vitali...
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MEMORANDUM AND ORDER By orders dated November 5, 1990, and November 6, 1990,1 refused the motions of defendants, Vincent G. Restivo, John G. *1296 Cassidy, Sr., Kevin P. Cassidy, and Francis Santangelo to dismiss plaintiffs amended complaint and the motion of Francis San-tangelo asserting that this court lacked in personam jurisdiction over him and was not an appro...
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MEMORANDUM-DECISION AND ORDER Introduction The plaintiffs have brought this action to challenge the validity of a Town of Deer-field (“Deerfield”) zoning ordinance prohibiting the erection of dish-type and tower-type antennae on housing lots which are less than one-half acre in size. Although the complaint is somewhat inartfully drafted, it appears to the court that plaintiffs, J...
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ORDER On this date came on to be considered the Defendant El Paso Natural Gas Co.’s (“EPNG”) Motion for Summary Judgment and supporting brief, filed June 18, 1990; the Plaintiff Luis Martinez Guzman’s Brief in Opposition to the Motion for Summary Judgment, filed June 29,1990; Defendant's Reply to Plaintiff's Brief in Opposition to Defendant’s Motion for Summary Judgment, filed July 16, 19...
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ORDER Upon consideration of the parties’ respective positions as expressed at the conference on this date attended by Thomas E. Zemaitis, Esquire, and Kathryn Kolbert, Esquire, attorneys for plaintiffs, and Kate L. Mershimer, Esquire, attorney for defendants, IT IS ORDERED that this court’s preliminary injunction of May 23, 1988, 686 F.Supp. 1089, in this action is clarified as follows: Parag...
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MEMORANDUM AND ORDER This matter comes before the court on two motions. Defendant Vermeer Manufacturing Company (hereinafter “Vermeer Manufacturing”) moves pursuant to Rule 26(c)(1) of the Federal Rules of Civil Procedure for a protective order. Vermeer requests that the court enter an order that the deposition of Stewart Kanis, M.D., (hereinafter “Dr. Kanis”) not be taken in this case. Plaintiff...
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ORDER Plaintiffs Thomas Hawthorne and Emory Newman, on behalf of themselves and other African-American Democrats in Alabama, claim in this lawsuit that recent changes in the way members of the State Democratic Executive Committee and members of 47 of the 67 County Democratic Executive Committees are selected must be precleared under § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § ...
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ORDER THIS MATTER is before the Court on Plaintiffs’ motion, filed October 26, 1990, for an order of attachment on White Business Machine stock owned by Defendants Danielsson and Sorensen. Plaintiffs have filed a complaint alleging that Defendants are co-conspirators in an international securities fraud swindle which damaged Plaintiffs and others. Plaintiffs contend that Defendants Danielsson...
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ORDER This matter is before the court on appeal from the bankruptcy court. The appellant, Margie Garner, appeals Bankruptcy Judge Karen M. See’s Findings of Fact, Conclusions of Law and Final Judgment, entered on June 3, 1988. Therein, Judge See determined that stock held jointly by the bankrupt and his nonbankrupt spouse, Margie Garner, should be included in the bankruptcy estate and sol...
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ORDER THIS MATTER is before the Court on Defendant Central States, Southeast and Southwest Areas Pension Fund’s (hereinafter “Central States”) motion, filed August 15, 1990, to strike Plaintiff’s jury demand. The record in this case indicates Plaintiff filed his complaint on June 1, 1990. The complaint alleges that Plaintiff was employed in February, 1980 as a truck driver by Defenda...
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