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All Reporters → us-dist-lexis → Volume 1991

Opinions in us-dist-lexis Volume 1991

ORDER AFFIRMING BANKRUPTCY COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW ON COMPLAINT FOR DECLARATORY JUDGMENT AND TURNOVER THIS CAUSE comes before the Court upon Appellant, United States of Amer- *662 ica’s, appeal from the Order of the Bankruptcy Court for the Southern District of Florida, 123 B.R. 662. The undersigned finds the United States Supreme Court’s holding in United States v. W...
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OPINION Defendants Miguel Angel Gomez, a/k/a “Pedro Medero” and Pedro Montana a/k/a “Pedro Sabogal” were arrested on May 21, 1990 in the vicinity of 2170 Broadway, New *147 York, New York, by agents of the Drug Enforcement Administration (“DEA”) and the United States Customs Service (“USCS”). Montana and Gomez were charged with having conspired to import a quantity of cocaine...
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OPINION ON MOTION TO REMAND Plaintiff has submitted a motion to this court asking that this case be remanded to the state court from which it was removed by The Committee of Receivers for Abdul Wahab Bin Ebrahim Galadari and A.W. Galadari Commodities (The Committee). Background The facts of this case are complex and for the purpose of this motion it is not necessary to state the...
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OPINION AND ORDER This matter is before the court for a decision on the motion of defendant United Technologies Corporation for summary judgment. In his response to the motion, plaintiff Kesselring has conceded that defendant is entitled to summary judgment on Count Two of the complaint, a state age discrimination claim under Ohio Revised Code § 4101.17, and on Count IY, a state law breac...
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MEMORANDUM OPINION AND ORDER This is a purported class action instituted by plaintiff Debra R. Greenberg, as Trustee of the Debra R. Greenberg 6/10/86 Revocable Living Trust, (“Greenberg”) on behalf of all purchasers of certain municipal mortgage revenue bonds (“the municipal bonds”) who held bonds on January 11, 1990. In connection with the bonds’ issuance, Greenberg sues various entitie...
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OPINION AND ORDER Plaintiffs Weltover, Inc. (“Weltover”), Springdale Enterprises, Inc. (“Springdale”), and Bank Cantrade, A.G. (“Bank Can-trade”), bring this action against the Republic of Argentina (“Argentina”) and Ban-co Central De La República Argentina (“Banco Central”) alleging that the defendants have breached obligations arising out of the issuance of certain bonds. The defendants...
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OPINION AND ORDER Defendant moves pursuant to Rule 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure to dismiss this action for personal injuries to Joshua Marks, on the ground that this Court lacks in personam jurisdiction over it. In the alternative, defendant moves to transfer the action to the United States District Court in Vermont pursuant to 28 U.S.C. § 1404. Plaintiff claims t...
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OPINION AND ORDER The plaintiff, Credit Lyonnais Bank Nederland, N.V., moves for sanctions as a result of the repudiation of a settlement agreement made by defendant, Alex Mas-sis, in open Court in the presence of his *463attorney. Annexed to the motion are the time sheets of counsel showing that time charges of $9,697.00 incurred in the attempt to settle this ease, a suit to collect on a personal...
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MEMORANDUM OPINION AND ORDER On December 13, 1990, this court granted the motion of Blue Cross and Blue Shield of Alabama, plaintiff in the above-entitled cause, to strike the jury demand of defendants, J. William Lewis and Lorraine S. Lewis, individually and as parents of Diedre M. Lewis, a minor. 1 At the time the *346 Lewises’ jury demand was stricken this court...
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ORDER Pursuant to Fed.R.Crim.P. 35(a), defendant Larry DeJohnette has filed a motion for correction of illegal sentence. DeJoh-nette attacks the legality of the sentence imposed by this court on August 14, 1985. Rule 35(a), as applied to offenses committed prior to November 1, 1987, authorizes a district court to correct an illegal sentence “at any time.” The sentence at issue stems from DeJoh-net...
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OPINION This case, brought under the Federal Tort Claims Act, involves a relatively minor collision between a United States postal truck and a privately-owned automobile, but implicates important issues concerning the New York State “no-fault” insurance statute and the doctrines of preemption and sovereign immunity. Originally filed in the Civil Court of the City of New York against the d...
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OPINION ON FINAL JUDGMENT 1. Introduction. The Federal Deposit Insurance Corporation (FDIC) sought to recover immediate possession of land acquired by the failed bank at foreclosure. After removal, an adverse claimant to title under a contract with the FDIC intervened. Title, against the parties defendant, is in the FDIC, and it has the right to immediate possession and past rentals. 2. Backgroun...
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MEMORANDUM OPINION AND ORDER Petitioner Anthony Peterson brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988), challenging his state court conviction on rape, sodomy, robbery and kidnapping charges. Petitioner makes three claims: (1) that he was deprived of the right to testify on his own behalf by the state court’s rulings on the admissibility of evidence ...
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ORDER Defendant Villareal presents this court with a far-flung discovery motion. Indeed, the court suspects that defendant has forgotten what court he addresses as his motion makes reference to the “State” and the Illinois Supreme Court Rules. Defendant is in federal court. To the extent that his discovery requests embrace matters that should be disclosed pursuant to Brady v. Maryland, 373 U....
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ORDER Plaintiffs Central States, Southeast and Southwest Areas Pension Fund, and Howard McDougall as trustee (“Pension Fund”) bring this suit under the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., as amended by the Multiemployer Pension Act Amendments of 1980. Plaintiff Pension Fund seeks employer contributions from defendant Howard Bae...
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MEMORANDUM OPINION BACKGROUND On June 21, 1990, this court granted defendant Anthony M. Frank’s (“the Postmaster General”) motion to dismiss this Title VII religious discrimination action on the ground that plaintiff Gordon E. Wright (“Wright”) had failed to exhaust administrative remedies in a timely manner. This court found that Wright had failed to show that he had contacted an Equal Employmen...
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*86OPINION Plaintiffs Trustees of the Retirement Fund of the Fur Manufacturing Industry (the “Fund”) have moved for summary judgment on remand from the Court of Appeals. Defendants Grace Capital, Inc. (“Grace Capital”) and H. David Grace (“Grace”) oppose the motion, asserting that there are material facts in dispute concerning the proper measure of the Trustees’ damages. For the following reasons...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The motion of plaintiff Ecolab Inc. for a preliminary injunction came before this Court for hearing on October 11, 1990. Evidence was introduced on behalf of all parties and the cause was argued and submitted for decision. The Court, having considered- the evidence heard and received on October 11; 12, 15, 17, and 18, 1990, and having considered the...
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MEMORANDUM OPINION AND ORDER This cause is before the Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the Motion of Defendant, Catheter Technology Corporation, for Summary Judgment. Plaintiff has responded to the Motion. The Court, having considered the Motion and response, together with supporting and opposing memoranda of authorities and attachments thereto, is of...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This admiralty action commenced on August 28, 1989, when plaintiff Harry Zych, doing business as American Diving and Salvage Co., filed an in rem complaint against a shipwreck located in Lake Michigan and believed to be the “Lady Elgin.” The complaint asserted that the ship was abandoned and that he was the rightful owner pursuant to the l...
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MEMORANDUM OPINION Proceeding pro se, the plaintiff in the above-captioned ease is suing the Potomac Electric Power Company (“PEPCO”) for $50,000 in damages caused by a fire allegedly started due to the defendant’s wrongdoing and for $100,000 for the plaintiffs allegedly “traumatic” nine-year-long relationship with the defendant. The defendant has filed a motion for summary jud...
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MEMORANDUM Plaintiff Elizabeth Coleman-Santucci1 brought an action under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) alleging age and sex discrimination by the defendant. On March 31, 1982, this Court issued a judgment in favor of the plaintiff. Order and Judgment, dated March 31, 1982. The Court found that the Department of Health and Human Servi...
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OPINION AND ORDER Before me is a post-verdict motion challenging convictions for violations of the Travel Act, 18 U.S.C. § 1952. Based on a detailed stipulation of facts,1 I found H. William Johns guilty of thirty-eight counts of mail fraud, 18 U.S.C. § 1341, and nine counts of violating the Travel Act. I acquitted him of nine counts of violating the National Stolen Property Act, 18 U.S.C. § 2314....
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OPINION This matter is before the Court on the motion to dismiss of defendants William M. Hall, Sandy K. Lee, Edwin L. Harvey, and Lee & Harvey, on the motion of plaintiff to permit discovery as to the indispensable party aspect of defendants’ motion to dismiss, and on the Court’s sua sponte motion to dismiss for insufficient service of process. Background ...
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ORDER This matter is before the court on plaintiffs' motion for class certification and defendants’ motion to dismiss for either lack of subject matter jurisdiction or failure to state a claim upon which relief may be *1479 granted, or in the alternative, for summary judgment. Based on the file, record and proceedings herein, the court grants defendants’ motion for summary ju...
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RULING ON MOTION FOR SUMMARY JUDGMENT Plaintiffs commenced this action in Connecticut Superior Court alleging breach of contract (Counts One and Two), bad faith (Counts Three and Four), unfair insurance practices (Counts Five and Six), unfair trade practices (Counts Seven and Eight), and intentional infliction of emotional dis *19 tress (Count Nine) resulting from cancellatio...
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This is a lawsuit for damages arising out of vessel seizures which occurred as a result of the following events. The U.S. Coast Guard boarded two commercial fishing vessels owned by plaintiffs Lan Huong Thi Nguyen and Tricia Vu, which were allegedly moored in an unsafe manner in Tiger Pass, Plaquemines Parish, Louisiana. Once on board the vessels, the Coastguardsmen allegedly saw a small a...
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MEMORANDUM AND ORDER This is a diversity action under 28 U.S.C. § 1332(a) brought by plaintiff, Thomas De-mirs, a Rhode Island resident, for breach of contract and constructive trust based on the defendants alleged failure to meet their obligations under an employment contract. The defendant corporation is organized under the laws of California. During the relevant time period, defendant ...
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RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT FACTS Plaintiff, Marine Midland Bank, (“Bank”) has filed a motion for summary judgment on the First Count of its Complaint pursuant to Federal Rule of Civil Procedure 56. In 1984, Riverside Oil Company, Inc., (“Riverside”), not a party to this action, executed a variable rate installment note, payable to the Bank in the principal amount of four hu...
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RULING ON DEFENDANT'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT Background Plaintiff, Ezra Williams, brings this action pursuant to Title VII of the Civil Rights Act of 1964 (Count I), § 1981 of the Civil Rights Act of 1866 (Count II), state common law (Count III) and the Employee Retirement Income Security Act of 1974 (“ERISA”) (Count IV). As a basis for his claims, plaintiff a...
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ORDER Plaintiff Dacor Corporation (“Dacor”) is a manufacturer of scuba diving equipment. Between 1985 and 1987, Dacor purchased scuba regulator hoses from defendant Sierra Precision (“Sierra”). Dacor incorporated the regulator hoses into its products, which were then distributed to Dacor dealers. When Dacor discovered that the regulator hoses were defective, it conducted a product recall....
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MEMORANDUM This case is before the Court on the defendant’s, Jack Kemp, Secretary of the United States Department of Housing and Urban Development (“Secretary” or “HUD”), motion to dismiss under Fed.R. Civ.P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state *1028 a claim. This action arises out of a dispute between the plaintiff, 1610 Corpora...
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RULING ON MOTION TO DISMISS Plaintiff Local 443 (“Local 443”) is an affiliated local union of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“IBT”). Plaintiff brought this suit against Vincent S. Pisano (“Pisano”), a former officer of plaintiff who served as Secretary-Treasurer, its chief executive officer, from 1981 through June 25, 1987. Pla...
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ORDER Plaintiff Stanislawa Bobola seeks review of a decision by defendant Secretary which denied a reopening of her benefits claim of September 9, 1986. The government moves to dismiss her complaint contending that the court lacks jurisdiction over the subject matter of the suit. For the reasons stated below, the government’s motion to dismiss plaintiff’s complaint is denied. However, the...
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OPINION AND ORDER Pursuant to an order to show cause signed by Judge Edward R. Korman on December 26, 1990, plaintiff, a boxing manager, moves for a preliminary injunction to enjoin the defendant, Julian Solis, a professional boxer, from engaging in any boxing exhibitions, in particular a boxing match presently scheduled for Tuesday evening, January 8, 1991 with one Calvin Grove, without ...
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ORDER This matter is before the court on a motion to dismiss for lack of personal jurisdiction filed by the defendant, VFS, Inc. The parties have fully briefed the issue. For the following reasons the motion to dismiss will be granted. Personal Jurisdiction Due process requires that a trial court acquire personal jurisdiction over a non-resident defendant before it can render a valid judgment a...
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MEMORANDUM In 1973, the United States filed a complaint in condemnation (“Action”), encompassing thirty tracts in what is now known as. the Cape Cod National Seashore. The only tract at issue in this action is Tract Number 25T-5741 (“Tract”). The United States seeks to have a judgment entered vesting title in the United States as to the entirety of the Tract. Hersey D. Taylor (“Taylor”) claims ...
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OPINION This is a motion for attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Plaintiff Marjory Altieri (“Altieri”) brought the underlying action pursuant to sections 205(g) and 1631(c) of the Social Security Act (the “Act”), 42 U.S.C. §§ 405(g) and 1383(c), seeking a reversal of the final decision of the Secretary of Health and Human Services (the “Secret...
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MEMORANDUM RULING This case is presently before the court after reassignment from Judge William Wayne Justice of the Eastern District of Texas. As venue is proper only in the Eastern District of Texas, assignment to this court does not transfer venue to the Western District of Louisiana. Pending are several motions to reconsider or alter judgments entered by Judge Sam B. Hall, Marshall Di...
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ORDER Currently before the court are cross-motions for summary judgment filed by defendant and third-party plaintiff, the City of Bucyrus (hereinafter the City) and third-party defendant, the International Association of Firefighters, Local 1120 (hereinafter the Union), pursuant to Rule 56 of the Federal Rules of Civil Procedure. The present controversy deals with the issue of the Union’s oblig...
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OPINION James Robert Crocker (“Crocker”) was indicted on May 22, 1990 on four counts of tax evasion in violation of 26 U.S.C. § 7201 (1988) and four counts of failure to file a tax return in violation of 26 U.S.C. § 7203 (1988). This Court conducted a jury trial on December 17 and 18, 1990, and the jury returned verdicts of guilty on each of the eight counts. At the close of the government’s ca...
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OPINION I. INTRODUCTION Appellant Kosta P. Velis a/k/a Konstan-tin P. Velis (“debtor”) filed a voluntary Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the District of New Jersey on December 18, 1986. On January 26, 1988, appellee Mary Kardanis, who holds a multi-million dollar medical malpractice judgment against the debtor, filed an objection to his claime...
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MEMORANDUM OPINION AND ORDER This Court’s November 16, 1990, 754 F.Supp. 596 memorandum opinion and order (the “Opinion”) provided a detailed factual and legal analysis to explain its conclusion that plaintiff Conway Corporation (“Conway”) was entitled to the summary judgment that it had sought under Fed.R. Civ.P. (“Rule”) 56 against former Illinois Pork Corporation shareholders (collectively “Sh...
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OPINION I. PROCEDURAL AND FACTUAL HISTORY The Delaware and Hudson Railway Company (“Delaware & Hudson”) is a wholly owned subsidiary of Guilford Transportation Industries, Inc. (“Guilford”). On June 20, 1988, Delaware & Hudson filed a petition for reorganization under Chapter 11 of the United States Bankruptcy Code. Pursuant to 28 U.S.C. § 157(a), the bankruptcy case was referred fro...
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*354 MEMORANDUM OPINION AND ORDER Presently pending is defendants’ motion to dismiss the amended complaint. On such a motion, all the well-pleaded allegations of the complaint are assumed to be true and all reasonable inferences from the facts alleged are drawn in favor of plaintiff. Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1039 (7th Cir.1987). The mo...
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OPINION This case was brought by plaintiffs Frank and Louise Beattie against defendants D.M. Collections, Inc. and K.M. De-Lacy for violations of the Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692 et seq. (“FDCPA”). Defendants have moved for summary judgment, and plaintiffs have cross-moved for partial summary judgment on the merits, reserving the issue of damages for ...
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MEMORANDUM AND ORDER This matter is before the Court on defendant’s motions to dismiss and to dissolve attachment, or in the alternative, require posting of bond by plaintiff and amended motion to dismiss. In this action plaintiff seeks to recover specified damages and punitive damages as a result of false representations made by defendant, damages as a result of a breach of contract by defendant ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Court has conducted a bench trial dealing with the claims, counterclaims and *1431 crossclaims in this action, and the parties have submitted their proposals for findings of fact and conclusions of law. This Court has further looked into all matters necessary for resolution of the claims that were not appropriately dealt with in th...
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ORDER In this diversity action, plaintiff seeks to recover under O.C.G.A. § 51-l-18(a) (Supp. 1990) for injuries incurred when her minor son, John Reese, purchased beer from Warren and Dianne Braswell, got drunk and fell out of a pick-up truck. Plaintiff contends that the Braswells are agents of Bri-lad Oil Company (“Brilad”) and that, under the doctrine of respondeat superior, Brilad is responsi...
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OPINION AND ORDER Plaintiff CBS Inc. (“CBS”) brings this action seeking a declaratory judgment that defendant Continental Casualty Company (“CNA”) is obligated to indemnify CBS for certain losses and defense costs pursuant to an excess errors and omissions policy issued by it. Both parties move for summary judgment. For the reasons that follow, plaintiffs motion for summary judgment is de...
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754 F.Supp. 816 (1991) PORT LYNCH, INC. and Interstate Production Credit Association, Plaintiffs, v. NEW ENGLAND INTERNATIONAL ASSURETY OF AMERICA, INC., Atlantic Gulf Marine Ins. Inc., American Marine & General Ins. Co., Ltd., American Atlantic Ins. Co., Ltd. and American Trade Ins. Co., Ltd., Monroe Ins. Brokerage, William Monroe, Barnhardt Marine Ins. Inc. and Frank L. Barnhardt, Defendant...
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MEMORANDUM AND ORDER Plaintiff Refac International (“Refac”) brings this action against eight defendants: Mastercard International (“Mastercard”), F.W. Woolworth’s (“Woolworths”), Gap Inc. (“the Gap”), Hit or Miss, Inc. (“Hit or Miss”), B. Altman & Co. (“B. Altman”), Walden Book Company, Inc. (“Walden”), Crazy Eddie, Inc. (“Crazy Eddie”), and Mobil Oil Corporation (“Mobil”) for infringeme...
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OPINION I. INTRODUCTION Plaintiff United States of America alleges that defendant Toys “R” Us, Inc. (“Toys ‘R’ Us”), an importer, distributor, and retailer of children’s toys and other articles; defendant Charles Lazarus (“Lazarus”), Chairman of the Board and Chief Executive Officer of defendant Toys “R” Us; and defendant Michael Goldstein (“Goldstein”), Executive Vice-President of d...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The plaintiffs, husband and wife, bought a piece of land in Westport, Massachusetts. An architect, August Schaefer, designed a home for them, at an estimated cost of $150,000. The builder they had hoped to use was not available, so, in July of 1985 they discussed their plans with the defendant, a contractor who was working on another home nearby. The plai...
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ORDER This civil action commenced in the Carroll County Superior Court and was removed to this court by Defendant Engeleiter pursuant to 28 U.S.C. §§ 1441, 1442(a)(1) and 1446. Before the court is the Motion to Remand filed by defendant Nockles, Feltch, and Bellafido, Inc. and Objections to the Motion to Remand filed by both Fleet Bank — New Hampshire and Engeleiter. *418 A ...
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DECISION AND ORDER On November 19, 1990, plaintiff William Borchardt (“Borchardt”) moved this court for an order permitting him to present the testimony of his expert witness, Kurt F. Konkel, M.D. (“Dr. Konkel”), at trial by the use of an evidentiary deposition rather than in person. Borchardt argues that the testimony of Dr. Konkel via deposition is necessary because the expense of having Dr. Kon...
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ORDER I. INTRODUCTION Plaintiff brought this action to recover money for certain farm equipment allegedly repurchased from plaintiff by defendant. The case is currently before the court on plaintiff’s motion for partial summary judgment and defendant's cross-motion for summary judgment. For the reasons set forth herein, plaintiff’s motion is granted and defendant’s motion is denied. II. FACTUAL SU...
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RULING ON MOTION FOR SUMMARY JUDGMENT The consolidated actions pertain to the cleanup of two landfills, Beacon Heights Landfill (“Beacon Heights”) in Beacon Falls, Connecticut, and Laurel Park Landfill (“Laurel Park”) in Naugatuck, Connecticut, identified by the Environmental Protection Agency (“EPA”) and placed on the National Priority List, pursuant to the Comprehensive Environmental Re...
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This cause came on for hearing on a previous day on the motion of plaintiff, Darryl J. Tschirn, to remand this matter to Civil District Court for the Parish of Orleans. The Court, having heard the arguments of counsel and having studied the legal memoranda submitted by the parties, is now fully advised in the premises and ready to rule. Accordingly, IT IS THE ORDER OF THE COURT that t...
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MEMORANDUM OPINION The court must once again consider whether and in what form the testimony of Samuel Jamiel Joseph, a four-year-old child, is to be admitted in evidence against the defendant, who is accused of murdering the child’s father. As set out in the court’s opinion of October 31, 1990, with which familiarity is assumed, the court granted the defendant’s motion to hold the child incomp...
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ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff Penalosa Cooperative Exchange (Co-op) alleges that from September 1983, through December 1985, Wayne Winter (Winter), its general manager, embezzled funds from plaintiff and used the money to speculate in the commodities market for his own account. During that time, ...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART CLAIMANT’S MOTION FOR SUMMARY JUDGMENT I. Background On August 15, 1989, the United States brought this action for forfeiture in rem pursuant to 21 U.S.C. § 881(a)(6) which provides, in part, that: (а) The following shall be subject to fo...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff Bernice Coleman filed this action against defendant Norwegian Cruise Lines alleging that as a result of defendant’s negligence, she sustained personal injuries while on board defendant’s cruise ship. Defendant filed a Motion to Dismiss in which it argues that plaintiff’s claim is barred by the one-year statute of limitations...
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MEMORANDUM OPINION This matter was tried before the Court for six days beginning on September 13, 1990. After considering the record and the evidence adduced at trial, the Court finds as follows. To the extent that any of the following findings of fact constitute conclusions of law, they are adopted as such; to the extent that any of the conclusions of law constitute findings of fact...
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MEMORANDUM AND ORDER Petitioner was convicted, after a jury trial, of murder in the second degree (N.Y. Penal Law § 125.25[3]) and was sentenced to a term of imprisonment of fifteen years to life. In this proceeding, pursuant to 28 U.S.C. § 2254, petitioner seeks to set aside his conviction on a variety of grounds. In an order entered on December 16, 1988, all of the grounds raised by pet...
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MEMORANDUM OPINION On December 26, 1990, this court entered an order directing Resolution Trust Corporation (“RTC”), as receiver for City Federal Savings & Loan Association, to show cause, if it could do so, why the above-entitled case should not be remanded to the state court. 1 RTC responded on January 3, *915 1991, contending that it was not “substituted” for Ci...
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MEMORANDUM AND ORDER This matter is before me on the joint motion of The Town of Norfolk, Massachusetts and the Town of Walpole, Massachusetts (the “Towns”) to intervene for a limited purpose in this action. The Towns seek to intervene as of right pursuant to Rule 24(a) Fed.R.Civ.P. or, alternatively, pursuant to Rule 24(b). The Massachusetts Water Resources Authority (the “MWRA”) has filed an ...
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MEMORANDUM OPINION AND ORDER In a review of the pleadings prior to a scheduled (and later adjourned) case management conference, I examined the Affirmative Defenses to plaintiffs rather standard medical practice Complaint. While reviewing the affirmative defenses, it appeared to me as though 8 of the 13 asserted affirmative defenses violated Rule 11 of the Federal Rules of Civil Procedure. Therefo...
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MEMORANDUM OPINION AND ORDER This action against the United States was filed pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 and 2671-2680. It arises from a traffic accident involving the plaintiff, a pedestrian, and a vehicle operated by an employee of the United States Postal Service. The employee, a letter carrier, was at all times acting within the scope of his employment....
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754 F. Supp. 860 (1991) Nettie PENDLETON, Plaintiff, v. AMERICAN TITLE BROKERS, INC., Defendant. Civ. A. No. 89-0904-RV-C. United States District Court, S.D. Alabama, S.D. January 9, 1991. *861 Peter J. Madden, Mobile, Ala., for plaintiff. James A. Johnston, Pensacola, Fla., for defendant. ORDER VOLLMER, District Judge. This cause is before this Court pursuant to the Motion for Partial Summary J...
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OPINION This is an appeal from an order of the United States Bankruptcy Court for the Southern District of New York, Hon. Tina L. Brozman, in a consolidated Chapter 11 case involving numerous debtors. The order at issue is an Amended Bar Date Order (“Bar Order”) issued on May 9, 1990. Appellants are The Citizens and Southern National Bank and the First Fidelity Bank N.A., New Jersey (coll...
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OPINION AND ORDER Defendant Mason K. Yu, Jr. (“Yu”) was charged in an indictment filed on November 9, 1990 with two counts of making false statements in violation of 18 U.S.C. § 1001. Yu now moves to suppress (1) two New York City Police Department Firearms Disposition/Registration Certificates (hereinafter “firearms registration certificates”) and one firearms sales receipt seized during...
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MEMORANDUM OPINION ORDER GRANTING DEFENDANT’S MOTION FOR HEARING This cause comes before the Court upon Defendant’s Motion for Hearing to Determine Necessity of Defendant’s Confinement. Background Defendant was charged in a one-count indictment with the knowing and willful attempt to murder a fellow passenger on board an Eastern Airlines flight with a pocket knife. This conduct took place on Feb...
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MEMORANDUM OPINION This ERISA case is before the Court on defendants’ motion for summary judgment, on the ground of limitations, as well as their related motion for sanctions under FED.R.CIV.P. 11. The motions have been timely opposed, and no oral hearing appears necessary. The plaintiff essentially concedes that his action against the defendants for fiduciary misfeasance on account of bad tax adv...
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OPINION Plaintiffs, Trustees of the Hotel Employees and Restaurant Employees International Union Welfare and Pension Funds (“Funds”), bring this action under Sections 502 and 515 of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1132, 1145, and Section 301(a) of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). Plaintiffs allege that Defendant restaurant, the C...
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MEMORANDUM AND ORDER Stephen E. Estroff, Esq., Special Master in the above-captioned foreclosure proceeding, has submitted an order confirming his Supplemental Report of Sale. As there has been no objection to the Report, there would ordinarily be no occasion for comment. However, Mr. Estroff’s services have been so extraordinary that it would be inappropriate to let them pass without public recog...
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MEMORANDUM AND ORDER Plaintiff Arthur Roso, Individually, and as Representative of all those persons similarly situated (“Roso”), was certified by this Court on December 6, 1988 to bring this action against Saxon Energy Corporation (“Saxon”) et al. on behalf of the designated class for violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1...
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ORDER GRANTING PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT On December 17, 1990, the Court heard oral argument on cross-motions for summary judgment in each of the above-captioned cases. The Court HEREBY GRANTS plaintiffs’ motions for summary judgment and DENIES defendants’ motions for summary judgment. The cross-motions for summary judgment made in these two actions have been consolida...
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MEMORANDUM AND ORDER This matter is before the court on motion of plaintiffs Billy W. Lamon, et al. for the award of damages. Also before the court is defendant’s motion for a new trial or to alter, amend, or vacate the judgment; or in the alternative for a judgment notwithstanding the verdict. This is a case brought pursuant to the Fair Labor Standards Act of 1938, as amended,...
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OPINION AND ORDER This is an action under section 205(g) of the Social Security Act (“the Act”), as amended, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health and Human Services (“Secretary”) denying plaintiff’s application for old-age insurance benefits under section 202(a), as amended, 42 U.S.C. § 402(a). Plaintiff, Angel L. Betancourt, filed two applications for retirem...
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MEMORANDUM & ORDER Plaintiffs Lama Holding Company (“Lama”) and its foreign parents, Rasha Investments N.V. (“Rasha”) and Rana Investments, Ltd. (“Rana”), bring this diversity action against defendants Shearman & Sterling and Bankers Trust Company (“Bankers Trust”) alleging, inter alia, professional malpractice, breach of fiduciary duty, negligent misrepresentation, and breach ...
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Order on Claimant's Reneived Petition for Attorney Fees After several years of litigating his entitlement to social security disability bene*738fits, Vísente Garza recently prevailed 1 on his claim. In July 1990 an administrative law judge determined that Garza has been under a statutory disability since December 19, 1986, thus entitling him to receive disability insurance benefits under the Soc...
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ORDER 1) DENYING DEFENDANT’S MOTION TO COMPEL; 2) GRANTING DEPARTMENT OF LABOR’S MOTION TO QUASH SUBPOENAS; and DENYING MOTION TO SHORTEN TIME AS MOOT THIS MATTER comes before the court on the Defendant MacHugh Farms, Inc.’s (“MacHugh”) Motion to Compel Testimony, the United States Department of Labor’s (“DOL”) Motion to Quash Subpoenas, and the DOL’s Motion to Shorten Time to Hear the Motion to Q...
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OPINION AND ORDER Defendants Schneierson Holding Corp. (“Schneierson”) and Triangle Lingerie Corp. (“Triangle”) move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss this complaint for wrongful discharge, for failure to state a claim upon which relief may be granted, and pursuant to Rule 11 of the Federal Rules of Civil Procedure to impose sanctions. The complaint was f...
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MEMORANDUM OPINION This action comes before the Court on Petition to Lift Levy filed on the 27th day of November, 1990, by Julius Jones, Step-van Service Company, David Linkenheimer, John Gagliardi, and, was joined by Irwin Schiff at Oral Argument on the 7th day of December, 1990. On or about November 8, 1990, the United States of America filed an Application of Revenue Officer to Enter Premises t...
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MEMORANDUM This matter is before the Court on the Court’s own motion. At this point in the litigation, it is necessary to determine whether Jefferson County, Kentucky, 1 can *658 be considered a “person” for purposes of 42 U.S.C. Section 1983. Although it is clear that, under the jurisprudence of 42 U.S.C. Section 1983, municipal corporations can be “persons,” ...
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755 F.Supp. 260 (1991) Mark C. HOLST, Plaintiff, v. UNITED STATES of America, Defendant. No. 88-231 C (5). United States District Court, E.D. Missouri, E.D. January 10, 1991. *261 Sindel & Sindel, Charles D. Sindel, Clayton, Mo., for plaintiff. Henry J. Fredricks and James Thurman, Asst. U.S. Attys., St. Louis, Mo., for U.S. MEMORANDUM LIMBAUGH, District Judge. Plaintiff initiated this actio...
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MEMORANDUM OPINION This is an action to review a decision of the Bankruptcy Court permitting the debtors/appellees, Carey R. Sharpe, Sr. and Nancy Jo Sharpe, to modify their Chapter 13 confirmed plan. Because I conclude that the Bankruptcy Court’s decision to permit the modification is contrary to law, that decision will be reversed. On December 20, 1989, debtors Carey R. Sharpe, Sr. and Nanc...
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MEMORANDUM This is a civil rights case involving an alleged conspiracy under color of state law to deprive plaintiffs of their rights in designing and operating a nightclub through the defendants’ improper use of city agencies and the police force. Plaintiffs, Midnight Sessions, Ltd., t/a After Midnight, et al., are a corporate entity which designed and constructed two nightclubs in Philadelphia....
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OPINION AND ORDER Plaintiff Seiden Associates, a New York executive recruiting firm, sues for a fee allegedly earned by causing William N. Sick Jr. to be hired as chief executive officer of American National Can Company (“Can”), a Delaware Corporation with its principal place of business in Chicago. The obligation to pay is said to arise from a letter contract dated October 31, 1986 betwe...
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MEMORANDUM OPINION AND ORDER Plaintiff, the United States, commenced this declaratory judgment action to quiet title to property in Morgan County, Colorado. Defendant, Goodrich Farms Partnership, which owns land abutting the plaintiff’s property, has erected a fence where it contends the true property line lies. Plaintiff disputes the boundary. The matter, before me on cross-motions for summary ju...
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*872OPINION AND ORDER The matter before the court is the motion of defendants, Noel Gurrola Madrid, Jose Roberto Serrano-Contreras and Alejos “Juan” Avalos, for an order requiring the disclosure of the identities of confidential informants involved in the investigation and prosecution of this case. BACKGROUND In response to the defendants’ motion for the disclosure of the identities of confidentia...
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OPINION Plaintiffs commenced this action in the Circuit Court of Lee County, Mississippi, seeking actual, compensatory, and punitive damages due to the alleged failure by the original defendants, Pilot Life Insurance Company and Superior Products Sales, Inc., to pay benefits due under a group insurance plan. Pilot Life and Superior Products removed the case to this court, invoking the court’s juri...
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MEMORANDUM OF DECISION AND ORDER Defendant/counter-plaintiff Ethan Allen, Inc. (“Ethan Allen”) moves for an order denying the request of plaintiff/counter-defendant Georgetown Manor, Inc. (“Georgetown”) to admit transcripts of attorney-client privileged communications inadvertently turned over to Georgetown by Ethan Allen’s counsel and/or counsel’s paralegal. This court previously held th...
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ORDER DENYING DEFENDANT UNITED STATES’ MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT I. Introduction This is an action brought by three environmental groups (“Plaintiffs”) seeking to compel the federal government to prepare an Environmental Impact Statement (“EIS") covering the development of geothermal energy on the Island of Hawaii (the “B...
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OPINION AND ORDER Plaintiff Deborah Watson was dismissed from her job as a probationary New York City Department of Sanitation (“DOS”) Enforcement Agent, allegedly in part for refusing to take a drug test, and sues under 42 U.S.C. § 1983 claiming deprivation of her right to be free of unreasonable searches and seizures, and deprivation of her job and reputation without due process. The al...
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MEMORANDUM OPINION & ORDER Hearing was held on January 9, 1991 on four motions: (1) plaintiff Golden Rule Insurance Company’s (Golden Rule) motion for summary judgment on its claim against defendant E. Jay Lease, Sr. (Lease) seeking rescission of an insurance policy; (2) third-party defendant Claudio Rebollo’s (Rebollo) motion to dismiss the third and fourth claims in third-party plaintif...
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ORDER THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: This case arises from the arrest of the Plaintiff Michael Hackenburg by the Pennsylvania State Police for driving under the influence of alcohol, reckless driving, and driving while operating privileges are suspended pursuant to the Pennsylvania Vehicle Code, Title 75, Pennsylvania Consolidated Statutes, §§ 3731, 3714 and 1543(a) respectively....
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AMENDED MEMORANDUM OPINION AND ORDER This case is before me on partial remand from the United States Court of Appeals for the Tenth Circuit, “for the limited purpose of allowing defendant to lodge a proper motion for release pending appeal that conforms with 18 U.S.C. § 3143(b), Fed.R. App.P. 9(b), and 10th Cir.R. 9.5.6.” This order is supplemental to my August 30, 1990 written order entered in a...
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MEMORANDUM Defendant Parris Alexander is a 32 year old black male who has prior convictions for assault on a police officer and destruction of property. On October 4, 1990 at approximately 6:30 p.m., Alexander exited a bus at the Greyhound Bus station on L and First Street, N.E., Washington, D.C. and left the station, followed by Metropolitan Police Officers Ronny Hairston and Vance Beard. Abou...
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MEMORANDUM AND ORDER This matter comes before the court upon the defendant’s motion to suppress physical evidence. A hearing on this motion was held before the court in Easton, Pennsylvania, on January 11,1991. After due consideration of the briefs filed by the parties, testimony given at the hearing, and the applicable law, we believe that defendant’s motion must be denied. On the evening of May...
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ORDER THIS CAUSE is before the Court upon the notice to remove this cause to this Federal forum filed by defendant United States of America. FACTS This mortgage foreclosure action was commenced on November 15, 1990 when the plaintiff sued the defendants in the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Florida. Service was perfected on the movant on that...
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MEMORANDUM OPINION AND ORDER CIGNA Corporation, CIGNA Individual Financial Services Company, CIGNA Securities, Inc., CIGNA Financial Partners, Inc., CIGNA Holdings, Inc., and M. Doak Jaco-way (collectively CIGNA) move to dismiss the claims of Larry D. Johnston, Lawrence G. Lyon and H. Rodgers Company (investors). The investors allege that, in selling certain securities in 1983 and in 1987, CIG-NA...
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MEMORANDUM OPINION & ORDER Before me are pro se plaintiff Marilyn J. Fair’s (Fair) motions (1) to remand to state court and (2) for summary judgment. Also before me are the United States’ motions (1) to substitute defendants, (2) to dismiss or in the alternative cross-motion for summary judgment, and (3) for costs and attorneys’ fees. This action was removed from the El Paso Co...
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MEMORANDUM OPINION AND ORDER The debtor in this case, Morris Mackey, filed a Chapter 13 bankruptcy petition on September 5, 1989. The debtor’s wife also filed a Chapter 7 bankruptcy petition on October 2, 1989. Their counsel was Harold J. Baer, Jr., P.C. The law firm employs Harold Baer, Jr. and Karen Smith. Both attorneys participated in the representation of the debtor. During the proceedings, ...
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MEMORANDUM OPINION AND ORDER This action is brought under the civil enforcement provisions of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(c)(1). The sole issue is whether the defendant, Dodge Printing Centers, Inc., is liable to the plaintiff, Ronald Martinez, for failing to notify Martinez of his right to continued coverage under the company’s health ins...
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OPINION Plaintiffs ILGWU National Retirement Fund and two of its trustees (“the Fund”) have moved to file an amended complaint and for summary judgment on the complaint as amended. Defendant B.B. Liquidating Corp. (“BBLC”) has cross-moved for summary judgment. For the following reasons, the motion to amend the complaint is granted and both motions for summary judgment are denied. THE...
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MEMORANDUM-ORDER Presently before the court is plaintiff’s motion for determination of Marshal’s fees (Document No. 438). For the reasons outlined below, I have concluded that the United States Marshal’s Service (USMS) is entitled to collect from plaintiff the overtime expenses it incurred assisting the court with enforcing the permanent injunction at the Northeast Women’s Center (NEWC).1 BACKGROU...
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This court has before it defendant Gus Paulos Chevrolet’s (“Gus Paulos”) motion to dismiss and motion for summary judgment on defendant Jim Stewart Auto’s (“Jim Stewart”) cross-claim against Gus *189 Paulos. Both motions were heard before the court on November 17, 1990. I. BACKGROUND Jim Stewart is the operator of an automobile dealership with its principal place of busin...
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754 F. Supp. 517 (1991) UNITED STATES of America, Plaintiff, v. Wesley D. WORNOM, Defendant. Civ. A. No. 90-00003-1. United States District Court, W.D. Virginia, Charlottesville Division. January 14, 1991. *518 Ray B. Fitzgerald, Jr., Richmond, Va., for U.S. Wesley D. Wornom, pro se. MEMORANDUM OPINION MICHAEL, District Judge. This case is on appeal from the magistrate's conviction of the defend...
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OPINION Defendants Travel Committee, Inc. (“TCI”), World Travel, Inc. (“WTI”), Travel Destinations, Inc. (“TDI”), Stanley L. Levin (“Levin”) and Ira S. Weiner (“Weiner”) have moved to dismiss the amended complaint (“the Complaint”) of plaintiff Soviet Pan Am Travel Effort (“SPATE”) for lack of personal jurisdiction, failure to state a claim upon which relief can be granted, failure to ple...
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MEMORANDUM OPINION AND ORDER On August 27, 1990, defendant Stanley Caming was charged in a two-count indictment with structuring financial transactions in violation of Title 31 U.S.C. § 5324. Defendant now moves to suppress evidence seized from his automobile at the time of his arrest as well as a post-arrest statement made prior to advice of his Miranda rights. Defendant also ...
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MEMORANDUM OPINION AND ORDER The subject of this Memorandum Opinion and Order is plaintiff’s application for a writ of garnishment. Plaintiff obtained a judgment in this court against defendant in the amount of $7,885.44 but has been unable to satisfy it. Plaintiff has therefore requested a writ of garnishment against the Navajo Nation, which plaintiff alleges to be a debtor of defendant’...
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ORDER AND REASONS Before the Court is the motion of plaintiffs to remand in Civil Action No. 90-1580, Elisa Adams, et al v. Harcros Chemicals, Inc., et al. This case, which had originally been filed in state court as a class action, *445 was consolidated with the above captioned Civil Action No. 89-5155 after its removal. Plaintiffs contend that this matter should ...
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MEMORANDUM OF DECISION This suit by the government asserts claims under the False Claims Act, 31 U.S.C. § 3729, as well as related common lav/ causes of action including fraud, breach of contract, unjust enrichment and payment under mistake of fact. The threshold issue is whether the defendant dentist, John Lorenzo, and his associated companies were entitled to bill Medicare for oral canc...
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On October 30, 1989, the Debtor, C.G. Chartier Construction, Inc., “Chartier,” filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in the . Bankruptcy Court for the Eastern District of Louisiana. On November 21, 1989, Pelican Homestead and Savings Association, “Pelican,” a creditor of Chartier, filed a motion for Adequate Protection and Se-. questration of Rents. The mot...
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OPINION I. FACTS 1 Presidential Airways, Inc. (“Presidential”), a Maryland corporation with its principal place of business located in Hern-don, Virginia, operated from February 1988 until December 1989 as a feeder airline for United Airlines, Inc. (“United”), a Delaware corporation having its principal place of business in Chicago, Illinois. Specifically, Presidential operat...
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*805 RULING DENYING MOTION TO REOPEN Plaintiffs’ motion to reopen this diversity action presents limitations questions arising under Iowa law. Plaintiffs’ complaint, which they wish to revive, states that defendants are liable for contribution toward a settlement plaintiffs made in 1985. Defendants resist the motion to reopen, contending the Iowa one-year statute of limitations, ...
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OPINION On October 3,1985, Michael DeSantis fell at 22-24 Atwood Street in Providence, Rhode Island. A civil action was filed on his behalf in December, 1987 in the Superi- or Court for the State of Rhode Island seeking compensation for personal injuries sustained in the fall. Imperial Casualty and Indemnity Company (Imperial Casualty) undertook to defend the lawsuit under a contract of insuran...
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754 F. Supp. 76 (1991) Leroy RHODAN, Plaintiff, v. The UNITED STATES of America, Defendant. Civ. A. No. 2:88-2409-8. United States District Court, D. South Carolina, Charleston Division. January 16, 1991. Jay T. Gouldon, Charleston, S.C., for plaintiff. John H. Douglas, Asst. U.S. Atty., Charleston, for defendant. ORDER BLATT, Senior District Judge. This matter is before the court on Defendant's...
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OPINION Plaintiff, Charles Greiner & Co. (Greiner), manufactures and sells a neck brace known as the Philadelphia Cervical Collar. *953 The inventors, Anthony Calabrese and Frank Gramiglia, received a patent number 3,756,226 (’226 patent) for the Philadelphia Cervical Collar. Calabrese and Gramiglia assigned their patent to plaintiff on September 4, 1973. The patent expired S...
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MEMORANDUM OPINION AND ORDER DENYING MODIFICATION AND IMPOSING SANCTIONS FOR CONTEMPT I. Introduction Once again the Court is called upon to consider a request by defendants to modify a stipulation entered into on September 8, 1986, and approved by the Court on January 26, 1987. This order is based upon testimony and documentary evidence submitted during hearings commenced on October 22, 19...
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MEMORANDUM OPINION This matter is before the court on plaintiff's motion to review the jeopardy assessment made against her and the United States’ motion for a summary determination of the jeopardy assessment. After careful review of the facts and supporting documents of this case, the court finds that the jeopardy assessment is reasonable and that the amount assessed is appropriate under the c...
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MEMORANDUM OPINION RE: APPLICATION OF SENTENCING GUIDELINES Factual Background On October 23, 1990, defendant Ward David Coble was convicted by a jury of *471 being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), with sentence enhancement under 18 U.S.C. § 924(e)(1). Because it is undisputed that Mr. Coble has a criminal history of at least three violent criminal...
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ORDER AND REASONS Before the Court is defendant, Barbara Frye’s motion to dismiss the declaratory judgment suit filed by Magnolia Marine Transport Company and its insurers. The declaratory judgment action seeks to have this Court determine the construction of certain insurance policy language that may allow the insurers to limit their liability. By Minute Entry dated December 3, 1990, the...
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MEMORANDUM This case involves a claim by Acuff-Rose Music, Inc. (“Acuff-Rose”) for copyright infringement of its song, “Oh, Pretty Woman.” Acuff-Rose has.named as defendants the members of the rap group 2 Live Crew and Luke Skyywalker Records. The plaintiff contends that the defendants unfairly are trying to cash in on the popularity of “Oh, Pretty Woman.” *1152 For the reas...
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MEMORANDUM OPINION Background On February 3, 1989, this Court issued a ruling granting defendants’ motion for summary judgment on the issue of antitrust injury. Remington Products, Inc. v. North American Philips Corp., 717 F.Supp. 36, 36-48 (D.Conn.1989) (“Remington 7”). Subsequently, plaintiff moved for reconsideration in light of R.C. Bigelow, Inc. v...
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OPINION Plaintiff Riveredge Associates (“River-edge”) and defendant Metropolitan Life Insurance Company (“Metropolitan”) have cross-moved for summary judgment. The Court will grant Metropolitan’s motion and deny Riveredge’s motion. I. BACKGROUND This case involves the financing and suggested refinancing of Riveredge Plaza Associate (“Plaza”), a New Jersey general partnership for...
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MEMORANDUM AND ORDER The question here is whether the court has jurisdiction because this is a bankruptcy matter or does not have jurisdiction because it is a Medicare dispute. This court has primary jurisdiction over all bankruptcy cases by reason of 28 U.S.C. § 1334. However, all Medicare cases must go through an elaborate administrative pro *15 cess before the jurisdiction...
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ORDER Plaintiff Eneas D’Aquino brings an age discrimination suit under the Age Discrimi *219 nation in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The Act is intended, in part, to prohibit arbitrary age discrimination in employment. 29 U.S.C. § 621(b). Because plaintiff cannot show that defendant Citicorp/Diner’s Club Inc. engaged in discrimination, discrimina...
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OPINION AND ORDER Plaintiffs, shareholders of FPA Corporation, bring this derivative claim on behalf of the corporation to recover so-called “short swing profits” under section 16(b) of the Securities Exchange Act of 1934 from defendant Jeffrey Orleans, CEO and Chairman of the Board of FPA. Plaintiffs claim that defendant’s conduct gave rise to 16(b) liability when, within a seventeen-day time ...
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MEMORANDUM-DECISION AND ORDER Introduction By this action, the United States of America and the State of New York initially sought to recover from some 83 business entities response costs under section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607 (as amended), in connection with the clean-up of an inactive hazardous wa...
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ORDER Plaintiff Lloyd Lasher alleges that defendant Metropolitan Structures (“Metropolitan”) terminated his employment in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Metropolitan denies the claim and moves for summary judgment. Summary judgment is appropriate if there is no issue of material fact and the moving party is entitled to a judgment as a matter of law. ...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on Defendants’ three (3) motions for summary judgment. On December 21, 1990, Defendant Central States, Southeast and Southwest Areas Pension Fund (hereinafter “Central States”) filed its motion for summary judgment. Defendant Drivers, Chauffeurs, Warehousemen and Helpers Local No. 71 (hereinafter “Local 71”) filed its summar...
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*80ORDER This matter is before the court on the petition of plaintiff’s counsel for attorney’s fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.1 Petitioner represented plaintiff in his appeal from the denial of disability insurance benefits and was successful in obtaining the benefits due plaintiff. The defendant, the Secretary of Health and Human Services, opposed neith...
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MEMORANDUM AND ORDER This matter is before the Court on the parties’ cross motions for summary judgment. Plaintiff’s motion will be granted and defendants’ motions will be denied. FACTS The facts in this case are not in dispute. The plaintiff class in this action is composed of individuals who have been or will be denied or terminated from medical assistance because of defendant Wyni...
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MEMORANDUM OPINION This case is now before the Court after a protracted series of proceedings. The plaintiffs filed suit in 1988 seeking to prevent the Health Care Financing Association (“HCFA”) from lowering reimbursement rates for certain services covered by Medicare. On December 22, 1988, this Court issued a preliminary order enjoining the rate reduction. The Court of Appeals subsequently vaca...
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MEMORANDUM AND ORDER This lawsuit, brought by a citizen of the United States obviously concerned with impending, ominous world events, is an attempt to prevent hostilities between the United States and Iraq. I. THE COMPLAINT AND THE AFFIDAVIT The Plaintiff’s Complaint outlines, in narrative fashion, his version of the recent events in the Persian Gulf subsequent to the invasion ...
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MEMORANDUM AND ORDER The New York Civil Liberties Union (“NYCLU”) requested this court, at approximately 4:00 p.m. on January 8, 1991, to issue an order directing counsel for the parties in this case to show cause on January 9, 1991 at 4:30 p.m., why this court should not also issue an order permitting it to file an accompanying memorandum of law as amicus curiae in connection with the defend...
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MEMORANDUM & ORDER Plaintiff, Esther Aronson brings this action for declaratory and injunctive relief against defendant New York City Employees Retirement System (“NYCERS”), claiming violations of her rights pursuant to 42 U.S.C. §§ 1983 and 1988 (1982), the Fourteenth Amendment of the United States Constitution, and Art. 5, § 7 of the New York State Constitution. She also seeks to be rei...
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OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS COUNTS II AND III OF THE COMPLAINT AND GRANTING PLAINTIFF LEAVE TO FILE AMENDED COMPLAINT Presently before the Court is the Defendants’ Motion to Dismiss Counts II and III of the Plaintiff’s Complaint. The Court has reviewed the motion, the Defendants’ brief in support, and the Plaintiffs response and brief. The Court finds that a hearing a...
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Plaintiff Wanda P. Hines, whose husband died on January 12, 1987, when he fell from a structure that collapsed under the weight of misplaced steel decking, filed a wrongful death action against the defendant Brandon Steel Decks, Inc., alleging that it negligently caused the death of her husband. The case came to trial before the court sitting with a jury on the 11th, 12th, and 13th day of July, 19...
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OPINION AND ORDER ACCEPTING, IN PART, AND REJECTING, IN PART, MAGISTRATE’S REPORT AND RECOMMENDATION, BUT GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Presently before the Court is the Report and Recommendation of Magistrate Virginia A. Morgan filed October 11, 1990, in which the Magistrate recommends that the Court grant the Defendants’ Motion for Summary Judgment. On October 19, 199...
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DECISION AND ORDER INTRODUCTION Presently before this Court are defendant's motion for summary judgment and plaintiff’s cross-motion for summary judgment. Ronald Stokes (“plaintiff”) sued General Mills, Inc. ("defendant”) in connection with defendant’s alleged racially and sexually discriminatory discharge of plaintiff. Plaintiff has alleged three separate causes of action, pred...
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MEMORANDUM AND ORDER This matter is before the Court on defendant’s appeal from the August 22, 1990 order of the bankruptcy court denying defendant’s motion to amend its answer, granting plaintiff’s motion to withdraw referral, and granting plaintiff’s motion for summary judgment. The order will be reversed. FACTS This appeal arises out of an adversary proceeding initiated by th...
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MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT This is an action by a policyholder against two insurance companies and an *26insurance agent for misrepresentation, negligence, and violations of M.G.L. Chapters 93A and 176D. The defendant The Mutual Life Insurance Company of New York (“MONY”) has moved for summary judgment. The defendant Phoenix Mutual Life Insurance Company (“Ph...
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MEMORANDUM OPINION & ORDER Before me is (1) Mack Willie Thomas’ (Thomas) Petition for Writ of Habeas Corpus and (2) Frank Guenther’s (the State) motion to vacate stay order. In 1986, Thomas was convicted and sentenced on two counts of sexual assault on a child in the District Court of Boulder County, Colorado. In his petition for habeas relief, Thomas alleges, as he did before all levels ...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on the renewed motion, filed November 14, 1990, of Defendant Louis W. Sullivan, Secretary of the United States Health and Human Services, to dismiss this action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. On November 23, 1990, Plaintiff filed a memorandum in oppo...
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OPINION The matters before the court are the motions of plaintiff, Robert Martyr: 1) for a preliminary injunction (# 8) prohibiting defendants, George Bachik, Alice Shannon, A. Furqan, D. Hillyer, and C. Jeter, from a) opening, reading, confiscating or delaying the delivery of Martyr’s mail; and/or b) opening, reading, confiscating or delaying the delivery of Martyr’s mail without fi...
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OPINION The matter before the court is plaintiffs’ motion for summary judgment (# 22). UNDISPUTED FACTS Plaintiffs are the International Union of Elevator Constructors (IUEC) and Local No. 23, International Union of Elevator Constructors (Local 23). The IUEC represents persons employed in the business of installing, modernizing and servicing elevators and escalators throughout the United States a...
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OPINION Plaintiffs, investors in a limited partnership known as Emerson Research Partners L.P. (“ERP”), brought this class action against Emerson Electric Co. (“Emerson”), Load Management Development Corporation (“LMDC”), and Harold F. Faught, arising from Emerson’s purchase of the assets of ERP. The complaint alleges violations of Section 10(b) of the Securities Exchange Act of 1934 (“Ex...
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MEMORANDUM DECISION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS I. INTRODUCTION This is a petition for a writ of habeas corpus under 28 U.S.C. § 2254 by Kwan Fai Mak, a prisoner sentenced to death in the State of Washington. The respondent is warden of the Washington State Penitentiary at Walla Walla. The case arose from the so-called “Wah Mee Massacre.” On the night of February 18-19, ...
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OPINION Plaintiff United States of America, brought this action on August 4, 1988. The complaint challenges the constitutionality of the State of Delaware’s assertion of the Delaware Public Utility Tax, imposed by 30 Del. C. § 5502(b), on purchases of electricity by the Dover Air Force Base from Delmarva Power and Light Company (DP & L).1 This challenge is based on the United States’ position tha...
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ORDER This matter is before the Court on remand from the Fourth Circuit Court of Appeals for recalculation of two aspects of damages: 1) the damages attributable to a particular 19-day construction delay, and 2) *514 defendant’s lost-interest award. For the reasons stated below, the Court concludes that plaintiff is entitled to a revised total principal judgment of $183,386.9...
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OPINION On November 18, 1986, plaintiff Linford Warner was injured in an accident outside the warehouse of his employer, L & S Holding, Inc. (more commonly known as “Little Switzerland”), at the docks of the West Indies Company in St. Thomas. At the time of the accident, plaintiff was taking inventory of the contents of a van owned by Little Switzerland, which was parked behind a trailer ...
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MEMORANDUM ORDER This cause is before this Court on a Motion by the Intervenor, The Hartford Accident & Indemnity Company (hereinafter “Hartford”), to Alter and/or Amend the Order of Dismissal and Judgment entered on December 17, 1990. Facts The subject motion is before this Court on issues of law and not of fact. The following, therefore, is a chronological summary of the significant pleadings a...
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OPINION Plaintiffs Cheryl Ann and Alan Kehnast brought this action in this Court pursuant to 28 U.S.C. § 2671, et seq., (the Federal Tort Claims Act) on February 19, 1988, against Defendant United States of America. Plaintiff Eileen M. Fitzpatrick also commenced an action in this Court pursuant to the Federal Tort Claims Act on May 20, 1988, against Defendant United States of America and Will...
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OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND INTRODUCTION The Immigration and Naturalization Service (“INS”) has allegedly filed a detainer against petitioner, a federal prisoner subject to deportation as a felon. Petitioner seeks to compel the INS either to remove the detainer or conduct a deportation hearing. DISCUSSION I. Writ of Habeas Corpus ...
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OPINION A number of financial institutions holding promissory notes of Eastern Airlines have appealed from a ruling of the Bankruptcy Court, In re Ionosphere Clubs, Inc., 112 B.R. 78 (Bankr.S.D.N.Y.1990), that certain security interests which they hold in equipment owned by Eastern Airlines, Inc. (“Eastern”) are not exempted by § 1110 of the Bankruptcy Code, 11 U.S.C. § 1110, f...
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*162 OPINION AND ORDER DENYING DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND DENYING DEFENDANTS’ MOTION TO STAY ALL PROCEEDINGS PENDING ARBITRATION INTRODUCTION Defendants’ Petition to Compel Arbitration and Motion to Stay All Proceedings Pending Arbitration were scheduled to be heard on December 13, 1990. After a review of the briefs, this court considered it appropriate t...
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ORDER On October 24, 1989, the Federal Grand Jury in Reno, Nevada indicted Claimant Michael Caldwell (“Claimant”) in various counts of United States of America v. Ciro Wayne Mancuso, et al., CR-N-89-24-ECR. A warrant was issued for Claim *1484 ant’s arrest. Claimant has remained a fugitive from justice since October, 1989. On August 31, 1990, plaintiff filed a...
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*489OPINION AND ORDER Before the Court is an appeal brought by Deloitte & Touche (“D & T”) of an order of the United States Bankruptcy Court for the Southern District of New York, Abram, J., filed November 21, 1990 directing D & T, an accounting firm, to produce certain of its proprietary internal auditing manuals to James P. Hassett, the Chapter 11 Trustee (“Trustee”) in bankruptcy for CIS Corpo...
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OPINION This case is before the Court on defendant’s motion to dismiss, or, in the alternative, motion for summary judgment, filed May 21, 1990. Plaintiff filed a complaint on March 8, 1990 seeking to quiet title, pursuant to 28 U.S.C. § 2410 (1988), to property allegedly subject to a federal government lien of the Internal Revenue Service (IRS). Plaintiff claims that procedural irre...
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MEMORANDUM AND ORDER This matter is before the Court on the petition of Rosciti Construction, Inc. (“Rosciti Construction”), to overrule the removal of this action from Rhode Island Superior Court to the United States District Court. This is, essentially, a motion to remand, pursuant to 28 U.S.C. § 1447(c), and the Court will treat it as such. The underlying action is for the enforcement of a mech...
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OPINION AND AMENDED ORDER GRANTING DEPENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT INTRODUCTION Cross Motions for Summary Judgment were scheduled to be heard on April 26, 1990. After a review of the briefs, this court considered it appropriate to submit *859 the motion on the pleadings pursuant to Local Rule 220-1, and ...
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OPINION This case is currently before me on plaintiffs Upjohn Company and Asgrow Florida Company’s June 1, 1989 Motion for Partial Summary Judgment. This lawsuit stems from an insurance law dispute as to defense costs and indemnity related to environmental damage at a total of twenty-six (26) sites across the United States. Plaintiffs here — Upjohn Company and its subsidiary — (“plaintiff...
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OPINION & ORDER The defendant, A1 Felton, has moved to dismiss the indictment against him on the grounds that the government’s presentation to the grand jury was misleading and that the government’s reliance on a single hearsay witness is the product of a history of prosecutorial misconduct that is so systematic and pervasive as to undermine the fundamental fairness of the grand jury proc...
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OPINION AND ORDER Plaintiff, Ullman-Briggs, Inc. (“Ullman-Briggs”), brings this action against the defendant, Saltón, Inc. (“Saltón”), alleging breach of contract. The Court held a bench trial on liability on July 17, 18, and 21, 1989, and received post-trial briefs and heard closing statements on November 15, 1989, at which time the Court announced its findings on liability. Specifically...
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OPINION Plaintiff Good Timez, Inc. is the owner of Club “Z”, a restaurant/night club in St. Thomas that was damaged by Hurricane Hugo in September, 1989. Good Timez commenced this action to recover on a “contents loss” insurance policy issued by defendant Phoenix Fire and Marine Insurance Company, Ltd. (“Phoenix”). 1 The action was dismissed pursuant to a settlement reached by ...
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DECISION AND ORDER BACKGROUND On August 23, 1989, the Judicial Panel on Multidistrict Litigation ordered, pursuant to Title 28 United States Code § 1407, the case of Robert Eckstein, et al. v. Balcor Film Investors, et al., (“Eckstein”)1 to be transferred from the Central District of California to this court for consolidated pretrial proceedings with Ralph Majeski, et al. v. Balcor Film Investors...
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OPINION AND ORDER Defendants move to amend or alter the judgment herein entered on December 10, 1990. The Court’s inquiry reveals that the Judgment Clerk, after review of the Court’s Opinion and Order of October 17, 1990 denying the defendants’ motions for a directed verdict for judgment notwithstanding verdict and for a new trial, directed plaintiff’s counsel to submit a form of judgment. Plainti...
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OPINION This diversity case involves state law tort and contract claims asserted against the principal members of a partnership known as Sanwa-BGK Securities Co., L.P. (“the Partnership”). Plaintiff, Ronald Ryan (“Ryan”), is a former employee of the Partnership. Defendants Giles Brophy, Kenneth Gestal and John Knight are limited partners in the Partnership (collectively, “the Partners”). ...
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MEMORANDUM OPINION AND ORDER Plaintiff Retirement Fund of the Fur Manufacturing Industry (the “Fund”) brought this action to collect payments of withdrawal liability under the Employee Retirement Income Security Act of 1974, (“ERISA”), as amended by the Multiem-ployer Pension Plan Amendments Act of 1980 (the “Multiemployer Act”), 29 U.S.C. § 1001 et seq. (1982). The following shall constitute the...
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ORDER GRANTING IN PART THE CROSS-CLAIM DEFENDANTS’ DEMAND FOR ARBITRATION AND MOTION TO STAY, AND DENYING THE ALTERNATIVE MOTION TO DISMISS This cause is before the court on the motion of the cross-claim defendants, A.R. Johnson, Insurance Corporation of America, Principle Holding Corporation, and Dyna Span Corporation. In their motion, the cross-claim defendants seek an order compelling ...
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MEMORANDUM Third-party defendant Robert T. Tosti moves to dismiss the cross-claim filed by defendant Leonard V. Reed. The narrow, procedural issue is whether a third-party defendant and a co-defendant of the third-party plaintiff are “co-parties” under Fed. R.Civ.P. 13(g).1 Plaintiff Earle M. Jorgenson Co. initiated this action to recover clean-up costs and other damages and for declaratory relief...
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MEMORANDUM OPINION AND ORDER Intervenor-appellant the United States of America (“the Government”) appeals from the August 21, 1989 order of the United States Bankruptcy Court for the Southern District of New York, the Honorable Prudence B. Abram, United States Bankruptcy Judge, granting a motion to: (1) vacate a January 29, 1987 order permitting the Government to intervene in two adversar...
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MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DENY APPLICATION OF SENTENCING GUIDELINES I. FACTS & PROCEDURE On April 13, 1990, the Grand Jury of the District of Idaho returned an Indictment against Terrance R. Kirkman naming him in five counts. Kirkman was charged in Counts One, Two, Three and Four with tax evasion in violation of 26 U.S.C. § 7201. He was also charged in Count Fiv...
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MEMORANDUM OPINION AND ORDER Steven Lindsey (“Lindsey”) sues his former employer Baxter Healthcare Corporation (“Baxter”), charging it with (1) violation of the Age Discrimination in Employment Act of 1967 (“ADEA,” 29 U.S.C. §§ 621-634) by passing him over for a promotion and later terminating his employment and (2) breach of his employment contract by treating actual compensation as seve...
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MEMORANDUM OPINION AND ORDER Plaintiff filed a motion, pursuant to Fed. R.App.P. 7, requesting that the court order defendant to file a bond or adequate security to ensure payment of costs, including attorney’s fees, on appeal. Defendant contends that he should not be required to file a bond to ensure payment of plaintiff’s attorney’s fees on appeal because attorney’s fees are not part of the “co...
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FINDINGS OF FACT AND STATEMENT OF REASONS Defendant Robert John Winslow was one of three defendants named in a four-count Superceding Indictment filed in the District of Idaho on July 12, 1990. The Superced-ing Indictment charged the defendant with violations of Title 18, United States Code § 371 (conspiracy to commit offense against the United States); Title 26, United States Code § 5861 (receivi...
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MEMORANDUM OPINION AND ORDER This action was appealed to this Court from a ruling of the Magistrate Judge finding each defendant guilty of aiding and abetting, pursuant to Title 18 U.S.C. § 2, in exceeding the daily bag limit and wanton waste of migratory fowls.1 Defendants contend vigorously that the evidence is insufficient to sustain the convictions.2 In reviewing the case, the Court must view ...
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ORDER AND REASONS This matter was referred to a United States Magistrate for the purpose of conducting hearings, including evidentiary hearings, if necessary, and submission of proposed findings of fact and recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1) and (c), and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon a review of the record, including the st...
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MEMORANDUM OPINION AND ORDER Larry Rial (“Rial”) seeks leave to file his pro se Complaint under 42 U.S.C. § 1983 (“Section 1983”) without payment of the filing fee. For the reasons stated in this memorandum opinion and order, such leave is denied and this action is dismissed. Every pro se litigant seeking permission to proceed in forma pauperis has two potential barriers to cross before his or her...
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MEMORANDUM OPINION AND ORDER This action has been brought by qad., inc. and its principals Karl and Pamela Lopker (collectively for convenience “qad”) against ALN Associates, Inc. and its principals Sally and Mike Allen and Ronald Whiteford1 (collectively for convenience “ALN”) for various alleged breaches of contract, infringements of copyright, misappropriation of trade secrets, unfair competit...
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755 F.Supp. 6 (1991) Alan Jay SAVADA, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants. Civ. A. No. 89-2027. United States District Court, District of Columbia. January 22, 1991. *7 Arthur J. Galligan, Dickstein, Shapiro & Morin, Washington, D.C., for plaintiff. Mark Nagle, Asst. U.S. Atty., Washington, D.C., for defendants. MEMORANDUM OPINION JOHN H. PRATT, District Judge. ...
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ORDER Plaintiff Alexander & Alexander, Inc. (“Alexander”) commenced this diversity action against defendant Wachovia Bank & Trust Company, N.A. (“Wachovia”), alleging that Wachovia improperly charged Alexander’s bank account for a check containing an unauthorized indorsement. Wacho-via, in turn, filed a third-party action against Pathway Financial, F.A. (“Pathway”), the Federal Reserve Bank of Ri...
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ORDER THIS CAUSE came before the Court upon the defendants’ Motion To Tax Costs Against Plaintiffs and the defendants’ Motion For Assessment of Attorney’s Fees Against Plaintiffs Pursuant To 42 U.S.C. § 1988. The parties have briefed the motions fully and each motion is now ripe for adjudication. I. Background On June 28, 1990, the Court dismissed the plaintiffs’ complaint with prejudice on...
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OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW sitting as a District Court Judge by designation: INTRODUCTION Royal Insurance Company of America (“Royal”), an Illinois corporation with office and place of business in New York, brings this admiralty action pursuant to the Carriage of Goods by Sea Act (“COG-SA”), 46 U.S.C.App. § 1300, et seq. (1936), against Waterman ...
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ORDER In the above-referenced action, Mercedes Bocker (“appellant”) appeals, pursuant to 28 U.S.C. § 158(a), from an order of the Honorable Cecelia H. Goetz, United States Bankruptcy Judge, which granted summary judgment and dismissed appellant’s adversary proceeding. After a brief recitation of the background facts, the Court will address the parties’ positions on appeal. BACKGROUND...
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OPINION AND ORDER Defendants Kenneth A. Weiner, Steven M. Lewin and Alvin B. Gendelman (“Weiner,” “Lewin,” “Gendelman”) are charged with operating a fraudulent pyramid investment scheme in violation of federal law. Specifically, they are charged with aiding and abetting one another, 18 U.S.C. § 2, in the crimes of mail and wire fraud, 18 U.S.C. §§ 1341 and 1343, and in the interstate transporta...
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755 F.Supp. 786 (1991) Tom GREEN, Plaintiff, v. G. HEILEMAN BREWING COMPANY, INC. and the Hadley Group, Defendants. No. 91 C 0028. United States District Court, N.D. Illinois, E.D. January 22, 1991. *787 Marvin N. Benn, Hamman & Benn, Daniel Laurence Kegan, Diane Lidman Prendiville, Cindy D. Reicin, Kegan & Kegan, Ltd., Chicago, Ill., for plaintiff. Robert Dennis Claessens, James Van Sant...
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MEMORANDUM OF OPINION This matter is before the court on appeal, pursuant to 28 U.S.C. § 158(a), from final orders of the United States Bankruptcy Court for the Northern District of Alabama which confirmed the debtors’ modified Chapter 13 plan and denied the appellant’s motion for relief from the automatic stay provisions of 11 U.S.C. § 362, 121 B.R. 109. 1 The court has carefu...
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OPINION AND ORDER Plaintiff Harry Gross alleges that while on line to check-in for an American Airlines flight departing from Phoenix, a woman on line next to him began to fall backwards and when Gross stuck out his arm to grab her, she fell on top of him, causing Gross to fall and injure himself. Gross claims that American was negligent in failing to properly maintain and monitor its curb-side...
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MEMORANDUM OPINION AND ORDER In August 1988, petitioner filed this habeas corpus petition, asserting two claims for relief. The court referred the matter to Magistrate Judge Grubin on January 4, 1989. Having received the Magistrate Judge’s Report and Recommendation (“Report”) and the objections thereto submitted by petitioner, and having conducted *1012 a de novo r...
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MEMORANDUM OPINION AND ORDER Defendants Hornsby’s Stores, Inc. (“Store”), Century Wholesale Co. (“Century”), and Pubco Corp. (“Pubco”) removed this suit to federal court, asserting both diversity and federal question jurisdiction. Plaintiffs Arthur F. Hornsby and Kathleen Hornsby (collectively, “Hornsby”) now petition to remand to the state court. For the reasons set forth below, we grant Horns-b...
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MEMORANDUM I. Introduction. The plaintiff, Willard Stitzell, D.O., filed this lawsuit after he terminated his relationship as a neurosurgeon with the defendant, York Memorial Osteopathic Hospital (Memorial). Plaintiff believes that his departure from the Hospital was caused by the defendants’ wrongful conduct in connection with Hospital proceedings dealing with his profession...
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MEMORANDUM AND ORDER Edward Sistrunk was convicted in 1981 by a jury of felony murder, arson, aggravated assault, aggravated robbery, and conspiracy. On appeal, the Superior Court affirmed Sistrunk’s convictions, but vacated the judgment of sentence imposed upon the aggravated robbery conviction on the ground that it merged with the felony murder sentence. The Supreme Court of Pennsylvania denied ...
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This case was tried before the court on May 1-3, 1990. The court dismissed all the claims of plaintiff Brasport, S.A. (“Bras-port”) and awarded judgment to defendants Hoechst Celanese Corporation, Celanese International Marketing Company, Inc., and Fiber Industries, Inc. (collectively “Celanese”) and defendant Ian Whittal, a former employee of Celanese.1 Brasport, S.A. v. Hoechst Celanese Corp., 7...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW BACKGROUND Sterling Hobbs a/k/a Amir Fatir, 1 the only remaining complainant in the present action, 2 is an inmate at the Delaware Correctional Center (“DCC”) serving a life sentence. Mr. Hobbs is a member, and one-time Imam, 3 of the Nation of Islam. The plaintiff’s complaint alleged a right of action against t...
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MEMORANDUM AND ORDER Currently before this Court are motions relating to two Findings and Recommendations of Magistrate Judge Hagopian. The first was filed on September 20, 1990, and adopted by this Court on October 15, 1990. In accepting the Findings and Recommendations, this Court denied plaintiffs motions to remove the action to state court and to strike one of the defenses, and granted defend...
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REVISED MEMORANDUM AND JUDGMENT OF DISMISSAL A motion has been made to dismiss a complaint seeking a declaration that key portions of the New York law regulating cemeteries is unconstitutional. For the reasons indicated below, the case must be dismissed. Warschauer Sick Support Society (“War-schauer”) was one of the many fraternal organizations created in New York and elsewhere in th...
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MEMORANDUM This matter is before the Court on plaintiff’s motion to remand and defendant’s motion to dismiss plaintiff’s complaint for failure to state a claim. Plaintiff Carol W. Fox is an Illinois resident who has been employed by the defendant Norfolk & Western Railway Company (Norfolk & Western) for approximately twenty-three years. On November 12, 1989, Fox allegedly injured his back while t...
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MEMORANDUM OPINION AND ORDER Came on to be considered (1) the motions of defendants The Tarrant County Narcotics Intelligence and Coordination Unit (“TCNICU”); Tim Curry (“Curry”), in his official capacity as Director of TCNICU; Tarrant County, Texas (“Tarrant”); and Don Carpenter (“Carpenter”), in his official capacity as Sheriff of Tarrant, to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and for s...
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J.R. O’Dwyer Company Inc. (“O’Dwyer") moves for a preliminary injunction pending final determination of its copyright action against Editorial Media Marketing International, Inc. (“EMMII”) 1 and its president, Paul Holmes. A hearing on the preliminary injunction was held November 20, 1990, during which the defendants moved to dismiss O’Dwyer’s complaint and for attorneys’ fees and co...
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OPINION On June 5, 1990, law enforcement officers broke into apartment 3-K at 2800 Jerome Avenue in the Bronx where they seized a .22 caliber handgun and 277.7 grams of cocaine. In an Opinion and Order dated October 17, 1990, this Court held the search of apartment 3-K to be unconstitutional because the agents did not have a warrant and lacked valid consent for the search. Despite this Court’...
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OPINION This criminal action comes before the Court on an indictment against twenty defendants who were allegedly involved in a conspiracy to violate the narcotics laws of the United States. A number of the individuals named in the indictment have entered guilty pleas. Only six defendants remain in the case. There are presently four motions before the Court. First, Ms. Elaine Stewart, Mr....
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MEMORANDUM AND ORDER In this ongoing lawsuit the Village of Palatine (“Palatine”) seeks to halt construction by the United States Postal Service (“Postal Service”) of a mail processing facility within its borders. In response to this court’s Memorandum and Order of June 7, 1990, denying its motion to dismiss or for summary judgment, the Postal Service filed a Revised Environmental Assessm...
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MEMORANDUM OF DECISION AND ORDER Defendant moves to reargue and reconsider the court’s memorandum of decision and order dated5 November 21, 1990 (the “Memorandum and Order”), 1990 WL 203110. 1 In the Memorandum and Order the court denied defendant’s motion to dismiss the complaint on the grounds of lack of in personam jurisdiction and the statute of limitations. Th...
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OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION Standard Dyeing and Finishing Co. and Standard Textile Bonding Co. (collectively *232 “Standard”) are New Jersey corporations that until July 1980 were engaged in the business of dyeing and finishing fabrics in Paterson, New Jersey. Hudson Valley Dyeing and Finishing Co., Inc. (“Hudson”), a New York corporatio...
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MEMORANDUM OPINION AND ORDER The plaintiff ANTONEY KAMVAR SHARIFI d/b/a Sav-U-Foods commenced this action against the defendant UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD AND NUTRITION SERVICE [hereinafter “Food and Nutrition Service”] on October 23, 1990 in the Circuit Court of Madison County, Alabama pursuant to the provisions of 7 U.S.C. § 2023 seeking judicial rev...
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MEMORANDUM AND ORDER This case is representative of a number of cases that have recently been brought against financial institutions in the wake of the downturn in this region’s economy. The story is a familiar one in securities litigation. DiLeo v. Ernst & Young, 901 F.2d 624, 617 (7th Cir.), cert. denied, — U.S. -, 111 S.Ct. 347, 112 L.Ed.2d 312 (1990). “At one tim...
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OPINION AND ORDER In an opinion and order filed October 10, 1990 the Court dismissed the complaint in this action as against the corporate defendants but retained jurisdiction over federal and state claims against individual defendants Smith, Maloney and Birnberg. See Philan Ins. Ltd. v. Frank B. Hall & Co., 748 F.Supp. 190 (1990). On October 24 and 29, 1990, respectively, defendants Smith and Bi...
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MEMORANDUM OF DECISION AND ORDER Defendants Stuart Becker (“Becker”) and Harry Shufrin (“Shufrin”) move to dismiss the complaint pursuant to Fed.R. Civ.P. 9(b) (failure to plead fraud with particularity) and 12(b)(6) (failure to state a claim upon which relief can be granted).1 Plaintiffs allege that they were fraudulently induced by defendants into purchasing securities in defendant Hardcastle, ...
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755 F.Supp. 791 (1991) UNITED STATES of America, Plaintiff, v. SOUTH SIDE FINANCE, INC., also known as South Side Credit, Inc., and All Assets Thereof, Including, But Not Limited to: 6801-05 South Western Avenue, Chicago, Illinois, All Bank Accounts, Including Checking Accounts 0056962 and 0070869 at the Marquette National Bank, the Contents of All Safe Deposit Boxes, Including Box 2786 and 3254 ...
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OPINION The matter before the court is the motion of defendant-petitioner, Michael Christopher Wicks, who filed this action pursuant *330to 28 U.S.C. §§ 2241 and 2255 seeking an order requiring the Bureau of Prisons to transfer him to the Oregon State Penitentiary for the remainder of his federal sentence or to release him. BACKGROUND On May 13, 1986, the grand jury returned an indictment charging...
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755 F.Supp. 1020 (1991) Guy T. LINDLEY and Palm Beach Technology Investment Corp., Plaintiffs, v. Donald R. DePRIEST and Fabritek La Romana, Inc., Defendants. No. 90-7010-CIV. United States District Court, S.D. Florida, N.D. January 28, 1991. Thomas Luken, Fort Lauderdale, Fla., for plaintiffs. Richard W. Epstein, Greenspoon & Marder, P.A., Fort Lauderdale, Fla., for defendants. ORDER OF REM...
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ORDER This is a case where the plaintiffs, Edward and Rose Van Blargan allege that the defendant Williams Hospitality Corporation as operator and manager of the El San Juan Hotel and Casino, failed to provide adequate security for its guests. The plaintiffs claim that the lack of adequate security accounts for the assault which Mr. Van Blargan suffered at the hands of an unknown assailant...
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ORDER The Court has before it the defendant’s Sentencing Memoranda which contests the net weight of cocaine involved for sentencing purposes, and the government’s response thereto. What follows is the Court’s written record of its findings pursuant to Fed.R.Crim.Proc. 32(c)(3)(D). At issue is whether the cocaine hydrochloride and leather in this case should be considered a mixture or substance in ...
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ORDER PARTIALLY GRANTING AND PARTIALLY DENYING PARTIES’ MOTIONS FOR SUMMARY JUDGMENT This matter comes before this Court pursuant to Motions for Summary Judgment on behalf of both Plaintiff United States and Claimant Henry Lelouch. A. THE MELENDEZ AND DIRIMEX ORGANIZATIONS Emilio Melendez was part of a drug trafficking organization in Peru headed by his brother, Carlos Melendez....
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Before this Court is the appeal of plaintiff-appellant, Bruce D. Scherling, bankruptcy trustee of Eljay Jrs., Inc. (“Trustee”), from an order of the Honorable Howard C. Buschman III, United States Bankruptcy Judge, dismissing a complaint filed by the Trustee which alleged that certain transfers made by plaintiff Eljay Jrs., Inc., (“Eljay”) to the estate of defendant Louis J. Mallas (“Mallas Est...
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*512 MEMORANDUM OPINION AND ORDER Before the Court are plaintiffs’ Motion for Summary Judgment; Motion for Partial Summary Judgment filed by defendants Eastern Arkansas Planting Co. and N.S. Garrott & Sons; and Motion for Leave to Amend Cross-Claim filed by defendant N.S. Garrott & Sons. The parties have responded to the Motions. For the reasons discussed below, plaintiffs’ Motio...
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The instant motions for sanctions arise 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 the C...
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OPINION AND ORDER William P. Sadler, Barbara K. Sadler (the “Sadlers”) and American Telephone and Telegraph Company (“AT & T”) move for an order directing NCR Corporation (“NCR”) to produce a list of NCR’s shareholders. The motion was granted on January 24, 1991 in an oral decision on the record in open court, for substantially the reasons stated here. The facts in this application are not in dis...
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MEMORANDUM OPINION Plaintiff submits application for award of backpay, equitable relief in the form of reinstatement, prejudgment interest pursuant to this court’s Findings of Fact and Conclusions of Law, dated November 17, 1990, 1 holding defendant New York Telephone liable for sex discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq., in its...
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ORDER In this diversity action, plaintiffs seek to recover indemnification for payments it made in a prior suit for injuries to defendant’s employee. The alleged indemnification arises pursuant to a contract wherein Kemira, Inc. (“Kemira”), purchased the services of defendant’s employee. The case is presently before the Court on defendant’s motion and plaintiffs’ cross-motion for summary judgment...
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MEMORANDUM & ORDER Plaintiff Felix Waisome, et al. commenced this action for injunctive and declaratory relief against defendants Port Authority of New York and New Jersey (“Port Authority”) and the Port Authority Police Benevolent Association, Inc. (“PBA”), claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, 2000e, et seq., as well ...
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755 F.Supp. 1247 (1991) Harold BRUG and Harvey D. Fiechtner, Plaintiffs, v. THE ENSTAR GROUP, INC. (F/K/A Kinder Care, Inc.), Richard J. Grassgreen, Perry Mendel, Lodestar Associates, L.P., Lodestar Management, Inc., Starchild Investment Partnership L.P., Starchild Holding Partnership L.P., Lodestar Partners, L.P., Starchild SBS Limited Partnership, L.P., and Lodestar Group, Defendants. Civ. A. N...
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MEMORANDUM OPINION AND ORDER All defendants in the above-captioned action move for partial summary judgment dismissing counts I and II of plaintiffs’ complaint. At Oral Argument of this motion on December 6, 1990 the Court reserved decision as to whether defendants are entitled to judgment as a matter of law dismissing plaintiffs’ claims that the failure to disclose pending shareholder litigati...
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MEMORANDUM AND ORDER In the above-referenced action, Kelvin Albrecht, (“plaintiff”), seeks damages under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C.A. § 51 et seq., for alleged injuries to his lower back resulting from a work-related accident. Named as defendant is the Long Island Railroad, (“LIRR” or “defendant”). Currently before the Court is plaintiff’s motion to supplement the or...
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MEMORANDUM The defendants in this action, Raytheon Company, Massachusetts Port Authority, the U.S. Department of the Air Force, and the U.S. Department of the Navy, bring motions to dismiss Count II of plaintiff Town of Bedford’s complaint which seeks recovery for natural resource damages under provisions of the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”...
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MEMORANDUM Plaintiff and defendant move for summary judgment. Defendant asserts that this 42 U.S.C. § 1983 claim is time-barred by a two-year statute of limitations. The underlying constitutional issue is whether defendant as plaintiff’s employer had reasonable suspicion to require plaintiff to submit to a drug test. 1 Fed.R.Civ.P. 56(b). On June 5, 1990 plaintiff Charles ...
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ORDER In this diversity action, plaintiff (franchisor) seeks liquidated damages, costs and attorney’s fees for defendants’ (franchisee) alleged breach of a franchise agreement. The agreement expressly provides for the recovery of liquidated damages as compensation for a premature termination of the contract by the franchisee. Attorney's fees and costs are similarly included in the agreeme...
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755 F.Supp. 125 (1991) Talaat LABIB, M.D., Plaintiff, v. Nabil Y. YOUNAN, M.D., and Seashore Anesthesia Associates, P.A., Defendants. Civ. A. No. 90-3682(MHC). United States District Court, D. New Jersey. January 23, 1991. *126 Tomar, Simonoff, Adourian & O'Brien by Ronald A. Graziano, Haddonfield, N.J., for plaintiff. Sherman, Silverstein & Kohl by Andrew J. Karcich, Pennsauken, N.J., fo...
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OPINION AND ORDER The facts of this case are fully outlined in this Court’s prior opinion dated August 29, 1990, Cowen & Co. v. Merriam, 745 F.Supp. 925 (S.D.N.Y.1990). In that opinion and order, the Court granted a motion by defendants Dori Merriam, James Merriam and Circle Land and Cattle Co. to dismiss Counts 9 and 17 of the Second Amended Complaint. Id. at 930-31. Plaintiffs Consolidated and ...
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MEMORANDUM AND ORDER The instant motion for summary judgment by Liberty Mutual Insurance Company (“Liberty”) and the cross-motion for partial summary judgment by Meenan Oil Company (“Meenan”) and Redi-Flo Corporation (“Redi-Flo”) arise out of a suit commenced by Fireman’s Fund Insurance Companies (“FFIC”) to quiet a coverage dispute *548 between the insured — Meenan—and its s...
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This is a trademark infringement action wherein genuine goods produced by an affiliated firm for a foreign market are imported into the United States bearing a trademark identical to a valid United States trademark. The critical inquiry is whether the imported product will be likely to cause customer and distributor confusion. The dispute is between plaintiff, Ferrero U.S.A., Inc. (“Ferrero U.S...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the defendant’s and the plaintiff’s cross motions for summary judgment. For the reasons explained below, the Secretary of Health and Human Services’ motion for summary judgment is granted, and plaintiff’s request for supplemental security income benefits under the Social Security Act is denied. Background JoAnn McBride applie...
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MEMORANDUM AND ORDER This is an action in which plaintiff alleges various state law claims against First American Bank for Savings (the “Bank”), a Massachusetts chartered savings bank, arising out of an alleged agreement by the Bank to compensate plaintiff directly for work performed by plaintiff at a construction site that was the subject of a construction loan extended by the Bank to a ...
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OPINION In a opinion and order dated November 16, 1990, the Honorable Jerome B. Simandle, United States Magistrate, denied defendants’ motion for a protective order pursuant to Rule 4.2 of the Rules of Professional Conduct (“RPC”). Defendants sought to preclude plaintiffs’ counsel from contacting former Cumberland Farm Loss Prevention Specialists ex parte. Subject to certain guidelines, the Magis...
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MEMORANDUM AND ORDER Presently before the court is the Petition of Francis W. Hoeber (“Petitioner”), Acting Regional Director of the Fourth Region of the National Labor Relations Board (“NLRB”), for a temporary injunction pursuant to section 10(i) of the National Labor Relations Act (29 U.S.C. sec. 160(i)). On behalf of the NLRB Petitioner seeks to temporarily enjoin Respondent, Local 30, Unite...
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MEMORANDUM & ORDER Counsel for defense seeks an order from this court permitting the videotaped deposition, for use at trial, of a prospective defense witness, one - Candis Schmedel Malyfet, in California. See Fed.R.Civ.P. 32(a)(2), (3) (governing use of deposition at trial). Plaintiff’s counsel objects, not to the deposition, but to its videotaping, on the grounds that plaintiff is unable to aff...
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ORDER The Court has reviewed the recommended disposition of this case submitted by Magistrate H. David Young and the objections filed by the state. The Court approves of and will adopt the Magistrate’s recommendations as findings of this Court in all respects. I. PROCEDURAL HISTORY Petitioner did not appeal his 1978 conviction for capital murder and kidnapping either directly or by collateral atta...
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ORDER BACKGROUND This is an action brought by Ehmcke Sheet Metal Works (“Ehmcke”), a subcontractor on a federal government construction project, against American Pacific Roofing Company, Inc. (“APR”), the prime contractor on the project and against APR’s surety on the contract, Wausau Insurance Companies (“Wausau”). In its original complaint in this action, filed August 24, 1989, Ehmcke sued APR ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND OPINION The National Basketball Association (“NBA”), acting through its Board of Governors, limits the number of games NBA teams may broadcast over “superstations.” Superstations are independent, over-the-air television stations that broadcast in their local market areas and are also carried by cable systems to other parts of the country. WTBS in A...
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MEMORANDUM AND ORDER Now before the Court is the United States’ motion to dismiss this action as moot in light of the agreement it has reached with plaintiff Jack Burningtree (Burningtree). This case first came to the Court’s docket when garnishee defendant Jobete Music Company, Inc. (Jobete), unsure of the extent of its liability to Burningtree under a state court garnishment and the extent ...
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OPINION & ORDER These post-trial motions follow a jury verdict in plaintiff Albert Francis’ favor on his § 1983 civil rights claims against defendants Ronald Miles and Charles Greiner. Defendants were officials at Green Haven Correctional Facility when plaintiff, an inmate at the time, was charged with assaulting Correction Officer Arizmendi during an inmate disturbance that took place on July 23...
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MEMORANDUM OPINION AND ORDER OF REMAND This case arises out of the tragic airplane crash of Avianca Flight 52 in Cove Neck, New York, on January 25, 1990. The case was originally filed as a wrongful death action in the Circuit Court in and for Dade County, Florida. The defendants removed the action to this court, claiming that removal was proper because the Warsaw Convention 1 ...
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FINDINGS OF FACT and CONCLUSIONS OF LAW This action was instituted by plaintiffs Penguin Books USA Inc. (“Penguin”) and Jeffrey R. Toobin (“Toobin”), seeking certain equitable relief concerning the proposed publication of a book entitled Opening Arguments: A Young Lawyer’s First Case —United States v. Oliver North (“Opening Arguments ”). Opening Arguments, ...
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MEMORANDUM OPINION AND ORDER Petitioner in the above-captioned action brings this petition under 28 U.S.C. § 2255 to challenge the admission of certain evidence seized pursuant to a search warrant. For the reasons that follow, the petition is dismissed. BACKGROUND On April 27, 1988, an indictment was filed against Willie Kimbrough, charging, inter alia, possession with intent to distribute cocaine...
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MEMORANDUM OPINION By banning the practice of “balance billing,” Pennsylvania limits the amount physicians may charge medicare recipients. Currently before this court is a declaratory judgment action challenging the Pennsylvania law under the supremacy clause of the United States Constitution. U.S. Const. Art. VI, cl. 2. Plaintiffs are three professional medical associations, Pennsylvania...
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MEMORANDUM AND ORDER Presently before the Court are defendant United Parcel Service, Inc.’s (“UPS”) Motion for Summary Judgment, plaintiff John Burns’ (“Burns”) response, and UPS’s reply. For the following reasons, the defendant’s Motion is DENIED. I. BACKGROUND Burns commenced this wrongful discharge action on December 8, 1989 arising out of the termination of his employment wi...
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MEMORANDUM AND ORDER This case arises out of the failure of the First Security Savings Bank (“First Security”). Defendant Irving Loube was director, chairman, and one of the shareholders of First Security. On July 21,1988, the Federal Home Loan Bank Board appointed the Federal Savings and Loan Insurance Corporation (“FSLIC”) as receiver for First Security. FSLIC-Receiver then assigned all claims ...
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755 F.Supp. 475 (1991) 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. January 15, 1991. *476 Stephanie Pollack, Stephen Burrington, Peter Shelley, Conservation L...
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MEMORANDUM AND ORDER Presently before the Court is Plaintiff American Cablecom Limited Partnership (“American”)’s Motion for a Temporary Restraining Order and Preliminary Injunction. Our jurisdiction is pursuant to 28 U.S.C. § 1332, as the parties are in complete diversity and the amount in controversy is in excess of $50,000. The present dispute is over whether termination and replacement of a ca...
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ORDER Plaintiff, Richard Farr (“Farr”), as personal representative for the estate of his mother, Sarah Farr, brings this action seeking damages for violations of federal security statutes and for state-law torts against Shearson Lehman Hutton, Inc., the successor in interest to E.F. Hutton & Company, *1221 Inc. 1 This action centers on Sarah Farr’s investment of $1...
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MEMORANDUM OPINION AND ORDER Hearing was held on three motions filed by United Air Lines, Inc. (United) for summary judgment and a motion filed by United for a bifurcated trial in which Punahele joined conditionally. Because I conclude that plaintiff Isaac L. Punahele (Punahele) has shown that there are genuine issues of material fact as to each of the motions, I *488 deny su...
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MEMORANDUM This action involves an alleged breach of a franchise agreement. Presently before the Court is defendants’ Motion for Pretrial Relief. 1 For the reasons that follow, the Court shall grant said motion. I. Factual Background This case arises in the context of a contract dispute between citizens of the Com *226 monwealth of Pennsylvania. P...
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ORDER GRANTING ATTORNEYS’ FEES This cause is before the Court upon the Defendants’ Motion to Tax Costs and Attorney’s Fees (DE 163), filed on October 7, 1987; Plaintiff’s Motion for Extension of Time to File Memo in Opposition to Defen *558 dants’ Motion to Tax Costs (DE 165), filed November 30, 1987; and the Defendants’ Motion to set Oral Hearing on Motion for Attorney’s Fees (DE 168). FAC...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Background On November 2, 1988, the International Brotherhood of Electrical Workers, Local Union No. 124, (Local 124) filed an action in this court pursuant to § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 to enforce an arbitration award against Alpha Electric Co...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case was heard before the court sitting without a jury on July 19, 1990. The plaintiff, Klingler Electric Company, filed the action against the defendant, the United States of America Internal Revenue Service. Klingler Electric Company (hereinafter referred to as “KEC”) seeks a refund of federal income taxes and interest for the taxable years ending ...
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MEMORANDUM OF DECISION By agreement of the parties, this case was tried on the affidavits and documents submitted in support of and opposition to a motion for preliminary injunction which, by order of the Court, was consolidated with trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2). The parties stipulated that, if called to testify, the affiants would testify in accordance with their...
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ORDER I. INTRODUCTION Prior to 1934, the citizenship laws of the United States had this effect: [Sjuppose that a United States sister and brother both marry abroad, as many do, and that each has a family of children by marriage. The brother, in either peace or war time, may pick up his children and bring the family into the United States *1279 as American citizens. ...
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755 F.Supp. 866 (1991) Morgan I. DOYNE, Plaintiff, v. UNION ELECTRIC COMPANY, Defendant. No. 89-2120 C(1). United States District Court, E.D. Missouri, E.D. January 7, 1991. *867 *868 Marilyn Teitelbaum, Schuchat, Cook & Werner, St. Louis, Mo., for plaintiff. Thomas Hanna, McMahon, Berger, Hanna, Linihan, Cody & McCarthy, St. Louis, Mo., for defendant. MEMORANDUM OPINION DAVID D. NOCE, U...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter has been submitted to the court upon a joint stipulation in which the authenticity of all exhibits has been stipulated and many facts have been stipulated. In addition, several depositions have been filed. The court now makes its findings of fact and conclusions of law as required by Rule 52, Fed.R.Civ.P. The joint stipulation will not b...
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*571MEMORANDUM AND ORDER This action is before the Court upon the motion of Therese Clemente for an order, under Federal Rule of Civil Procedure 26(c)(1), protecting from pretrial discovery, by both plaintiff and defendant, the communications she received in her position as a company ombudsman of defendant McDonnell Douglas Corporation (“MDC”). MDC argues in support of Clemente’s position. Plainti...
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OPINION I. INTRODUCTION On January 14, 1987, the M/V ALBAT-ROS (the “ALBATROS”) encountered rough weather twenty miles off the island of Dominique. Due to winds of thirty to forty knots and choppy seas, the merchandise in the cargo hold of the ALBATROS which had been improperly stowed shifted to port, forcing the vessel to take a list to port which increased until the crew abandoned it, and the A...
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ORDER On December 14, 1990, Michael L. Davis was acquitted of a federal bribery charge.1 The jury was unable to reach unanimity on the other count and a mistrial was therefore declared. The defendant has moved to dismiss the remaining local count in the indictment (Count One) on the ground that the Court should not exercise its discretion to retain jurisdiction over this count now that the federal...
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ORDER AND OPINION This is an action brought pursuant to § 301 of the Labor Management Relations Act, codified at 29 U.S.C. § 185, for breach of a collective bargaining agreement, and for failure of defendants Local 32B-32J Service Employees International Union (the “Union”) and Gus Bevona to represent plaintiff fairly and lawfully. On May 2, 1990, arbitrator Howard C. Edelman (the “Arbitr...
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ORDER In 1963, plaintiff Donald Mello (“plaintiff”) was appointed to the Nevada State Assembly. Subsequently, he was elected and served until the end of 1982, for nineteen years. On January 1, 1983, plaintiff became a member of the Nevada State Senate. His term was due to expire eight years later, at the end of 1990. In June, 1989, the Nevada legislature, including plaintiff, amended...
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754 F. Supp. 261 (1991) OMNI VIDEO GAMES, INC. v. WING COMPANY, LTD., Yamate USA Corp., John Dugas, Haruo Inoue. Civ. A. No. 89-0690-L. United States District Court, D. Rhode Island. January 28, 1991. *262 Robert J. Cosentino, Providence, R.I., for plaintiff. Robert M. Duffy, Wm. R. Grimm, Providence, R.I., for defendants Wing Co. and Inoue. Robert W. Lovegreen, Gidley, Lovegreen & Sarli, Pro...
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MEMORANDUM This is an action filed by plaintiff, Morris Riggle, against his former employer, CSX Transportation, Inc. (“CSX”), alleging violation of the Age Discrimination In Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. This matter is currently before the Court on CSX’s motion for summary judgment. Plaintiff has filed a response and CSX has filed a reply to that response. ...
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OPINION AND ORDER In a superseding indictment filed January 28, 1990, defendant was charged with three counts of violating and conspiring to violate 26 U.S.C. § 5861(d) and 18 U.S.C. § 922(a). Defendant now moves pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure to dismiss the indictment for outrageous governmental conduct. For the reasons set forth below, defendant’s motion ...
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755 F.Supp. 232 (1991) UNITED STATES of America, Plaintiff, v. Ramon GARCIA-HERNANDEZ, Defendant. No. 90-30003. United States District Court, C.D. Illinois, Springfield Division. January 30, 1991. Robert J. Eggers, Asst. U.S. Atty., Springfield, Ill., for plaintiff. Jay Elmore, Springfield, Ill., for defendant. OPINION RICHARD MILLS, District Judge: Petition for writ of audita querela. As uncomm...
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ORDER AND OPINION This is an action for compensatory, punitive and treble damages, and other relief, arising from alleged violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961, et. seq., as well as numerous pendent state law claims. Defendants Joe L. Mayes, Sr. (“Mayes Sr.”), Joe D. Mayes, Jr. (“Mayes Jr.”), and Mayes International, In...
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*107OPINION AND ORDER This is an action to recover for the loss of an antique bureau plat or writing desk of the Louis XVI period which was purportedly made by the well-known French ébén-iste, or cabinetmaker, C.C. Saunier (the “Desk”). The parties in this matter entered into a stipulation whereby defendant agreed to pay to plaintiff a sum equal to eighty percent (80%) of the value of the Desk at...
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MEMORANDUM AND ORDER This matter is before the Court on the parties’ cross-motions for summary judgment. Plaintiff filed this action against defendants pursuant to 42 U.S.C. § 1983, claiming a violation of due process. Specifically, the facts as alleged are as follows: Plaintiff, an inmate at Potosi Correctional Center, attempted to mail a letter to the St. Louis Post-Dispatch by sealing it and la...
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MEMORANDUM AND ORDER Plaintiff, Carmen Olmedo, a hispanic woman, was passed over for the position of assistant principal at P.S. 316, an elementary school in Community School District 17 in Brooklyn, New York in favor of a black woman, Barbara Gibbs. She filed this lawsuit against Community School Board 17 and several of its members alleging dis *96 crimination on the basis of race and nation...
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MEMORANDUM AND ORDER This cause is before the court on three motions for summary judgment pursuant to Fed.R.Civ.P. 56. All parties appear to agree that no genuine issue of material fact exists in this unusual case under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq., and the court has identified no material fact issues. It remains to determine wh...
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MEMORANDUM AND ORDER The defendants Gotti, Gravano and Lo-cascio obtained the issuance of an order directing George Wigen, the Warden of the Metropolitan Correction Center (“MCC”), and the United States Attorney for the Eastern District of New York, to show cause why an order releasing the defendants or, in the alternative, modifying the conditions of their pretrial detention should not be ente...
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MEMORANDUM OPINION AND ORDER This is an action seeking refunds of income taxes for the years 1984 through 1988. The parties have cross-moved for summary judgment and for the reasons that follow, defendant’s motion for summary judgment is granted and plaintiffs motion is denied. DISCUSSION Plaintiff first claims a refund for the year 1984 in the amount of $739.00, which was denied because the Inter...
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OPINION AND ORDER The Securities and Exchange Commission (SEC) moves for partial summary judgment against defendants, Thomas D. Kienlen Corporation (TDK) and Thomas D. Kienlen (Kienlen), on the grounds that defendants violated sections 5(b)(1) 1 and 5(c) 2 of the Securities Act of 1933, 15 U.S.C. §§ 77e(b)(l) and (c), the first and second causes of action in the SEC’...
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OPINION Plaintiff has filed an application for payment of attorney’s fees under section 2412(d) of the Equal Access To Justice Act (EAJA), 28 U.S.C. § 2412(d), based upon an action filed on her behalf in 1983 which ultimately led to an award of Supplemental Security Income (SSI) benefits by an administrative law judge (ALJ) on March 7, 1990. Defendant opposes the award of fees and, in the...
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ORDER Plaintiff Jerry L. Prince brought suit under 42 U.S.C. § 1983 against defendants Village of Round Lake Beach; E.D. Noe, Chief of Police; and Ricardo Concepcion, a Round Lake Beach police officer. Plaintiff received a judgment in the amount of $284.20. Plaintiff now petitions for attorney’s fees and costs pursuant to 42 U.S.C. § 1988. Plaintiffs petition was referred to a magistrate for repor...
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OPINION This matter comes before the Court on the third-party defendant’s motion for summary judgment. The defendants/third-party plaintiffs, however, have raised a substantial objection to this Court’s jurisdiction to hear this case. I have concluded, after careful consideration, that while a third-party defendant is not precluded from removing the claim against it to federal court, in t...
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MEMORANDUM OPINION Argonne National Laboratory (“Argonne”) and the University of Chicago (“University”) have moved for summary judgment on Ivory Collins’ claims against them under 29 U.S.C. § 621 et seq. (1967).1 Collins is a female over the age of forty; she seeks to recover under § 621 for 1) defendants’ constructive discharge of her, and 2) defendants’ pattern and practice of discriminating ag...
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MEMORANDUM AND ORDER Plaintiffs, representatives of a putative class (the “Plaintiff Class”) of all purchasers of the common stock of New America High Income Fund (“New America” or “the Fund”) between the dates February 19, 1988, and October 13, 1989, and representatives a putative subclass (the “IPO Subclass”) of all purchasers of common stock pursuant to the Fund’s initial public ...
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MEMORANDUM OPINION AND ORDER Plaintiff, Lary M. Pane, originally filed this action in the Circuit Court of Cook County against George J. Dandan, an insurance agent, four insurance companies (“the insurers”) and the insurers’ plan administrator. The dispute involves plaintiff’s enrollment in an employer-sponsored group medical plan. Plaintiff, who now admits that he was not an employee of Galind...
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MEMORANDUM OPINION AND ORDER Plaintiff Resolution Trust Corporation (“RTC”), as successor to American Security Federal Savings & Loan Association (“American Security”), has filed a six count second amended complaint against Scott Krantz d/b/a Scott M. Krantz Associates (“Krantz”), Stotler and Company, a partnership (“Stotler partnership”), and its twelve partners (listed above in the capt...
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755 F.Supp. 637 (1991) James R. RETTER, Plaintiff, v. GEORGIA GULF CORPORATION, Defendant. Civ. No. 89-1607(AET). United States District Court, D. New Jersey. January 28, 1991. *638 James R. Retter, Stanford, Conn., pro se. Walder, Sondak, Berkeley & Brogan, P.A. by Barry A. Kozyra, Roseland, N.J., for plaintiff. Patrick J. McCarthy, Pitney, Hardin, Kipp & Szuch, Morristown, N.J., W. Lyma...
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MEMORANDUM OPINION AND ORDER Resolution Trust Corporation (“RTC”), as receiver for now-defunct Peoples Savings and Loan Association, F.A. (“Peoples Savings”), 1 sues Angelo Ruggiero (“Rug-giero”) and a number of other defendants in a mortgage foreclosure action that includes a personal claim against Ruggiero for breach of contract on a $200,000 promissory note (the “Note”). Bec...
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MEMORANDUM OPINION FINDINGS OF FACT AND CONCLUSIONS OF LAW This suit 1 came before the court for trial without a jury and the trial was completed *925 on November 7, 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, the full trial having been conclude...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is an interpleader action involving rights to the proceeds of a state court judgment obtained against the stakeholder, General Railway Signal Company (“General Railway”), by American Fidelity Fire Insurance Company (“AFFI”). AFFI now is in liquidation -and is represented by James P. Corcoran, the Superintendent of Insurance of the Sta...
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OPINION This criminal case involves charges arising from acts allegedly committed by the defendants at the United States Armed Forces Recruiting Station at Times Square *145 in New York City. Count three of the indictment, brought pursuant to the Assi-milative Crimes Act, 18 U.S.C. § 13 (1988), charges the defendants with burglary in the third degree in violation of N.Y.Penal...
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OPINION The pro se plaintiff 1 filed the above-captioned suit based on his claims that the defendants Federal Bureau of Investigation (“FBI"), FBI employee Emil P. Mos-chella, FBI Director William Sessions, Attorney General Richard L. Thornburgh and the United States Department of Justice (“DOJ”) have failed to comply with his requests for records pursuant to the Fre...
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ORDER I. Introduction From beginning to end, this case has been a protracted struggle. As with the issues in the underlying suit, the issue of attorney’s fees has been visited more than once. Plaintiff Bethune Plaza, Inc. requests attorney’s fees pursuant to 42 U.S.C. § 1988, as the prevailing party in a 42 U.S.C. § 1983 suit. The debate now centers on the amount of attorney’s fees. Judge McG...
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RULINGS ON MOTIONS This is a civil action filed by the plaintiff, Clarence Landrum, Jr. (“Landrum”) against the Board of Commissioners of the Orleans Levee District (“the Levee Board”), Methodist Health System Foundation (“Methodist”), Laboratory Specialists, Inc. (“LSI”), American Drug Screens, Inc. (“ADS”), Patricia Pizzo (“Pizzo”), and the various insurers of each which are given fictitious ...
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MEMORANDUM AND ORDER This cause is before the court on the defendants’ motion to dismiss or for summary judgment filed pursuant to Rule 56, Fed.R.Civ.P. They supported their motion with a memorandum, affidavit, and other evidence. The plaintiff, Bennie Daniels, replied and submitted his own affidavit and exhibits in support. The defendants submitted a reply. Because the defendants have met their b...
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MEMORANDUM OPINION AND ORDER Two motions are now pending before this court — defendant James E. O’Grady’s motion for summary judgment, and defendant Samuel W. Nolan’s motion for summary judgment. For the reasons stated below both motions must be granted. I. BACKGROUND FACTS The parties do not dispute the following facts. Plaintiffs Alfred Fiorenzo, David Ohlson and Patrick Shannon are white polic...
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ORDER AND REASONS Before the court is a motion by the plaintiffs for summary judgment to enforce the arbitrator’s award and for dismissal of the defendant’s counterclaim. After reviewing the motion, memoranda of counsel, the *159 record, and the law, the court grants the motion for the reasons set forth below. I. FACTS Gaylord Container Corporation (Gaylord) owns a ...
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OPINION Defendant New York Stock Exchange (“NYSE”) moves to dismiss the complaint on the grounds that the action is time-barred by the statute of limitations. For the following reasons, the motion is granted. The Parties NYSE is a New York corporation which operates as a securities exchange, providing a market for the trading of securities. Plaintiff William J. Higgins (“Higgins”) is a member of...
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MEMORANDUM OPINION AND ORDER Plaintiff Albert Slater (“Slater”) has filed an amended complaint (“complaint”) against defendant Optical Radiation Corporation (“ORC”) for injuries allegedly sustained as a result of the implantation of a device manufactured by ORC, known as the Stableflex anterior intraocular lens. Plaintiffs complaint sounds in negligence, strict liability, and breach of an...
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ORDER This action comes before the court as an appeal from an order entered by the United States Bankruptcy Court, Northern District of Texas, Fort Worth Division, the Honorable Massie Tillman presiding. The court, having reviewed appellant’s brief, the record on appeal, and applicable authorities, makes the following determination: Appellant, the United States Trustee, appeals from a bankrup...
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MEMORANDUM OPINION AND ORDER Bay State Milling Company (“Bay State”) is a judgment creditor of William Martin, Sr. Bay State appeals from an order of the bankruptcy court denying a motion for an order authorizing it to pursue a fraudulent conveyance adversary proceeding on behalf of the estate alleging that the debtor’s gifts of controlling shares of stock to his children were avoidable and app...
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MEMORANDUM AND ORDER A jury returned a verdict in favor of the plaintiff, Darrin Deaton, in the amount of $185,000, in this product liability case. The jury assessed $100,000 for past damages, and $85,000 for future damages. Now pending are Deaton’s motions for costs and pre-judgment interest. In addition, the Court must adjust the judgment to reflect workers’ compensation benefits pursuant to O....
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DECISION AND ORDER The plaintiff, Pasquale Nastro (“Nas-tro”), filed this suit pursuant to the Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Nas-tro alleges, among other things, that the defendant Local 807 Health and Pension Funds (“Local 807 Pension Fund”),1 under direction of the individually named defendants as trustees (the “trustees”) (jointly the “defendants...
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MEMORANDUM I.BACKGROUND On February 23, 1990, plaintiff filed this action in Philadelphia Common Pleas Court, alleging RICO and civil rights violations, as well as several state law claims. Defendants timely removed the action to this court following service. Presently before the Court are defendants’ motions to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), plaintiff’s amended complain...
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This is a diversity action for a declaratory judgment that a fiduciary liability policy issued to plaintiff by defendant covered the circumstances described in plaintiff’s letter to defendant of December 11, 1986. The parties have submitted this case for judgment on stipulated facts. 1 For the reasons discussed below, plaintiff’s letter did not report a “claim” within the meaning of the policy,...
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OPINION Defendants Owens-Corning Fiberglass Corporation (“OCF”) and United States Mineral Products Company (“USMP”) in this asbestos litigation move for partial summary judgment dismissing the wrongful death claims of plaintiff Arlene Maiora-na (“Maiorana”) as time-barred. For the following reasons, the motion is granted. The Parties Maiorana is the widow of John Maiorana, a...
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OPINION AND ORDER In a previous opinion in this matter, this Court noted that “[tjhis extraordinary case has, over the course of several years, consumed more legal, financial and judicial resources in the litigation of essentially threshold issues than scores of eases that have been filed, resolved and forgotten in this Court during the same time period.” Walpex Trading Co. v. Yacim...
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756 F.Supp. 1244 (1991) Melvin HICKS, Plaintiff, v. ST. MARY'S HONOR CENTER, et al., Defendants. No. 88-109 C (5). United States District Court, E.D. Missouri, E.D. January 31, 1991. *1245 Charles R. Oldham, Anne V. Maloney, St. Louis, Mo., for plaintiff. Gary L. Gardner, Jefferson City, Mo., for defendants. MEMORANDUM LIMBAUGH, District Judge. Plaintiff filed a three-count complaint against def...
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OPINION Pursuant to Federal Civil Procedure Rule 56, plaintiff seeks summary judgment on Count I of its complaint alleging breach of a note agreement. Having considered the parties’ memoranda, supplemental memo-randa, replies, surreplies, counter-replies, and oral argument, I will grant plaintiff’s motion. I. FACTS A. The Note Agreement On July 12, 1984, Penn Mutual (“P...
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MEMORANDUM OPINION AND ORDER Defendants Rockwell International Corporation (Rockwell) and Dow Chemical Company (Dow) are past operators of the Rocky Flats Nuclear Weapons Plant (Rocky Flats) in Colorado. Plaintiffs are former employees of Dow or Rockwell and labor unions whose members work at Rocky Flats. Before me are defendants’ motions to dismiss. Defendants contend *493 t...
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756 F. Supp. 640 (1991) UNIVERSITY SYSTEM OF NEW HAMPSHIRE v. UNITED STATES GYPSUM COMPANY; Pfizer Minerals, Pigment and Metals Division, Charles Pfizer & Co., Inc.; Keene Corporation. Civ. No. 84-716-D. United States District Court, D. New Hampshire. January 17, 1991. *641 *642 *643 Michael Hall, Manchester, N.H., for plaintiff. Stephen G. Hermans, Exeter, N.H., for U.S. Gypsum Co. Kenneth M...
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OPINION AND ORDER In an opinion and order filed December 27, 1990, the Court denied defendants’ motion to dismiss, consolidated plaintiffs two pending actions into this action and deemed the complaint in action with Docket No. 85-4995 to be a second amended complaint in this action.1 On January 10, 1991, plaintiff who is proceeding pro se in the § 1983 action submitted a motion, not yet filed, se...
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*38 OPINION AND ORDER The Court has before it defendant’s motion for summary judgment and plaintiff’s partial motion for summary judgment. This action arises under the Puerto Rico Trademark Act, 10 L.P.R.A. § 202. Plaintiff seeks damages and injunctive relief for defendant’s alleged infringement of its trademark “SUPRA.” Defendant American Cyanamid Company (“American”), who remov...
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OPINION AND ORDER This is a trademark dispute over the use of the symbol AEC. The defendant, A/E Systems, Inc. (hereinafter “Systems”), the promoter of a trade show exhibiting design systems for construction, employs the registered trademark A/E/C Systems as the name of its show. Plaintiff, Expoconsul International, Inc. (hereinafter “Expocon-sul”), subsequently promoted a similar trade s...
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MEMORANDUM OPINION AND ORDER By previous order in this Title VII case, I dismissed without prejudice plaintiffs’ pendent state law claims based on the discretionary authority of district courts to refuse to hear such claims. Berry v. Stevinson Chevrolet, 744 F.Supp. 1034, 1035-36 (D.Colo.1990). Before me now is plaintiffs’ motion for reconsideration. For the reasons stated below, this motion is d...
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ORDER Introduction The damages phase of this wrongful termination from employment action was tried to the court over three days commencing November 5, 1990. On December 6, 1990, the court issued its findings and order on damages, concluding that plaintiff was entitled to receive $155,000.00 as compensatory and $25,000.00 as punitive damages from defendants.1 *861This matter is presently before th...
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OPINION AND ORDER The Court has before it defendant United States of America’s Motion for Summary Judgment. On February 27, 1988, plaintiff Linette Marie Cassagnol-Figueroa fell over a low wall at El Morro, from the sixth level to the fifth level near the base of what is called the Austria Bastion ramp. The plaintiffs, Linette Marie Cassagnol-Figuer-oa, and co-plaintiffs Robert Cassagnol-...
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OPINION This admiralty matter came before the Court for trial on December 6, 7, and 12, 1990 and arises from damage to plaintiff Petro United Terminals, Inc.’s dock, in which it is claimed that the loss was due to the actions of the various parties to these proceedings. Particularly, plaintiffs, Petro United Terminals, Inc. and Insurance Company of North America (hereinafter called “Petro...
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ORDER Before the Court is the Defendant Eco-lab’s Motion to Dismiss (# 5). The Magistrate recommended that the Motion to Dismiss be denied. This Court affirms the recommendation of the Magistrate and denies the Motion to Dismiss. BACKGROUND Before the Court is an action for damages filed pursuant to Illinois tort and contract law. This Court has jurisdiction pursuant to 28 U.S.C. § 1332 bec...
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OPINION AND ORDER Debtor Jack Bona, who is incarcerated in New Jersey under a writ of capias ad satisfaciendum, 1 appeals from an order of the United States Bankruptcy Court for the Southern District of New York (Prudence B. Abram, Bankruptcy Judge) denying Bona’s application for an order for his immediate release from incarceration and granting GNAC, Inc.’s motion...
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MEMORANDUM AND ORDER Allegedly losing his competitive edge in the market for kosher-for-Passover foods in the Chicago area because of the defendant’s unfair and illegal trade practices, plaintiff Irwin Ashkanazy (“Ashkanazy”), owner of Ash Distributing (“Ash”), has brought this suit against rival I. Rokeach & Sons (“Rokeach”), alleging a variety of antitrust and pendent state claims. Now ...
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ORDER This matter is before the Court on defendant’s post-trial “motion under Title 18 section 3568 to be granted credit for time on bond as in custody time.” At the onset, the Court notes that 18 U.S.C. § 3568 was repealed and applies only to offenses committed prior to November 1, 1987.1 Furthermore, the Eighth Circuit Court of Appeals has clearly stated that under § 3568 a prisoner was only ent...
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MEMORANDUM AND ORDER The case comes before the court on two motions. First, the defendant moves for summary judgment.1 Second, the plaintiff moves to compel the defendant’s payment of fees and expenses incurred in the defendant taking the deposition of plaintiffs expert witness. Plaintiff, Anthony L. Matthews, brings this Federal Tort Claims Act (FTCA) action against defendant, the United States ...
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MEMORANDUM & ORDER In his petition for a writ of error coram nobis, petitioner Harry Nicks seeks to vacate a 1974 conviction on the ground that the lack of a competency hearing at the time of plea and/or sentence rendered void the plea upon which the conviction was based. For reasons that follow, the writ will be granted in twenty days unless the government requests ...
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OPINION & ORDER Plaintiff Signet Corporation (“Signet”) has moved for summary judgment pursuant to Fed.R.Civ.P. 56 seeking to enforce a promissory note executed and delivered by defendant Interbank Financial Services, Inc. (“Interbank”) in the amount of $265,-000. For the following reasons, plaintiff’s motion is granted in the amount of $200,-000 with the issue of whether Interbank is liable for ...
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*363 MEMORANDUM AND ORDER A hearing was held in this case on December 7, 1990, concerning plaintiff John K. Pruner’s Motion for Temporary Restraining Order (Doc. 3) and Motion for Preliminary Injunction (Doc. 2) pursuant to Fed.R.Civ.P. 65. In his motions plaintiff requested that the court enter a temporary restraining order and preliminary injunction to enjoin defendants the United States De...
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MEMORANDUM AND ORDER The case comes before the court on the plaintiff’s effort to vacate the reference of this case for trial before the United States Magistrate. On December 20, 1990, this court directed the clerk to issue the following minute order: The plaintiff, having stated his intention to withdraw consent to proceed before the Magistrate, is given ten days from the date of this order ...
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MEMORANDUM AND ORDER This matter comes before the court upon Farm Bureau Mutual Insurance Company, Inc.’s (Farm Bureau) (defendant) motions to dismiss and upon Danny Chance’s (plaintiff) motion to dismiss without prejudice. The primary issue in this case is whether Kansas law would permit recovery by a plaintiff under the uninsured motorist provision of the insured’s (co-employee’s) polic...
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MEMORANDUM AND ORDER The case comes before the court on the defendants’ separate motions for summary judgment on plaintiff’s original complaint seeking relief under Title VII, 42 U.S.C. § 2000e et seq. and on defendants’ separate motions to dismiss or, in the alternative, summary judgment on plaintiff’s amended complaint asserting claims under Title VII and state common law. Pl...
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OPINION AND ORDER In this diversity action, the City of Burlington (City) sued New England Telephone & Telegraph Company (NET) for a declaratory judgment and to recover fees due the City under the terms of the Street Franchise Fee Ordinance, Burlington Code of Ordinances Article VI, enacted on June 11, 1990. The ordinance provides that, absent an agreement with the City, telephone companies using...
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MEMORANDUM AND ORDER This case comes before the court upon Gary R. Walker’s motion to dismiss, pursuant to Fed.R.Crim.P. 12, the information filed against him upon the basis that the information fails to charge an offense pursuant to 18 U.S.C. § 212, which prohibits an employee of a bank from “making or granting” a loan to a bank examiner who examines or has authority to examine such bank. The ...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the Equal Employment Opportunity Commission’s (“EEOC”) motion to reconsider the court’s October 22, 1990, ruling on the cross-motions for partial summary judgment. The motion for reconsideration is granted. For the reasons explained below, on reconsideration the court grants the EEOC’s motion for partial summary judgment. ...
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756 F. Supp. 18 (1991) UNITED STATES of America v. Mark A. MARAGH, Defendant. Cr. No. 88-0322-LFO. United States District Court, District of Columbia. February 1, 1991. Theodore Shmanda, Asst. U.S. Atty., Washington, D.C., for U.S. James E. McCollum, Jr., College Park, Md., for defendant. MEMORANDUM ON REMAND OBERDORFER, District Judge. This matter is before the Court on remand from the Court of...
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MEMORANDUM AND ORDER Plaintiff Mid-Central/Sysco Food Services, Inc. (“Mid-Central/Sysco”) has brought suit against defendants Regional Food Services, Inc. (“Regional Food Services”) and Virgil Thurston contending that defendants have failed to pay an outstanding balance for goods, wares, merchandise, and/or ser *368 vices allegedly delivered to defendants in Missouri. The case is now befor...
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MEMORANDUM OPINION AND ORDER Before the Court is Defendants’ Motion to Dismiss. The case arises out of the City of Grand Blanc’s denial of the plaintiff’s rezoning request. Plaintiff requested that his property in Grand Blanc be rezoned. The Grand Blanc City Council turned him down in 1980, and more recently in May of 1989. One count alleges substantive due process violations, the next equal pr...
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MEMORANDUM ORDER Julie Delaney brings this diversity of citizenship action to recover damages for the alleged negligent medical treatment of the defendants following an automobile accident on a county road in Pawnee County, Kansas. Delaney also claims damages for the defendants’ alleged violation of 42 U.S.C. § 1395dd. This matter comes before the court upon defendant Victor R. Cade’s mot...
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MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S JANUARY 13, 1989 MOTION FOR SUMMARY JUDGMENT BACKGROUND Plaintiff obtained insurance coverage from defendant. Subsequent to obtaining the coverage, two of plaintiff’s employees were killed on the job, in the state of Ohio, in an explosion of subterranean gas. Plaintiff settled with the estates of the two deceased former employees for $135,000.00 e...
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MEMORANDUM OPINION AND ORDER Before the Court are six motions: (1) the Comptroller of the Currency’s Motion to Dismiss or, in the Alternative, for Summary Judgment; (2) the Comptroller’s Motion to Dismiss the Complaint in Intervention of the Creditors’ Committee of MCorp, MCorp Financial, Inc., and MCorp Management or, in the Alternative, for Summary Judgment as to the Complaint in Interv...
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ORDER AND REASONS Before the Court are three motions. Defendant Dampskibsselskabet Torm (Dampsk. Torm), owner of the M/V TORM RASK, and the Canadian Pacific defendants move for a summary judgment that the cargo claim of Bunge Edible Oil Corporation (Bunge) against the defendants is barred by the time limitation period provided in COGSA. The Canadian Pacific defendants also move for an ord...
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MEMORANDUM Presently before the Court are defendant’s Motion for Reconsideration, defendant’s Motion for Protective Order, defendant’s Motion for Sanctions, plaintiff’s Motion to Extend Time for Service, plaintiff’s Motion to Compel, and plaintiff’s Motion for Sanctions. I. DEFENDANT’S MOTION FOR RECONSIDERATION On November 28, 1990, defendant filed a Motion for Reconsideration of the Court’s Ord...
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MEMORANDUM AND ORDER In the above-referenced action, Robins Island Preservation Fund, Inc. (“plaintiff”) seeks, inter alia, a declaration regarding ownership interest and possessory rights in Robins Island, an island of approximately 445 acres located in the Peconic Bay in Suffolk County, New York. Briefly stated, plaintiffs claim is premised on the argument that New York State...
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MEMORANDUM OPINION AND ORDER Plaintiffs bring this diversity action to recover damages in excess of $92 million arising out of an alleged contract with defendants concerning the purchase and sale of certain bottling companies and bottling licenses. In May 1989, the Court dismissed the antitrust claims and all claims asserted by Deep South Pepsi-Cola Bottling Company, for failure to state ...
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ORDER Before the court is Plaintiff Commercial Sales Network’s (“CSN”) motion to remand the instant case to the Summit County Court of Common Pleas and to order Defendants’ to pay Plaintiff’s costs and attorney’s fees. For the reasons stated herein, the motion to remand is GRANTED, and the motion for costs and fees is DENIED. I. STATEMENT OF FACTS This case arises out of a licen...
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ORDER Petitioner Bryan Centa is a United States Army soldier currently on active duty in Saudi Arabia. Before the court is a petition for a writ of habeas corpus, an application for a temporary restraining order, and a motion for a preliminary injunction. Due to the absence of jurisdiction in the Northern District of Ohio, all are DENIED and DISMISSED. I. FACTUAL BACKGROUND According to the...
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OPINION AND ORDER Plaintiff George D. Walker brings this action against his former employer and labor union alleging the following causes of action: 1) breach of contract; 2) breach of fiduciary duty; 3) wrongful discharge; 4) unlawful age discrimination in violation of New York Human Rights Law, Executive Law §§ 290 et seq. (McKinney 1982 & Supp.1990); 5) violation of 42 U.S.C...
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OPINION The matters before the court are the motions (# 15) of defendant Harney County, Oregon pursuant to Federal Rule of Civil Procedure 12 for: 1) an order dismissing the amended complaint of plaintiff, Chester O. Draper, Personal Representative of the Estate of llene Draper, (the Estate), for failure to state a claim; and 2) an order striking the language in paragraph 2 of the amended c...
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ORDER This matter is before the court on appeal from the bankruptcy court’s order of October 26, 1989, denying the motion for summary judgment filed by Baker & Schultz and granting the motion for summary judgment filed by the Trustee. The summary judgment order instructed the appellant to return $121,345.11 to the Trustee as a preferential transfer pursuant to § 547(b) of the Bankruptcy Code. The...
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This petition for a writ of habeas corpus presents the court with an important question concerning the armed forces at a time when our nation is engaged in a war in the Middle East. More specifically, the issue is whether the President has the authority under 10 U.S.C. § 673c to involuntarily extend the term of enlistment for an active member of the Air Force. The court holds that he does, and ...
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*417MEMORANDUM Plaintiff Charles Davis and Associates, Inc. filed a four-count amended complaint against defendant. In Count I plaintiff alleges that defendant tortiously interfered with contractual relations between plaintiff and four of plaintiffs employees. In Count II plaintiff prays for punitive damages for the tort alleged in Count I. In Count III plaintiff alleges that defendant conspired ...
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ORDER On November 21, 1990, the Defendant, McDonnell Douglas Corporation (MDC), filed a motion for reconsideration of Section III within the November 6, 1990 Or-der 1 that denied the motion of the Third-Party Plaintiff, Northwest Airlines, Inc. (Northwest), for a directed verdict. The reconsideration motion by MDC addresses only the level of conduct that will supervene the excu...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion for judgment notwithstanding the verdict pursuant to Rule 50(b) of the Federal Rules of Civil Procedure or, in the alternative, for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. Plaintiff, Sifers Corporation, originally filed this action claiming breach of a contract for the sale of plastic drink...
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ORDER The court has examined the report and recommended decision of the magistrate and the Defendant’s objections thereto in the instant matter. Despite the fact that the Petitioner has failed to exhaust his state remedies with regard to several of the claims in his petition for a writ of habeas corpus, the magistrate recommends that the court reach the merits of all of Petitioner’s claims. Inasmu...
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MEMORANDUM AND ORDER Presently before the Court is Defendants Nippon Steel Corporation, et al. (“Nippon”)^ Third Motion for Partial Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 (Grandfather Clause). In this case, the plaintiff (“Allegheny”) is the owner of United States Patent No. 3,855,-018 (“the ’018 patent”), which is a process patent for the production of steel. The...
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ORDER DENYING MOTION TO DISMISS AND DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT OF THIRD-PARTY DEFENDANT FORD MOTOR COMPANY AGAINST DEFENDANT AND THIRD-PARTY PLAINTIFF TUG MANUFACTURING COMPANY Background Hersan Coello died as a result of on-the-job injuries he received at the Ford Clayco-mo Assembly Plant while operating an industrial tow tractor manufacture...
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MEMORANDUM OPINION BACKGROUND The Federal Deposit Insurance Corporation (“FDIC”) brings this action to collect on promissory notes signed by certain former partners of the law firm of Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey (“Finley Kumble”). 1 The promissory notes secured loans that the National Bank of Washington (“NBW”) made in 1986 to the Finl...
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MEMORANDUM OPINION AND ORDER The United States of America brings this forfeiture action pursuant to 21 U.S.C. § 881(a)(6) (1988) to forfeit monies that the government alleges were received through narcotics trafficking. Presently pending before the Court is the government’s motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons that follow, the motion is granted in part and deni...
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MEMORANDUM The issues contained and resolved herein arise from the appeal by defendants, Commonwealth of Pennsylvania Department of Transportation and Howard Yerusalim, Secretary of Transportation, of three orders of the United States Bankruptcy Court in favor of the plaintiff, Fred J. Szostek. The plaintiff has filed a motion requesting this Court to dismiss that appeal as it pertains to...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion to dismiss pursuant to Local Rule 404(d). In support of its motion, defendant alleges that plaintiff’s counsel failed to comply with Local Rule 404(a). For the reasons set forth below, the court will deny defendant’s motion. Plaintiff filed its complaint on March 7, 1990. Although the complaint contained signature lines for...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff filed a pro se claim under 42 U.S.C. § 2000e-16. Plaintiff alleges that *188 she was the victim of sex and reprisal discrimination resulting in a loss of two weeks pay. Plaintiff seeks monetary relief. This matter now comes before the Court on defendant’s motion for dismissal or in the alternative for summary judgment. Under the mos...
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MEMORANDUM AND ORDER Following a non-jury trial, the court announced oral findings of fact and law. See Transcript dated March 2, 1989 at 41-43; Transcript dated March 6, 1990 at 84-87. The only open question is whether the court can award the husband (who died after the trial) damages for loss of consortium. This depends upon whether adequate administrative notice of his claim was timely given. F...
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MEMORANDUM ORDER GRANTING SUMMARY JUDGMENT TO PLAINTIFFS INTRODUCTION Plaintiffs ask this court to hold that an ordinance of defendant Whatcom County, excluding from the county infectious medical wastes generated outside the county, violates the Commerce Clause of the U.S. Constitution. *482 The parties have consented to proceed before a United States Magistrate Judge, ...
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MEMORANDUM OPINION AND ORDER This cause is before the Court, pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, on Plaintiffs’ Application for Review of the Order of the Magistrate entered August 3, 1990, denying Plaintiff’s Motion to Transfer this action to the United States District Court for the Southern District of West Virginia. Defendant has responded to Plaintiffs’ App...
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OPINION AND ORDER Seeking vulnerable consumers who, in the hopes of earning “exceptional money” in the comfort and safety of their own home, paid $27 for the “Successful Systems” product, William Savran & Associates, Inc. now finds itself the subject of a criminal indictment for mail fraud and the *1167 defendant in this related civil forfeiture proceeding. Before the Court a...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the government’s motion for application of the enhanced sentencing provision of the Armed Career Criminal Act, 18 U.S.C. § 924(e). FACTS The defendant, Christopher L. Allen, was convicted on November 13, 1990, following a jury trial, of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Before trial, the governme...
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MEMORANDUM AND ORDER This is an action by the Boston Police Superior Officers Federation (“Federation”) and its president, William T. Broder-ick against the City of Boston (“City”), Police Commissioner Roache, and various other officials employed by the Boston Police Department. The core of the complaint is the charge that the defendants engaged in a pattern of harassment and retaliation agains...
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MEMORANDUM AND ORDER The procedural device of certifying unsettled but controlling questions of state law to the highest court in a state for definitive resolution is a development of creative federalism, one that has worked well in this circuit, see, e.g., Ocasio-Juarbe v. Eastern Airlines, Inc., 902 F.2d 117 (1st Cir.1990) (certification to Supreme Court of Puerto Rico); ...
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ORDER Before the Court is a Motion by the United States of America for summary judgment (# 47) against claimants Randall Sorrells and Cathy Sorrells. The Court denies this Motion. BACKGROUND The United States of America seeks judicial forfeiture of the above-described real estate owned by Randall and Cathy Sor-rells which is subject to a note and mortgage to Investors Residential Mortgage Corporat...
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OPINION This matter came before the Court on remand from the United States Court of Appeals for the Fifth Circuit, 876 F.2d 376 (5th Cir.1989). Having considered the evidence, the parties’ memoranda, and the applicable law, the Court rules as follows. To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following c...
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*143RULING ON MOTIONS FOR SUMMARY JUDGMENT In January, 1990, Kwaku O. Kushindana began working as an outside sales representative for Antioch Publishing Company (Antioch). On March 27, 1990, the plaintiff was discharged “because of unacceptable sales performance.” The plaintiff subsequently filed this pro se action alleging a breach of an employment contract with Antioch. Both parties to this act...
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MEMORANDUM AND ORDER In April, 1989, plaintiffs decedent, Raymond Vadnais, brought this suit alleging discrimination in violation of § 504 of the Rehabilitation Act of 1973 (the “Act”), 29 U.S.C. § 794, along with two state-law claims. Mr. Vadnais claimed that defendant Dr. Vernick, a staff member at Beth Israel Hospital, refused to perform elective ear surgery on him because Mr. Vadnais ...
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MEMORANDUM AND ORDER This matter is before the Court on Luis Naranjo’s motion to have the cocaine he is charged with possessing re-weighed. For reasons hereinafter stated, the motion is denied but without prejudice to the defendant’s right to contest the weight for purposes of sentencing in the event that he chooses to enter a guilty plea. BACKGROUND Naranjo is one of seven defendants charged with...
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This Court is faced with the question of whether an option contract dealing with the lease of a vessel falls within this Court’s admiralty jurisdiction. Finding that based on the facts of the instant matter, this Court lacks admiralty jurisdiction, this action is hereby DISMISSED. Defendant, U.S.S. Cabot/Dedalo Museum Foundation (“Foundation”), has moved this Court for summary judgment in ...
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ORDER Defendant Great American Insurance Company moves for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, against the plaintiff Tabu, S.p.A. Plaintiff also moves for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure. This Court has jurisdiction based upon 28 U.S.C. § 1332. Defendant’s motion for summary judgment is granted. Plaintiffs motion for summar...
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RULING ON MOTION FOR SUMMARY JUDGMENT This matter is before the court on motion of plaintiff, the Farm Credit Bank of Texas, for summary judgment. Timely opposition has been filed. Oral argument is not necessary. Subject matter jurisdiction is allegedly based upon diversity of citizenship. This is a suit on a promissory note and for recognition of a mortgage securing the note. Subseq...
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MEMORANDUM OPINION AND ORDER GRANTING IN PART, AND DENYING IN PART, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT On May 4, 1990, plaintiffs brought this lawsuit to confirm arbitration awards resulting from Pastor Electric Construction Company’s (“Pastor Electric”) breach of fringe benefit provisions in its collective bargaining agreement with plaintiffs. Plaintiffs also allege that Sheldon Pastor, ind...
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MEMORANDUM AND OPINION Plaintiff, Bank St. Croix, Roberts, Wisconsin (the Bank), filed this action in response to a temporary cease and desist order issued by the defendant Federal Deposit Insurance Corporation (FDIC). After a hearing, the Court denied the Bank’s application for a temporary restraining order to suspend the effect of the cease and desist order. The Court then ordered that the he...
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MEMORANDUM OPINION AND ORDER This is an appeal from a bankruptcy court order granting a motion to convert this bankruptcy case from a Chapter 11 reorganization to a Chapter 7 liquidation. Debtors Rainsford and Winifred Winslow (Debtors) raise five arguments in favor of reversal. Having considered each, I affirm the bankruptcy court’s conversion order. I. Facts. Debtors f...
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ORDER AND OPINION This is an action for conversion of property, and for violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961, et seq. Defendant Rene Norrell has now moved to dismiss the complaint in this action, pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1), 12(b)(6) and 12(c). For the reasons set forth below, defendant’s...
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RULING ON BASF CORPORATION’S MOTION FOR PARTIAL SUMMARY JUDGMENT Robert G. Ghahramani filed this action against BASF Corporation (BASF), his former employer, claiming the company engaged in discriminatory employment practices. Ghahramani charges that BASF (1) refused to grant him pay increases; (2) denied him promotions for which he was qualified; (3) harassed him; (4) treated him with le...
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MEMORANDUM-DECISION & ORDER Defendant’s airport shuttle van went over a speed bump at the Kennedy airport in Queens from which plaintiff Elizabeth Fagan was jolted and suffered a fractured vertebrae. She now sues the defendant, A Classic Rent a Car, Inc., for negligence of the van driver which caused her injury. The defendant, alleging that the plaintiffs have shown no facts demonstrating that th...
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ORDER This matter is before the court on defendant’s motion to dismiss for failure to state a claim upon which relief can be granted brought pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff, an inmate presently incarcerated in the State of North Carolina filed this complaint pro se alleging the practice used by U.S. Sprint of identifying callers as inmates to the answering party on ...
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RULING ON MOTIONS This matter is before the court on motion of defendant Intex Recreation Corp. to dismiss this action for lack of subject matter jurisdiction and lack of personal jurisdiction, or in the alternative to transfer this matter to the Central District of California, and a motion to dismiss Count II of the complaint for failure to state a claim upon which relief can be granted....
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MEMORANDUM These three consolidated actions are brought by five shareholders of MNC Financial, Inc. (“MNC”) against MNC and its former chairman and chief executive officer, Alan P. Hoblitzell, Jr. Seeking to represent a class of all persons who purchased MNC stock between January 17, 1989 and July 24, 1990, plaintiffs assert federal securities law claims and a claim for the common law tor...
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ORDER Before the court are the motions of Mid Continent Builders Company (“Mid Continent”) and The Great West Life Assurance Company (“Great West”) to dismiss plaintiff’s action for lack of subject matter jurisdiction. Not having received a response, the court granted these motions. On Janu *229 ary 11, 1991, the court vacated that order and allowed plaintiff to file his resp...
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MEMORANDUM OPINION This appears to be, in this Court at least, the final chapter in the Norfolk Southern System (“NS”) spur line sale/lease saga. The Fourth Circuit Court of Appeals recently affirmed this Court’s issuance of preliminary injunctive relief enjoining the labor plaintiffs 1 from engaging in self-help in violation of the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151 ...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MAY 4, 1990 MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MAY 29, 1990 MOTION FOR SUMMARY JUDGMENT FACTS Plaintiff and defendant are parties to a collective bargaining agreement (“CBA”). Plaintiff claims that defendant has violated the terms of the CBA. In a prior case (Case No. 88-74035), plaintiff sued defendant for breach of contract. In ...
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ORDER GRANTING PARTIAL SUMMARY JUDGMENT THIS CAUSE comes before the Court upon the motion of Defendant Southern Bell Telephone & Telegraph Company (“Southern Bell”) to dismiss, or, in the alternative, for summary judgment. Defendant moves for dismissal of the antitrust claims brought by Plaintiffs, customers of Southern Bell, on the grounds that the Plaintiffs lack antitrust standing. In ...
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MEMORANDUM AND OPINION Plaintiff, a Florida corporation, was selected as a subcontractor by the general contractor on a government contract for the construction of certain alterations at the main steam plant of the Arnold Engineering Development Center (the Center) in Tennessee. Complaint ¶ 7. The steam plant is essential to rocket engine testing performed at the Center. Def. Memorandum at 1-2.1 P...
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ORDER AWARDING FEES AND COSTS This matter is before the court on the Report and Recommendation by the Honorable Peter R. Palermo, United States Magistrate, on the issue of attorney's fees and costs (dated Dec. 3, .1990). Defendant has submitted written objections (filed Dec. 12, 1990). After an independent review of the file, it is hereby ORDERED AND ADJUDGED that the Report and Reco...
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MEMORANDUM AND ORDER Before me are the motions of defendants 1 John G. Cassidy, Sr., Kevin P. Cas-sidy, Vincent G. Restivo, Francis R. San-tangelo, and Premier International Importing Co., Inc., to dismiss plaintiffs amended complaint. In support of their motions, defendants raise a variety of arguments. With two notable exceptions, their claims are without merit. Defendants co...
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MEMORANDUM AND ORDER Pending before the Court in the above-captioned case is a motion for summary judgment filed by defendant-counter-plaintiff Ford Motor Credit Company [Ford]. Ford requests judgment in its favor on the claims filed against it by plaintiff Easton Nissan, Inc. [Easton] and also on the counterclaims which Ford has asserted against Easton. The motion has been fully briefed and is r...
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755 F.Supp. 890 (1991) UNITED STATES of America, Plaintiff, v. Gary Lee SPIRES, Defendant. No. SACR 91-0001-GLT. United States District Court, C.D. California, Santa Ana Division. February 7, 1991. *891 Stephen G. Wolfe, Asst. U.S. Atty., Santa Ana, Cal., for plaintiff. Maria G. Valdez, Deputy Federal Public Defender, Santa Ana, Cal., for defendant. OPINION AND ORDER TAYLOR, District Judge. This...
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ORDER Plaintiff Kuei Sen-Tung is a national of Taiwan, who was extradited from Brazil to stand trial in the United States District Court for the Southern District of New York and was convicted and sentenced to twenty years’ imprisonment. He also stood trial on murder charges in a California state court and was convicted and sentenced to twenty-seven years to life imprisonment. California then retu...
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MEMORANDUM and ORDER THIS CAUSE is before the court upon the motion of Defendant, BURGER KING CORPORATION (“Burger King”), for summary judgment on all counts of the Complaint brought by Plaintiff, STEVEN A. SCHECK (“SCHECK”). Plaintiff Scheck has brought suit against Burger King alleging that Burger King breached an implied non-competition agreement (Count I), an implied covenant of good ...
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MEMORANDUM OPINION The court has for consideration the motion of John H. Martin, plaintiff in the above-entitled case, to remand it to the Circuit Court of Jefferson County, Alabama, from whence it was removed on January 22, 1991, by defendants, Drummond Coal Company, Inc., et al. Also for consideration is plaintiffs motion to strike the affidavit of Robert K. Payson, filed by defendants ...
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MEMORANDUM OPINION AND ORDER DENYING OSTEN MEAT COMPANY, INC.’S NOVEMBER 2, 1990 MOTION TO QUASH GRAND JURY SUBPOENA On November 25, 1990 Osten Meat Company, Inc. (“Osten”) moved this court to quash a grand jury subpoena issued September 25, 1990 on the basis of res judica-ta. Having reviewed the pleadings, heard oral argument and being otherwise familiar in the premises, this court finds that th...
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754 F. Supp. 849 (1991) BLUE CROSS AND BLUE SHIELD OF ALABAMA, Plaintiff, v. J. William LEWIS, et al., Defendants. Civ. A. No. 90-AR-1107-S. United States District Court, N.D. Alabama, S.D. January 22, 1991. Craig A. Alexander, Duncan Bissell Blair, Mary Beth O'Neill, Lange, Simpson, Robinson & Somerville, Birmingham, Ala., for plaintiff. Edward L. Hardin, Jr., Hardin, Taber & Tucker, Bir...
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MEMORANDUM Plaintiff North and South Rivers Watershed Association, Inc., a non-profit membership organization, brings this action against the defendant, the Town of Scituate (the “Town”), alleging that the Town has been discharging pollutants from its sewage treatment facility (the “Facility”) in violation of the Clean Water Act, 33 U.S.C. §§ 1251 — 1376 (the “Federal Act"). In particular...
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MEMORANDUM — DECISION AND ORDER This action, brought under 33 U.S.C. § 1365, the “citizen suits” provision of the Federal Water Pollution Control Act (“Clean Water Act” or “Act”), id. §§ 1251-1387, alleges ongoing violations by defendant Simco Leather Corporation of federal pre-treatment standards and defendant’s wastewater discharge permit, issued by the Gloversville-Johnstown Joint Sewer Bo...
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OPINION Thomas F. Jones was the Special Agent in Charge (SAC) of the Springfield, Illinois, office of the Federal Bureau of Investigation (FBI) on October 17, 1986. Shortly after 1:00 a.m., on Interstate 55 just south of Springfield, Jones struck an automobile driven by Kerri W. Snodgrass in which Stacey L. Becker was a passenger. Based upon the police reports, interrogatories, and statements by ...
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MEMORANDUM AND ORDER The defendants, Unified School District No. 457 and two of its officers, have moved for summary judgment against the plaintiff’s civil rights action. Plaintiff Nadine Ginwright contends that she was dismissed from her teaching job in the district due to racial discrimination by the defendants. Arguments on the motion were made to the court in a hearing held January 4,...
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MEMORANDUM Before the court is plaintiff ACT-UP’s motion for a preliminary injunction. A hearing on these issues was held before this court on January 30, 1991. The issues relating to the injunction have been briefed by both sides. As the key facts relating to the injunction are either undisputed or un-contradicted in the record, the court will dispense with making formal findings of fact. BA...
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ORDER This matter is before the court on appeal by the Teachers Insurance and Annuity Association of America and the College Retirement Equities Fund (hereafter “TIAA/CREF”) from the bankruptcy court’s order of 20 June 1990 in which the court held that funds in two supplemental retirement annuities belonging to the debt- or were property of the estate pursuant to 11 U.S.C. § 541(a). The c...
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MEMORANDUM OPINION AND ORDER Defendants in this case, involving claims of breach of a real estate joint venture *790 agreement, have moved for disqualification of Epstein, Becker & Green (“Epstein Becker” or the “Firm”) as plaintiffs counsel, because of alleged dual representation. 1 Epstein Becker has taken certain steps to withdraw as counsel in other legal matte...
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ORDER This matter is before the court on an application for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Petitioner seeks a new trial and alleges violation of the fifth and fourteenth amendments in his conviction for driving while intoxicated. The state filed an answer and return and petitioner filed a traverse. Having reviewed the record, the court makes the following findings an...
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MEMORANDUM OPINION This action is currently before the court on the Defendant’s Motion for Partial Summary Judgment Based Upon the Decedent’s Wrongful Act, the plaintiff having predicated this pendent claim portion of the complaint on Virginia’s version of Lord Campbell’s Act. By this motion, the defendants ask the court to dismiss these state law wrongful death claims against them because the ...
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MEMORANDUM AND ORDER The Second Amended Complaint in this action alleges eleven causes of action against defendant. Defendant’s motion to dismiss eight of these claims has been submitted for decision. Because of the complexity of the questions involved, an under *1055 standing of the history of this litigation is essential. BACKGROUND Alleging myriad theories of lia...
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MEMORANDUM OPINION This matter is before the court on plaintiffs’ motions for summary judgment and on defendants’ motion for partial summary judgment. The motions were thoroughly briefed and were supported and opposed by reams of documents, affidavits, deposition transcripts, and responses to discovery requests. Additionally, the court heard argument of counsel on 2 January 1991. This mat...
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OPINION AND ORDER The matter is presently before the Court on the parties’ cross motions for summary judgment. Having carefully reviewed the record, we agree that there is no genuine issue of material fact which would require a trial or further proceedings. For the reasons that follow, we GRANT defendant’s motion for summary judgment and DISMISS the complaint. On June 22, 1990, plaintiff Congreso...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Defendants’ Motion to Strike Late Designation of Expert Witness by the Plaintiff, Plaintiff’s Motion to Reassign and Reset Settlement Before Magistrate, and Defendants’ Motion for Summary Judgment. The Court has reviewed the motions, briefs, exhibits, the applicable law, has heard argument from counsel in open court, and is fully a...
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ORDER The matter before the court is a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. Petitioner, a state prisoner from the state of Pennsylvania, is currently serving his sentence at United States Penitentiary, Leavenworth, Kansas (USPL). Petitioner claims he is being wrongfully held by federal authorities because his transfer from a state facility to USPL was not auth...
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MEMORANDUM AND ORDER Chan Wai King was born in a rural section of the Canton Province of China. The date of her birth is the source of the dispute in this action to review a final determination of the Secretary denying her application for retirement benefits. Ms. Chan asserts that she was born on October 7, 1922. She completed elementary school in 1941, at the age of 18, her studies havin...
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MEMORANDUM AND ORDER The case comes before the court on the defendants’ motion for summary judgment (Dk. 28), motion to strike and for attorney’s fees (Dk. 34), and supplemental motion for partial summary judgment (Dk. 44). This lawsuit ensues from the termination of business dealings between the parties. In October of 1986, the parties entered into a business relationship concerning Rest...
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MEMORANDUM In May 1986, two New York City agencies, the Departments of Sanitation and Environmental Protection, applied for restitution for petroleum overcharges from an escrow fund created by an order issued in what is known as the “Stripper Well Litigation.” See, e.g., In re Department of Energy Stripper Well Exemption Litigation, 690 F.2d 1375, 1377-80 (Temp.Emer.Ct. App.198...
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MEMORANDUM AND ORDER This declaratory relief action brought by State Farm Fire & Casualty Co. (“State Farm”) arises out of the sale of a single family residence, in Hayward, California. The sale was made by defendants Stanley R. and Jane A. Thomas. The Thomases, insured by State Farm under two separate homeowners policies, sold the residence to Andrew R. Chan and Carol R. Fuller Chan. The...
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ORDER THIS MATTER comes before the Court on Defendant’s Motion for Judgment Notwithstanding the Verdict; Motion for New Trial; and Motion for Amendment of Judgment filed December 7, 1990, Plaintiffs’ response filed December 18, 1990, and Defendant’s reply filed December 28, 1990. THE TRIAL At trial, the Plaintiffs made three basic claims. The first claim alleged that the Defenda...
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OPINION This matter is before the court on plaintiff's Rule 12(f) motion to strike approximately 200 of nearly 300 affirmative defenses set forth in the answers of 16 of the now 29 defendants. Plaintiff, United States (“the Government”), brought this case pursuant to section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607, t...
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ORDER Carolyn McDowell (“plaintiff”) filed the present qui tam complaint on April 23,1990 under provisions of the False Claims Act, 31 U.S.C. §§ 3729-3733 (West Supp.1989) (“the Act”). 1 The case is before *1039 the court for consideration of “The United States’ Suggestion That the Case Be Dismissed for Lack of Subject Matter Jurisdiction.” After careful consideration of the memoranda sub...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion to dismiss for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. In this action, plaintiff Travel Unlimited, Inc., a Kansas corporation, seeks to recover against defendant Touch Technologies, Inc., a Nevada corporation, on a $50,000.00 promissory note on which defendant is no...
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ORDER ON MOTION FOR STAY PENDING APPEAL AND MOTION TO RETAIN PROPERTY On February 5, 1991, I issued an order affirming the bankruptcy court’s judgment converting the Debtors’ bankruptcy case from Chapter 11 to Chapter 7. The Debtors have moved for a stay of this order pending their appeal to the Court of Appeals for the Tenth Circuit. Their notice of appeal to the Tenth Circuit was filed on Feb...
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ORDER GRANTING DEFENDANT U.S. SHOE’S MOTION TO DISMISS The motion of defendant United States Shoe Corporation (“U.S. Shoe”) to dismiss or, in the alternative, for summary judgment, came on for hearing before this court on January 7, 1991. John R. Myrdal, Esq. appeared on behalf of defendant U.S. Shoe. James E. Duffy, Esq. appeared for plaintiffs The Daiei, Inc. (“Daiei”) and U.S. Shoes Ja...
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ORDER DENYING MOTION TO DISMISS FOR IMPROPER VENUE OR, ALTERNATIVELY, TO TRANSFER THIS CAUSE is before the Court on Defendants’ motion to dismiss for improper venue or, alternatively, to transfer. Plaintiff, Burger King Corporation (“BK”), initiated this action against Defendants J.T. Thomas (“Thomas”) and Larry Brown (“Brown”) on May 8, 1990. Prior to Defendants’ filing of a respons...
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MEMORANDUM OPINION AND ORDER Plaintiff brings this action for mandamus and injunctive relief, pursuant to 28 U.S.C. §§ 1331 and 1361, requesting that the *1443 Court require the Department of the Navy to upgrade plaintiffs 1969 undesirable discharge from the United States Marine Corps. Plaintiff also seeks a declaratory judgment that his constitutional right to due process was violated. After...
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ORDER The matter before the court is a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. Petitioner, a prisoner from the District of Columbia, is currently serving his sentence at United States Penitentiary, Leavenworth, Kansas (USPL). Petitioner claims he is being wrongfully held by federal authorities because his transfer from a District of Columbia prison to USPL was no...
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755 F.Supp. 1543 (1991) DIXIE BONDED WAREHOUSE AND GRAIN COMPANY, INC., Plaintiff, v. ALLSTATE FINANCIAL CORP., Defendant. Civ. A. No. 84-378-3-MAC (WDO). United States District Court, M.D. Georgia, Macon Division. February 5, 1991. *1544 E. Kendrick Smith, Atlanta, Ga., for plaintiff. Cater S. Clay, Macon, Ga., for defendant. ORDER OWENS, Chief Judge. On September 5, 1984, plaintiff Granitevill...
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MEMORANDUM AND ORDER This matter is before the court on a motion of defendant Beech Aircraft Corporation (“Beech”) entitled “MOTION TO ENFORCE THE COURT’S JUDGMENT AND TO CONSOLIDATE THIS MATTER WITH A PENDING RELATED LAWSUIT AND TO ASSIGN THE CONSOLIDATED PROCEEDING TO THE HONORABLE DALE SAFFELS.” In the above-captioned suit, plaintiff EDO Corporation (“EDO”) sought damages for breach of contract...
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755 F.Supp. 977 (1991) Darryl BICKERSTAFF, Petitioner, v. Richard P. THORNBURGH, et al., Respondents. No. 90-3489-R. United States District Court, D. Kansas. January 25, 1991. *978 Darryl Bickerstaff, Leavenworth, Kan., pro se. ORDER ROGERS, District Judge. The matter before the court is a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. Petitioner, a state prisoner from t...
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ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT Procedural History On August 17, 1990, plaintiff American Casualty Company of Reading, Pennsylvania (“American Casualty”) filed its Motion for Summary Judgment on two claims in its action for declaratory relief, contending that insurance coverage does not exist for officers and directors against whom claims a...
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755 F.Supp. 635 (1991) LEUCADIA, INC., Plaintiff, v. APPLIED EXTRUSION TECHNOLOGIES, INC., Defendant. Civ. A. No. 90-681-JLL. United States District Court, D. Delaware. February 7, 1991. Francis S. Babiarz of Biggs & Battaglia, Wilmington, Del. (James P. White of Welsh & Katz, Ltd., Chicago, Ill., of counsel), for plaintiff. Charles S. Crompton, Jr. of Potter, Anderson & Corroon, Wilmington, Del....
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*231MEMORANDUM OPINION AND ORDER James Earl Williams, an inmate at Me-nard Correctional Center, brings this petition pursuant to 42 U.S.C. § 1983, seeking leave to file in forma pauperis. He requests the court to grant a temporary restraining order and preliminary injunction, which he has also filed as a separate motion, enjoining the defendant from denying him a transfer to Stateville Correctiona...
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ORDER Plaintiff Continental Bank N.A. (“Continental”) seeks repayment of a loan made to four corporations.1 Continental brings this lawsuit against the guarantors of the loan, Sheldon Modansky, Aaron Modansky, and Ajayem Investors Corp. (“Ajayem Investors”). These defendants now seek a change of venue pursuant to 28 U.S.C. § 1404(a). For the reasons stated herein, defendants’ motion to transfer is...
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REVISED OPINION AND ORDER Plaintiff Liberty Mutual Insurance Company (“Liberty Mutual”) moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and seek damages of $1,445,037.68, plus interest, costs, and attorneys’ fees. Defendant Bankers Trust Company (“Bankers Trust”) cross moves for summary judgment, pursuant to Fed.R.Civ.P. 56. For the reasons set forth...
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*940 MEMORANDUM OPINION AND ORDER Integrated Measurement Systems, Inc. (“Integrated Measurement”) sues International Commercial Bank of China (“International Bank”) and Overseas Chinese Commercial Banking Corporation (“Overseas Bank”) (International Bank and Overseas Bank are collectively referred to as “Banks”) for having dishonored an irrevocable letter of credit (“LOC”) issued...
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MEMORANDUM OF DECISION AND ORDER This matter comes before the Court on Defendant’s Motion for Summary Judgment. For the reasons discussed below, the Motion will be granted in part and denied in part. I. FACTS AND MOTION FOR SUMMARY JUDGMENT The central issue in this litigation is the form and content of the business relationship between Plaintiff Maine Surgical Supply Co., a Mai...
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ORDER This cause is before the Court on Defendants’ motions to transfer and to dismiss, and Plaintiffs’ response thereto. No opposition to the Motion to Dismiss appears in this file. I.TRANSFER Defendants seek the transfer of this case to Georgia on the basis that Georgia is a more convenient forum for the parties and witnesses, and the interests of justice would be served by th...
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MEMORANDUM OF DECISION AND ORDER This matter comes before the Court on Defendant’s Motion for Summary Judgment. For the reasons discussed below, the Motion will be granted. I. FACTS AND MOTION FOR SUMMARY JUDGMENT Defendant C. Wesley Phinney, Jr., is taking a second run at securing a summary judgment in this pro se civil rights action. Plaintiff Maillett was incarcerated in the York Count...
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OPINION and ORDER This diversity action for money damages is before the court on a motion brought by defendants Tschopp-Durch-Camastrol Co. and Hartford Accident & Indemnity Co. to dismiss plaintiff Mary Carlson’s claim for damages suffered as a result of defendant Tschopp-Durch-Camastrol Co.’s negligent infliction of emotional distress. Defendants contend that the claim is barred by the statute ...
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MEMORANDUM Plaintiff Marie Keyes brought this civil action against Consolidated Rail Corporation (Conrail) 1 and National Railroad Passenger Corporation (Amtrak) seeking damages for injuries she sustained from a slip and fall on ice and snow when boarding defendant’s train. 2 Before me is the motion of defendant Amtrak for summary judgment. For the reasons set fort...
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ORDER This matter came on for trial before the Court sitting without a jury on the claim of the plaintiff, Lois Blair, for the recovery of damages under the provisions of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461, for the failure of the defendant, Metropolitan Life Insurance Company (Metropolitan Life), to provide medical insurance benefits under a group policy o...
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MEMORANDUM OPINION Convicted on all counts [I, II and III] after trial by jury, defendant now moves for acquittal or for a new trial (Fed.R.Crim. Proc. 29 and 33). I. Count I of the indictment charged assault with a dangerous weapon, (18 U.S.C. § 1152 1 and § 113(c)) and Count II charged assault with a dangerous weapon (18 U.S.C. § 1153 2 and § 113(c)). Count III is not relevant to the ...
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MEMORANDUM OPINION AND ORDER ABB Trading (U.S.) Inc. (“ABB”), one of the three defendants in this action brought by Rose Marine Transportation, Inc. (“Rose Marine”), has followed its success on Rose Marine’s originally-asserted substantive claims1 with a motion for sanctions under Fed.R.Civ.P. (“Rule”) 11. ABB’s motion stems from Rose Marine’s pleadings in this action, which served to facilitate ...
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MEMORANDUM OF DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff, an architectural firm, brings this diversity action against its former clients, who have filed a demand for arbitration against Plaintiff with the American Arbitration Association. Relying on a “Release and Agreement” signed by all the parties on October 15, 1983, Plaintiff seeks a declaration that Defendan...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes on for consideration of Respondent City of Albuquerque’s Motion to Dismiss, Respondent in Intervention State of New Mexico’s Motion to Dismiss, and the New Mexico Public Service Commission’s (NMPSC) Motion to Intervene. The Court, having reviewed the memoranda of the parties, and being otherwise fully advised in the premises, finds that Respondent Ci...
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756 F. Supp. 1215 (1991) UNITED STATES of America, Plaintiff, v. VERTAC CHEMICAL CORP., et al., Defendants. ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY, Plaintiff, v. VERTAC CHEMICAL CORP., et al., Defendants. UNITED STATES of America, Plaintiff, v. PHOENIX CAPITAL ENTERPRISES, et al., Defendants. Civ. Nos. LR-C-80-109, LR-C-80-110 and LR-C-87-833. United States District Court, E.D. Arka...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This is an interesting and well-tried action for copyright infringement pursuant to the Copyright Act of 1976, 17 U.S.C. Sections 101, et seq. Plaintiffs Enrique Chia (“Chia”) and his publisher, Intersong-USA Inc. (“Intersong”), allege that the melody of the song “Hey,” which was initially recorded by Julio Iglesias (“Iglesias”) in late 1...
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MEMORANDUM OF DECISION AND ORDER This matter is before the Court on the motion of Plaintiffs Mark A. Holbrook and Mary E. Holbrook for approval of a settlement they entered with Defendant on behalf of their minor son, Daniel M. Hol-brook. For the reasons that follow, the Court will grant Plaintiffs’ motion. Background On July 16, 1988, Daniel M. Holbrook, then 2 and lh...
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MEMORANDUM OF DECISION AND ORDER DENYING MOTION OF DEFENDANT STOLLE CORPORATION FOR SUMMARY JUDGMENT This is a diversity action for wrongful death arising under Maine law. The applicable statute of limitations is provided by state law, which is found in 18-A M.R.S.A. section 2 — 804(b). Plaintiffs’ Complaint alleges that the decedent, Timothy Walsh, died in a fire in a mobile recreational vehicle ...
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MEMORANDUM OF DECISION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT OF DEFENDANT FLEETWOOD ENTERPRISES, INC. This is a diversity action for wrongful death arising out of an explosion and resulting fire that occurred in Plaintiffs’ decedent’s recreational vehicle on September 21, 1987, allegedly resulting in the death of Timothy Walsh. The parties have presented the Court with a highly unusual set...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT William Baber (the “Claimant”) appeals from the final judgment of the Secretary of Health and Human Services (the “Secretary”) denying his application for disability insurance benefits pursuant to Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 416(i), 423. Jurisdiction over Ba-ber’s petition for judicial review is conferred on this court by 42 U...
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ORDER DENYING PLAINTIFF’S MOTION FOR STAY PENDING APPEAL In an interpleader action brought as an adversary proceeding in the Bankruptcy Court, Kemper Life Insurance Co. sought to determine the appropriate beneficiary of a life insurance policy insuring Bernard Lewis. All three Defendants asserted claims to the one million dollar policy. Defendant Suzanne Lewis counterclaimed seeking reformation...
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MEMORANDUM AND ORDER This is one of a number of securities fraud claims made against banks in the wake of the collapse of the New England real estate market. See e.g., Loan v. First Service Bank, 89-0251-T; Motel v. Bank of Boston, 89-2269-H; Pheterson v. Bank of New England, 89-2582-S; Dubowski v. Bank of New England, 89—2811—S; Sei nfeld...
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756 F. Supp. 388 (1991) UNITED STATES of America v. Phillip CYPRIAN, Sr., Leroy V. Williams, Louis Del Grosso, John F. Morales. Crim. No. HCR 90-42. United States District Court, N.D. Indiana, Hammond Division. January 30, 1991. *389 *390 *391 Bernard A. Smith; Nancy Vecchiarrelli, U.S. Attys. Office, Cleveland, Ohio, for U.S. David L. Chidester, Valparaiso, Ind., for Cyprian. John L. Kelly, Jr.,...
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OPINION AND ORDER Anthony Guariglia has been imbcted on five counts, one charging contempt of a Bankruptcy Court order that he not gamble, and four charging false statements. Of the latter, two involve alleged perjured testimony at the trial of United States v. Wallach, et al., S87 Cr. 985 (RO) on the subject of whether Guariglia had gambled, and the remaining two involve alleg...
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ORDER ON MOTIONS TO SUPPRESS Before the court is the Defendants’, FATIMA MAZUERA (“MAZUERA”) and FA-BIO ARIAS (“ARIAS”), Motions to Suppress. After a hearing was held in this matter on January 29, 1991, and after reviewing the record, the memoranda of counsel and the law, the court enters the following order for the reasons set forth hereinafter. *566BACKGROUND The Defendants in this action have b...
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MEMORANDUM OPINION Is the testimony of an economist on the cash value of the lost pleasure of life admissible? We ought to begin inquiry into any proposed “scientific, technical, or other specialized knowledge,” Fed.R.Evid. 702, by asking two questions. First, if the masters of the knowledge were to examine a set of facts, would all the masters come to the same conclusion? If they wo...
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756 F. Supp. 62 (1991) K-MART CORPORATION, Plaintiff, v. Mark B. DAVIS, et al., Defendants. Civ. No. 90-2525 HL. United States District Court, D. Puerto Rico. January 30, 1991. *63 Edward M. Borges, Alfredo F. Ramirez-MacDonald, O'Neill & Borges, Hato Rey, Puerto Rico, Edward H. Pappas, Daniel M. Brinks, Dickinson, Wright, Moon, Van Dusen & Freeman, Bloomfield Hills, Mich., for plaintiff....
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MEMORANDUM OF DECISION AND ORDER AFFIRMING DECISION OF THE BANKRUPTCY COURT AND IMPOSING SANCTIONS ON APPELLANTS AND APPELLANTS’ COUNSEL This case comes before the Court on appeal from an order of the Bankruptcy Court awarding summary judgment to Bank of New England, N.A. For the reasons discussed below, the order of the Bankruptcy Court will be affirmed. In addition, the Court will grant...
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MEMORANDUM OF DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR JUDGMENT ON A STIPULATED RECORD Plaintiffs in this class action challenge a Department of Health and Human Services (HHS) regulation, codified at 45 C.F.R. § 233.20(a)(3)(i)(B)(2), promulgated pursuant to the Aid To Families with Dependent Children program (AFDC or Act). The regulation fixes a ceiling of $1,500 on the amount...
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MEMORANDUM AND ORDER DENYING DEFENDANT ESTATE OP MAS-TERTON’S MOTION FOR SUMMARY JUDGMENT Defendant Estate of Masterton has moved for summary judgment in this action asserting that Plaintiffs’ claims are barred because Plaintiffs failed to comply with the requirements of 18-A M.R.S.A. § 3-806 for presenting claims against a decedent’s estate. Finding that Plaintiffs are not required to comply w...
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OPINION AND ORDER This action is before the Court on defendant International Shipping Agency, Inc.’s (“Intership”) motion to dismiss for lack of subject matter jurisdiction. Defendant’s motion raises the issue of whether there is pendent party jurisdiction in admiralty eases in light of the Supreme Court’s holding in Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L....
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756 F. Supp. 532 (1991) Ronald E. TRUMBULL, Plaintiff, v. HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, Defendant. No. 89-984-CIV-T-17(A). United States District Court, M.D. Florida, Tampa Division. February 6, 1991. *533 Stanley E. Marable, Sarasota, Fla., for plaintiff. Charles G. Burr, Thomas F. Hennessy, Zinober & Burr, Tampa, Fla., for defendant. ORDER GRANTING MOTION FOR SUMMARY J...
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ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION By order of the Defendant President of the United States, approximately 400,000 American troops have been deployed in Saudi Arabia and the Persian Gulf since August 2, 1990, in response to Iraq’s invasion and occupation of Kuwait. On November 19,1990, the United Nations Security Council adopted Resolution 678 sanctioning the use of “...
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OPINION AND ORDER The Court has before it plaintiff’s request for the entry of a preliminary injunction. This action was brought by plaintiff against the defendants for trademark infringement and unfair competition according to the Lanham Trade-Mark Act, 15 U.S.C. §§ 1051-1127 (“Lanham Act”), and the laws of Puerto Rico. This Court has subject matter jurisdiction pursuant to 15 U.S.C. § 1...
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ORDER In this bankruptcy appeal, appellants Earl and Martha Bowers (the “Bowers”) challenge the authority of the bankruptcy court to preside over a jury trial. The appellee, Bowers-Siemon Chemicals Company (“Bowers-Siemon”), raises an objection to the appellate jurisdiction of this court. For want of a final appealable order entered by the bankruptcy court, this appeal is dismissed. ...
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MEMORANDUM The matter presently before the Court is a motion by defendant United States of America for summary judgment. (Court File No. 15). Plaintiff has not timely filed a response and the Court deems plaintiff to have waived opposition to the motion. Elmore v. Evans, 449 F.Supp. 2 (E.D.Tenn. 1976), aff'd, 577 F.2d 740 (6th Cir.1978) (unpublished per curiam); LR 10.2, EDTN. The Court has carefu...
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DECISION AND ORDER BACKGROUND On January 22, 1990, plaintiff United States of America (“United States”) commenced an action against defendant Charles Davis (“Davis”) alleging that he owed the United States $21,393.61 plus interest, administrative costs, and penalties. This debt was incurred as a result of the Veterans Administration (“the VA”) guaranteeing the mortgage Davis executed in order...
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MEMORANDUM I. Introduction This action arises under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. (1986 and 1990 Supp.). Plaintiff, who was a car repairman, was injured in a collision at one of defendant’s Delaware facilities in 1988. At trial, plaintiff wishes to introduce the testimony of Dr. Pierre Le-Roy, who has extensive experience in ther-mo...
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OPINION AND ORDER This matter is before the Court pursuant to the motion filed by the defendants on July 19, 1990 for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs, Mark J. Eyer and Kitty I. Guinsler, initiated this action under 42 U.S.C. § 1983 on December 29, 1989. For the foregoing reasons, the defendant’s motion is hereby GRANTED in part and DENIED i...
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MEMORANDUM AND ORDER This action was originally filed in the District Court of Coffey County, Kansas. It has been removed to this court. Plaintiff, Delbert E. Elbrader, is suing: Kelly Blevins, a police officer for Burlington, Kansas; Michael J. Sahadi, a former police officer for Burlington, Kansas; ' Ralph Romig, the chief of police for Burlington, Kansas; and the City of Burlington, Ka...
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ORDER This cause is before the Court on the defendant’s motion to hold the plaintiff’s jury demand insufficient. The plaintiff claims are premised upon Title VII and 42 U.S.C. Section 1981. Although the plaintiff clearly is not entitled to a jury trial on his Title VII claim, the defendants maintain that the plaintiff has waived his right to a jury trial on his section 1981 claim because he did n...
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In this most difficult and well-tried dispute, the court is finally prepared to render *1551 a decision on the merits of each of the named plaintiffs claims. Before making its final conclusions on the subject, however, the court believes it would be appropriate to detail the procedural history of this case in order to better explain the court’s ruling today. Procedural Histo...
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756 F. Supp. 12 (1991) John DOE and Mary Doe, Plaintiffs, v. Louis W. SULLIVAN, Secretary, Department of Health and Human Services, and Richard Cheney, Secretary, Department of Defense, Defendants. Civ. A. No. 91-51 SSH. United States District Court, District of Columbia. January 31, 1991. *13 Michael Tankersley, Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., for plaintiffs....
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MEMORANDUM AND ORDER This ease arises out of plaintiff/coun-terdefendant Omega Nutrition U.S.A., Inc.’s (“Omega USA”) and defendant/coun-terclaimant Spectrum Marketing, Inc.’s (“Spectrum”) competing claims of trademark infringement. 1 The mark in dispute is the “Veg-Omega-3,” which both parties have used to identify their competing bottled flax seed oil products. On August 7, 1...
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MEMORANDUM AND ORDER This matter is presently before the court upon consideration of arguments contained in a brief filed by intervenor Interstate Commerce Commission (ICC) and the following motions filed by the railroads: (1) motion for stay pending appeal of order of October 25, 1990 (Doc. # 28); (2) motion to vacate, alter or amend judgment of October 25 (Doc. # 52); and (3) motion to amend or...
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MEMORANDUM OPINION Background and Issues This case was tried before a jury in May, 1990. By agreement of the parties, the court is to decide how much penalty, if any, is due to the government. The parties have submitted post-trial briefs and reply briefs. In interrogatories, the jury found that Charles Honey and James Meador, officers of Phoenix Housing Systems, were responsible for payin...
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MEMORANDUM OPINION Defendants David Dinkins and New York City (“the City Defendants”) and Mario Cuomo, the State of New York, the New York State Police and Lieutenant Kevin Molinari of the New York State Po*171lice (“the State Defendants”) have moved to dismiss the Amended Complaint (“the Complaint”) of pro se plaintiff Arthur Johnson (“Johnson”)1 under Rule 12(b)(6), Fed.R.Civ.P. Defendants Otto ...
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OPINION The background of this litigation is set forth in an earlier opinion, see 745 F.Supp. 951 (S.D.N.Y.1990), and will not be repeated in detail here. In essence, plaintiff owns and operates the Westchester County Airport in New York and defendants, who are all Connecticut residents, own parcels of land adjacent, or at least in close proximity, to the New York border. The airport has two runwa...
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OPINION The third-party defendant in the underlying action for personal injuries, General Thermoforming Corp. (“GTC”), a New York corporation, has moved to dismiss or in the alternative for summary judgment dismissing the claims against it pursuant to Rules 12(b)(6) and 56, Fed.R.Civ.P. For the reasons set forth below, the motion with respect to the contribution claim of defendant/third-party pla...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Plaintiff, American Trade Partners, L.P. (“ATP”), moves for a preliminary injunction against defendants, A-l International Importing Enterprises, Ltd., John G. Cassi-dy, Sr., Kevin P. Cassidy, Vincent G. Resti-vo, Francis R. Santangelo, and Premier International Importing Co., Inc. ATP seeks an order requiring defendants to notify purchasers of A-l’s...
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756 F. Supp. 889 (1991) UNITED STATES of America, Plaintiff, v. Thomas C. FRANCHI, Defendant. Civ. A. No. 90-2102. United States District Court, W.D. Pennsylvania. February 12, 1991. *890 Stuart D. Gibson, Shannon L. Hough, Dept. of Justice, Tax Div., Washington, D.C., for plaintiff. John Hooper, Pittsburgh, Pa., for defendant. MEMORANDUM OPINION MENCER, District Judge. On December 20, 1990, the...
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MEMORANDUM AND ORDER Plaintiff Lizzi, individually and as mother and natural guardian of Melissa Johnson, an infant, brought this action in the New York Supreme Court, Kings County, against the defendants, herein referred to as the Union, alleging that on June 2, 1982 one Luis Ojeda, a mail carrier employed by the United States Postal Service (the Postal Service), sexually molested Melissa Johnson...
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*971 OPINION AND ORDER This matter comes before the Court to consider the consolidated appeal from the ruling of the bankruptcy court below by the appellants, Amerifirst Federal Savings Bank (“Amerifirst”). This Court has jurisdiction to hear appeals from final judgments, orders, and decrees of bankruptcy judges. 28 U.S.C. § 158(a) (1988); Bankr.R. 8001. The appellees in thi...
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OPINION AND ORDER This diversity case involves plaintiff Wil-denstein & Co.’s claimed interest in important paintings in the collection of the late movie producer and director Hal B. Wallis. Wildenstein, an art dealer, obtained possession of two of these paintings, Monet’s “Houses of Parliament” and Gaugin’s “The Siesta — A Brittany Landscape,” and resold *159 them to Wallis ...
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MEMORANDUM OPINION In a four-count indictment, defendants have been charged with conspiring with Richard Ramirez, a former civilian employee of the Navy (Count I), bribing Mr. Ramirez in return for favorable treatment regarding certain Navy contracts (Counts II and III), and using a facility in interstate commerce with the intent to commit bribery (Count IV). Defendants now move to dismiss the ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Currently before the court are cross-motions for preliminary injunction filed by plaintiffs Theodore Economou, Maureen Economou, Steven Streit, and Nancy Streit (hereinafter plaintiffs) and defendants Physicians Weight Loss Centers of America, Inc. (hereinafter PWLC when referred to individually) and Charles E. Sekeres (hereinafter defendants). In their m...
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OPINION The United States appeals from a judgment of the Bankruptcy Court holding that valuation of a debtor’s non-income producing residence retained by the debtor under 11 U.S.C. sec. 506(a) should reflect a reduction for the hypothetical costs of sale of that property. Factual Context on Appeal Debtor/Appellee Doris Coby filed a Chapter 13 bankruptcy petition on September...
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RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Background Plaintiffs, F. Sutherland and Elva Mack-lem, bring this action pro se against the United States claiming that they are owed a refund of taxes paid for the 1983 tax year. Plaintiffs claim that the Internal Revenue Service erroneously disallowed deductions for business expenses in the amount of $10,848, a charitable contribution in the...
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MEMORANDUM OPINION AND ORDER In this action arising from an air crash at Sioux City, Iowa, plaintiffs William Banks, Jennifer Banks and Tracy Wilde (collectively, “plaintiffs”) sue in their individual capacities and on behalf of the estate of Lois Banks, a passenger who was killed in the air crash. Plaintiffs sue United Airlines, Inc., McDonnell Douglas Corporation, General Electric Corporation an...
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ORDER A judgment was entered in this action in favor of Fred Sonntag, plaintiff-appellee, on February 5, 1990. Defendant, the Internal Revenue Service (“IRS”), timely appealed and objected to the disposition of the appeal by the Ninth Circuit Bankruptcy *855 Appellate Panel. After careful review of the parties arguments, the Court now rules. I. FACTS The facts are n...
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ORDER THIS CAUSE comes before the Court on Defendants’ motions to dismiss the Amended Complaint filed by AmeriFirst Bank (“AmeriFirst”), a federally chartered sav *1369 ings and loan, and AmeriFirst Development Corporation (“ADCO”), a wholly owned service corporation subsidiary of Ameri-First. Defendants move to dismiss on several grounds. First, they argue that the Court doe...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter is before the court for findings of fact and conclusions of law after a bench trial held January 23-24, 1991, in Fayetteville, North Carolina. The plaintiffs brought these actions pursuant to section 16(b) of the Fair Labor Standards Act, as amended, 29 U.S.C. § 201 et seq. (“FLSA”), alleging that they worked uncompensated overtime hours. Having...
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OPINION The matters before the court are 1) the motion (# 190) of defendants Charles A. Bailey and Nurse Brollier1 for judgment on the pleadings; and 2) the motion (# 197) of plaintiffs, John D. Jenkins and Joanne Jenkins for voluntary dismissal. BACKGROUND Mark Jenkins and his parents, John and Joanne Jenkins, filed this action under 42 U.S.C. § 1983 against a number of defendants seeking damage...
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756 F. Supp. 306 (1991) Maj. Thomas A. BLOCHER, M.D., Plaintiff, v. Lt. Col. Gerald G. FONVILLE, Acting Command Officer, 4005 U.S. Army Hospital, Defendant. Civ. A. No. H-91-0254. United States District Court, S.D. Texas, Houston Division. February 12, 1991. *307 Daniel J. Shea, Werner, Werner & Shea, Houston, Tex., for plaintiff. Ronald G. Woods, U.S. Atty., Howard E. Rose, Sp. Asst. to U.S....
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MEMORANDUM OPINION AND ORDER Defendants Robert R. George and Lieutenant Robert Harvey have filed a motion to dismiss William Finch’s amended complaint. Defendant Elva J. Kopenhafer has filed a motion to dismiss or, in the alternative, for summary judgment. As set forth below, we grant George and Harvey’s motion to dismiss, 1 and Kopenhafer’s motion for summary judgment. *968 I. FACTUAL BA...
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OPINION The matter before the court is the motion (# 35-1) of the plaintiff, Alexander & Alexander Benefits Services, Inc. (A & A), for a preliminary injunction against the defendants, Benefit Brokers & Consultants, Inc. (BB & C) and Donald J. Econe, Nancy G. Hajjarizadeh aka Nancy Griffis aka Nancy G. Hawkins (Hawkins), William D. Lovejoy and Julie A. Lauria. FINDINGS OF FACT A...
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OPINION The matter before the court is defendant’s motion for summary judgment or, in the alternative, for partial summary judgment (# 53). BACKGROUND This is a breach of contract action brought by the plaintiff, Combined Insurance Company of America (Combined Insurance), against the defendant, Thomas W. Hansen, a former employee. Combined Insurance contends that Hansen has forfeited his right to ...
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Before the court are Defendants’ Local Union No. 4714, Communication Workers of America (“Local Union”); Communication Workers of America (“CWA”); and Indiana Bell Telephone Company, Inc. (“Indiana Bell”) motions for summary judgment pursuant to Rule 56(e) of the Federal Rules of Civil Procedure. The issues are whether Plaintiff, Jerry Spalding (“Spald-ing”), filed his hybrid § 301/duty of fair re...
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Plaintiffs GL Industries and George Levy filed a complaint against defendants Forstmann Little & Co. (“Forstmann Little”), F.L. Industries (FLI) and F.L. Plastics Co., Inc. (“Plastics”) (collectively, the “FL defendants”), and ITT Corporation (“ITT”) on June 27, 1990, in the Jackson County Circuit Court. This lawsuit was removed to federal court on July 20, 1990. Currently before the court are ...
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MEMORANDUM & ORDER Petitioner, Leroy Smithwick proceeding pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). On March 3, 1981, Smithwick was convicted by a jury in New York Supreme Court, Bronx County of Murder in the Second Degree, N.Y. Penal Law § 125.25(1), and Criminal Possession of a Weapon in the Second Degree N.Y.Penal Law § 265.03. After the guilt...
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MEMORANDUM OPINION AND ORDER James Earl Williams (“Williams”) asks leave to file his pro se Complaint without prepayment of the filing fee. Williams asks for damages under 42 U.S.C. § 1983 (“Section 1983”) against four Illinois Court of Claims judges (collectively the “Judges”) as well as against a Court of Claims commissioner and deputy clerk. Williams also seeks an injunction to prevent defenda...
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ORDER Before the court is the motion of defendants Stratton Oakmont, Inc. and Robert Koch for a stay pending arbitration and for a protective order staying discovery. 1 For the reasons discussed below, this motion is denied. FACTS In February of 1990, plaintiff John E. Shaffer (“Shaffer”) opened an account with Stratton Oakmont, Inc. (“Stratton”), a securities broker ...
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OPINION & ORDER Defendant Robert Hasho has moved to vacate the default judgment entered against him on December 27, 1990. For the following reasons, defendant’s motion is granted. I. BACKGROUND On December 13,1990, the Securities and Exchange Commission (the “SEC” or “plaintiff”) filed its complaint in this action alleging that defendants engaged in unlawful high pressure sales of speculative sto...
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OPINION Plaintiff filed this wrongful discharge action in the Emmet County Circuit Court. It was removed by defendants pursuant to 28 U.S.C. §§ 1441 and 1446 on the basis that *160the complaint raised a federal question under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. Plaintiff has now moved to dismiss the count alleging violation of the ADEA and for remand of the r...
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MEMORANDUM OPINION The plaintiffs allege that they were the victims of defendants’ “Ponzi” scheme, and that they are not alone in that position. They have filed a six-count complaint against the defendants, and moved this court to certify a class including everyone who invested in the defendants’ enterprise. The defendants oppose the motion for class certification, and furthermore have moved to di...
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*966 ENTRY Plaintiff Auto-Owners Insurance Company filed this declaratory judgment action against defendants Sean R. Powell and Schaller Trucking Corporation, seeking a resolution of the issue of whether Powell was covered by the underinsured motorist provision of Schaller Trucking’s auto insurance policy issued by Auto-Owners in connection with an accident which occurred on October 27, 1987....
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ORDER ON MOTION TO DISMISS William J. Schueller filed for bankruptcy protection under Chapter 11 on August 24, 1989. Before his bankruptcy filing, Schuel-ler was a party to state court proceedings in which Western Cities Broadcasting obtained a $3,740,000 judgment against him. Schueller was awarded $550,000 in damages against Western Cities in that proceeding. Both parties appealed. In Decemb...
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ORDER Before the court is the summary judgment motion of defendant Edward Kopsky (“Kopsky”). For the reasons stated below, the motion is granted. FACTS On March 17, 1989, plaintiff Charles Davis (“Davis”) filed this action against defendants William Frapolly (“Frapolly”), the Chicago Police Department, and other unknown police officers, alleging civil rights claims and state tor...
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OPINION Plaintiff, Leather’s Best International, Inc. (“LBI”), brings this action against defendant, Companhia de Navegacao Lloyd Brasileiro (“Lloyd”), for the loss of five pallets of leather which were shipped on board defendant’s vessel, M.V. LLOYD SERGIPE (“LLOYD SERGIPE”). LBI alleges that the leather was stolen as a result of Lloyd’s negligence and unreasonable deviations from the te...
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DECISION AND ORDER Plaintiff Mary E. Price has moved the court pursuant to 42 U.S.C. § 405(g) to enter judgment in her favor by affirming the final decision of the Secretary of Health and Human Services granting her disability insurance benefits under the Social Security Act. The plaintiff further moves the court to order the Secretary to pay her attorneys’ fees pursuant to the Equal Acce...
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This matter comes before the court on the motion of the defendant, General Motors Corporation (“GM”), for partial summary judgment, filed April 16, 1990. The plaintiff, Martha B. Heath, filed her brief in opposition on June 1, 1990, and GM replied on June 22, 1990. For the reasons set forth below, GM’s motion for partial summary judgment is GRANTED. I. BACKGROUND The facts pertinent t...
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MEMORANDUM DECISION I. Introduction Defendant Takeo Matsumoto’s (“Matsu-moto”) Motion to Dismiss Indictment (“Motion to Dismiss”) presents a very novel legal argument. It seeks dismissal of the Indictment on the grounds that the visa application form, on which defendant is charged with making a fraudulent statement, was not marked with an Office of Management and Budget (“OMB...
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RULING Before the court is defendant Western Oceanic, Inc.’s (Western) Motion to Strike the claims for loss of consortium and loss of society. For the following reasons we grant the motion which we deem to lie under Fed.R.Civ.P. 12(b)(6). Plaintiff Darryll Breland alleges he was a seaman while in the employment of Western when he was injured while aboard his assigned vessel. He sued ...
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ORDER This motion is before the court on the Amended Report of the Special Master dated November 14, 1990 1 in addition to the Defendant’s Motion to Set Aside Entry of Default, which was filed on December 26, 1990. FACTUAL BACKGROUND As a result of the allegations in the complaint, the testimony taken before Magistrate Carr, and the testimony at the hear *927 ...
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ORDER AFFIRMING ORDER DENYING DISCHARGE, AFFIRMING FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND AFFIRMING MEMORANDUM DECISION AND ORDER RE: MOTION FOR RECONSIDERATION I. Introduction This is an appeal from an order denying discharge entered on December 4, 1989, *883together with the accompanying findings of fact and conclusions of law, as well as from the denial of the motion for reconsideration o...
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OPINION AND ORDER This matter is before the Court pursuant to the various motions of Defendant Alex M. Cunningham. Specifically, the defendant has filed a motion asking the Court for severance and a separate trial; a motion asking that the Court dismiss the indictment arguing that the indictment is vague, multiplicious, and in violation of the Double Jeopardy Clause of the Fifth Amendment of th...
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RULING Before the court is defendant Drug Emporium’s Motion to Dismiss plaintiff Matrix Essential’s (Matrix) Complaint pursuant to Fed.R.Civ.P. 12(b)(6), or, in the alternative, Motion for Summary Judgment. Matrix manufactures and markets a diverse line of hair care products under its registered mark, Matrix. Matrix alleges that its products are designed to be used only in profession...
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MEMORANDUM OPINION Ms. Mary Robenson has petitioned this court for an order vacating the court’s 1988 order dismissing her appeal from a final order entered by the bankruptcy court. Ms. Robenson offers a tale in support of her motion that, if true, is a shocking example of attorney incompetence and malfeasance. The court, for purposes of this motion, will take as true the facts set forth in Ms....
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756 F. Supp. 379 (1991) Mike MUNSKI, Plaintiff, v. J.R. UNITED INDUSTRIES, INC., a corporation, and Miami Robes International, Inc., a corporation, Defendants. No. 90 C 6533. United States District Court, N.D. Illinois, E.D. February 14, 1991. *380 Edward S. Margolis, Teller, Levit & Silvertrust, P.C., Chicago, Ill., for plaintiff. Jay L. Miller, Miller & King, Ltd., Barrington, Ill., for...
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*189 MEMORANDUM DECISION Sayeed Rasool (“Rasool”) petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 and 8 U.S.C. 1105a(a)(9), seeking review of an order of exclusion and deportation issued by the Board of Immigration Appeals (the “BIA”). For the reasons that follow, the order of the BIA is reversed, and the matter is remanded to the BIA to permit it t...
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*1432ORDER This court is the recipient of yet another habeas corpus petition from John Hammond. On April 30, 1990, the court dismissed without prejudice a habeas corpus petition filed by Hammond because he failed to exhaust state court remedies. Petitioner Hammond now files with this court substantially the same habeas corpus petition. In the interim, he has not sought review in state court. Altho...
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MEMORANDUM OPINION Plaintiff Leslie Shirk is a five year old learning disabled child who is eligible for special education and related services under the Education of the Handicapped Act (“EHA”), 20 U.S.C. § 1400-1461 and the Rules of the District of Columbia Board of Education. In September of 1989, the child was placed by her plaintiff parents at the Kingsbury Day School (“KDS”), a private in...
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ORDER Pursuant to the instructions of the Seventh Circuit, the court will now make written findings in support of its denial of defendant Jerald Wilson’s motion for bond pending appeal. The court denies bond pending appeal because the court is unable to find by clear and convincing evidence that Wilson is not likely to pose a danger to the community. It was Wilson’s inability to rebut the presumpt...
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755 F.Supp. 720 (1991) UNITED STATES of America v. GENERAL DYNAMICS CORPORATION. Civ. A. No. CA4-87-312-A. United States District Court, N.D. Texas, Fort Worth Division. January 2, 1991. Supplemental Order January 9, 1991. *721 F. Henry Habicht II, Asst. Atty. Gen., Land and Natural Resources Div., U.S. Dept. of Justice, Linda C. Anderson, Environmental Enforcement Section, Land and Natural Resou...
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MEMORANDUM OPINION AND ORDER We have before us Dr. Leonard J. Chinni-ci’s objections and motion to modify Magistrate W. Thomas Rosemond, Jr.’s Order of December 13, 1990, and motion for sanctions against the so-called Mona Kea defendants for obstruction of discovery. We also have before us the Mona Kea defendants’ cross-motion for sanctions against Chinnici. We have conducted our own in camera re...
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ORDER Defendant Nicholas Wells brings a flurry of motions before the court. Wells, along with others, is a defendant in a suit brought by Jeffrey Wolfson, in his capacity as general partner, on behalf of Pax Options (“Pax”). Pax is an Illinois general partnership. Wolfson seeks to recover monies allegedly owed Pax under a contract between Pax and the partnership in which Defendant Wells w...
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MEMORANDUM OPINION AND ORDER The plaintiffs, Trustees of the Chicago Graphic Arts Health and Welfare Fund (“Fund”) and Local 458-3M of the Graphic Communications International Union, AFL-CIO (“Union”), brought this action seeking to collect $2,451.66 allegedly owed to the Fund by the defendant, The Shanin Company (“Shanin”) as a result of failing to make payments on behalf of a person emp...
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ORDER I. INTRODUCTION Defendants bring before the court a motion to dismiss plaintiff’s action for breach *1065 of contract, copyright violations, Lanham Act violations and fraud, or alternatively stay the action pending arbitration. First, defendants maintain that the language of their two contracts with plaintiff unambiguously provides for arbitration of all claims. Th...
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MEMORANDUM Before the court is the motion of York City Sewer Authority (“York”), to dismiss this action on the grounds that plaintiff, Shook of West Virginia, Inc. (“Shook”) has not exhausted the dispute remedy provided in the construction contract between the parties. York refers to the motion as one to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The parties’ briefs, however, only ...
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ORDER ON MOTIONS This cause is before the Court on the following: Dkt. 80 Motion for partial summary judgment on the issue of standing by Plaintiff and request for oral argument on this motion by Plaintiff, filed July 23, 1987. Dkt. 81 Memorandum of law in support of motion for partial summary judgment by Plaintiff, filed July 23, 1987. Dkt. 82, 83, 84 Affidavits of Profess...
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*447MEMORANDUM OF DECISION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT “Hired to be fired.” That was the plight of five long-time employees on the wrong end of the sale of one company to another. The employees, plaintiffs in this case, received termination letters the day after they were “transferred” to their new company. The federal statutes regulating employee retirement and severance pla...
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756 F. Supp. 1487 (1991) Sharon K. TIDWELL, Plaintiff, v. FORT HOWARD CORPORATION, Defendant. No. 90-104-S. United States District Court, E.D. Oklahoma. February 8, 1991. *1488 Kathy Evans Borchardt, Tulsa, Okl., for plaintiff. David E. Strecker, Deirdre O. Dexter, Tulsa, Okl., for defendant. OPINION SEAY, Chief Judge. Background This case came on for trial before a jury on November 13, 1990, t...
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OPINION AND ORDER This is an appeal by two defendants in the adversary proceeding brought by Eastern — Moreton Rolleston, Jr. and Fred Kruger — from an order issued by Chief Judge Lifland of the Bankruptcy Court on March 14, 1990, 111 B.R. 423, which pursuant to 11 U.S.C. § 105, (1) enjoined the defendants (“the Rolleston plaintiffs”) from continuing a lawsuit in the Northern District of ...
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ORDER The motion to vacate the settlement agreement and dismiss the action is granted. The action is dismissed. The question is whether Congress, in enacting the 1990 amendments to the Clean Air Act (hereafter the “Act”), intended to require that a Federal Implementation Plan (FIP) prepared under the new criteria in the amended Act be promulgated by EPA before there is rejected for non-compli...
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MEMORANDUM FACTUAL BACKGROUND Before the court are defendant’s motions to dismiss Counts II and IV of plaintiff’s complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 12(f) and to strike plaintiff’s requests for counsel fees and punitive damages. The facts alleged in the complaint and plaintiff’s brief are as follows. Defendant, Commercial Union Insurance Company, (“Commercial Union”) hir...
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MEMORANDUM OPINION AND ORDER Plaintiff brought this action under 42 U.S.C. § 1983. Plaintiff’s counsel filed this *270action on July 10,1990 and obtained proper summonses for service. On October 16, 1990, plaintiff sought to serve process in accordance with F.R.Civ.P. 4(c)(2)(C)(ii) by mailing a properly signed and sealed summons and a copy of the complaint to each defendant. The defendants did no...
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755 F.Supp. 1468 (1991) Merilyn COOK, William Jr. and Delores Schierkolk, Richard and Sally Bartlett and Lorren and Gertrude Babb, Bank Western, a federal savings bank, a federally chartered savings bank, and Field Savings Corporation, a Colorado corporation, on their own behalf and as representatives of a class of persons and entities suffering economic harm; and Michael Dean Rice, Thomas L. and...
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756 F. Supp. 1267 (1991) WESTPAC AUDIOTEXT, INC., et al., Plaintiffs, v. G. Mitchell WILKS, et al., Defendants. No. C-89-2962 FMS. United States District Court, N.D. California. January 30, 1991. Earl Nicholas Selby, Palo Alto, Cal., William Bennett Turner, Donna Brorby, Beth S. Brinkman, Turner & Brorby, San Francisco, Cal., for plaintiffs. Alan D. Croll, Karen Randall, Mark A. Wooster, Wyma...
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OPINION AND ORDER This action involves a challenge by plaintiffs William and Norma Hough to an arbitration award resolving a dispute between the parties arising from plaintiffs’ securities account with the defendant Merrill Lynch, Pierce, Fenner & Smith (“Merrill Lynch”). The action is presently before the Court on defendant’s motion to dismiss plaintiffs’ complaint pursuant to Rule 12(b)...
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MEMORANDUM OPINION Introduction Plaintiff’s post-judgment motion for litigation costs raises questions as to whether plaintiff may recover costs associated with (i) deposition transcripts not used at trial, (ii) transcripts of pretrial proceedings, and (iii) fees for copies and exemplification. Deposition transcript costs are awarded in light-of this circuit’s rule that where there is a merits ...
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MEMORANDUM On June 1, 1989 plaintiffs filed a five-count complaint against defendants. The causes of action arose after plaintiffs were terminated from their positions as volunteer firemen. In Count I plaintiffs alleged that their termination violated the first amendment. In Count II plaintiffs alleged that statements about plaintiffs made by defendants Mallott, Karsten, and Tally to the public v...
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ORDER NO. 38 ALYESKA’S MOTION FOR JUDGMENT ON THE PLEADINGS Alyeska’s 1 motion for judgment on the pleadings was brought, pursuant to Rule 12(c), Federal Rules of Civil Procedure, on the ground that certain identified claims for economic losses made by certain identified plaintiffs should be dismissed because those plaintiffs did not complain of any physical impact or inju...
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MEMORANDUM OPINION AND ORDER Idris Siddiqi, an inmate in the Illinois state prison system, filed a four-count pro se complaint in forma pauperis under 42 U.S.C. § 1983 (1988) against Michael P. 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), alleging vi...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on defendant’s motion for summary judgment. Defendant’s motion was filed on December 13, 1990. Under a liberal interpretation of the Fed.R.Civ.P. and this court’s local rules, plaintiff should have filed a response on or before December 27, 1990. On February 8, 1991, plaintiff filed a late response without leave of Court. In the interest...
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ORDER THIS CAUSE came before the Court upon the Report and Recommendation of the Honorable Lurana S. Snow, United States Magistrate, dated July 26, 1990. The plaintiff has filed objections to the Report and the matter is now ripe for disposition. The defendants’ Motion For Reconsideration or For Clarification also is pending before the Court. I. Summary This is a pro se ...
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756 F. Supp. 213 (1991) Robert and Isabell WILSON, Plaintiffs, v. UNITED STATES of America, Defendant. Civ. A. No. 87-3880. United States District Court, D. New Jersey. February 19, 1991. *214 Edward F. Seavers, Jr., Ridgewood, N.J., for plaintiffs. Michael Chertoff, U.S. Atty. by Susan Handler-Menahem, Asst. U.S. Atty., Newark, N.J., for defendant. OPINION DEBEVOISE, District Judge. This case p...
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MEMORANDUM OPINION This removed case is before the Court on the plaintiff’s motion for remand, which will be granted, and his motion for sanctions, which will be denied. No oral argument is needed. This suit was commenced by a complaint filed in the Circuit Court for Prince George’s County, Maryland, wherein the plaintiff alleged that one of the defendants, Blue Cross and Blue Shield of Maryland, ...
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756 F.Supp. 28 (1991) Grant ANDERSON, Plaintiff, v. D.C. PUBLIC DEFENDER SERVICE, et al., Defendants. Civ. A. No. 90-2090-LFO. United States District Court, District of Columbia. February 12, 1991. Grant Anderson, pro se. James A. Bensfield and Mary Lou Soller, Miller & Chevalier, Washington, D.C., for defendant Mark Rochon. *29 Mark S. Carlin, Sherman, Meehan & Curtin, P.C., Washington, ...
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OPINION AND ORDER Plaintiffs bring this action for injunctive relief to prevent defendants from proceeding with a demand for arbitration with respect to a proposal by the defendants to increase benefits payable under a pension plan. This action also seeks a judgment declaring that an increase in pension benefits is neither a subject for decision by the trustees of the plan nor a proper subject ...
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MEMORANDUM OPINION AND ORDER This securities fraud case requires the Court’s construction of a relatively recent change in the disclosure requirements of the Securities and Exchange Commission (“the SEC” or “the Commission”) under Regulation C of the Securities Act of 1933, 15 U.S.C. § 77a et seq. (“the ’33 Act”), relating to open-end diversified management investment companies...
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MEMORANDUM OPINION This case is before the Court on cross-motions for summary judgment. Mr. Tex-tor is challenging his three-year debarment from government surplus auctions. He asserts that the decision to debar him was arbitrary, capricious, an abuse of discretion and in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (“APA”). He further asserts that he was debarred i...
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*264 MEMORANDUM AND ORDER This civil action raises the issue whether plaintiff has stated a claim under the laws of the Commonwealth of Pennsylvania for wrongful discharge from her employment. Plaintiff alleges she was wrongfully discharged by her employer in violation of public policies articulated in the First and Fourth Amendments of the United States Constitution. Defendant m...
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OPINION Pro se plaintiff Marlene Pittman (“Pittman”) brought this action pursuant to the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., against her former employer Immunomedics, Inc. (“Immu-nomedics”), Phyllis Parker (“Parker”), the Personnel Manager of Immunomedics, Edward Newman (“Newman”), Pittman’s former supervisor and George LaFontaine (“LaFontaine”), ...
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OPINION Plaintiff First Fidelity Bank moves for summary judgment against defendant Juda Tyrnauer, pursuant to Fed.R.Civ.P. 56, and for a default judgment against defendants *294 Best Petroleum, Inc. and Alex Latsinik, pursuant to Fed.R.Civ.P. 55(b)(2). Best Petroleum and Latsinik have not responded to the motion. Tyrnauer opposes the motion and cross-moves for an order denyin...
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ORDER This matter is before the court on a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner was sentenced to twenty (20) years for an attempted rape, a class B felony, which he was convicted on October 27, 1987. The conviction was affirmed by the Indiana Supreme Court. Stephens v. State, 544 N.E.2d 137 (Ind.1989). Having exhausted his state remedies, petitioner turn...
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MEMORANDUM OPINION AND ORDER Petitioner, Porfidio Rae Acosta, presently confined at the Michigan Department of Corrections’ Muskegon Temporary Facility in Muskegon, Michigan, has filed this pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 23, 1967, a jury in Oakland County Circuit Court convicted petitioner of the first degree murder of his girlfriend. The tria...
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MEMORANDUM OPINION This is a consolidated case encompassing the following styled and numbered actions: (a) William A. Landreth, Sr., and Mary Adele Landreth Smith, co-trustees of the W.A. Landreth, Jr., trust under the will of Adele H. Landreth v. United States of America, CA4-89-373-A; (b) Ameritrust Texas, N.A., trustee of the Martha L. Thompson trust v. United States of America, CA4-90-583-A; ...
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AMENDED REASONS FOR ACQUITTAL * I. On January 8, 1991, at a bench trial following the completion of the government’s proofs, I ** granted defendants’ Fed.R.Crim.P. 29(a) motion for judgment of acquittal. Defendants were charged in an eight count indictment for conspiracy and for substantive violations of 18 U.S.C. § 2251(a) and (b) (sexual exploitation of children). On or about December 1...
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MEMORANDUM OPINION AND ORDER This action seeks severance benefits allegedly due by reason of the termination of 16 ex-employees of Amoco Corporation (“Amoco”).1 Amoco’s nonpayment of such benefits assertedly violates the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461. Amoco now moves for summary judgment under Fed.R.Civ.P. (“Rule”) 56. For the reasons stated in ...
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MEMORANDUM AND ORDER Defendant Seaview Petroleum Company moves for summary judgment on the ground that there is no evidence to support plaintiff’s claims for negligence, breach of contract, and unjust enrichment. In the alternative, in a supplemental motion for summary judgment, Seaview avers that Derby’s complaint is barred by New Jersey’s Entire Controversy Doctrine. There is no merit i...
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OPINION This matter arises on plaintiffs’ motions for partial summary judgment on the issue of liability and for injunctive relief, and on defendant’s cross-motion to dismiss or for partial summary judgment. Plaintiffs filed this suit under the Federal Water Pollution Prevention and Control Act, 33 U.S.C. §§ 1251 to 1387 (“the Act”), 1 claiming that *442 defendant ...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), based on plaintiff’s failure to exhaust its administrative remedies. The matter was heard and submitted on January 28, 1991. I PROCEDURAL AND FACTUAL BACKGROUND Plaintiff (“Cal-Almond”) is an almond “handler” as de...
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MEMORANDUM I. Factual Background Plaintiffs 1 are state judges sitting in the Courts of Common Pleas in either Philadelphia County or Delaware County, all of whom have or will reach age seventy before the expiration of their current terms of office. Plaintiffs are challenging the constitutionality of Article V, § 16(b) of the Pennsylvania Constitution which mandate...
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I. In July 1983, Reginald Lewis formed TLC Pattern, Inc. for the purpose of pur *174 chasing The McCall Pattern Company (“McCall”). The majority stockholder of TLC Pattern was TLC Group, Inc. All of the stock of TLC Group was owned by Lewis or held in two trusts for the benefit of his minor children. In January 1984, TLC Pattern purchased McCall and Lewis became Chairman of th...
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MEMORANDUM OPINION AND ORDER This is a diversity action. Texas substantive law controls. Roberta McLaren (“McLaren”) is plaintiff, and Imperial Casualty and Indemnity Company (“Imperial”), Special Risks, Inc., (“Special”) and Russell Grace, Inc., (“Grace”) are defendants. The matters that are before the court for ruling are (1) Special’s motion to dismiss the complaint as to it because of...
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ORDER Came on to be considered the above-styled and numbered action. On September 11, 1990, plaintiff, Dean L. Blackmore, filed this action in state court against his former employer and defendant, Rock-Tenn Company, Mill Division, Inc., d/b/a United Paper Recycling (“Rock-Tenn”). By way of the original petition, plaintiff claims that he was injured in the course and scope of his employme...
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Before the court is an appeal from the bankruptcy court’s denial of Fulcrum International, Ltd.’s (“Fulcrum”) request for assessment of its professional fees against the proceeds of the sale of assets of Say-brook Manufacturing Co., Inc., Clinton Marine Products, Inc., Sero Holding, Inc., and the Sero Company (collectively “Sero”). The proceeds are the collateral of Manufacturers Hanover Bank (...
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MEMORANDUM AND FINAL JUDGMENT Presently before the Court are the appeal of New Plan Realty Trust (“New Plan”) from the Bankruptcy Court’s Order of January 10, 1990 confirming the reorganization plan, B. Cohen & Sons’ (hereafter sometimes referred to as the “debtor”) response and New Plan’s reply. For the following reasons, the Bankruptcy Court’s January 10, 1990 Order confirming the reorg...
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ORDER DENYING WRIT OF HABEAS CORPUS THIS CAUSE has come before the Court upon the petitioner’s application for a writ of habeas corpus pursuant to title 28, U.S.C. § 2241(a). Petitioner seeks habeas corpus review of the Extradition Certification and Order of Commitment of United States Magistrate Judge Ann E. Vitunac dated May 30, 1990, which ordered, inter alia, the extradition of the petitioner ...
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MEMORANDUM OPINION Now before the Court is the plaintiffs’ Second Motion for Sanctions. The Court, having considered the plaintiffs’ written submissions concerning this matter and the defendants’ representations in open court, shall grant the plaintiffs’ Second Motion for Sanctions for the reasons stated in open court at the hearing on this matter held on February 13, 1991, and for the reasons set...
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OPINION In this action pursuant to the Education for the Handicapped Act (“EHA” or “Act”), 20 U.S.C.A. § 1400 et seq., the parents of Owen Johnson, a hearing-impaired student in the Lancaster-Lebanon Intermediate Unit 13 public school (“IU-13” or “IU”), appeal the decision of the Secretary of Education, Donald Carroll, rejecting their challenge to Owen Johnson’s Individualized Educational Pro...
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ORDER ON MOTION FOR SUMMARY JUDGMENT Waterville Industries, Inc. (Waterville) has sued First Hartford Corporation (First Hartford) and Finance Authority of Maine (FAME) to recover money damages under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., for expenses it has incurred responding to EPA orders concerning hazard...
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RULING ON DEFENDANTS PEDEN AND MEISTER’S MOTION TO DISMISS THE ELEVENTH COUNT OF THE AMENDED COMPLAINT These consolidated cases involve disputes among individual directors, shareholders and officers of AroChem International, Inc. and AroChem Corporation (collectively “Ar-oChem”). AroChem owns, leases, and operates certain refining and petrochemical processing facilities in Penuelas, Puert...
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MEMORANDUM OF DECISION AND ORDER ON MOTIONS FOR DISCOVERY ORDERS Plaintiffs bring this action against The One Bancorp (a bank holding company), Ernst & Young (One Bancorp’s accounting firm), and individual directors and officers *7of One Bancorp. Plaintiffs allege that Defendants knowingly or recklessly failed to disclose material adverse information concerning One Bancorp’s financial performance...
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MEMORANDUM OPINION Now before the Court is defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment. Upon consideration of this motion, the response in opposition to this motion, and the Smithsonian’s reply, the Court shall grant the Smithsonian’s motion to dismiss as to Counts III and Y and grant summary judgment on behalf of *62 the defendants as to Counts I, II, IV and VI...
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REMAND ORDER This is an action under section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health and Human Services (the “Secretary”) denying plaintiff’s application for disability benefits. Because we find that the Secretary’s decision is not based on substantial evidence, we REMAND for further proceedings. Claimant...
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RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT In this civil action, defendant Ronald P. Scott (“Scott”) is accused of breach of fiduciary duty (Count Four), aiding and abetting violations of the securities laws (Count *680 Five), fraud (Count Six), and negligent misrepresentation (Count Seven). Count Eight of the complaint alleges that defendant IDS Financial Services (“I...
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OPINION AND ORDER I. Introduction Plaintiff Cooperativa (“Coop”) is a single-branch savings and loan institution incorporated and operating in Puerto Rico. Defendants Kidder, Peabody & Co. (“Kidder”) and Paine Webber Incorporated (“Paine Webber”) are financial services providers through whom plaintiff purchased various securities. Defendant Ramón Almonte (“Almonte”) 1 ...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT OF DEFENDANT U-HAUL INTERNATIONAL, INC. This is a diversity action for wrongful death arising under Maine law. The case arises out of the explosion and resulting fire that occurred in Plaintiffs’ decedent’s recreational vehicle on September 21, 1987. It is alleged in the Complaint that the vehicle in question was built by Fleetwood Enterprises, Inc./Sout...
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OPINION AND ORDER Plaintiffs, owners of condominium apartments, filed suit on November 2, 1988 against defendant contractor alleging construction defects. This court’s jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332(a). Having carefully reviewed the file and, in light of both the First Circuit’s holdings in Felix Davis v. Vieques Air Link, 892 F.2d 1122 (1st...
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ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE The United States Magistrate Judge having filed with the Court on December 21, 1990, with copies to counsel, his Recommended Decision on Cross-Motions for Judgment on the Basis of a Stipulated Record, a copy of which is attached hereto and made part hereof as “Exhibit A”; and Defendant having filed, on January 2, 1991, his O...
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MEMORANDUM OPINION ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS THIS CAUSE comes before the Court upon Plaintiff’s Motion for Sanctions. Background Plaintiff, Propharma, is a foreign corporation organized under the laws of Panama. Plaintiff maintains an office in Miami, Florida. The address for Propharma in Miami is a Post Office Box. In addition, Patricia Maillard, Secretary of Plaintiff, wor...
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MEMORANDUM OPINION AND ORDER Plaintiff Sidney Morse brought this class action pursuant to Section 10(b) of the Securities Exchange Act of 1934 (the “1934 Act”), Rule 10b-5 promulgated thereunder, and the common law claims of fraud and negligent misrepresentation alleging that Abbott Laboratories, an Illinois corporation, and six directors and/or officers of Abbott (“defendants”) failed to...
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MEMORANDUM This cause is before the Court on an appeal from the United States Bankruptcy Court for the Eastern District of Missouri (“bankruptcy court”). The debtors, Glen and Margaret Hop-wood, filed a petition for relief under Chapter 12 of Title 11, United States Code. At the time of the filing, debtors were the owners of a 354 acre farm in Stoddard County, Missouri and the operators of 44...
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OPINION AND ORDER This is an action under section 205(g) of the Social Security Act (“the Act”), as amended, 42 U.S.C. section 405(g), to review a final decision of the Secretary of Health and Human Services (the “Secretary”) denying disability benefits. We review a Decision of the Appeals Council dated February 16, 1990, in which the Council adopted the findings and conclusions of a Marc...
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MEMORANDUM OPINION Vocational education traditionally has been a vital part of the United States public education program. Even private institutions have presented challenging vocational curriculum to interested students. The 12(b) vocational education plan, therefore, was an integral portion of the voluntary plan accepted and implemented by Judge Hungate in the early stages of this case. By 1983...
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MEMORANDUM AND ORDER The question posed on sentencing is whether this despondent and impecunious twenty-five year old woman, who has just experienced the sudden and unexpected death of her only child, a son born while she was in custody after her arrest for dealing in crack, may be sentenced to prison for a period less than the guidelines require — a range of 41 to 51 months. The answer is yes....
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ORDER Came on to be considered the above-styled and numbered action. On January 24, 1990, plaintiff, Home Owners Funding Corporation of America, filed this action in state court against defendants, Jerry Allison d/b/a Allison Mobile Homes (“Allison”), and Navistar International Transportation Corp. (“Navistar”). On March 5, 1990, Navistar filed a timely notice of removal alleging that thi...
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MEMORANDUM OPINION AND ORDER In this admiralty action alleging short delivery of cargo, plaintiffs move for summary judgment under Rule 56, Fed.R.Civ.P. Background In December 1987 plaintiff Sunland, Inc., a New York corporation, purchased a quantity of Brazilian cashew nuts from Cia. Industrial de Productos Alimenticios (“CIPA”) in Fortaleza, Brazil. The shipment consisted of 500 cartons...
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MEMORANDUM AND ORDER Vinny Oliva, (“plaintiff”), commenced this action to compel the release of certain information by the United States Department of Housing and Urban Development, (“defendant” or “HUD”), pursuant to the Freedom of Information Act, (“FOIA”), 5 U.S.C. § 552. On August 14, 1990, the Court heard testimony from both plaintiff and defendant, and thereafter each party submitte...
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RULING ON DEFENDANT’S MOTION TO DISMISS AND COMPEL ARBITRATION Plaintiff, Roberta Borenstein, commenced this action against defendant Anthony Tucker & R.L. Day, Inc., alleging that she was constructively discharged from her position as a stockbroker in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”) and Title VII of the Civil Rights Act o...
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OPINION AND ORDER This matter is before the Court upon petitioner, H & M Charters’ (Hereinafter “Charters”) Petition to Compel Arbitration filed January 28, 1991. Charters Petition was followed by a Motion to Stay Proceedings Pending Arbitration filed the same day. This matter was set for oral argument on February 6, 1991, at 9:00 A.M. to address the issues presented 1 and to ac...
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MEMORANDUM OPINION AND ORDER On August 17, 1990, plaintiff, Zuhair Thomas Asmar, filed his complaint in this action. Plaintiff alleges that defendants, Officer William Keilman, West Bloomfield Township Police Department and process servers Dave Dempsey and Scott Johnson, conspired in violation of 42 U.S.C. § 1985(3) and § 1986 to deprive plaintiff of his civil rights guaranteed under the Fourth, ...
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MEMORANDUM-DECISION & ORDER The defendant in this diversity suit, Dr. Alan Gibstein, moves for summary judgment pursuant to Fed.R.Civ.P. 56 on the grounds that plaintiffs action is time barred by New York’s two and one-half year statute of limitations for medical malpractice actions. C.P.L.R. § 214-a. Plaintiff Samuel Weinberg, suing on behalf of his wife, decedent Estelle Weinberg, counters that...
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MEMOEANDUM AND OEDEE Petitioner James Hudson, a state prisoner, pled guilty in Marin County Superior Court to two counts of rape, one count of oral copulation, one count of attempted murder in the second degree, and one count of kidnapping. He was sentenced to state prison for a term of twenty-five years.1 Petitioner seeks habeas corpus relief from this Court, pursuant to 28 U.S.C. § "2254, on the...
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ORDER The above-entitled matter came before the court on February 14, 1991, on the motion of the defendants Piper Jaffray & Hopwood, Inc. (“Piper Jaffray”), Piper Realty Management, Inc. (“Piper Realty”), and F. Patrick Brown pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-15, to compel arbitration of all claims, and to stay the instant litigation pending arbitration. I. FACTUAL BACKGROUND...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case involves a dispute between the two partners of a now-defunct law firm. At issue are claims by the plaintiff Norman Singer to (1) one-half the proceeds realized by defendant Gerald Scher from the sale of certain stock options, and (2) one-half of certain equity securities purchased and held by Mr. Scher. These transactions occurred during t...
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MEMORANDUM OPINION AND ORDER On October 5, 1989, following a jury trial, defendant Nelson Castaño was convicted of conspiracy to distribute cocaine and possession of approximately one kilogram of cocaine with the intent to distribute. Castaño moves for a new trial pursuant to Fed.R.Cr.P. 33. For the reasons that follow, the motion is denied. BACKGROUND Nelson Castaño and four co-defendants,...
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This case arises from heavy losses Jorge M.C.C. de Atucha sustained on investments in long positions on silver futures contracts he purchased on the London Metals Exchange (“LME”) in January, 1980. Extensive prior proceedings in this case,1 with which familiarity is assumed, leave as the sole remaining issue to be resolved de Atu-cha’s allegations of fraud and negligent misrepresentation by defend...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the plaintiff’s and the defendant’s cross motions for summary judgment. The court referred the motions to Magistrate Weis-berg for a report and recommendation. In a thorough and well reasoned report the Magistrate recommended that the plaintiff’s and defendant’s cross motions for summary judgment be denied, and that the case ...
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MEMORANDUM OPINION AND ORDER Defendant Luis Romero Lopez (hereinafter “Romero”) was charged in a five-count indictment. The first three counts alleged substantive violations of the federal narcotics laws, 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C), and 845a(a). The fourth count charged Romero with the use of firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 9...
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MEMORANDUM DECISION AND ORDER The defendant in this securities litigation moves pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings and also for summary judgment under Fed.R.Civ.P. 56(b) and (c), as to all of the causes of action asserted against him in the complaint. The plaintiffs cross-move pursuant to Fed.R.Civ.P. 15(a), for leave to amend the complaint to withdraw one of the...
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MEMORANDUM OPINION The matter presently before the Court is Jamal Issa Ali’s motion for naturalization. All concerned parties have submitted legal memoranda on this matter, and it is, therefore, ripe for resolution. Before turning to the body of this Memorandum Opinion, however, the Court will make a few comments that will be later expanded. This Memorandum Opinion brings to a close a case th...
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124 B.R. 101 (1991) In re Dale T. LENARD, Debtor. UNITED STATES of America, Plaintiff, v. Dale T. LENARD, Defendant. Civ. A. No. 90-K-1318, Bankruptcy No. 89 B 16057 A, Adv. No. 90 J 0351. United States District Court, D. Colorado. February 20, 1991. David A. Levitt, Office of Consumer Litigation, Civ. Div., Dept. of Justice, Joseph J. Koman, Washington, D.C., for the Government. F. Kelly Smith, ...
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MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S JANUARY 29, 1991 MOTION FOR REMAND AND IMPOSING RULE 11 SANCTIONS ON PLAINTIFF’S COUNSEL INTRODUCTION AND BACKGROUND Plaintiff filed its complaint for breach of contract and tortious interference with contractual relations in the Circuit Court for the County of Oakland on November 5, 1990. Paragraph 4 of the complaint alleges as follows: “[t]he amo...
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OPINION The court has before it defendants’ motion and plaintiff’s cross-motion for summary judgment. Because there are material facts in dispute with regard to the breach of contract claims, summary judgment will be denied. Summary judgment will be granted on the fraudulent misrepresentation claim in favor of defendants. As to the claims asserted under the Employees Retirement Income Sec...
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OPINION ON REMAND An employee and his wife sued Allstate in state court for the costs of medical treatment, asserting a breach of their insurance contract and the misrepresentation of policy benefits. Allstate removed the case under the Employee Retirement Income Security Act since the Sheffields seek benefits under an employee benefit plan. The case will be remanded because ERISA coverag...
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ORDER DENYING PLAINTIFF’S MOTION TO REMAND I. INTRODUCTION This action is a first party insurance lawsuit based on the alleged bad faith denial of an insured’s claim for property damage under a homeowner’s policy. On March 6, 1990, plaintiff, a citizen of California, filed a complaint against Allstate in the Santa Clara Superior Court for breach of contract and breach of the implied covenant ...
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ORDERS ON MOTION TO QUASH INSPECTION WARRANT, AND PETITION FOR CIVIL CONTEMPT On October 25, 1990, this court issued a warrant to inspect the Samsonite production facility in East Denver. This warrant will be referred to as the “second” or “October” warrant. (The first warrant, signed by Magistrate Harvey, was quashed in 90-K-1682 because it was overly-broad.) The second warrant permitted inspecti...
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SENTENCING OPINION Defendant Jean Bernier (“Bernier”) was convicted following a bench trial on December 4, 1990 on all counts of a seven count indictment for bank robbery and possession of a firearm returned on October 4, 1990. For the reasons set forth below, Bernier will be sentenced to a term of 40 years of imprisonment followed- by a three year term of supervised release, subject to the sente...
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*198 MEMORANDUM AND ORDER Plaintiff, The Technology Consortium, Inc. (“TTC” or “plaintiff”), a New York Corporation, brings this action based on, inter alia, breach of contract, defamation, fraud, and intentional inteference with economic advantage. Named as defendants are Digital Communications Associates, Inc. (“DCA”), Racal Corporation (“RA-CAL”) and RDN, Inc. (“RDN...
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MEMORANDUM DECISION The Court has before it a motion for summary judgment filed by defendant Twin Falls Multiple Listing Service (MLS) and a motion for partial summary judgment filed by plaintiff Moore Publishing, Inc. (Moore). The Court heard oral argument on November 1, 1990, and the motions are now ready to be resolved. The Court must determine if there exist any genuine issues of mate...
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OPINION AND ORDER This case is before the court following a trial and jury verdict in plaintiffs’ favor. The jury found that defendant Van Dale had breached an agreement with Frieburg by appointing additional dealers in a two-county territory and that Van Dale violated the Wisconsin Fair Dealership Law by terminating Frieburg’s dealership. Now pending are Van Dale’s motions for judgm...
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ORDER This case is on appeal to the District Court from a jury trial before Magistrate John T. Maughmer. Defendants were convicted on three counts of misdemeanor violations of 18 U.S.C. §§ 842(j), 844(b), and 2(a). Defendants on appeal allege six errors requiring either an order of acquittal, dismissal of the indictment or a new trial. For the following reasons, this Court affirms defendants’ conv...
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DECISION AND ORDER The plaintiff, a Minnesota partnership, owns and operates a shopping mall in Green Bay, Wisconsin. The plaintiff will hereinafter be referred to as Center Development. The defendant, a New York corporation [Kinney Shoes], has leased space from Center Development since March 1, 1983. The lease was to expire on December 31, 1994. Due to continuing economic losses, Kinney Shoes ...
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ORDER DIRECTING ENFORCEMENT OF SETTLEMENT AGREEMENT AND FINDING PLAINTIFFS’ COUNSEL IN CONTEMPT Introduction This now settled diversity action arising out of a fire aboard a Boeing 737 aircraft is before the court upon various motions brought by both parties. Defendant Pratt & Whitney moves to enforce the settlement agreement and hold plaintiffs’ attorney David F. Fitzgerald in criminal and civil...
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MEMORANDUM Plaintiff, Raymond Williams (“Williams”) was removed from his position as back-up window distribution clerk at the John F. Kennedy postal station in 1984. This Court previously affirmed a decision of the Merit Systems Protection Board (“MSPB”) denying Williams’ grievance in connection with the discharge. Defendant, Anthony M. Frank, postmaster general of the United States Posta...
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*1314 FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW, AND ORDER This civil action raises the issue whether a Pennsylvania State Police regulation prohibiting a State Police Officer from running for political office violates the First Amendment of the United States Constitution. Plaintiff seeks a permanent injunction to enjoin defendants from enforcing Pennsylvania State Police Field Regulat...
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MEMORANDUM Presently before the court are defendants’ motions to Dismiss for Failure to state a Claim Upon Which Relief can be Granted or in the Alternative for Summary Judgment. Because virtually no discovery has been conducted and the motions clearly are premised upon plaintiffs’ failure to state a cognizable claim in their complaint, the court treated them as Fed.R.Civ.P. 12(b)(6) moti...
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Two years after the closing of the above-captioned bankruptcy case, the debtor, Edwards & Hanly (“E & H”), received a check in the amount of $360,572.03 as a final distribution for its claim in the bankruptcy case of T.P. Richardson Co., Inc. E & H’s claim against T.P. Richardson related to T.P. Richardson’s sale of short securities on E & H’s account. NFS Services, Inc. (“NFS”), the appellant in ...
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MEMORANDUM This is a § 1983 action with a pendent state claim for abuse of process. Defendants move to dismiss for failure to state a claim. upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). 1 Specifically, defendants contend that (1) the com *106 plaint is insufficiently pleaded as a matter of law; (2) plaintiff’s false arrest and abuse of process claims ar...
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MEMORANDUM AND ORDER Before the Court for a second time is the Motion of defendant, the Southeastern Pennsylvania Transportation Authority (“SEPTA”), for Summary Judgment. In the Complaint, Irving Felton (“plaintiff”) seeks damages for personal injuries allegedly sustained while he was employed by SEPTA as a trackman for its City Transit Division. Plaintiff brings his action under the Fed...
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MEMORANDUM OPINION AND ORDER Before me is defendant Adventura Associates, L.P.’s (Adventura) motion to dismiss plaintiff Colorado National Bank of Denver’s (CNB) amended complaint for breach of promissory note, fraudulent misrepresentation and negligent misrepresentation. Adventura contends that the claims should be dismissed under Federal Rules of Civil Procedure 12(b)(7) and 19 because ...
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ORDER I. INTRODUCTION This 42 U.S.C. § 1983 case arises out of a vaginal search of plaintiff Shirley Rodriquez on August 21, 1986. Defendants are Joseph Furtado, a detective in the Taunton Police Department who applied for and received a warrant for the body cavity search, David Westcoat, chief of the Taunton Police Department, the City of Taunton, Phillip Falkoff, M.D., who conducte...
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OPINION AND ORDER Plaintiff Posadas de Mexico, S.A. de C.V. (“Posadas”) brings this action against defendants Gerald D. Dukes and Terence W. Rufer alleging conversion of property in the amount of $221,122.31. Plaintiff seeks compensatory damages in the amount of $221,122.31 plus interest and $150,000 in punitive damages, plus the costs and disbursements incurred in this action. Subject ma...
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MEMORANDUM Plaintiff brought this action to recover damages for personal injuries, alleging that he suffered a heart attack while lifting a suitcase at defendant’s counter at Philadelphia International Airport. Plaintiff claims that defendant acted negligently by (1) inviting him to assist in checking in and handling the baggage of passengers, in violation of the Air Carriers Standard Sec...
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MEMORANDUM OPINION Plaintiffs Dani Enterprises, Inc. (“Dani”), C. Patrick Kennedy (“Kennedy”), and Norrell Services, Inc. (“Norrell”), brought this complaint for declaratory and injunctive relief against the Small Business Administration (“SBA”). Dani and Kennedy are franchisees of Norrell, and all are companies which provide temporary-help services to businesses, industry and government....
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MEMORANDUM DECISION AND ORDER 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 PaineW-ebber Incorporated’s litigation expense claim against the Debtor’s Chapter 11 estate is subordinated under 11 U.S.C. § 510(b) to the claims of all ot...
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OPINION This matter is before the Court on two separate motions to dismiss filed by defendants. 1 For the reasons set forth below, the Court concludes that the RICO four-year statute of limitations bars plaintiffs’ claims and, accordingly, the complaint must be dismissed. BACKGROUND In considering a motion to dismiss, the Court must accept as true the factual allegati...
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MEMORANDUM AND ORDER The government has moved to dismiss plaintiffs’ action for a tax refund pursuant to 26 U.S.C. § 6511(b)(2)(A). For the reasons that follow, defendant’s motion is DENIED. BACKGROUND In 1983, the Multzmans overpaid approximately twenty-five thousand dollars in taxes to the government. A completed tax return for that year remained unsigned in their home. F...
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MEMORANDUM OPINION Plaintiffs bring these actions challenging the constitutionality of section 6.29 of the Agricultural Credit Act of 1987, Pub.L. No. 100-233 (Jan. 6, 1988), 1 which requires plaintiffs to make a one-time purchase of “stock” from defendant Farm Credit System Financial Assistance Corporation (“FAC”). Specifically, plaintiffs challenge the stock purchase scheme a...
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OPINION Civil rights. Sex discrimination. The University filed a motion to dismiss or in the alternative for summary judgment. The United States Magistrate Judge has recommended that the motion be denied. Following the filing of objections by the University, this Court has conducted a de novo review of the question presented by the motion. We conclude that t...
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OPINION This is a libel and slander case in which the plaintiff alleges that he was defamed by his former employer International Telephone and Telegraph Corporation (“ITT”) and by the Boston Globe (“Globe”). Reduced to its simplest terms, this lawsuit revolves around the meaning and legal effect of the word “fired.” However, as the veritable avalanche of papers already filed in this case ...
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MEMORANDUM OPINION AND ORDER Plaintiff, Lender’s Service, Inc., commenced the present action by filing a complaint on August 28, 1984 in the United States District Court for the Southern District of Ohio, Western Division. Plaintiff is allegedly engaged in the business of furnishing property reports containing information obtained from public records, such as land records. Plaintiff alleg...
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OPINION This case raises questions of first impression regarding the meaning of § 612 of the Cable Communications Policy Act of 1984 (“Cable Act”), 47 U.S.C. § 532 (1984). The plaintiff, Media Ranch, Inc. (“Media”), is the producer of an adult-oriented cable television program called “Midnight Blue.” The defendant, Manhattan Cable Television, Inc. (“MCTV”), is a subsidiary of Time Warner,...
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OPINION AND ORDER This action requires judicial review of a Medicare reimbursement regulation for sole community hospitals (SCH) promulgated by the Secretary of Health and Human Services (Secretary). Pursuant to 42 C.F.R. § 412.92(a)(3), the Secretary denied plaintiff’s Central Oregon District Hospital (CODH) sole community hospital status under the Medicare prospective payment system for...
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AMENDED OPINION Defendant Federal Bureau of Investigation (“FBI”) moves, pursuant to Fed.R. Civ.P. 59(e), for reconsideration and/or clarification of the court’s November 29, 1990 decision and December 13, 1990 order. Defendant also moves for a stay of the court’s December 13, 1990 order pending appeal of the court’s decision or, in the alternative, for an extension of the time set for th...
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MEMORANDUM AND ORDER The plaintiffs Francisco and Maria Cabral here move for a new trial following a jury verdict for the defendants in their civil rights action against police officers William Sullivan and Donald Breault. The Cabrals’ counsel raises but a single ground in the motion for a new trial, viz. that this Court knowingly violated Local Rule 48.1 1 and allow...
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ORDER AND OPINION This is an action for the collection of attorneys’ fees and costs arising out of a prior representation of defendants by plaintiffs.1 Plaintiffs have now moved for an order awarding plaintiffs sanctions against defendant B.T. Onitiri (“Onitiri”) pursuant to the inherent powers of the Court and under Rule 11 of the Federal Rules of Civil Procedure, and for an order awarding plain...
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OPINION The plaintiff, Putnam Resources, Inc. (Putnam), is a limited partnership organized in Connecticut for the purpose of dealing in precious metals. Among its customers was Sammartino, Inc., a jewelry manufacturing company located in Cran-ston, Rhode Island. Putnam made gold available to Sammartino under three different “programs.” One of the programs involved a so called “field wareh...
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MEMORANDUM OPINION This case, arising under the Interstate Commerce Act, comes before us on defendant’s motion for summary judgment. For the reasons stated below, we grant defendant’s motion. FACTS 1 In December 1984, plaintiff Kathy White (“White”) hired United Van Lines (“United”) to pack, store and transport her household goods from San Francisco to Chicago. At that t...
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MEMORANDUM OPINION Plaintiff Clifford S. Heinz (“plaintiff"), a citizen of California, filed this action in Orange County Superior Court on September 10, 1990, against his wife, Catherine Elaine Havelock (“Havelock-Heinz”), and her two children by a former marriage, Wendy Coleman (“Wendy”) and Jeffrey P. Massnick (“Jeffrey”). Defendants removed the action to federal court on the grounds of dive...
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OPINION AND ORDER Plaintiff BP Chemicals Limited (“BP”), a British corporation, sues Union Carbide Corporation (“Carbide”), a New York corporation, for a declaratory judgment that Carbide’s patent number 4,543,399 (“the ’399 patent”) is invalid, unenforceable and not infringed. Carbide moves to dismiss for lack of subject matter jurisdiction on the ground that there is no actual controver...
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ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND MOTION TO COMPEL DESIGNATION OF CRITICAL HABITAT THIS MATTER comes before the Court upon plaintiffs’ motion for summary judgment and their motion to compel the federal defendants to designate critical habitat for the northern spotted owl. The Court took this matter under advisement following oral argument on January 25, 1991. Havi...
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OPINION Taxpayer suit for tax refund. Civil action under 28 U.S.C. § 1346(a)(1) for recovery of a denied refund of estate taxes. This cause is before the Court on competing motions for summary judgment. Summary judgment for the government. I. Issue The basic issue before us is whether the trust funds that the decedent set up for her grand nieces and nephews are su...
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MEMORANDUM OF LAW In May 1986, Pine Run Trust, Inc. (“Pine Run”) filed a voluntary petition under Chapter 11 of the Bankruptcy Code. This case is an appeal of a decision made by Chief Judge Thomas M. Twardowski of the Bankruptcy Court which disallowed an administrative proof of claim made by Dr. Eugene Willihnganz for $26,667 in the above-captioned jointly-administered proceedings. Dr. Willihngan...
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OPINION Defendants Owens-Corning Fiberglass Corporation ("OCF”), United States Mineral Products Company (“USMP”), Pittsburgh Corning Corporation (“PCC”), Fibre-board Corporation (“FC”) and Combustion Engineering, Inc. (“CEI”) move for summary judgment dismissing the complaint of plaintiff Arlene Maiorana (“Maiorana”), which alleges product liability arising out of exposure to asbestos, on...
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MEMORANDUM OPINION AND ORDER Before the Court is the appeal by the Federal Deposit Insurance Corporation, as Receiver (FDIC), of the judgment entered by the Honorable John C. Akard on May 25, 1990, which ordered the garnishment lien claimed by the FDIC against the assets of the Still bankruptcy estate be avoided and of no effect. In re Still, 113 B.R. 311 (Bankr.N.D.Tex.1990). This Court has juri...
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OPINION The Appellants in these three related actions have asked this Court to reverse the Bankruptcy Court’s order of June 8, 1990, which authorized the sale of substantially all of the Debtor’s assets pursuant to 11 U.S.C. § 363(b) and authorized the establishment of a super priority lien on the Debtor’s assets in accordance with 11 U.S.C. § 364(d). Because it is probable that any appea...
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ORDER INTRODUCTION This is an action brought under the Federal Tort Claims Act (FTCA) asserting claims arising out of an incident on January 7, 1990 during the course of Erlinda Castro’s employment with the United States Postal Service at the General Mail *1150 Facility at Seattle, Washington. The additional plaintiffs are Erlinda Castro’s husband and children, whose claims are derivative. ...
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756 F. Supp. 1492 (1991) UNITED STATES of America v. Colin THOMPSON, Defendant. No. TCR 90-04055-WS. United States District Court, N.D. Florida, Tallahassee Division. February 4, 1991. Richard Newsome, Asst. U.S. Atty., Tallahassee, Fla., for the U.S. Ronald L. Jones, Sr., Tallahassee, Fla., for Colin Thompson. ORDER STAFFORD, Chief Judge. Before the court are defendant's motion to dismiss (docu...
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ENTRY This matter is before the court on cross-motions for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). The defendants filed their motion on November 6, 1989, seeking judgment on the issues raised in the plaintiffs’ complaint. The plaintiffs filed their cross-motion on December 22, 1989, also seeking judgment on the issues raised in the complaint. The court hear...
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OPINION This desegregation litigation traces its origins to 1956, when suit was filed as an outgrowth of 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). The case was reactivated in 1971. In the...
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MEMORANDUM OPINION This matter comes before the court on the plaintiff’s motion to strike the defendants’ three affirmative defenses. For the following reasons, defendants’ second affirmative defense is stricken, however, defendants’ first and third affirmative defenses are not. BACKGROUND On September 19, 1990 Plaintiff Elizabeth Carpenter filed suit in the Circuit Court of Coo...
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Appellants Royal Bank of Canada (“RBC”) and Bankers Trust Company (“BTC”) appeal four orders of the bankruptcy court which confirmed joint plans of reorganization of chapter 11 debtors Nelson Bunker Hunt (“Nelson”) and William *203 Herbert Hunt (“Herbert”) (collectively “the Hunt Brothers”) and their respective wives (collectively "the Debtors”) and discharged claims brought by app...
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OPINION AND ORDER Defendants Hambrecht Terrell International Corp., Hambrecht Terrell, P.C., Edward Hambrecht, James Terrell and Daniel Barteluce (collectively “HTI”) and H.M. Hughes Co., Inc. (“Hughes”) move pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss 88 Civ. 5507 for lack of subject matter jurisdiction and pursuant to 28 U.S.C. § 1447 to remand 88 Civ. 5...
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OPINION The matter before the court is the motion of defendant, Continental Casualty Compa*1126ny (Continental), to dismiss the complaint of plaintiffs, F. Owen Black, M.D. and F. Owen Black, M.D., P.C., for failure to state a claim (# 23). ALLEGATIONS OF THE COMPLAINT Dr. F. Owen Black is a physician and surgeon who is board-certified in otolaryn-gology, a medical speciality dealing with diseases...
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MEMORANDUM AND ORDER This matter comes before the court on appeal from the bankruptcy court’s order of relief adjudging William J. Frusher (debtor/appellant) involuntarily bankrupt. On appeal, Frusher raises two issues: (1) Whether a debtor’s farmer/nonfarmer status under 11 U.S.C. § 303(a) is jurisdictional or an affirmative defense which must be raised by the debtor? and (2) Whether the...
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Sitting by Designation MEMORANDUM THIS MATTER is before the Court on the motion of plaintiffs Zakaria Suid, Kefah Suid (“Suids”), and Gourmet Gallery, Yacht Haven, Inc. (“Gourmet Gallery”) for summary judgment as to both defendants on Count I of the complaint. For the reasons that follow the motion will be granted. The salient facts are not in dispute and are as follows. On March 6, 1989, the Su...
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MEMORANDUM OPINION This matter is before the Court on remand from the United States Court of Appeals for the Eighth Circuit for the purpose of determining “whether and to what extent Westborough suffered damages as a result of the city manager’s actions.” Westborough Mall, Inc. v. City of Cape Girardeau, 901 F.2d 1479, 1481 (8th Cir.1990). The Court of Appeals remanded this matter for the limited ...
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MEMORANDUM AND ORDER The parties have consented to try this misdemeanor case before me. Trial was held on January 15, 1991, and briefs were received on January 23, 1991. I now find that the defendant is not guilty of the alleged willful infringement of a copyrighted video cassette in violation of 17 U.S.C. § 506(a). I. FACTS Dennis Moran (Moran), the defendant, is a full-time Om...
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MEMORANDUM AND ORDER The case comes before the court on the following motions: defendant Xycor Venture, Inc.’s motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure (Dk. 48); defendants’, Robert L. Reim-ers, James S. Kutzler and Stephen L. Calhoun, motion to dismiss for lack of personal jurisdiction (Dk. 51); defendants’, Xyc...
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OPINION In this dispute over the extent to which the defendant owes the plaintiffs pension benefits, the parties have filed extensive pre-trial and post-trial briefs, stipulations of facts, and exhibits. After a non-jury trial, I make the following: I.FINDINGS OF FACT 1 A. The Parties 1. The representative plaintiffs are: a. Edwin Kotrosits, a resident of Co-pl...
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RULING ON DEFENDANT’S MOTION TO DISMISS Plaintiff has alleged in her two-count complaint that defendant discharged her with the purpose of interfering with the attainment of a right to which she was entitled in violation of section 510 of the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461, 1140 (1988) (“ERISA”) (Count One), and that defendant breached a contract by refusi...
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ORDER Before us is plaintiff counsel’s petition requesting a fee award under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Counsel requests the approval of a fee in the amount of $87.00 per hour due to the high cost of living. The government has opposed counsel’s petition in part. The government submits that the hourly rate should be reduced to $75.00 and that the number of hours ...
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RULING ON MOTION FOR SUMMARY JUDGMENT Plaintiff, Richard J. Sedor, who is mentally handicapped, alleges that defendant discriminated against him by discharging him from employment in violation of the Rehabilitation Act of 1973 (“Act”), 29 U.S.C. § 794. Defendant, the Postmaster General, moves for summary judgment. Facts Plaintiff was hired as a mailhandler by the United States Postal Servic...
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OPINION The matters before the court are 1) the motion for summary judgment of plaintiff, Virginia Marie Grant (# 25); and 2) the motion for summary judgment of defendant, Lee Johnson, in his official capacity as a Multnomah County Circuit Court Judge (# 33). UNDISPUTED FACTS Virginia Grant is a thirty-six year old mother of two residing in Portland, Oregon. Virginia Grant used to be marrie...
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DECISION AND ORDER On July 30, 1990, a seizure warrant was issued by this court authorizing government agents to seize four DC-3 airplanes in the possession of Basler Aviation of Oshkosh, Wisconsin. The airplanes were seized, but pursuant to an arrangement between Basler Aviation and the government, they remained at Basler until September 20, 1990 when they were removed. On October 19, 1990, a mot...
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MEMORANDUM This action was brought by Sims for refund of withholding taxes paid on gambling winnings in the amount of $4,018.99 pursuant to 26 U.S.C. § 3402(q)(l). The government counterclaimed for the unpaid balance of the assessments against Sims in the amount of $959,790.83, plus statutory *1049additions. Sims also seeks preliminary and permanent injunctions restraining the Internal Revenue Se...
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MEMORANDUM OPINION AND ORDER NATURE AND PROCEDURAL HISTORY Plaintiffs Crystal Bar, Inc., Reese M. Williams, individually, and Reese Williams Trust originally brought this action on December 14, 1989, in South Dakota State Court, Seventh Judicial Circuit. The action was one to a quiet title. The United States (IRS) was joined pursuant to 28 U.S.C. § 1446(d). The United States removed ...
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ORDER AND REASONS The defendant, the Sickness and Accident Disability Benefit Plan of South Central Bell Telephone Company (“South Central Bell”), has filed a motion for summary judgment on the basis that there are no material issues of fact in dispute and that it is entitled to judgment as a matter of law under Federal Rule of Civil Procedure 56. Plaintiffs Lynn W. and Elden Nunez have f...
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MEMORANDUM OPINION The matter presently before the Court is defendant Norfolk & Western Railway Company’s (hereinafter “Norfolk & Western’s”) motion to dismiss the plaintiffs’ claims for damages pursuant to a theory of strict liability in this consolidated civil action. Essentially, the plaintiffs argue that they were injured as a result of a collision between the vehicle in which they we...
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754 F. Supp. 1441 (1991) FRANK M. BOOTH, INC., a California corporation, dba Valley Sheet Metal Co., Plaintiff, v. REYNOLDS METALS COMPANY, a Delaware corporation, dba Reynolds Aluminum Supply Co., Defendant. No. Civ. S-89-48-DFL. United States District Court, E.D. California. January 4, 1991. As Corrected January 9, 1991. *1442 William A. Lichtig and Todd D. Leras of McDonough, Holland & All...
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MEMORANDUM I. Introduction. We are currently considering cross-motions for summary judgment filed pursuant to Fed.R.Civ.P. 56 by the plaintiff, The Cincinnati Insurance Company (Cincinnati), and defendants, Ronald R. Herr and Susan E. Herr (the Herrs). Cincinnati filed this declaratory judgment action to determine its obligations under the portion of one of its comprehensive ...
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ORDER The above matter was before the undersigned United States Magistrate Judge on February 11,1991 on defendant’s motion to compel plaintiff to be examined by a vocational rehabilitation specialist. Plaintiff was represented by Karl Cambronne, Esq. Defendant was represented by David A. Anderson, Esq. Plaintiff Peter Stanislawski was injured in an accident on October 24, 1989 as he worked on a b...
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MEMORANDUM The defendant pleaded guilty to five bank robberies and two counts of using a firearm “during and in relation to” two of those crimes. He must receive a guideline sentence for the bank robberies and a consecutive five year sentence on the first of the two firearm pleas. The question is whether the second firearm plea is “his second or subsequent conviction” under the firearm statute,...
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In 1990, Plaintiffs Alexandra Adams and Kelly Whittington were diagnosed as having advanced breast cancer, a potentially fatal disease. Both women were advised by their treating physicians that High Dose Chemotherapy with Autologous Bone Marrow Transplant (hereinafter “HDCT-ABMT”) would be the best available care for them. Because the treatment is very expensive, costing approximately $100,-000...
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OPINION BACKGROUND On February 23, 1990, plaintiff, Kaye Associates (“Kaye”), filed a Complaint against defendant, Board of Chosen Freeholders-Gloucester County (“Gloucester County”), in the Superior Court of Camden County, New Jersey. The Complaint alleged that Gloucester County breached a contract to pay Kaye for consulting services in connection with the installation of a telecomm...
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DECISION AND ORDER INTRODUCTION Now before this Court is the defendant’s motion (“motion”) for dismissal of plaintiff’s lawsuit pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1). Because both parties have submitted affidavits beyond the pleadings which this Court has considered in ruling on the motion, pursuant to Fed.R. Civ.P. 12(c) this Court shall treat the motion as one for summary ...
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OPINION This is an employment discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff Emma Ree Mack is a black woman who was employed by defendant Kent County Vocational and Technical School District (the “School District”) as a cosmetology instructor. The School District is an agency of the State of Delaware. At all times material to thi...
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ORDER ON APPEAL This cause is before the Court on appeal from the Order on Objection to Claims No. 14 and No. 15 in Bankruptcy Case No. 87-3627-8B1, entered March 21, 1990, 112 B.R. 449, and also from the Order Denying Motion For Rehearing or Reconsideration entered by the Bankruptcy Court on April 10, 1990, by Chief Bankruptcy Judge Alexander L. Paskay. *349 ISSUES I. Whether the lower c...
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MEMORANDUM OPINION This matter comes before the court on Plaintiff Commonwealth Edison Company’s (“Edison”) motion to remand this case to state court. For the following reasons, the motion is granted. BACKGROUND The following are the facts as alleged by Edison, and for purposes of this motion these facts are taken as true. In 1967 and 1971 Edison contracted with Westinghouse Ele...
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MEMORANDUM OPINION AND ORDER Plaintiffs Robert Sherman and his minor son Richard Sherman are atheists and they allege that the Illinois statute which provides for the daily recitation of the Pledge of Allegiance in public elementary schools 1 violates their rights under the First and Fourteenth Amendments to the Constitution. Mr. Sherman filed a two-count complaint against the school district...
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758 F.Supp. 403 (1991) Carolyn Findley PRICE v. Don CARPENTER, Sheriff for Tarrant County, Texas, and George Campbell, Assistant Chief Deputy Sheriff for Tarrant County, Texas. Civ. A. No. 4-90-639-E. United States District Court, N.D. Texas, Fort Worth Division. February 25, 1991. *404 Carolyn Findley Price, Arlington, Tex., pro se. Tim Curry, Crim. Dist. Atty. of Tarrant County, Texas, Ann Diam...
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MEMORANDUM OPINION BACKGROUND On June 22, 1990 the plaintiffs, Joseph and Deborah Smith, brought this action against the defendant Law Offices of Mitchell N. Kay for alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (Com *184 plaint, Docket Item [“D.I.”] 1.) In their complaint, the plaintiffs requested a jury tria...
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ORDER Defendants’ threshold dismissal motion presents the question, unresolved in this circuit, whether a person employed to assist in providing custodial day care or babysitting services in a private home may claim the benefits of the minimum wage and overtime provisions of the Fair Labor Standards Act (“FLSA” or the Act), 29 U.S.C. § 201 et seq. More specifically, the matter ...
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ORDER I. For the reasons set out below, the motion of plaintiff AMERICAN EMPIRE for SUMMARY JUDGMENT is HEREBY GRANTED. II. This case arises out of a coverage dispute between an insurer and its insured. American Empire Surplus Lines Insurance Co. (American Empire) issued an Owner’s, Landlord’s & Tenant’s Liability policy to defendant Bay Area Cab Lease, Inc. (Cab Co.) for t...
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DECISION AND ORDER Defendant Union Carbide Corporation (“Union Carbide”) brings this motion pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), for an order dismissing plaintiff’s First through Seventh Claims for Relief. In support of its motion, Union Carbide submits the affidavit of Thomas E. Reidy, Esq. and the Exhibits annexed thereto (“Reidy affidavit”), a memorandum of law dated October...
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MEMORANDUM OPINION This is a diversity slip and fall negligence action. Presented here, by way of a threshold dismissal motion, is the question whether a plaintiff who slips and falls at a New Jersey gambling casino can sue the casino in Virginia on the basis of the casino’s advertising and solicitation activities in Virginia. More specifically, the question is whether plaintiff’s slip an...
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*1291 MEMORANDUM OPINION AND ORDER In this action brought pursuant to 42 U.S.C. § 1988, plaintiffs William and Rosemary Scott (“the Scotts”) sue Cook County Sheriff James O’Grady; Deputy Sheriff Kelvin Branch; Diamond Mortgage Corp. of Illinois d/b/a Diamond Financial Services of Illinois, Inc. (“Diamond”); and Commerce Mortgage Corp. d/b/a Tracy Mortgage Corp. (“Commerce”) (coll...
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OPINION This 42 U.S.C. § 1983 action is again before the court on defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). On October 10, 1990, the court entered an opinion and order granting the plaintiffs leave to attempt to avoid dismissal on grounds of qualified immunity with a third amended complaint and supporting pleadings. Plaintiffs have filed a third amended complaint and supp...
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ORDER This cause is before the Court on Defendant’s Motion for Reconsideration of Order granting Summary Judgment in Favor of Plaintiffs, Plaintiffs’ response thereto, Defendant’s Motion to Alter or Amend Judgment pursuant to Rule 59, Fed.R.Civ.P., and Defendant’s request for oral argument. Defendant urges the Court to reconsider its order granting summary judgment in favor of Plaint...
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MEMORANDUM OPINION This matter is before this court on defendants’ motion for summary judgment. Plaintiff has filed suit under 42 U.S.C. § 1983 alleging violations of the first, fourth and fourteenth amendments to the United States Constitution. 1 Her complaint centers on the actions of Spencer Arbuckle, Rosedale’s chief of police, on January 4, 1989, when he attempted to subdu...
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ORDER This matter is before the court on plaintiff’s motion to compel discovery from defendant Aerostar Transport Corporation. Plaintiff seeks discovery of defendant Ae-rostar’s corporate tax returns for the years 1989 and 1990 and discovery of the “financial circumstances” of Aerostar. Other than the tax returns, it is unclear what information plaintiff seeks. The motion addresses only defendant ...
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The Court was under the impression that its comprehensive January 17, 1989 Opinion had finally laid the above-captioned case to rest by granting summary judgment for the Department of Labor (“DOL”) and granting the defendant-intervenor Farm-workers’ summary judgment motion as to the plaintiff Growers’ back-wage liability for 1983 and 1985. See Frederick County Fruit Growers Ass’n v. McLaughlin, 70...
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MEMORANDUM OPINION This matter is before the Court on Defendant’s motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of Civil Procedure. Defendants allege, and Plaintiff does not contest, that two limited partners of Defendant Straight Creek Processing Company are citizens of Tennessee. Plaintiff First American is also a citizen of Tenne...
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Before the Court is the motion to remand filed by plaintiff and noticed for hearing on January 23, 1991. By order of the Court, the matter was submitted on the briefs without oral argument. After review of the motion, the memoranda, the record, and the law, the Court finds the motion to have merit. Jennifer Alphonse filed suit in the Civil District Court of Orleans Parish, Louisiana, again...
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FINAL SUMMARY JUDGMENT Pending before the Court is the Defendant’s Motion to Dismiss or for Summary *1015Judgment (Instrument # 5), filed December 4, 1990. The Court is of the opinion that this Motion should be and hereby is GRANTED for reasons set forth below. The Facts The Plaintiffs in this case are husband and wife and are United States citizens. On or about October 31, 1989, the Defendant ...
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MEMORANDUM OPINION This matter was heard on November 21, 1990, on plaintiff’s application for appointment of a temporary receiver. Erica Grubb, Esq., appeared on behalf of New York Life Insurance Co. (“New York Life”). Despite notification by plaintiff, no appearance was entered on behalf of any defendant. For the reasons discussed below, the court approved plaintiffs application for appo...
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MEMORANDUM AND ORDER This matter is before me on plaintiff the United States’s motion to compel the defendant Commonwealth of Massachusetts to transfer ownership of a parcel of state-owned land located in Walpole, Massachusetts, to the Massachusetts Water Resources Authority (“MWRA”) for use as a residuals landfill site as part of this court’s remedial orders relating to the Boston Harbor clean...
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MEMORANDUM OPINION CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS ACTION was tried to the Court non-jury on October 29, October 30 and October 31, 1990, and having considered the testimony and evidence adduced, the many exhibits offered and received in evidence, the arguments of counsel, each respectively, and all memoranda of law submitted by the parties, and being otherwise ful...
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MEMORANDUM OPINION AND ORDER Following entry of this Court’s Memorandum Opinion and Order dated December 10, 1990, 751 F.Supp. 474 familiarity with which is assumed, plaintiff made a timely motion for reargument pursuant to Civil Rule 3(j) of this Court. 1 Upon consideration, the motion for reargument is granted, and judgment for infringement will enter against defendant Sonnab...
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James D. Mead, a former employee of G & S Corp. (“G & S”), alleges that G & S, together with five individuals who are or were employed there (collectively “defendants”) fraudulently induced him to accept employment with G & S in order to capture his client bases, all allegedly in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (1982). Mead su...
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ORDER This case is before the court on the court’s own motion pursuant to its October 4, 1990 order denying Defendants’ motion for reconsideration. Inasmuch as the October 4, 1990 order denied reconsideration based upon difficulties in obtaining a complete record 1 , the court vacates that order and considers anew Defendants’ motion. In an order of July 24, 1990, the ...
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758 F.Supp. 512 (1991) GILBERT/ROBINSON, INC., Plaintiff, v. CARRIE BEVERAGE-MISSOURI, INC., and Carrie Beverage, Inc., Defendants. No. 85-2471 C (5). United States District Court, E.D. Missouri, E.D. February 28, 1991. *513 *514 *515 *516 *517 David C. Hilliard, John Bostjancich, Pattishall, McAuliffe & Hofstetter, Chicago, Ill., Thomas C. Walsh, St. Louis, Mo., for plaintiff. Allan & Ma...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND INJUNCTION ORDER This matter is before the court on the motion of defendant and cross-plaintiff City of Chicago’s (“the City”) motion for a preliminary injunction to enjoin the defendant Western Union ATS, Inc. (“ATS”) from expanding its existing fiber optic network under the streets of Chicago. A hearing was held on the motion at which the parties...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S SEPTEMBER 20; 1990 MOTIONS FOR SUMMARY JUDGEMENT AS TO ANNA KARBOSKY, MICHAEL MANYAK, JR., AND STEPHEN G. PANSON FACTS Plaintiff Karbosky began her employment as an hourly employee with defendant on July 18, 1944. She became a salaried employee on August 1, 1953. Karbo-sky took special retirement on April 1, 1988. Karbosky’s retirement benefits we...
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MEMORANDUM OPINION Before the court is an appeal from the bankruptcy court brought pursuant to 28 U.S.C. section 158(a). The appellant, August Perez, filed for a Chapter 7 liquidation and was denied a discharge by the bankruptcy court. Hibernia National Bank has filed a cross-appeal. I. STANDARD OF REVIEW On appeal from the bankruptcy court, the district court is bound by Bankru...
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OPINION AND ORDER Petitioner Claudio Pérez-Calo pled guilty to two violations of 18 U.S.C. § 751(a) and was sentenced to consecutive five-year terms of imprisonment. Petitioner is now before the court pursuant to 28 U.S.C. § 2255 arguing that the court was without jurisdiction to impose the above sentence because he had completed his prior federal sentence and was therefore no longer under fede...
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OPINION AND ORDER The underlying action in this case is for violations of the securities laws, RICO violations, and a host of related local law claims, all arising out of a series of interrelated corporate transactions. The complaint alleges damages of several million dollars. All indications point to the probability that the substantive claims will be disposed of by settlement. There is, however...
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MEMORANDUM OF OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT I. FACTS AND PROCEDURE Plaintiffs Dale Carter, David Johnson, Fred Emery, and James Straw 1 (hereinafter collectively referred to as “veterans”) bought homes in Idaho through the Veterans Administration (VA) loan guaranty program. The veterans defaulted on their VA guaranteed loans which were secured by trust deed...
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MEMORANDUM AND ORDER In this matter, plaintiff sued Southeastern Pennsylvania Transportation Authority after being dismissed as a production control specialist. Plaintiff claimed defendant violated the Veteran’s Reemployment Rights Act, 38 U.S.C. § 2021 et seq., and after a four day bench trial, I found in his favor. On appeal, the Third Circuit remanded with guidelines for analyzing plaintif...
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OPINION I. INTRODUCTION This is an antitrust action brought by Ansell Incorporated pursuant to Section 16 of the Clayton Act, 15 U.S.C. § 26, to challenge the acquisition of Allercare/NSL, Inc. by Schmid Laboratories, Inc., as viola-tive of Section 7 of the Clayton Act, 15 U.S.C. § 18. The amended complaint seeks an order of divestiture and or rescission, and such other relief as may...
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OPINION AND ORDER Quordalis Sanders, a prisoner in state custody, has brought the above-captioned action against six correctional officers (Lieutenant Gregory Heitzkey, Sergeant Gregory Stevens, Sergeant Kenneth Cook, Sergeant Michael Delvaux, Officer Christopher Gilmet, and Officer Dale Drenski) for violating his civil rights in connection with his conditions of confinement. He seeks declaratory ...
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ORDER AND REASONS Notwithstanding the assertion of grave federal constitutional issues in these consolidated cases, this Court must presently abstain from speaking to those issues because substantial state constitutional law issues are at the center of this controversy and resolution of the state law issues by the Louisiana state courts could moot or substantially alter the federal issues before t...
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OPINION Procedural due process requires first a “property interest.” Was there one here? No. Plaintiffs recovered a $150,000 judgment for pollution damages to their property against the City of Georgetown, Illinois. The judgment was affirmed by the Appellate Court of Illinois on June 18, 1989. Tamalunis v. The City of Georgetown, 185 Ill.App.3d 173, 134 Ill.Dec. 223, 542 N.E.2d 402 (4th Dist.1989...
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OPINION AND ORDER Plaintiff, Jorge E. Rodriguez, a medical doctor, seeks to rescind an enlistment contract with the United States Army. Dr. Rodriguez was called to active duty in May of 1990, at which time he was ordered to 'report to Ft. Sam Houston, Texas, on July 15, 1990. 1 As of February 13, 1991, he had failed to report to any military facility for duty in response to the...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of defendant Allstate Indemnity Company (Allstate) for summary judgment, or alternatively for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Gary E. Thigpen has responded to the motion and the court has considered the memoranda of authorities together with attachments...
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ORDER This matter is before the court on plaintiff’s motion for certification pursuant to 28 U.S.C. § 1292(b), plaintiff’s application for fees and other expenses, defendant’s renewed motion for a new trial, and defendant’s motion for amendment of the judgment entered in this case on November 20, 1990. 1 For the reasons stated herein, plaintiff’s motion for certification will...
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OPINION In the aftermath of the Supreme Court’s decision in Rutan v. Republican Party of Illinois, — U.S.-, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), several prominent issues regarding retroactivity and qualified immunity necessarily have arisen. This case, in part, involves such questions. I. Facts The Plaintiff, James Walsh, was hired by the City of Springfield as...
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Before the court is defendant Unicorp’s motion and plaintiff Gas House, Inc.’s cross-motion for summary judgment. Both parties have also moved for Rule 11 sanctions. The case raises the issue whether a tenant can enforce a landlord’s oral promise after the landlord has assigned all rights and duties in the lease to a third party. For the following reasons, defendant’s motion is granted and plai...
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MEMORANDUM The Plaintiff in this diversity action, General Electric Capital Corporation, extended financing to the Defendant, East Coast Yacht Sales, Inc. (“East Coast”). The extension of funds was personally guarantied by ten individuals, all Defendants, and was secured by certain collateral, five yachts, all of which are located in New Jersey. Upon East Coast’s default of its obligation...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on the Motion of Defendants Resolution Trust Corporation, as Receiver for Unifirst Bank for Savings, F.A., Jackson, Mississippi, and Resolution Trust Corporation, as Receiver for Unifirst Bank for Savings, a Federal Savings and Loan Association, Jackson, Mississippi, for Summary Judgment. Having considered the Motion together wit...
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OPINION AND ORDER This civil rights matter comes before the court on the motion of Henry Holley, the plaintiff, for reconsideration of the court’s Order of January 25, 1991 which granted the defendants’ motion, under Fed.R.Civ.P. 12(b)(6), and dismissed plaintiff’s amended complaint without leave to amend. In so doing, the court expressly noted that no brief had been filed by plaintiff in respo...
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REMAND ORDER The issue we face today is whether diversity of citizenship exists in this matter which came before us on a removal petition from the Superior Court of Puerto Rico. The plaintiff seeks to have this matter remanded to the Puerto Rico court. Plaintiff, a Puerto Rico resident, claims that one of the defendants, J.J. Juarbe, is also a Puerto Rico resident, divesting this court of...
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RULING ON PLAINTIFF’S MOTION TO COMPEL AND MOTION IN LIMINE Plaintiff, Equal Employment Opportunity Commission (EEOC), seeks to compel deposition testimony and identification of documents by various deponents, employees or former employees of defendant, Unisys Corporation (Unisys). EEOC also seeks a ruling in limine as to future deposition testimony. Defendant Unisys Corporation opposes both moti...
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OPINION AND ORDER This matter is before the Court pursuant the joint motion for a protective order filed on behalf of Witnesses Brenda Givens (“Givens”), Joyce Crawford (“Crawford”), and Halima Isa (“Isa”, aka Linda Oluku). The Court will address the motion herein. By way of background, Defendants Donald Brown (“Brown”), Tanya Powell (“Powell”), Florencia Walker (“Walker”) and Delia Butler (“Butle...
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OMNIBUS ORDER ADDRESSING POST-ORDER (10/11/90) MOTIONS THIS CAUSE came before the Court upon numerous filings submitted following and in response to the Court's October 11, 1990 Order Granting Plaintiffs/Intervenors Leach & Garner Company and Westway Metals Corporation’s Motions for Summary Judgment and Addressing Defendant Lloyds Underwriters’ Motions for Summary Judgment and/or Other Re...
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MEMORANDUM UNDER FED.R.CIV.P. 52(a) This § 1983 action was filed against defendant Margaret M. Tierney, a state parole agent, employed by the Pennsylvania Board of Probation and Parole. In 1988 plaintiff Pearlie Purdie, Jr. was a parolee assigned to her for supervision. His claim is that “defendant deprived him of his liberty without due process of law by intentionally or recklessly causi...
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OPINION This case, like many others across the country, involves a dispute between an insured and insurers concerning coverage for underlying asbestos personal injury and property damages cases. 1 The parties’ motions for partial summary judgment are now before the court. 2 BACKGROUND Maryland Casualty Company (“Maryland”) initially brought this declaratory ju...
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OPINION AND ORDER Simply stated, the plaintiff in this action is seeking to satisfy a judgment against an assetless corporation by reaching its corporate parent. The matter is before this Court on the parties’ cross-motions for summary judgment. BACKGROUND The plaintiff, Carte Blanche (Singapore) PTE., Ltd. (“CBS”) is a Singapore corporation. On the defendants’ side, a series of...
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OPINION Plaintiff, Werner Linssen d/b/a Galerie Linssen (“Linssen”), brings this action against defendant, Jacob Weintraub d/b/a Weintraub Gallery (“Weintraub”), to recover $81,383 in lost profits allegedly caused by Weintraub’s breach of an oral agreement to purchase four sculptures by the artist Joan Miro. In the alternative, Lins-sen seeks to recover $52,000 in lost profits due to Weintraub’s ...
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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 the legal issues that have arisen out of the alleged failure of defendant Thomas Quinn (“...
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OPINION The matter before the court is the motion of defendant Ted Brindle pursuant to Fed. R.Civ.P. 12(b)(6) to dismiss the complaint filed against him by the plaintiff, Richard L. Koenig, on his own behalf and on behalf of his son, Jacob Koenig, on the ground that Koenig has failed to state a claim upon which relief can be granted. In his complaint, Koenig seeks to recover damages for alleged vi...
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OPINION AND ORDER This case arises over the use of the words “New Choices” in both the name of a publishing company owned by Doe Lang and a magazine published by Retirement Living Publishing Co., Inc., (“Retirement Living”). In May 1989, Dr. Lang, who owns New Choices Press, sought an injunction pursuant to New York General Business Law section 133 against Retirement Living using the...
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ORDER This action is again before the court on the defendant’s “Motion for Summary Judgment,” filed with a supporting brief, statement of material facts, proposed conclusions of law, and a proposed summary judgment on November 30, 1990. This court explained the factual, jurisdictional, procedural, and substantive law background of this motion in an order of January 11, 1991 (“January 11 o...
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OPINION Defendants Brad S. Cohen and Larry J. Cohen (“the Cohens”) have moved for a hearing to determine the reasonableness of the $37,547.70 in fees and expenses sought by plaintiff Banca Della Svizzera Italiana (“BSI”) in its application for attorney’s fees in the above action. For the reasons set forth below, the Cohens’ motion is denied, and BSI’s fee application is granted in part an...
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MEMORANDUM AND ORDER This is a personal injury action brought by plaintiff Robert E. Hatfield against de *1199 fendant/third party plaintiff Burlington Northern Railroad Company (the railroad) for injuries sustained as a result of a truck/train collision at the Haverhill Road crossing on September 29, 1987. In a memorandum and order dated September 24, 1990, the court address...
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OPINION The Plaintiffs, Donald L. Valdez and Christie J. Valdez (Valdez) initiated this lawsuit against the defendants for personal injuries to Donald L. Valdez as a result of a *297single vehicle accident on December 7, 1987. The complaint alleges a defective 1985 Ford Ranger pickup truck and seat-belt system. Causes of action are grounded in theories of negligence, breach of express warranties, ...
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OPINION This matter came before the Court on Defendant, Larry Holmes’ Motion to Compel Production of Documents (# 48), pursuant to Rule 37 of the Federal Rules of Civil Procedure. The Defendant is seeking the following documents: 1. All published materials written by Richard Young that mention or refer to defendant, Larry Holmes. 2. All medical records, documents, bills, and notes for treatment o...
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OPINION The matters before the court are the cross-motions for summary judgment of plaintiffs, Randy Leonard, Grant Coffey, Tom Chamberlain, Richard Grace, Manuel Fagundes, and the Portland Fire Fighters Association, Local 43 I.A.F.F. (collectively, the Fire Fighters Association) (# 25), and of defendants, J.E. “Bud” Clark, Richard “Dick” Bogle, Earl Blumenauer, Robert "Bob” Koch, Mike Lindberg, ...
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ORDER ESTABLISHING SPECIAL FUND FOR PAYMENT OF PLAINTIFFS’ ATTORNEY FEES AND EXPENSES ON A REGULAR BASIS By motion of January 22,1991, plaintiffs’ counsel seek the establishment of a special account for monthly advances of attorney fees and expenses from the interest earned on fines paid by defendants pursuant to the court’s order of July 23, 1987. They propose detailed and specific procedures for...
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MEMORANDUM This case is before the Court on the defendants’, Landmark Bank for Savings (“Landmark”) and three of its officers, motion to dismiss the plaintiff’s claims for failure to plead fraud with particularity under Fed.R.Civ.P. 9(b), and for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). The plaintiff, Robert E. Driscoll, commenced this action ...
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DECISION AND ORDER The federal sentencing guidelines have been in effect since November 1, 1987. Since then, a steady chorus of district judges 1 all over the country have raised serious doubts about their wisdom. One judge, A. Lawrence Irving, of San Diego, a 1982 appointee of President Ronald Reagan, resigned his commission over them. In my opinion, there is no other issue in...
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ORDER This matter is before the Court on a motion to dismiss brought by defendants The University of Cincinnati (“UC”), Joseph L. Steger and Jill Parris. (Doc. No. 15). Plaintiffs oppose defendants’ motion (Doc. No. 17) and defendants have replied. (Doc. No. 23). Factual and Procedural History This action was brought pursuant to 42 U.S.C. § 1983 by employees of UC who are no...
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758 F.Supp. 326 (1991) L. Eugene DANIELS, Plaintiff, v. ANCHOR HOCKING CORPORATION and Anchor Hocking Group Insurance Place, Defendants. Civ. A. No. 86-478. United States District Court, W.D. Pennsylvania. February 27, 1991. *327 Mark Homyak, Pittsburgh, Pa., for plaintiff. Henry Wallace, Pittsburgh, Pa., for defendants. OPINION D. BROOKS SMITH, District Judge. Plaintiff L. Eugene Daniels is a f...
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MEMORANDUM AND ORDER Before the court are motions by Home Savings Association of Kansas City, F.A. (“Home Savings”) and Mid-Continent Builders, Inc. (“Mid-Continent”) to dismiss certain counts of a counter and cross-claim filed by Wilbert J. Hanke, John H. Curran, and William M. Franz, and William M. Franz as Trustee of a trust deed. For the reasons stated herein, this court grants Home S...
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MEMORANDUM OPINION This dispute grows out of the use of two documentary letters of credit to finance the purchase of T-shirts by a Virginia corporation from the manufacturer in Amman, Jordan. In essence, following the delivery of poor quality T-shirts, the purchaser refused to pay the issuing bank, and the issuing bank then refused to pay the confirming bank, which had honored drafts draw...
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MEMORANDUM OPINION AND ORDER Plaintiff, Terrence Wayne LaFountain (LaFountain), was injured on January 11, 1988 while operating a pinch-type roll bender machine at his place of employment. He filed this diversity action on August 18, 1989. The amended complaint contains three counts, alleging negligence, strict liability, and breach of warranty. On March *238 5, 1990, the cla...
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MEMORANDUM Johnson was suspected of operating a stolen vehicle. He alleges that he was apprehended by members of the Baltimore City Police Department and then “brutally assaulted” on October 13, 1989. The criminal charges against Johnson were “nol prossed.” The State of Maryland has been named a defendant because it is alleged the officers and other members of the Baltimore Police Department ...
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MEMORANDUM Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party moving f...
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MEMORANDUM AND ORDER (1.) Background The plaintiffs have brought the instant case under the following statutes: sections 12 and 15 of the Securities Act of 1933, 15 U.S.C. §§ 111, llo, 77q(a); sections 10(b) and 20 of the Securities Exchange Act of 1934 and SEC Rule 10b-5, 15 U.S.C. §§ 78j(b) and 78t, 17 C.F.R. § 240.10b-5; The Racketeer Influenced and Corrupt Orga...
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MEMORANDUM Defendant seeks a reduction or correction of sentence. Defendant owned and operated a truck repair business in Morrisville, Pennsylvania. Defendant decided to buy an adjoining 14-acre tract in order to expand his business. While defendant was negotiating to purchase the tract, he learned from engineering consultants that the tract met the criteria established by the Corps of Engi...
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ORDER At issue are two defense motions. One is by all defendants to dismiss two of plaintiff’s EEOC claims as untimely, and the second is by defendant Vicorp to dismiss it as a party for improper joinder. Plaintiff has responded to the motion to dismiss for untimely filing, but has not responded to the motion to dismiss Vicorp as an improper party. The Court rules as follows for the reasons sta...
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OPINION This damages action under 42 U.S.C. §§ 1983 and 1985(3) arises out of the assault and eventual death of Navroze Mody, a Jersey City, New Jersey resident of Indian descent. Plaintiff, the administrator of the estate of Mr. Mody, alleges that the city of Hoboken and certain municipal employee defendants violated Mr. Mody’s constitutional rights by failing to arrest, detain, or file ...
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*42MEMORANDUM AND ORDER This matter is before the Court for review of a final decision of the Secretary of Health and Human Services (“the Secretary”) denying benefits to the claimant, David Heggarty (“Heggarty”). Heggarty here seeks to have the Court reverse or remand the decision of the Secretary and award benefits to him. I. David Heggarty was born on February 15, 1953, is currently 37 years o...
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MEMORANDUM I. Background Presently before the court are defendants’ motions for summary judgment in this 42 U.S.C. § 1983 case. Plaintiff alleges that his First, Fourth, Fifth, Eighth and Fourteenth Amendment equal protection rights were violated when Chalfont Borough police charged him with sexually abusing a young retarded woman in his care without probable cause, and when ...
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MEMORANDUM AND ORDER This matter is before the court on motion of the defendant City of Shawnee, Kansas for an order staying enforcement of the judgment entered on January 4, 754 F.Supp. 1518 1991 in the above-captioned case. Defendant seeks a stay pending disposition of the appeal taken in this case without posting a supersedeas bond. Rule 62(d) of the Federal Rules of Civil Procedu...
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OPINION AND ORDER The Court has before it the defendant’s appeal from the Report and Recommendation of the magistrate recommending that his motion to suppress evidence be denied. Defendant has invoked the Fourth Amendment in attempting to suppress the evidence seized at the time of his arrest and thereafter. This evidence forms the basis of defendant’s arrest and indictment. Defendant first argues...
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MEMORANDUM AND ORDER The Towns of Norfolk and Walpole, plaintiffs in consolidated cases Nos. 90-11086-MA and 90-11286-MA, brought under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., having previously been denied their motion to intervene in consolidated cases Nos. 85-0489-MA and 83-1614-MA (the “Boston Harbor case”), see Memorandum and Order, United States v. Metr...
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MEMORANDUM Plaintiff, Lloyd, Kane & Wieder, acted as settlement agent in the sale of and settlement upon 6937 Eden Mill Road, Carroll County, Woodbine, Maryland and is holding in escrow the sum of $33,981.70 which was levied upon by Defendant, the United States. In the Complaint, Plaintiff urges that the Court quash a federal tax levy and compel the United States to release certain real property ...
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ORDER The government recently indicted Ismael Moranda-Roman on drug conspiracy charges. After conducting a pretrial detention hearing pursuant to 18 U.S.C. § 3142(f), the court concludes that Moran- *951 da-Roman should be detained without bail pending trial. The Bail Reform Act provides for detention of any defendant who poses either a risk of flight or a danger to the community. 18 U.S.C....
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AMENDED MEMORANDUM OPINION AND ORDER This case is before this court on plaintiffs Hansen Savings Bank, SLA (HSBSLA), Hansen Bancorp, Inc. (Ban-corp), Elmer and Eileen Hansen’s (the Han-sens) request for declaratory and injunctive relief against the Federal Deposit Insurance Corporation (FDIC) and the Office of Thrift Supervision (OTS). For the reasons stated below, plaintiffs’ request for...
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*141OPINION This case presents a clear example of the need and purpose for Rules 11 and 26(g) of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and the inherent power of the Court to impose sanctions. The plaintiff, Dr. Prentiss Smith, and his attorneys, Phillip A. Wittmann, John M. Landis, Randall A. Smith, and Marc D. Winsberg, have openly and flagrantly abused the judicial system by c...
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OPINION AND ORDER On January 4, 1991, claimant Pamela Blair moved the court for an order dismissing this forfeiture action on the ground that the court lacks subject matter jurisdiction. Oral argument was heard on February 11, 1991. For the reasons stated herein, claimant’s motion is DENIED. Background The government brought this forfeiture action against real and personal property owned by the...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs’ motion for an order reconsidering and setting aside the order of dismissal entered on June 29, 1990, as it pertains to plaintiffs’ then-pending application for determination of costs filed June 20, 1990. Because the court finds that exceptional circumstances exist such that the plaintiffs’ application for determination an...
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ORDER This matter is before the court on a civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate at Lansing Correctional Facility, Lansing, Kansas, alleges the defendants violated his constitutional right to religious freedom. Specifically, plaintiff complains he should not have had to shave off his facial hair for identification photographs when he entered the prison ...
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OPINION' AND ORDER This case is before the Court on the Motion of United States of America for Summary Judgment, filed on April 30, 1990. Gregory Gordon [hereinafter “Claimant”] filed a response in opposition on May 30, 1990. 1 On August 14, 1990, the Claimant filed a supplemental response. On November 6, 1990, the Government filed a Notice of Supplemental Authority. This ...
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OPINION AND ORDER On June 13, 1990, defendant Richard R. Hathaway pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) but objected to enhanced sentencing under 18 U.S.C. § 924(e). The government contends that the conditions necessary for enhancement of sentence have been met. For the reasons stated below, defendant’s objection to the application of se...
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APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA This cause is before the Court on appeal from the denial of the Debtor’s discharge for bankruptcy pursuant to 11 U.S.C. § 727(a)(2) and (a)(4) entered on October 5, 1989, by Chief Bankruptcy Judge Alexander L. Paskay. 106 B.R. 287. STANDARD OF APPELLATE REVIEW Findings of fact by the Bankruptcy Cou...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This action stems from the suicide-hanging of David Danese in the Roseville City Jail on November 9, 1982. Plaintiffs, the deceased’s father, mother, siblings and estate, originally brought this action under 42 U.S.C. §§ 1983 and 1985. The following entities and individuals were originally named as defendants: The Roseville Police and Fire Depart...
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MEMORANDUM-DECISION AND ORDER Presently before the court is plaintiff’s claim pursuant to 42 U.S.C. § 1983 that she and her deceased husband were deprived of due process when defendant James Fehr, as Superintendent of Highways, allegedly ordered the road crew of defendant Town of Plattekill to widen a road bordering the Krmencik’s property by taking a strip of their property approximately 8 to 12...
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MEMORANDUM OPINION This cause is before the court on defendant’s motion for summary judgment. Having considered the motion, the submissions of counsel, and the applicable law, the court finds that there is no genuine issue of material fact, and that the defendant is entitled to judgment as a matter of law. This case is a slip and fall personal injury case. The plaintiff slipped and fell due to a f...
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MEMORANDUM AND ORDER This' matter is before the court on defendants’ motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and defendants’ motion for summary judgment. To the court’s knowledge, plaintiff is no longer seeking to proceed with this case as a class action; thus, defendants’ motion for denial of certification of class action will be denied as moot. In...
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MEMORANDUM OPINION AND ORDER Keller Industries, Inc. (“Keller”) has filed its Notice of Removal (the “Notice”) to this District Court of an action originally brought in the Circuit Court of Lake County, Illinois by Jeffrey Maki (“Maki”) and Keith Volsted (“Volsted”). Based on its customary initial review of the Notice and the underlying Maki-Volsted Complaint at Law (the “Complaint”), ...
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OPINION This is a civil action based on diversity of citizenship brought by the Plaintiffs Northeast Financial Corporation, Joyce Realty Corporation and Kirkwood Fitness and Racquetball Clubs, Inc. (“Northeast”) against Defendant Insurance Company of North America (“INA”). The Plaintiffs seek damages on Defendant’s alleged breach of an insurance contract. Following an appraisal procedure ...
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OPINION AND ORDER May the Court assert pendent-party jurisdiction over a defendant in a diversity action when the amount in controversy on the claim asserted against that defendant is concededly below the requisite jurisdictional amount? For the reasons that follow, this Court is of the view that it may not. I. FACTUAL BACKGROUND The following facts are derived from the pla...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY ' JUDGMENT Defendant State Farm Fire and Casualty Company (“State Farm”) has moved for summary judgment in this insurance bad faith action brought by plaintiff Altus Bank. Having reviewed the papers filed in connection with this matter, having heard oral argument, and being fully apprised of the relevant facts and law, the Court finds *...
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OPINION I. INTRODUCTION Now before the court is an application by the Equal Employment Opportunity Commission (“the EEOC” or “the Commission”) for an order to show cause why a subpoena should not be enforced against the respondent, American Express Centurion Bank (“the Bank”). The subpoena at the center of this dispute seeks information in furtherance of an investigation of a charge ...
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OPINION The narrow issue presented by these cross-motions for partial summary judgment is whether professional and managerial employees were exempt from the overtime requirements of the Fair Labor Standards Act (“FLSA”) because the salary test set forth in 29 C.F.R. § 541.118 was satisfied, notwithstanding the fact that deductions for absences of less than a day were made from the paychecks of ...
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MEMORANDUM OPINION This matter comes before the Court upon defendant’s motion for summary judgment and upon plaintiff’s motion for partial summary judgment. At issue is whether defendant The Trump Shuttle (“Trump”) violated the Veteran’s Reemployment Rights Act (“VRRA”), 38 U.S.C. §§ 2021-2026, by failing to hire plaintiff Beattie, who was fulfilling military reserve duties at the time of...
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MEMORANDUM-DECISION AND ORDER This is a Federal Tort Claims Act (“FTCA”) suit arising out of the reclassification of a soldier in Vietnam from missing in action (“MIA”) to killed in action (“KIA”), and subsequent events which allegedly gave rise to damages suffered by the servicemember’s family. On October 22, 1990, defendants United States and United States Air Force Mortuary Services mo...
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MEMORANDUM-DECISION AND ORDER The plaintiffs and the defendants have moved for summary judgment concerning the issue of whether defendants’ legal defense of abandonment effectively precludes the plaintiffs from maintaining the instant action. The plaintiffs contend that abandonment is not a viable defense to this lawsuit, and that they can succeed in the present action even though they no...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is a products liability case in which plaintiff seeks monetary compensation for the death of her decedent. In her complaint, plaintiff avers three counts. Count I outlines plaintiffs claim that Colt Industries (“defendant”) 1 was negligent in designing and manufacturing its Huntsman semi-automatic pistol (the “gun”) and tha...
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MEMORANDUM OPINION AND ORDER OF DISMISSAL WITH PREJUDICE BEFORE THE COURT is the Report and Recommendation of the United States Magistrate filed on October 3, 1990, wherein the Magistrate recommends the dismissal with prejudice of the above-styled and referenced cause. After carefully reviewing the entire record in this case, consulting the pertinent authorities, and considering the plaintiff’s p...
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MEMORANDUM OPINION This is an action by plaintiff, Tucker W. McLaughlin ("McLaughlin”), against defendant, United Virginia Bank (“UVB”),1 alleging “lender liability” arising in tort and contract. McLaughlin is a resident of South Carolina. UVB is a Virginia corporation with its principal place of business in Richmond, Virginia. Miners & Merchants Bank and Trust Company (“Miners & Merchants”) and ...
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OPINION AND ORDER REGARDING PENDING MOTIONS Presently before the Court are the following Motions: 1) the Plaintiffs’ Motion for Summary Judgment Against the United States, Only; 2) the United States’ Motion for Summary Judgment; 3) the Plaintiffs’ Motion for Summary Judgment against Defendants Peter Tocco and Anne Tocco and Defendant Frank Ioli, Only; and 4) the United States’ Motion to Dismiss...
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MEMORANDUM-DECISION AND ORDER I. Introduction The plaintiff has commenced an action under 42 U.S.C. § 1983, alleging that the defendants deprived him of property and liberty without due process of law, in violation of the Fourteenth Amendment, by failing to administer a fair, uniformly graded examination for receipt of a Master Plumber’s certificate. The certificate is necess...
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MEMORANDUM ORDER This cause is before this Court on Motion of the plaintiffs, William H. Pearson, Sheila M. Pearson, Cass M. Pearson, and William H. Pearson, Natural Guardian and Next Friend of Cass Miles Pearson (hereinafter “Pearson plaintiffs”) to Recuse Defendants’ Counsel and Law Firm. Said Motion was filed on October 5, 1990. In their Motion to Recuse, the Pearson plaintiffs co...
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MEMORANDUM & ORDER Appellants, William D. Fugazy, Roy D. Fugazy, and Fugazy Limousine Ltd. f/k/a R.D.F. Limousine Corp. (“Limousine”) pursuant to 28 U.S.C. § 158(a) (1984), appeal to this court from an order of the Bankruptcy Court (Lifland, J.) denying their motions for summary judgment and granting cross-motions in favor of appellees Zachary Shimer, the Chapter 7 Trustee of Fugazy Expre...
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TABLE OF CONTENTS Page FACTS . 982 A. The Stevens Salaried Plan. 982 B. Salaried Plan Management Prior to the Restructuring.983 C. Plan Restructuring and Reversion. 984 D. The Window. 987 DTSCTISSTON. 990 » > A. The Restructuring and Reversion. t — t 05 1. Basis for Remedy Claimed by L...
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MEMORANDUM AND ORDER This matter is before the court on the motions of defendants Hayden, Endell, Werholz, Mills, Carter, Callison, McClain, Thompson, Martin (the named defendants) and the Kansas Department of Corrections to dismiss and/or for summary judgment. Plaintiff, an inmate under the custody of the Kansas Department of Corrections, filed this action against the Governor of Kansas,...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion to remand and for costs. Having reviewed the motion and the response thereto, the court is now prepared to rule. Background Plaintiff, a resident of Kansas City, Kansas, filed this suit in the Wyandotte County, Kansas, District Court on November 20, 1990. In his complaint, plaintiff alleges that he wa...
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ORDER Defendant Christ Savides asks the court to reduce his sentence or, in the alternative, restructure his sentence in light of the findings of the Seventh Circuit in United States v. Pace, 898 F.2d 1218 (7th Cir.), cert. denied, Cialoni v. United States, — U.S. —, 110 S.Ct. 3286, 111 L.Ed.2d 795 (1990); Savides v. United States, — U.S. —, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990). For the reasons s...
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*458 MEMORANDUM I. A. Procedural History This is a diversity products liability action brought by Milledge D. Tatum and his wife, Gladys Tatum (“plaintiffs”) against a pacemaker manufacturer, Cordis Corporation (“Cordis”). 1 Cordis has moved for summary judgment. The plaintiffs filed a complaint on May 4, 1989. At that time, the plaintiffs allege...
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MEMORANDUM OF OPINION AND ORDER AFFIRMING BANKRUPTCY COURT The above-captioned case is an appeal from a final order of the bankruptcy court. The bankruptcy court held that an Internal Revenue Service (“IRS”) claim for 1984 FUTA taxes was not a proper amendment to its earlier timely filed claim; and that other IRS administrative expense claims for taxes, which arose in a superseded Chapter...
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MEMORANDUM OPINION This matter comes before the Court on Plaintiffs’ Motion for Leave to Amend the Complaint and Defendants’ Motion for Leave to File Discovery Concerning Personal Jurisdiction. Upon consideration of plaintiffs’ motion, defendants' opposition thereto, plaintiffs’ reply, defendants’ motion, plaintiffs' reply thereto, defendants’ reply, argument in open court, the entire rec...
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OPINION The United States of America (the “Government”), the plaintiff in this action, has moved pursuant to Rules 34 and 37(a)(4), Fed.R.Civ.P., for an order compelling production of documents from third-party witness Ella Freidus (“Mrs. Freidus”) and for costs and expenses in connection with the Government’s preparation of this motion. For the reasons set forth below, the Government’s Rule 34 mo...
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MEMORANDUM OPINION AND ORDER OF DISMISSAL This is a common law tort action in which plaintiffs, by their mother and next friend, seek injunctive relief and damages for assault, battery, infliction of emotional distress and negligence based upon alleged physical and sexual abuse occurring between 1980 and the summer of 1987. In their complaint, plaintiffs seek four million dollars in compe...
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OPINION I. INTRODUCTION Plaintiffs PBA Local No. 38 and John P. Schreck, et al. bring this class action against the Township of Woodbridge, its, police department and former mayor, the former and present director of police, and various telephone and electronic companies. Plaintiffs’ class is comprised of all police officers who worked for the Woodbridge Police Department from 1964 to the present,...
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OPINION Plaintiffs pro se E.J. Novak (“Novak”) and Debra Studer (“Studer”) have moved pursuant to Rule 60(b)(2), Fed.R.Civ.P. and Rule 3(j) of the Civil Rules of the Southern District for reargument of the court’s opinion of December 5, 1990 granting summary judgment of the outstanding copyright infringement claims to defendants National Broadcasting Company, Inc., Brandon Tar-...
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MEMORANDUM OPINION AND ORDER Former Cook County State’s Attorney Cecil Partee and Assistant State’s Attorneys Thomas Dwyer and Larry Wharrie have filed a motion to dismiss the Third Amended Complaint brought against them under 42 U.S.C. § 1983 (“Section 1983”) by Elton Houston (“Houston”) and Robert Brown (“Brown”). 1 Defendants ground their motion on absolute immunity principles, because eac...
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ORDER AND OPINION This is a diversity action involving numerous claims arising from the alleged mismanagement of a partnership, as well as a claim against the Federal Deposit Insurance Corporation, as receiver of a former tenant, for non-payment of rent. Defendants Jacobo Finkielstain, Gustavo Andrew Deutsch, Progress Corporation, N.V., Progress Properties, Inc., J.R.A. Realty Corporation...
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OPINION AND ORDER Before the Court is defendant Mitsubishi Motors Corporation’s (MMC) unopposed motion to stay proceedings in light of parallel litigation in the Superior Court of Puer-to Rico, Bayamón Part. Plaintiff’s inertia notwithstanding, we proceed independently to review the merits of defendant’s motion. Plaintiff Isamar Irizarry Pérez (Irizarry) has brought suit in both local court and f...
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OPINION AND ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL DISCOVERY This is a diversity action arising under the laws of the State of Michigan. Plaintiff’s claim arises from an industrial accident that occurred on March 15,1989, while plaintiff was employed in the furniture industry. On that date, plaintiff was using a pneumatic stapler designed, manufactured, and owned by defendant. The st...
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*38MEMORANDUM OF DECISION AND ORDER DENYING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER Plaintiffs in this action challenge an administrative order promulgated by the Maine Supreme Judicial Court. See Administrative Order SJC-321 (January 30, 1991). The order, which became effective on February 1, 1991, imposes a jury fee in the amount of $300.00 in most cases in Maine state court in whic...
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MEMORANDUM AND ORDER This action has been the subject of several Memorandum and Orders, familiarity with all of which are assumed. Plaintiffs now move for class certification. Defendants cross-move for leave to send an information statement to class members. Plaintiffs ask the court to certify, under Rule 23(a) and 23(b)(3), a class of all persons and entities who purchased Crazy Eddie, Inc. (“Cr...
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OPINION This consolidated action is brought under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. (1988). The parties filed a total of eight summary judgment motions regarding liability under CERCLA for the cleanup costs at a now-dormant chemical plant in Dalton Township, Michigan (“the site”), which is on the Super...
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MEMORANDUM OPINION AND ORDER May a public housing authority evict a tenant because of criminal conduct committed by the tenant’s adult child on project property? Crime in public housing projects poses a major threat to the welfare of tenants and the community. However, eviction of a project tenant is tantamount to declaring the tenant homeless. This case presents a clash of vital duties a...
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OPINION I. INTRODUCTION Plaintiff Elizabeth Kocienski (“Kocien-ski”) instituted this action on May 14, 1990 against the City of Bayonne, the County of Hudson and various other city and county officials, both on behalf of herself and as Administratrix ad Prosequendum of the estate of her sister, Helen Catherine Garity (“Garity”). Garity committed suicide in the Bayonne Municipal Jail on Decemb...
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MEMORANDUM AND ORDER The case comes before the court on a number of motions: defendants’ motion for partial dismissal for lack of subject matter jurisdiction (Dk. 9); defendants’ motion to transfer or reassign the ease to Kansas City, Kansas (Dk. 11); defendants’ motion to dismiss for failure to plead fraud with particularity or, in the alternative, for more definite statement (Dk. 13); d...
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MEMORANDUM This matter is before the Court on the merits of plaintiff’s claims after a seven-day trial before the Court sitting without a jury. This Court having considered the pleadings, the testimony of the witnesses, 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 req...
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ORDER In Hyatt v. Sullivan, 899 F.2d 329 (4th Cir.1990), the United States Court of Appeals for the Fourth Circuit stated: “Should the Secretary wish to amend the ruling [SSR 88-13] to make it clear that it is not a reiteration of previous policy and that it has a more current effective date which does not adopt rejected policy, then the regulation may remain in effect. If the Secretary ...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendant for partial summary judgment. (Doc. 86). In this private action between non-diverse parties, plaintiffs allege claims under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601, et seq., as well as several pendent claims based on state law. Defendant...
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MEMORANDUM AND ORDER Plaintiff Joseph Braunstein (the “Trustee”) is the duly appointed bankruptcy trustee for Melon Produce, Inc. (“Melon”), pursuant to the filing of an involuntary bankruptcy petition under Chapter 7. The petition was filed on January 27, 1988. Defendant Peter Karger (“Karger”) was the President and sole shareholder of Melon. The Trustee filed this bankruptcy action seeking to a...
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MEMORANDUM AND ORDER Presently before the court is a Joint Motion for Entry of Case Management Order filed by nine of the thirteen plaintiffs. Among other things, the movants seek an order allowing two years for discovery, precluding the filing of any motions for summary judgment for at least one year and imposing extra-legal conditions on the interview by any party of potential witnesses...
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*117 MEMORANDUM AND ORDER Presently before the Court is the unopposed appeal of Fox & Fox, counsel for debtor, T & D Tool & Die, Inc. (“Tool & Die” or the “debtor”), from an Order of the Bankruptcy Court for the Eastern District of Pennsylvania, Scholl, J., dated September 20,1990. The appellant seeks an order directing the Bankruptcy Court to award $4,053.00 as compensation for ...
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MEMORANDUM OPINION In this case plaintiff Washington Hospital Center (“Washington Hospital”) seeks to recover payment of hospital bills incurred by Carl Spalding (“Spalding”), from defendant Group Hospitalization and Medical Services (“Blue Cross”). Washington Hospital sues as Spalding’s assignee, asserting his rights as the insured under his Blue Cross policy. Blue Cross has moved for su...
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MEMORANDUM AND ORDER This land condemnation case was tried to the court on November 6, 1990. The court heard the testimony of five expert witnesses and received several exhibits into evidence. The court has received and reviewed the trial transcript and the parties’ post-trial submissions. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the court makes the following findings ...
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MEMORANDUM The plaintiff, Robin Lubin, pursuant to a stipulation of the parties, filed a second amended complaint in the above-captioned matter containing four counts, all alleging that the defendant, American Packaging Corporation, terminated her employment and denied her certain benefits as a result of her prolonged absence from work due to a complicated pregnancy. Count I of the plaint...
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MEMORANDUM ORDER This matter comes before the court upon the defendants’ motions for dismissal of the plaintiff’s amended complaint. Southeast Kansas Community Action Program (SEK-CAP), a not-for-profit corporation, is a local agency which formerly received grant funds under the Supplemental Food Program for Women, Infants and Children (WIC). 1 The defendants are the Secretary ...
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MEMORANDUM OPINION AND ORDER Plaintiffs, former operators of a “Phillips-66” service station, commenced this action against the defendant asserting, inter alia, a claim for violation of the Petroleum Marketing Practices Act (the Act or PMPA), 15 U.S.C. § 2801 et seq. Defendant has moved for summary judgment on that claim, asserting that it was not timely filed and that no franchise relationship e...
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OPINION The matters before the court are the cross-motions for summary judgment of the parties (# 8 and # 18). FACTS Plaintiff, Clay Tower Apartments, an Oregon general partnership comprised of Harold J. Schnitzer, Arlene Schnitzer, and Harsch Investment Corp., owns the Clay Tower Apartments (Clay Towers), a multifamily housing project at 1430 S.W. 12th Avenue, Portland, Oregon. Constructio...
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MEMORANDUM OPINION This is an appeal from the United States Bankruptcy Court, Northern District of Alabama, Southern Division. The issues on appeal are whether a purchase-money security interest was transformed into a nonpurchase-money security interest by consolidation with a new purchase, and whether the creditor’s security agreement language is sufficient to preserve purchase-money sec...
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MEMORANDUM OPINION Nissan Motor Corporation (Nissan) is seeking a preliminary injunction, preventing the members of the Louisiana Motor Vehicle Commission (the Commission) from holding a scheduled March 11, 1991 hearing, or enforcing and or/issuing any orders, penalties or fines, or from taking any further direct or indirect action of any kind, in connection with or related to the formal ...
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*663 MEMORANDUM AND ORDER This case is now before the court upon the petition of Ms. Amy Shatswell for a stay order pursuant to the Soldiers’ and Sailors’ Civil Relief Act. Specifically, petitioner is asking this court to issue an order staying the enforcement of a child custody order issued by the Shawnee County District Court pending Ms. Shatswell’s armed service in Saudi Arabi...
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MEMORANDUM AND ORDER This case comes before the court on defendant Darnell A. Eaglin’s motion to suppress all evidence seized from him pursuant to his arrest by officers of the District *26 of Columbia Metropolitan Police Department on December 21, 1990. I.FACTS At the hearing held on this motion on March 7, 1991, Officer James McCoy, Jr., testified that he and Officer Hilliard were worki...
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758 F.Supp. 657 (1991) Larry G. STEPHENSON and Margorie Stephenson, Plaintiffs, v. Stuart BARRINGER and Equine Investors Insurance Agency, Inc., Defendants. Civ. A. No. 90-2337-V. United States District Court, D. Kansas. February 12, 1991. *658 *659 Ronnie L. Svaty, Svaty, Sherman & Hoffman, Ellsworth, Kan., William G. Howard, Laura J. Bond, Lathrop, Koontz & Norquist, Overland Park, Kan....
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ORDER This matter comes before the Court on the plaintiffs motion to remand this action to state court and for attorney fees, and on the defendant’s motion to dismiss for lack of subject matter jurisdiction. The parties’ motions came on for hearing on January 14, 1991 at 10:00 a.m., the Honorable Thel-ton E. Henderson presiding. Stephen R. Jaffe appeared for the plaintiff. Charles F. Palm...
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MEMORANDUM AND ORDER Plaintiff Peggy V. Grissom brought this diversity of citizenship action against a number of defendants claiming that she had been illegally discharged from her job in retaliation for filing a workers’ compensation claim. Defendant Dayco Products, Inc., the sole remaining defendant,1 has moved the court (Doe. 34) to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(6). Defendant...
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MEMORANDUM AND ORDER This is a bankruptcy appeal. This appeal is brought by the State of Missouri on behalf of the Missouri Land Reclamation Commission of the Missouri Department of Natural Resources. The appeal challenges the decision of the bankruptcy court to deny an application for allowance of an administrative expense. The application requested that $560,580.00 in civil penalties ag...
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ORDER GRANTING PLAINTIFFS’ AND FEDERAL DEFENDANTS’ JOINT MOTION FOR DISMISSAL WITHOUT PREJUDICE AND DENYING . AS MOOT HARDY’S MOTION FOR SUMMARY JUDGMENT (sitting by designation). Plaintiffs Randall Morgan, William K. Chisholm, Ned Swisher, DiAnne Elasick, Idaho Conservation League, Inc. and Hag-erman Valley Citizens Alert, Inc. (“plaintiffs”), and federal defendants Lt. Col. James A. Walter, Uni...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND GRANTING DEFENDANT GOLDMAN’S MOTION FOR CONTINUANCE The motion to dismiss of defendants Michael J. Roberts (“Roberts”) and Verner, Liipfert, Bernhard, McPherson & Hand (“VLBMH”), and the motion to continue trial of defendants Martin F. Goldman, the individual, and Martin F. Goldman, a Professional Corporation (co...
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MEMORANDUM OPINION AND ORDER Now before the court are the respondents’ objections to Magistrate Judge Weis-berg’s Report & Recommendation (“Report”) as to the respondents’ motion to dismiss or for summary judgment as to Thomas Vanda’s (“Vanda”) petition for a writ of habeas corpus. The Magistrate Judge recommended that the respondents’ *1253motions be denied and that the court grant the petition ...
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Defendant, John Hancock Mutual Life Insurance Company (“the Company”), moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on plaintiffs claim that the union breached its duty of fair representation. 1 The United Food and Commercial Workers International Union, and Local Union No. 888, UFCW-AFL-CIO (collectively “the union”) move to dismiss the Comp...
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*678 MEMORANDUM AND ORDER The case comes before the court on the motion of defendant W. David Kimbrell to disqualify John J.. Thomason, Jerry E. Mitchell and the law firm of Thomason, Hendrix, Harvey, Johnson, Mitchell, Blanchard & Adams from representing the plaintiff in this case. At the court’s notice, an evidentiary hearing was set for February 21, 1991. Two days before the h...
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MEMORANDUM OPINION AND ORDER Introduction The Resolution Trust Corporation (“RTC”) as receiver for Arlington Heights Federal Savings and Loan Association (“Arlington”), removed this case from the 18th Judicial Circuit Court, DuPage County, Illinois, pursuant to Title 12, U.S.C. §§ 1421 et seq., the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“F...
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MEMORANDUM AND ORDER Plaintiff James D. Harman, appearing pro se, brought this law suit on behalf of himself and as a representative of all of the citizens of Hegins and Hubley Townships and all manufacturers of steel septic tanks in the United States for injuries allegedly sustained as a result of defendants’ refusal to permit the installation and use of steel septic tanks in Hegins and Hubl...
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This case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., was tried before the court without a jury on February 25-27, 1991. The court is now prepared to issue its findings of fact and conclusions of law. FINDINGS OF FACT The plaintiff, Edward G. Philon, is a black male employed in the fire department at Robins Air Force Base, Warner Robins, Georgia, with a civil servic...
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DECISION AND ORDER FACTS On May 9, 1988, plaintiff IPCI Limited (“IPCI”), an insurance procurer, instituted this declaratory judgment action against defendant Old Republic Insurance Company (“Old Republic”). In its complaint, IPCI seeks a declaration that it is not obligated to reimburse Old Republic for amounts that Old Republic paid to indemnify and defend an insured, the Washington Nurs *...
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*85 MEMORANDUM DECISION Trust Bank Savings, F.S.B. (“Trust-bank”) and United Postal Savings Association (“United Postal”) (collectively, the “Secured Creditors”) appeal from an Order of the United States Bankruptcy Court for the Southern District of New York (Black-shear, B.J.), entered November 6, 1990, which denied their motion to transfer venue to the Eastern District of Virginia. For the ...
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*176MEMORANDUM OPINION This proposed class action has wended a tortuous path through the district court, passing through three separate courtrooms during which time the defendants filed a motion to dismiss, before finally landing here. The parties briefed the motion to dismiss, but this court determined that it would be premature to consider that motion without having first decided whether to cert...
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ORDER Introduction This action based upon the Employee Retirement Income Security Act (“ERISA”) is before the court for the consideration of various motions brought by all parties. Plaintiffs move for partial summary judgment and ask the court to strike certain affidavits filed by defendants. Defendants move for the dismissal of certain counts of plaintiffs complaint and for summary ...
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*928OPINION AND ORDER The Court denies plaintiff’s application dated March 4, 1991 to reopen this case on the grounds (1) that plaintiff was not served with the defendant’s motion to dismiss for lack of diversity, and (2) that diversity of citizenship in fact exists. Defendant’s motion papers contained an Affidavit of Service dated January 16, 1991 addressed to plaintiff at her present address. Fu...
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DECISION AND ORDER FACTS On February 12, 1989, plaintiffs Edmund J. Wentzka and Dona J. Wentzka (“the Wentzkas”) filed this action alleging that defendants Blunt, Ellis & Loewi, Inc. (“BEL”), and its employee, Larry Gellman (“Gellman”), violated various federal securities laws (Counts I — III), breached their fiduciary duty to the plaintiffs (Count IV), and committed common-law fraud...
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OPINION AND ORDERS ON POST-TRIAL MOTIONS This multidistrict litigation, in which ten antitrust suits were consolidated in this court for pretrial proceedings, and retained for trial, involves a conspiracy dating from the mid-1950’s on the part of a group of defendant railroads (the Penn Central Corporation (Penn Central), the Chesapeake & Ohio Railway Company (C & 0), the Baltimore & Ohio...
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759 F. Supp. 1444 (1991) APPLE COMPUTER, INC., a California corporation, Plaintiff, v. MICROSOFT CORPORATION, a Delaware corporation, and Hewlett Packard Company, a California corporation, Defendants. No. C-88-20149-VRW. United States District Court, N.D. California. March 6, 1991. *1445 *1446 Chris R. Ottenweller, Brown & Bain, Palo Alto, Cal., Jack E. Brown, Brown & Bain, Phoenix, Ariz....
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MEMORANDUM ORDER Before this court is the renewed motion of Defendants/Counterplaintiffs Cook Incorporated, Wilson-Cook Medical Group Inc., and Cook Urological Incorporated (hereinafter “Cook”) TO COMPEL DISCOVERY AND FOR THE ENTRY OF A WRITTEN ORDER DOCUMENTING THE COURT’S PRIOR ORAL RULINGS. By way of this motion, Cook seeks to (1) strike the expert witness interrogatory answers of the Plaintif...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on a Memorandum and Recommendation (“M & R”), filed December 19, 1990, by United *340States Magistrate Paul B. Taylor. Defendant, on January 4, 1991, filed timely objections to the recommendation from Magistrate Taylor that this matter be remanded to Louis W. Sullivan, Secretary of Health and Human Services (“Secretary”). This case ...
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ORDER THIS MATTER is before the Court on an appeal filed by Defendant/Appellant Gell-man Corporation (hereinafter “Defendant”) from the Bankruptcy Court’s Order of July 24, 1990 granting Plaintiff/Appellee 301 East Seventh Street’s (hereinafter “Plaintiff”) motion for partial summary judgment. On December 26, 1990, Defendant filed a brief in support of its appeal. Plaintiff responded on January 14...
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MEMORANDUM AND ORDER Plaintiffs Mark and Marie Schertel brought this action under section 1983 of the Civil Rights Act alleging that defendants took their property without just compensation and due process. Defendants, Lynn Township and three of its supervisors, filed a motion to dismiss plaintiffs’ complaint for lack of subject matter jurisdiction. For the reasons set forth below, I shall gran...
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RULING ON THE MOTION TO DISMISS Hibernia National Bank (Hibernia) filed this suit against John William Carner to recover his portion of a balance due on a note following a liquidation sale. Carner has filed a motion to dismiss Hibernia’s complaint against him essentially for lack of personal jurisdiction, under Rule 12(b)(2) of the Federal Rules of Civil Procedure (Rule), and due to insuf...
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125 B.R. 121 (1991) In re UNIVERSITY MEDICAL CENTER v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services. Civ.A. No. 89-0411. United States District Court, E.D. Pennsylvania. March 11, 1991. *122 Thomas Tropp, Mesirov Gelman Jaffe Cramer & Jamieson, William Frey, Wolf Block Schorr & Solis-Cohen, Philadelphia, Pa., for University Medical Center. *123 Virginia Powel, Asst. U.S...
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ORDER IT IS HEREBY ORDERED that the review and recommendation of United States Magistrate David D. Noce is SUSTAINED, ADOPTED and INCORPORATED herein. IT IS FURTHER ORDERED that defendant’s motion for summary judgment is GRANTED, and plaintiff’s motion for summary judgment is DENIED. IT IS FINALLY ORDERED, ADJUDGED and DECREED that judgment is hereby entered in favor of defendant and against plai...
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758 F.Supp. 296 (1991) Rodney HAWTHORNE and Mindy Powell v. KEMPER GROUP, American Motorists Insurance Company and State Farm Mutual Automobile Insurance Company and Northlands Insurance Companies. Civ. A. No. 89-7357. United States District Court, E.D. Pennsylvania. March 11, 1991. Philip Baer, Philadelphia, Pa., for plaintiffs. Peter J. Hoffman, McKissock & Hoffman, P.C., Philadelphia, Pa.,...
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ORDER THIS MATTER is before the Court on Plaintiffs motion, filed January 14, 1991, to establish the timeliness of Plaintiffs responses to Defendant’s second request for admissions. On January 17, 1991, Defendant filed a response to the motion and moved for sanctions. Plaintiff, on January 28, 1991, filed a reply to Defendant’s response. On June 28, 1990, Defendant mailed to Plaintiff 233 requests...
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OPINION AND ORDER Before the court is defendants’ motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.1 I. INTRODUCTION This is an action involving the denial of permits to build a hazardous and toxic waste disposal facility and a tourist residential complex by the Puerto Rico Planning Board. Pursuant to Title 42 U.S.C. § 1983,2 plaintiffs seek declaratory and ...
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MEMORANDUM AND ORDER This matter is before the Court pursuant to a Motion to Remand filed by Plaintiff, Michael Winick, on October 29, 1990. Defendant, United Engineering Company, filed a Motion for Summary Judgment on November 8, 1990. This civil action seeking damages for breach of contract was filed initially in the Circuit Court of Jefferson County, Missouri. Plaintiffs Petition alleges that ...
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ORDER THIS MATTER is before the Court on Petitioner’s motion, filed December 27, 1990, for an order to show cause why a subpoena issued by Petitioner to Respondent should not be enforced. On January 17, 1991, Respondent filed a response to the motion. The record in this case indicates that the employment of Julian H. Papot was terminated on March 17, 1989. On October 17, 1990, Papot filed with Pet...
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MEMORANDUM OPINION AND ORDER Edna Ruth Harris is a black woman employed by Defendant Presbyterian/Saint Luke’s Medical Center as a licensed practical nurse. Defendant T. Jeanne Coakley is her supervisor. Plaintiff claims that defendants have violated 42 U.S.C. § 1981 (1988) in two ways. First, she asserts, defendants suspended her for three days, without pay, as discipline for behavior detrimenta...
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OPINION This matter comes before the Court on defendant’s motion to dismiss the complaint. Plaintiffs sued the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., seeking to recover damages for the theft of their property. The defendant asserted various jurisdictional grounds for dismissal, including the statute of limitations, sc...
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ORDER This matter is before the Court under the following circumstances: In preparation for litigation and for trial thereof, plaintiffs’ counsel conducted a series of interviews with fact and expert witnesses. These interviews were attended by a person skilled in the use of a stenotype machine, who made a record of the witness statements and later transcribed them. The operator was in fact a cour...
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MEMORANDUM This matter is before the Court by virtue of an appeal from the judgment of the Bankruptcy Court permanently enjoining the Hardin County Attorney from pursuing further action in the Hardin District Court for an alleged violation of KRS 514.090, against Appellee John P. Allard, a debtor in bankruptcy. In the summer of 1988, John Allard contracted with Universal Interiors, I...
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MEMORANDUM OPINION AND ORDER Petitioner William H. Pyle (Pyle) seeks to confirm an arbitration award made in his favor against respondents Securities U.S.A., Inc., David Williams (Williams), Joel Brody (Brody), and E.B. Williamson & Co., Inc. Only Williams and Brody seek to vacate the award. Respondents Deborah Hootman and Scott Carothers were dismissed from the arbitration proceeding and...
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MEMORANDUM OPINION AND ORDER I.INTRODUCTION This is a class action lawsuit brought by approximately 3,000 flight attendants against their employer, Trans World Airlines, Inc. (“TWA”), challenging the company’s refusal to provide them with designated rights letters pursuant to the Airline Deregulation Act, 49 U.S.C.App. § 1552, and its applicable regulations, 29 C.F.R. Pt. 220, after ...
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MEMORANDUM OPINION On October 30, 1990, defendant, Kenneth Doyle Hughes, was convicted by a jury of aiding and abetting in the manufacture of amphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Defendant Hughes moved for a judgment of acquittal at the close of the government’s case on the basis that the evidence was insufficient to sustain a conviction of the offense. At ...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on the Motion of Defendant-Garnishee State Farm Fire and Casualty Company (“State Farm”) for Summary Judgment and on the Application of Defendant-Garnishee State Farm for Review of two Orders of the United States Magistrate regarding discovery in this matter. Having considered the Motion for Summary Judgment together with the sup...
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OPINION AND ORDER This seventeen year old Chippewa treaty rights case is before the court following a lengthy court trial on the extent to which the state and counties can regulate Indian harvesting of commercial timber. The regulation of timber harvesting has turned out to be the last subphase of the last phase of the litigation. Originally, three phases were contemplated. The first phase, the d...
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MEMORANDUM OPINION AND ORDER This cause is before the Court, pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure, on the Motion of Defendant, Governor Ray Mabus, for Summary Judgment, or in the Alternative, to Dismiss for failure to state a claim upon which relief can be granted. Plaintiff, Arthur J. Farmer, has filed a Cross-Motion for Summary Judgment. Both parties...
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MEMORANDUM OPINION In a case removed to this Court on diversity grounds, Mr. Kenneth Ward and his mother claimed that the defendant, a former employer of Mr. Ward (who worked for it as an at-will employee), wrongfully refused to fill out and return to Mr. Ward or forward to the Globe Life Insurance Company a claim form needed by him to activate credit disability insurance that would have ...
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ORDER This matter comes before the court on the plaintiff’s motion for summary judgement. Continental Casualty Company (“Continental”), an insurer of the asbestos manufacturer, Fibreboard Corporation (“Fi-breboard”), has brought an action seeking declaratory judgement that it is not obligated to indemnify Fibreboard for punitive damages awarded against Fibreboard in jury trials conducted ...
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MEMORANDUM AND ORDER This matter is before the Court on plaintiff’s motion for summary judgment. The motion will be granted. FACTS This is another in a series of lawsuits concerning subordinated debentures issued by Midwest Federal Savings & Loan Association (MWF), predecessor in interest to plaintiff Midwest Savings Association (MSA). 1 In the present case MWF solely...
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ORDER THIS MATTER is before the Court on Defendant’s motions for summary judgment on Defendant’s counterclaim and Plaintiff's complaint. I. FACTUAL BACKGROUND. The record in this case indicates that the dispute in this matter involves the termination of Plaintiff by Defendant. In February, 1988, Defendant extended an offer for Plaintiff to leave his position as a stock broker wi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW; OPINION; JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFF ON PLAINTIFF’S COMPLAINT AND IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFF AND COUNTER-DEFENDANTS ON DEFENDANT’S COUNTERCLAIM IN CASE NO. C-3-91-78; JUDGMENT TO BE ENTERED IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANTS ON COUNT VIII OF PLAINTIFFS’ SECOND AMENDED COMPLAINT IN CASE NO...
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MEMORANDUM OPINION This case comes before the court on defendant’s motion for summary judgment and plaintiffs’ cross-motion for summary judgment. After consideration of the motions, the oppositions, and reply memoran-da, and the record herein, defendant’s motion for summary judgment is granted and plaintiffs’ motion for summary judgment is denied. BACKGROUND Introduction ...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT On January 31, 1990, plaintiff, Secretary of Labor Elizabeth Dole, through the U.S. Department of Labor (“DOL”), filed this action against defendant, United Automobile Aerospace and Agricultural Implement Workers of America, AFNCIO (“UAW”). Plaintiff alleged that “viola...
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MEMORANDUM Defendant, by counsel, has moved to suppress the seizure of narcotics which the police state were taken from his person. To fully understand the implications of this case, the Terry doctrine must be reviewed. Terry and two associates were observed by Detective McFadden of the Chicago police apparently “casing” a store on McFadden’s beat. McFadden did not know them nor had he any ti...
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MEMORANDUM OPINION This case comes before the Court on the motion of defendant Prudential Insurance Company of America (“Prudential”) for summary judgment. Plaintiff William H. Hood filed a three-count amended complaint, seeking recovery of life insurance proceeds from Prudential on contract, misrepresentation and agency theories. Prudential alleges that the policy was voided by false statement...
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MEMORANDUM AND ORDER INTRODUCTION By Order to Show Cause dated December 14, 1990, defendants moved for an order disqualifying plaintiffs’ counsel on the ground that an attorney who was previously associated with defendants’ former counsel Bivona & Cohen (the Bivona firm) and who represented the defendants in the discovery phase of this case, is now employed by plaintiffs' law firm, K...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on defendants’ joint motion to suppress evidence seized on March 22, 1990. An evidentiary hearing was conducted on February 27, 28 and March 1, 1991. This Court heard testimony from Agent Braun, Agent Moore-head, Carol Neal, Georgia Stubblefield, Agent Ball, Michael Stubblefield, Stacey Stubblefield and proffers regarding two other defen...
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OPINION AND ORDER Plaintiff Sidney Gellman, M.D. (“Dr. Gellman”), moves for a preliminary injunction to restrain the defendant 1 from terminating Dr. Gellman’s participation in Medicare and Medicaid programs until such time as he is afforded an administrative hearing and a decision thereon. Dr. Gell-man also seeks to preliminarily enjoin the defendant from notifying any state agencies to term...
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OPINION AND ORDER Plaintiff Herbert S. Kassner (“Kassner”) moves for summary judgment pursuant to *940 Rule 56 of the Federal Rules of Civil Procedure and for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. The underlying suit is an action for a real estate broker’s commission in the amount of $60,575.00, plus interest. For the reasons stated below...
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MEMORANDUM AND ORDER The above-referenced action is an appeal, pursuant to Bankruptcy Rule 8001(a), from a final order of the Honorable Cecelia H. Goetz, United States Bankruptcy Judge. That order denied, in part, a motion to vacate a judicial lien pursuant to 11 U.S.C. § 522(f), and additionally granted avoidance of six judicial liens which were junior to a non-dischargeable Internal Rev...
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MEMORANDUM AND ORDER Bonnie Lynn Alderink Bennett was an insured under two separate policies of insurance issued by State Farm Mutual Automobile Insurance Company (“State Farm”), each of which provided “underin-sured” motorist coverage. Each policy provided a limit of coverage in the amount of $100,000.00. In 1986, Bennett was struck by a pickup truck as she was crossing a street in Bozem...
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MEMORANDUM AND ORDER BACKGROUND The plaintiff prosecutes this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), §§ 2671 et seq., seeking monetary compensation for personal injuries allegedly sustained by the plaintiff as a result of negligence on the part of the United States of America, acting through the Departments of Health and Human Services and Public He...
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MEMORANDUM ORDER Plaintiff O’Donnell Construction Company (“O’Donnell”) has filed the instant lawsuit seeking declaratory and injunctive relief declaring as unconstitutional two set-aside programs, namely the District of Columbia Minority Contracting Act (hereinafter the “Act”), D.C.Code section 1-1141 et seq. (1981), and the Department of Public Works’ (“DPW”) Disadvantaged Bu...
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MEMORANDUM AND ORDER This matter is related to Chi Shun Hua Steel Co. v. Crest Tankers, C-89-2905 SAW, 1990 WL 265970, which was tried to a jury in this Court. Paul Novelly, the defendant in this case, is the President of Crest Tankers and was not a party to the suit against Crest Tankers. Plaintiff charges Mr. Novelly with fraud and deceit for directing and authorizing the fraudulent breach ...
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MEMORANDUM Plaintiff, Maureen T. Conroy, has brought this suit against defendant, Boston Edison Company, alleging a total of three counts: Count One for violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. (1985), Count Two for violation of Mass.Gen.L. ch. 151B, § 1, et seq., and Count Three for Termination in Violation of Public Po...
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MEMORANDUM AND ORDER The plaintiff, Page Wellcome, an attorney admitted to the Bar of the State of Montana, and practicing law as a professional service corporation entitled Page Wellcome, PSC, brings this breach of contract action against the defendant, The Home Insurance Company (“Home”), seeking a declaration of the parties’ rights and liabilities under a policy of professional liabili...
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MEMORANDUM OPINION In this diversity action the plaintiff, Liberty University, seeks damages arising from the defendants’ negligent failure to underwrite and purchase and/or place or distribute $61 million in securities. The defendants’ have moved for a stay of these proceedings and have requested that the Court refer the matter to arbitration as provided in the Investment Banking Agreeme...
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ORDER AND REASONS This matter is before the Court on the plaintiffs’ motion for class certification [Record Document No. 10]. Determining that oral argument was not needed, the Court CANCELED the hearing on the motion, previously set for February 27, 1991. For the following reasons, the Court DISMISSES the action at the plaintiffs’ costs for want of jurisdiction through lack of standing and/or fo...
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MEMORANDUM ORDER Diane Murray’s fourth motion for a preliminary injunction was the subject of an evidentiary hearing held on February 11, 1991. 1 Having received plaintiff’s post hearing letter brief and defendants’ proposed findings of fact, we proceed to rule on the questions presented by the motion. Plaintiffs eleventh-hour motion seeking a court order restraining a pro...
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MEMORANDUM AND ORDER BACKGROUND The parties to this action, Guaranty National Insurance Company (“Guaranty”) and American Motorists Insurance Company (“American”), provided motor vehicle liability coverage to a common insured for a third party personal injury claim which arose out of a vehicular accident. The liability insurance contract extant between Guaranty and the insured had a ...
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MEMORANDUM This action arises out of a series of written agreements entered into on January 29, 1990 (the “January Agreements”) between plaintiff Bio-Vita, Ltd. and defendants Bio-pure Corporation (“Biopure”) and Biopure Associates Limited Partnership (“BALP”). 1 The underlying purpose of the January Agreements was to finance and promote the research, development, and marketing...
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AMENDED ORDER Plaintiffs Terry Bowen, Toni DeBardela-ben, and Hazel Hayes brought this action on behalf of themselves and a class of participants in several employee health insurance plans, charging that the plans’ trustee, SouthTrust Bank of Alabama, the plans’ insurer, National Union Life Insurance Company, and other named defendants violated the Employee Retirement Income Security Act ...
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*1076 MEMORANDUM ORDER Before the Court at this time is defendant Yellow Freight Systems, Inc.'s motion for summary judgment, on which we deferred ruling to allow plaintiff Daniel Miller an opportunity to present evidence to establish that there remains a genuine issue of material fact in his claim that he was discharged because of Yellow Freight’s racial discrimination. See ...
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OPINION AND ORDER Jury Trial Demanded This is an action alleging securities fraud in violation of section 17(a) of the Securities *318 Act of 1933, 15 U.S.C. § 77q (1988), section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j (1988), and Rule 10b-5 of the Securities Exchange Commission promulgated thereunder, and alleging violations of the Racketeer Influ...
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OPINION This action involves a contract dispute between the plaintiffs, publishers of freestanding color coupon advertising inserts seen in Sunday newspapers throughout the country, and the defendant, a printer hired on an exclusive basis by plaintiffs for these projects. Unfortunately, due to the extremely complex nature of the contracts at issue and the relationships among the parties, ...
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OPINION AND ORDER This action concerns the scope of an arbi-trable dispute arising from the sale of a business. Petitioner, Stena Line (U.K.) Limited (“Stena”) seeks an order compelling arbitration concerning a dispute over a balance sheet dated March 31, 1990, on which a post-closing adjustment to the purchase price is to be based. Respondents Sea Containers Ltd. (“Sea Containers”) and i...
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MEMORANDUM OPINION AND ORDER Plaintiff David C. Montgomery sustained various injuries while being transported with his hands handcuffed behind his back in a City of Chicago police squadrol on August 27, 1985. During his ride, Montgomery was tossed around the squadrol, causing him to strike various parts of the compartment. Montgomery attributes his injuries in part to the allegedly unreas...
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MEMORANDUM OPINION Plaintiff Peter Polansky filed this three count complaint against PaineWebber Inc. (“PaineWebber”) and one of its employees, Ronald Levi, alleging violations of the Securities and Exchange Commission Rule 10b-5 (“Rule 10b-5”), 17 C.F.R. § 240.10b-5, common law fraud and breach of fiduciary duty. 1 The complaint was filed on November 13, 1990 and alleged that ...
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ORDER In this civil action, plaintiff Bank of New England, N.A. (“BNE”), seeks injunctive and monetary relief for the alleged default of defendants Callahan and Kopka on two promissory notes. Presently before the court are: (1) a Motion to Substitute, pursuant to Rule 25(c), Fed.R.Civ.P., filed by New Bank of New England, N.A. (“New BNE”), and the Federal Deposit Insurance Corporatio...
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MEMORANDUM AND ORDER Defendant Freddy Fabian has filed a motion for transcripts to be provided at the government’s expense so that he may prepare a claim under 28 U.S.C. § 2255. For the reasons set out below, Fabian has failed to meet the criteria of 28 U.S.C. § 753(f), the provision governing transcripts for indigents, and his motion is denied. I. Background Fabian was tried before a cou...
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ORDER In this diversity action, the question before the court is whether the defendant has a right to enforce an arbitration agreement and compel arbitration pursuant to section 4 of the Federal Arbitration Act, 9 U.S.C. § 4. If so, defendant is entitled to a stay of further court proceedings until the completion of arbitration. Plaintiffs complaint asserts three claims based on the Authorized De...
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MEMORANDUM AND ORDER This matter is before the court on two post-trial motions of the defendant and counterclaimant Kansas Power and Light Company (“KPL”). In this case, following five weeks of testimony, the jury found in favor of plaintiff Green Construction Company (“Green”) on its breach of contract claim and awarded plaintiff a portion of the amount Green sought as “retainage,” ...
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MEMORANDUM OPINION CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW This wrongful death action brought pursuant to the Federal Tort Claims Act, Title 28 United States Code Sections 1346(b), 2671 et seq., was tried five (5) days to the Court. The Court has considered all of the testimony offered, exhibits including, but not limited to the National Transportation Safety Board Report (Plaintif...
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MEMORANDUM OPINION AND ORDER The captioned matter is a civil action brought by the government for forfeiture of property pursuant to 21 U.S.C. § 881(a)(7). The property consists of a twenty-six unit apartment building, which the government maintains was used by Otto Birgel to facilitate the sale of drugs. Otto Birgel held title to the defendant property, but he is now deceased. The govern...
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AMENDED MEMORANDUM OPINION AND ORDER On June 28, 1990, the plaintiff Injection Research Specialists, Inc. (IRS), a Colorado corporation, commenced this patent infringement action against Polaris Industries, L.P. (Polaris), a Delaware limited partnership with its principal place of business in Minnesota. Eight days later, on July 6, 1990, Polaris filed suit in the United States District Co...
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MEMORANDUM The Court received the plaintiff’s motion for a temporary restraining order to prohibit the defendants, in their capacities as *465Commissioners of the Tennessee Public Service Commission [“TSPC”], from thwarting or hindering a merger between the plaintiff, Con-way Southern Express, and Hohenwald Truck Lines [“HTL”] and McMinnville Freight Line [“MFL”]. The Court held a hearing on this...
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MEMORANDUM OPINION AND ORDER Plaintiff Cattie M. Smith commenced this action asserting claims under Title VII, 42 U.S.C. § 2000e et seq. (first claim), 42 U.S.C. § 1981 (second claim) and 42 U.S.C. § 1983 (third claim). Defendant Denver Public School Board has moved to dismiss the plaintiff’s second and third claims pursuant to Fed.R.Civ.P. 12(b)(6). Defendant further seeks dismissal of the plaint...
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MEMORANDUM On July 2,1990 plaintiff Transport Workers Union of Philadelphia, Local 234 moved for reconsideration of an order entered June 18, 1990 and to alter judgment. Fed. R.Civ.P. 59(e). The order denied plaintiff TWU’s motion to file a third amended complaint by adding to the action six named individual plaintiffs and their damage claims, together with a class of plaintiffs to be represented...
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*66 MEMORANDUM AND ORDER On July 28, 1989, the individual defendants in this case, Federal Drug Enforcement Agents Henry P. Roy and John Adams, in the midst of an investigation, entered the residence of the plaintiffs, Jorge Sarit and Denny Espaillat, conducted a search and then seized $41,448.00 in United States currency. Since then, the plaintiffs have tried, in a number of way...
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MEMORANDUM AND ORDER This is an action by Victor DeCosta for infringement of his trademark and/or service mark rights and for unfair competition under both common law and the Lanham Act (15 U.S.C. §§ 1114(1) and 1125(a)). The case is presently before the Court on the motion of Viacom International, Inc. (“Viacom”) to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or, in the alternative, for s...
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759 F. Supp. 638 (1991) The ANESTHESIA ADVANTAGE, INC., a Colorado corporation; Konstantine Kalandros, CRNA; Scott McGlothlen, CRNA; G. Edward Oswald, CRNA; and Raymond Golden, CRNA, Plaintiffs, v. The METZ GROUP, an unincorporated association; David Heisterkamp, M.D.; Joseph Verbrugge, M.D.; Steven Caputo, M.D.; and Ronald Stevens, M.D., Defendants. Civ. A. No. 86-B-1235. United States District ...
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MEMORANDUM AND ORDER The defendants in this case are Dr. William Chang, a physician employed by the State of Rhode Island to administer medical services to inmates incarcerated in the Adult Correctional Institutions, John Moran, former Director, Department of Corrections, “Unknown Members of the Rhode Island Adult Correctional Institute [sic] Medical Staff, Unknown Adult Correctional Inst...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the Motion to Dismiss, filed by the defendants, Linda R. Van Gundy, Jack J. Genova, and Michael J. Genova, on May 4, 1990. The defendants base their motion on Rule 12(b)(2) of the Federal Rules of Civil Procedure, and contend that the plaintiff, Pollution Control Industries of America, Inc.’s (hereinafter referred to as “P.C.I.A.”) C...
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ORDER Before the court is plaintiff Credit Reinsurance Services, Inc.’s (“CRS”) motion to transfer venue. After careful consideration of the briefs and memoranda submitted by counsel and the record as a whole the court hereby issues the following order. A brief procedural history of the various disputes around which this case revolves clarified the court’s ruling. On January 18, 1989, Life of the ...
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MEMORANDUM This is the third in a trilogy of cases brought by plaintiff seeking recovery for damage done to a sculpture during a customs inspection. In an earlier opinion, I dismissed plaintiff’s claims in two companion actions. Those actions were brought against the United States pursuant to the Federal Torts Claim Act (FTCA), 28 U.S.C. §§ 2671 et seq., and against individual ...
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MEMORANDUM OPINION AND ORDER This case, one alleged to be within diversity jurisdiction, initially came to the attention of the Court on the motion of defendant Flame Refractories, Inc. to dismiss the action as barred by the applicable statute of limitations. Upon a review of the pleadings, however, this Court raised sua sponte the issue of whether it had subject matter jurisdi...
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MEMORANDUM OPINION In the first paragraph of its complaint herein, plaintiff Benetton Services Corporation (“Benetton”) describes this action as one in which “... an award of damages [is sought] against the defendant as a result of an attachment proceeding sued out in the Circuit Court of Jefferson County, Alabama.” Benetton complains that defendant Benedot Corporation’s (“Benedot”) attachment de...
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MEMORANDUM OPINION AND ORDER Came on to be considered the motion of defendant, Fina Oil & Chemical Company (“Fina”), to dismiss the claims of Texas Oil Marketers Association, Inc. (“TOMA”), for failure to state a claim pursuant to Fed.R. Civ.P. 12(b)(6). By way of such motion, Fina contends that TOMA lacks standing to bring the above-numbered action. For the reasons stated below, the court agrees...
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OPINION AND ORDER Pan Am Corporation, et al, debtors and debtors in possession (collectively “Pan Am”) filed a petition for reorganization under Chapter 11 of the Bankruptcy Code (the “Code”) on January 8, 1991. On February 22,1991, Pan Am moved in the Bankruptcy Court for the Southern District of New York, by order to show cause, for an order authorizing it to cure defaults in...
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OPINION AND ORDER Before the Court is the motion of defendant Bekins Moving & Storage, Inc. (“Be-kins”) for an Order pursuant to Fed.R.Civ.P. 60 vacating the Second Amended Default Judgment (“Second Default”) previously entered against defendant and for an Order pursuant to Fed.R.Civ.P. 62(b) staying enforcement proceedings relating to the Second Default. Plaintiff Ernest Moore (“Moore”), who is ...
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MEMORANDUM OPINION AND ORDER On November 21, 1988, Stewart S. Peacock’s creditor filed a petition placing him in Chapter 7 bankruptcy. That same day, one of the creditor’s attorneys, J.P. Coleman, attempted to serve Peacock. Coleman took the summons to Peacock’s place of business (Spaulding & Co., where Peacock served as president) and left it with one of the store employees. Seven months...
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MEMORANDUM OPINION AND ORDER Pending before the Court is Plaintiffs Motion in Limine. The instant issue is item number four of that Motion, regarding the Equal Employment Opportunity Commission (EEOC) determination of “no probable cause” on the merits of Plaintiffs EEOC charge of sex discrimination against her former employer, the Defendant in this action. Having considered the Motion as to tha...
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MEMORANDUM I. BACKGROUND Plaintiffs J. Albert Dame and Pennsylvania Broadcasting Associates, II, commenced this diversity action against defendants on September 11, 1990. Plaintiffs allege that they suffered damages due to the professional negligence of the defendants, J. Dominic Monahan, Esquire and the law firm of Dow, Lohnes & Albertson. On October 8, 1990 the defendants filed a motion to dism...
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MEMORANDUM AND ORDER On November 27, 1990, this court held that the defendant law firm, Wolf, Block, *304 Schorr and Solis-Cohen, had violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., by-considering the gender of the plaintiff, Nancy Ezold, in its decision not to admit her to the partnership. 751 F.Supp. 1175. This court al...
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MEMORANDUM AND ORDER This is a suit to recover coal excise taxes paid by plaintiff Darrell Davis d/b/a Davis Enterprises (Davis Enterprises) for the first quarter of 1981 and by plaintiff Midwest Coal Corporation1 (Midwest Coal) for the third quarter of 1986. Before the Court are cross-motions for summary judgment. The parties are in agreement over the facts surrounding this dispute. They disagree...
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MEMORANDUM OPINION AND ORDER Plaintiff the Resolution Trust Corporation (“RTC”) in its capacity as receiver and successor in interest to Central Federal Savings Bank, FSB (“Central Federal”) brings this action by way of an order to show cause seeking an order from the court requiring defendants Leonard Elman and Berger, Steingut et al. (collectively “the Firm”) to turn over files relating...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION AND PROCEDURAL HISTORY James McCoy (McCoy) filed a “Petition for Remission or Mitigation of the Forfeiture” and “Civil Complaint-in Tort Claim 28 U.S.C. § 1355- § 903-9 U.L.A. 187” with attachments on January 10,1991. His petition and the attached exhibits appear to be photocopies of papers prepared by Robert B. Mozenter, Esq., acting as McCoy’s co...
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MEMORANDUM & ORDER Plaintiff Alfred P. Reeves originally filed this action on June 23, 1989, asserting five claims for: (1) wrongful discharge under the federal securities laws; (2) wrongful discharge in breach of an alleged implied contract of employment; (3) severance benefits under New York law; (4) severance benefits accrued under the Employee Retirement Income Security Act of 1974, a...
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OPINION Dominick Pilotti petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988). Pilotti was convicted of murder in the second degree, N.Y. Penal Law § 125.25 (McKinney 1987), after a jury trial in the Supreme Court of New York, Bronx County (Schackman, J.). He was sentenced to a term of imprisonment of twenty years to life. The Appellate Division affirmed the conv...
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MEMORANDUM The question presented in this declaratory judgment action is whether a September 24, 1986 Agreement between the Baltimore and Ohio Railroad Company (“B & O”), the predecessor of CSX Transportation, Inc. (“CSXT”), and the City of Baltimore (the “City”) is a valid and binding contract. 1 *282 The Agreement pertains to the reconstruction of two railroad bridge...
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ORDER AND OPINION This is an action for damages arising out of an alleged fraudulent scheme to sell interests in a limited’ partnership. Plaintiffs allege that defendants have violated section 29(b) and section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78cc(b) and 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5. Plaintiffs also seek recovery under the...
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This is an appeal from a judgment entered in the Bankruptcy Court. Honorable Beryl E. McGuire, United States Bankruptcy Judge, granted appellees’ motion for summary judgment and denied appellant’s motion for summary judgment by oral decision after argument. After considering proposed findings of fact, Judge McGuire issued supplementary findings of fact and conclusions of law and entered judgmen...
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MEMORANDUM These three actions raise the question of whether an inmate’s constitutional rights *526 are violated when he is placed on administrative segregation on the basis of an allegation made to prison authorities that he constitutes an escape risk. 1 Civil No. 89-2489 is brought by Kenneth A. Jackson, Jr., against Barbara A. Bostick, Commissioner of Correction...
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MEMORANDUM AND ORDER These parties have been before this Court on a number of occasions. In order that the Court’s time and energy are not wasted, I will confine my discussion only to the facts pertinent to the motion currently before me. On May 18, 1990, this Court issued a preliminary injunction against David LaRoche, Q.L.C.R.I. and the La-Roche Grantor Income Trust ordering the pumping...
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DECISION AND ORDER BACKGROUND On April 19, 1990, plaintiffs Stephen, Barbara, Cyril, and Carol Kohlbeck (“the Kohlbecks”) commenced a Title 42 United States Code § 1983 action in this court alleging that the defendants, the Village of Pulaski and the Pulaski Village Board members (“hereafter Pulaski”) had violated their federal constitutional rights by rescinding their mobile home park permit and...
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MEMORANDUM This case arises out of a franchise agreement between plaintiff, AAMCO Transmissions, Inc. (ATI) and defendant, William Harris. 1 ATI commenced this diversity action in June of 1989, alleging breach of the franchise agreement and violations of the Lanham Act. Harris has asserted a variety of counterclaims. Now before the court is ATI’s motion for summary judgment on ...
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OPINION I. INTRODUCTION In this complex action, the government has filed a complaint alleging Medicare/Medicaid fraud by Kensington Hospital (Kensington); a Kensington Hospital administrator Eileen Hause (Hause); Parkway Laboratories (Parkway); and seven individually named doctors: Nelliate Shyama-lan, M.D. (Shyamalan); Tarun Ray, M.D. (Ray); Felix Spector, D.O. (Spector); Erich A. E...
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759 F. Supp. 872 (1991) NATIONAL SECURITY ARCHIVE, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant. Civ. A. No. 88-1507-LFO. United States District Court, District of Columbia. March 18, 1991. *873 *874 Michael S. Horne, Martin Wald, Covington & Burling (Elliott Mincberg, People for the American Way, Sheryl Walter, Nat. Security Archive, of counsel), Washington, D.C., for plaintiff. ...
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OPINION This case is before the Court on appeal from the bankruptcy court’s order awarding attorney fees to Frank D. McAlpine, attorney for appellant’s trustee, in the amount of $38,000. This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 158. The bankruptcy court’s findings of fact should not be set aside unless clearly erroneous. Bankruptcy Rule of Procedure 8013. Facts ...
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OPINION This quiet title action comes before the Court on cross motions for summary judgment. One of the defendants, Federal Deposit Insurance Corporation (FDIC), filed a motion for summary judgment on June 25, 1990. Plaintiffs responded by filing a motion for summary judgment on September 17, 1990. Plaintiffs’ complaint, filed June 20, 1990, seeks a declaratory judgment to quiet title in plainti...
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ORDER Before this court is defendant’s Motion for Judgment on the Pleadings and/or for Summary Judgment, filed August 6, 1990. Plaintiff filed its response on September 10, 1990. Defendant filed his reply on September 19, 1990. For the reasons set forth below, defendant’s motion will be granted as a Motion for Summary Judgment. I. STATEMENT OF FACTS On July 16, 1990, plaintiff One Toma, Inc. (“On...
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MEMORANDUM AND ORDER The defendant, General Motors Acceptance Corporation (“GMAC”), moves to dismiss this action under Rule 12(b)(6) of the Federal Rules of Civil Procedure alleging that the plaintiff has failed to state a claim upon which relief can be granted. Our jurisdiction is based upon diversity of citizenship. Factual Background The plaintiff, Stuart A. Eisenberg, represented defe...
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OPINION AND ORDER This is an action against an insurance broker for breach of an agreement to procure effective insurance coverage. Defendant, H.E. Yerkes and Associates, Inc., (“Yerkes”) moves this Court to dismiss the complaint, pursuant to Fed.R.Civ.P. 41(b), for plaintiffs alleged failure to prosecute the case. In the alternative, defendant seeks dismissal of the action pursuant to Fed.R.Civ....
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MEMORANDUM OPINION The two defendants in this case have moved to dismiss Counts I, II, IV, and V on the grounds that they are pre-empted by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Defendants additionally seek to dismiss defendant Beth Neuberger, and to strike plaintiffs’ jury demand. The motions have been fully briefed, and no ora...
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MEMORANDUM OPINION This case comes before the court on defendants’ motions for substitution of parties and dismissal or summary judgment. 1 After consideration of the parties’ briefs and the record herein, defendants’ motion for substitution is granted and motion for dismissal is granted in part and denied in part. BACKGROUND 2 On March 17,1987, at approximate...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Plaintiff contends the Internal Revenue Service (IRS) wrongfully assessed taxes against him and collected or attempted to collect those taxes by way of a levy or levies filed pursuant to 26 U.S.C. § 6331. He brings this suit to obtain declaratory and injunctive relief alleging jurisdiction under various criminal ...
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ORDER This matter is before the court on a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate incarcerated at the Lansing Correctional Facility, Lansing, Kansas, filed this complaint on behalf of himself and those similarly situated. The relief sought includes damages, including back wages and penalties, which plaintiff alleges are owed to all state prisoners in...
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*642ORDER Before me is plaintiffs motion in limine “to determine the effect of the admission of liability by Defendant Westway Motor Freight, Inc.” In May, 1987, plaintiff, Eastman Kodak, shipped a load of sensitized photographic material from its production facility in Colorado. The load was shipped on a truck operated by Westway Motor Freight, a common carrier. The load was destined for a Kodak...
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OPINION The matters before the court are 1) the second renewed motion for summary judgment of the defendants and the counter-claimant, United States of America (# 150); and 2) the motion for summary judgment of the plaintiff, Neal Rendleman, M.D. (# 157). *843 FACTS Some of the facts stated are taken from the opinion in Rendleman v. Bowen, 860 F.2d 1537 (9th ...
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ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S COUNTER-MOTION TO DISMISS OR ABSTAIN OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT, OR, IN THE FURTHER ALTERNATIVE, FOR RELIEF UNDER FEDERAL RULE OF CIVIL PROCEDURE 56(f) Plaintiffs William S. Richardson, Henry H. Peters, Oswald K. Stender, Myron B. *1479 Thompson, and Matsuo Takabuki (“plai...
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MEMORANDUM This case is before the Court on the defendant’s, Leonard J. Sarnia, motion for summary judgment and motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and 56(c). The plaintiff, David E. Zeller, commenced this action against the defendant seeking relief under the Fair Credit Reporting Act (“FCRA” or the “Act”). 15 U.S.C. § 1681 et seq. (1982 & Supp.1990)....
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ORDER AND NOW, this 15th day of March, 1991, upon consideration of the Report and Recommendations of the United States Bankruptcy Judge of August 19, 1990, and the objections thereto of debtor-defendant, and in accordance with Bankr.Rule 9033(d), it is hereby ORDERED as follows: 1. The objections are overruled; as the Bankruptcy Judge concluded in his Report and Recommendations, this...
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MEMORANDUM-DECISION AND ORDER BACKGROUND Plaintiff Louis A. Stilloe (“Stilloe”) alleges that in 1988 the New York State Department of Environmental Conservation (“DEC”) determined that certain barrels containing hazardous substances were being stored without proper authorization at 810 Jackson St. in Broome County, Bing-hamton, New York (“the site”). These barrels were being stored i...
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ORDER On August 30, 1988, the government initiated a civil forfeiture action under the Controlled Substances Act, 21 U.S.C. § 881, alleging that defendant property was used to distribute and facilitate the distribution of heroin and cocaine. Presently pending is plaintiffs motion for summary judgment.1 For the following reasons, plaintiff’s motion is denied. I. BACKGROUND On three separate occasio...
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MEMORANDUM OPINION AND ORDER On October 2,1988, a 1969 Beech aircraft burst into flames after landing short of the runway at the airport in Scottsdale, Arizona, resulting in the death of pilot Neil W. Beckman and causing severe injuries to plaintiff Barbara Beckman, her minor child Paul Beckman, and plaintiffs Chriss Carr and Paula Carr. Plaintiff Beckman and plaintiffs Carr filed separat...
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MEMORANDUM OPINION AND ORDER Plaintiff is the bankruptcy trustee for Unzicker Trucking, Inc. Between January 3, and December 5, 1985, Unzicker transported shipments of freight for the defendant, ConAgra. The freight was shipped in interstate commerce under bills of lading, and freight bills. The shipping rates were contained in tariffs which were published with the Interstate Commerce Com...
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ORDER On September 6, 1990, plaintiff Racine Federated, Inc. (“Racine Federated”) filed *483this patent infringement action alleging infringement of patent no. 3,805,611 (“ ’611 patent”) issued to it on April 23, 1974, and covering a fluid flow meter (Complaint, ITU 1-9). After being served with Racine Federated’s complaint on September 7, 1990, defendants Lake Monitors, Inc., and Jack E. Lake con...
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MEMORANDUM I. BACKGROUND Plaintiff Pennsylvania House, Inc. (“Pennsylvania House”) filed this diversity action 1 against defendants Nola Barrett, Edward Barrett and Laura Cruickshank to recover sums owed for furniture which it supplied to a retail furniture store, Heritage House Interiors, Inc., d/b/a Heritage House (“Heritage House”). Heritage House was owned and managed ...
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MEMORANDUM OPINION AND ORDER Defendant, Beach Terrace Motor Inn, Inc. (Beach Terrace) has filed a motion to dismiss plaintiffs’ complaint pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction. Although I find that this court lacks personal jurisdiction over the defendant, I will deny the motion, and instead transfer this action to the United S...
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OPINION AND ORDER This matter is before the Court on cross motions for summary judgment brought by both parties, pursuant to Rule 56 of the Federal Rules of Civil Procedure. In addition, defendant Northbrook Excess & Surplus Insurance Company (“Northbrook”) has moved to strike the summary judgment motion of its opponent, plaintiff CPC International Inc., (“CPC”), for its failure to comply...
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MEMORANDUM AND ORDER This matter is before the Court on plaintiff’s motion for entry of final judgment and for award of attorney’s fees, and on the motion of plaintiff’s attorney, Dennis Fox, for allowance of attorney’s fees. By order dated June 29, 1990, this Court reversed the Secretary’s decision denying benefits and remanded this case to the Secretary for a calculation of benefits. Plaintiff ...
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OPINION AND ORDER The defendant, Williams Hospitality, has filed a Motion for New Trial or Alternatively for Judgment Notwithstanding the Verdict (JNOV). This is a tort suit filed by the plaintiffs, Edward Van Blargan and Rose Van Blargan, under the laws of Puerto Rico. The plaintiff alleged that the defendant Williams Hospitality, as operator and manager of the El San Juan Hotel & Casino...
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ORDER This matter is before the court on numerous post-trial motions. Plaintiff moves the court for judgment notwithstanding the verdict (JNOV) pursuant to Rule 50(b) of the Federal Rules of Civil Procedure on the issue of breach of contract. Defendant moves for JNOV on the issue of breach of *288 fiduciary duty or in the alternative a new trial pursuant to Rule 59(a) of the ...
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MEMORANDUM OPINION AND ORDER DISMISSING PLAINTIFF’S ACTION AGAINST DEFENDANT DARLING & COMPANY, WITHOUT PREJUDICE, PENDING EXHAUSTION OF ADMINISTRATIVE REMEDIES On August 17, 1990, plaintiff, Mary M. Ollson, individually, and as personal representative of the estate of Frederick J. Oll-son, commenced this action in the Circuit Court for the County of Wayne.1 On September 14, 1990, defendant Darli...
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ORDER Before the Court is the defendants’ Motion to Dismiss and Motion to Strike. The plaintiff has responded and the defendants have filed a reply brief. As grounds for the motion, the defendants state that plaintiff is deceased and no party may be substituted for him under the Rehabilitation Act; that plaintiff has failed to exhaust administrative remedies; and that the United Stat...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS BENEFIT TRUST LIFE INSURANCE COMPANY’S AND MACCABEES LIFE INSURANCE COMPANY’S MOTIONS FOR DISMISSAL On August 17, 1990, plaintiff, Mary M. Ollson, individually, and as personal representative of the estate of Frederick J. Oll-son, commenced this action in the Circuit *383 Court for the County of Wayne. 1 On September...
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OPINION AND ORDER The Court has before it several post trial motions. The individual state defendants Dr. Gumersindo Blanco, Dr. José R. González Inclán, and Dr. Pedro J. Santiago Borrero have filed a Motion for Judgment Notwithstanding the Verdict (judgment n.o.v.) under Rule 50(b) of the Federal Rules of Civil Procedure or for a New Trial pursuant to Rule 60(b)(1) and (3) of the Federal...
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OPINION The matter before the court is the petition for a writ of habeas corpus filed by Scott Marvin Malosh seeking an order of this court requiring the Bureau of Prisons to credit against his federal sentence the time he resided in and worked at Fort *621Lewis Army Base, Port Lewis, Washington. FACTS Malosh is a prisoner at FCI Sheridan. He was sentenced on December 29, 1989 to thirty months in ...
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This case involves a challenge to one aspect of the Medicare hospital reimbursement scheme. Plaintiff alleges that the portion of the regulatory scheme which characterizes hospitals as “urban” or “rural” for purposes of reimbursement under the Prospective Payment System, or PPS, violates the statute under which the regulations were promulgated, is arbitrary and capricious and, as applied to plaint...
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OPINION AND ORDER I. INTRODUCTION United Paperworkers International Union (hereinafter “UPI”) initially filed a complaint asking this Court to order Boise Cascade (hereinafter “Boise”) and Specialty Paperboard Inc. (hereinafter “SPI”) to arbitrate a grievance filed by the Union. The grievance relates to the removal of a job classification from the collective bargaining agreement and ...
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759 F.Supp. 1339 (1991) LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, Michael Allen, Wa-swa-gon Treaty Association, Thomas Maulson, Robert Martin, Nick Hockings, Gilbert Chapman, Plaintiffs, v. STOP TREATY ABUSE-WISCONSIN, INC., Dean Crist, Al Soik, Elaine Soik, Wayne Pieper, Tommy Handrick, Glen Handrick, Howard Caputo, Charles Ahlborn, Mike Ahlborn, Jack Lanta, Rose Lanta, Lois Pavlov...
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758 F.Supp. 608 (1991) SOUTHERN PACIFIC TRANSPORTATION COMPANY, Plaintiff, v. MAGA TRUCKING COMPANY; et al., Defendants. No. CV-N-89-352 BRT. United States District Court, D. Nevada. March 14, 1991. *609 Alfred Osborne, Reno, Nev., for plaintiff. Charles W. Spann, Reno, Nev., for defendants. ORDER DENYING SUMMARY JUDGMENT BRUCE R. THOMPSON, District Judge. This action was brought by Southern Pac...
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RULING Plaintiff, presently immured under the authority of the Louisiana Department of Corrections, brings this civil rights action against the named defendants asserting *1155 generally that the defendants violated his constitutional rights by obtaining or facilitating both his arrest in Florida and subsequent extradition to Louisiana. 42 U.S.C. § 1983. Among others, plaintiff brought this a...
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OPINION On July 10, 1986, Rita Deck purchased the prescription drug Asendin from Sullivan Drugs, Inc. and Terry McBrien, a pharmacist employed by Sullivan. The drug was not dispensed in a child-proof container as required by federal law. One month later, on August 15, Rita’s 2lk year old daughter, Brandi, ingested the drug and, as a result, sustained severe and permanent i...
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ORDER RE DISCOVERY The court held a discovery hearing in the above captioned case on March 7, 1991. Having considered the parties’ oral and written submissions, and having conducted an in camera review of certain documents, the court hereby enters the opinion and the orders that follow. Introduction Plaintiffs’ motion to compel raises issues of first impression that have important implications ...
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MEMORANDUM OPINION AND ORDER Richard Hoffman Corporation, Inc. (“Hoffman”) has brought suit against Loews Merrillville Cinemas, Inc. (“Loews Cinemas”), Loews Theatre Management Corp. (“Loews Management”), Columbia Pictures Entertainment, Inc. (“Columbia”) and Sony U.S.A., Inc. (“Sony”). Hoffman's Complaint purports to ground federal jurisdiction (a) on diversity-of-citizenship grounds, (b) under ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This cause is before the Court on Defendant’s, motion for summary judgment, filed September 9, 1990, and response thereto, filed December 20, 1990. 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 genuine issue as to any material fact when all the evi...
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MEMORANDUM OPINION AND ORDER Defendants ITT Corp. (“ITT”), ITT Consumer Financial Corp. (“ITT Financial”), Aetna Finance Co. (“Aetna"), and ITT Lyndon Life Insurance Co. (“ITT Insurance”), a group that we will refer to collectively as the “ITT defendants,” have moved to dismiss the three-count class action complaint filed by Zenovia Elliott. The complaint alleges violation of the Racketee...
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OPINION AND ORDER PROCEDURAL BACKGROUND Plaintiffs initial complaint, filed in state court on June 12, 1990, contained four counts alleging sexual harassment by the University of Vermont (hereinafter “UVM”) and the two individual defendants. Count I alleges a violation of the Vermont Fair Employment Practices Act by virtue of unfair sexual and religious discrimination in the workplac...
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MEMORANDUM OPINION AND ORDER FIMSA, Inc. (“FIMSA”) has sued Uni-corp Financial Corporation (“Unicorp”) and Marvin Rosenblum (“Rosenblum”) to recover on guaranties executed by both defendants. On June 5, 1990 this Court issued the “Opinion” denying FIMSA’s first motion for summary judgment on the grounds that defendants had amended their answer to add two affirmative defenses: tortious ...
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MEMORANDUM OPINION AND ORDER Publications International, Ltd. (“PIL”) filed this action seeking a declaratory judgment that its admittedly unlicensed book, “Welcome to Twin Peaks — A Complete Guide to Who’s Who & What’s What,” does not infringe any trademark or copyright registered or owned by Twin Peaks Productions, Inc. (“TP Productions”). 1 28 U.S.C. §§ 1332, 1338, 2201, 220...
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*1110 MEMORANDUM I. BACKGROUND This action was commenced by plaintiffs on November 26, 1988. In response to the defendants’ motions to dismiss the complaint, plaintiffs filed an amended complaint on March 7, 1989, pursuant to Fed.R. Civ.P. 15(a). Once again, all of the defendants have filed motions to dismiss the complaint. This action arises from the acquisition of Pac...
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MEMORANDUM OPINION AND ORDER Defendant Plastore, Inc. (“Plastore”) has moved to dismiss the complaint filed against it by Robert T. Holtz, d/b/a R.T. Holtz & Co. (“Holtz”). The complaint seeks damages under Ill.Ann.Stat. ch. 48, paras. 2251-2253 (Smith-Hurd 1986 & 1990 Supp.), which provides a cause of action for sales representatives who allege that they are owed sales commiss...
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ORDER Plaintiff in this case alleges that he was terminated in violation of his constitutional right to due process. Defendants contend that plaintiff did not have a contract of employment. Based on this contention, defendants have moved to dismiss plaintiff’s complaint. For the reasons stated herein, defendants’ motion to dismiss is granted. I. FACTS From 1979 to 1988, plaintiff Larry Kuhn-hoffer...
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MEMORANDUM OPINION AND ORDER In this diversity action presently pitting one medical malpractice insurer against another, the issue relates to the proper allocation of costs incurred in defending malpractice actions. Following extensive discovery, the parties cross-move for summary judgment under Rule 56, Fed.R.Civ.P. BACKGROUND Since the mid-1960’s, physicians who are members of the Medical...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT The cause is before the Court on Defendant’s motion for summary judgment on breach of contract claim, filed December 27, 1990, and response thereto, filed February 1, 1991. 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 genuine issue as to any material...
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ORDER ON MOTIONS The cause is before the Court on responses from both parties to this Court’s order of February 22, 1991; motion to adjudicate charging lien; and motion for reconsideration. MOTION TO ADJUDICATE CHARGING LIEN Plaintiffs’ former counsel Merkle & Mag-ri, P.A. filed a motion to adjudicate a charging lien against Plaintiffs on February 22, 1991. To date no objection ...
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ORDER ON MOTION TO DISMISS This cause is before the Court on Defendants’ motion to dismiss filed August 15, 1990, and response thereto filed August 29, 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 OPINION AND ORDER An Illinois criminal trial court convicted petitioner Robert Gaston of armed robbery and home invasion in March 1983. We have before us now both Gaston’s habeas corpus petition and respondent Jerry Gilmore’s motion to dismiss the petition for failure to exhaust state court remedies. For the reasons set forth below, we grant Gilmore’s motion and dismiss the petition. Th...
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ORDER ON MOTIONS The cause is before the Court on the following motions, responses and pleadings: 1. Stan Stapleton’s motion for leave to join as party plaintiff, filed August 30, 1990. (Docket No. 10). 2. Defendant’s opposition to motion for leave to join, filed September 10, 1990. (Docket No. 14). 3. Plaintiffs’ reply to opposition to motion for leave to join, filed Septe...
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MEMORANDUM OPINION AND ORDER Defendant NPC, Inc. (“NPC”) has moved to transfer venue or to dismiss for lack of personal jurisdiction. DEV Industries, Inc. (“DEV”) filed its complaint against NPC and Transcontinental Printing, Inc. alleging breach of a Settlement Agreement (“Agreement”). For the reasons set forth below, we transfer venue to the United States District Court in Oregon. ...
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759 F.Supp. 467 (1991) Robert E. DIETRICH, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. Civ. No. H90-053. United States District Court, N.D. Indiana, Hammond Division. February 22, 1991. *468 Jerry T. Jarrett, Hammond, Ind., for plaintiff. Frank J. Galvin, Jr. and Robert H. Bahner, Hammond, Ind., for defendant. MEMORANDUM OPINION AND ORDER LOZANO, District Judge. The matters before...
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OPINION In these two death penalty habeas corpus cases, petitioners seek reconsideration of orders by the magistrate judges setting hearings that have come to be known as “Neuschafer hearings”. 1 At such a hearing the magistrate judge proposes to question the petitioner concerning the existence of any unexhausted habeas corpus claims. The stated primary purpose of th...
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OPINION AND ORDER This Court, having reviewed and accepted the Report and Recommendation of Magistrate Francis dated December 19, 1990; having denied the petition for habeas corpus by Order dated January 15, 1991 and filed January 16, 1991; having reviewed the petitioner’s motion for reargument filed January 29, 1991 and having denied said motion on February 22, 1991, denies petitioner’s request f...
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ORDER INTRODUCTION This wrongful termination from employment action comes before the court for the consideration of defendants’ post-trial motions. Defendants move the court (1) for relief from the state district court’s previous denial of defendants’ post-trial motions pursuant to Fed.R.Civ.P. 60(b); and (2) for amended findings of fact, conclusions of law and judgment pursuant to F...
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MEMORANDUM AND ORDER In April 1989, plaintiffs (collectively referred to as “Downie”) filed a class action lawsuit challenging the policies and practices of the Illinois Prisoner Review Board (“the Board”) in parole revocation hearings. Since the institution of the litigation, the parties have settled most of their disputes, and the cross motions for summary judgment now before the court ...
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ORDER Plaintiff Isaac Roby has filed a pro se complaint charging defendant Officer George Skupien with violating Roby’s constitutional rights. Officer Skupien has responded by moving to dismiss the complaint. Plaintiff, in turn, has filed a motion for judgment. For the reasons stated below, Officer Skupien’s motion to dismiss is denied. Plaintiffs motion for judgment is also denied. I. Moti...
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DECISION AND ORDER Lawrence F. Tranello (“plaintiff”) commenced this action on May 2, 1988, against defendants Thomas R. Frey, individually and as Monroe County Executive, Patrick M. Malgieri, individually and as Monroe County Attorney and the County of Monroe (County). Plaintiff claims that the defendants discriminated against him by terminating his employment as a Deputy County Attorney...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT The cause is before the Court on Defendants DeeDee Jane Brown and Jim’s Hardware & Supply’s1 motion for summary judgment or, in the alternative, to stay action, filed August 27, 1990, and response thereto, filed September 18, 1990. *1466This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden ...
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MEMORANDUM This matter is before the Court on defendants’ joint motion for summary judgment and motion to dismiss defendants Délo and Bowersox. Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against several officials at the Potosí Correctional Center (PCC). In his complaint plaintiff alleges eight specific violations concerning four disciplinary hearings held on November 7, 1989, invol...
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*1470 ORDER ON MOTION TO DISMISS This cause comes before the Court on Defendant Desoto County’s motion to dismiss, filed July 11, 1990 and supplemental authority filed August 10,1990. Plaintiffs’ complaint and demand for jury trial, filed on June 15, 1990, notice of supplemental authority, filed August 16, 1990, and response thereto filed August 2,1990, alleges Defendants Desoto County and Ed...
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*923 MEMORANDUM ORDER This action was brought in 1983 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging employment discrimination on the basis of sex. Plaintiff had been dismissed from her position as marketing manager in the bag packaging division of the St. Regis Paper Company (“St. Regis”) in 1981 for reasons St. Regis stated were econo...
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MEMORANDUM OPINION This matter is before the Court on Defendant James Edward Smith’s (“Smith”) motion to Dismiss Count I of the indictment and for a further hearing under Kast-igar. For the reasons discussed below, the Court will GRANT the motion to DISMISS Count I with respect to James Edward Smith, and will DENY the motion for additional hearings under Kastigar. I. FACTUAL BACKGROUND On February...
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AWARD OF ATTORNEY’S FEES SYNOPSIS Plaintiff EILEEN EVANS (EVANS) sued defendants PARADISE MOTORS (PARADISE), MICHAEL LONG (LONG) AND JOHN SLACK (SLACK), alleging violation of the Federal Odometer Act (15 U.S.C. § 1989(a)(2)), intentional misrepresentation, negligent misrepresentation, breach of contract and bad faith denial of contract. After a six-day trial a jury found PARADISE and LONG liable ...
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ORDER THIS CAUSE IS before the court upon the motion of the Plaintiff Securities and Exchange Commission (“S.E.C.”) for an order precluding the defendants from introducing any evidence in response to the S.E.C.’s Motion for Summary Judgment as to the Issue of Disgorgement. FACTS As is substantially set forth in the court’s Order of October 3, 1990, 755 F.Supp. 1018, the facts of this case are as ...
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DECISION AND ORDER INTRODUCTION Plaintiff, the State of New York (“the State”), brought this action to enjoin defendant, John K. DeLyser (“DeLyser”), from further construction and occupation of a residential structure on Sodus Bay, an inlet of Lake Ontario in Wayne County, New York. The complaint also requests compensatory damages and an order requiring DeLyser to post a $250,000 bon...
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*1047MEMORANDUM PROCEDURAL HISTORY Before the court is the petition of plaintiff, the Commonwealth of Pennsylvania, State Board of Vehicle Manufacturers, Dealers and Salespersons, (the Board) to remand this action for proceedings before the Board. The action arose out of a Rule to Show Cause issued to General Motors Corporation, Chevrolet Division, (General Motors) by the Board in response to a c...
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MEMORANDUM ORDER On November 7, 1990, the defendant, Jimmy Beaumont, was convicted by a jury of five counts relating to the manufacture and distribution of methamphetamine, including violations of 21 U.S.C. § 846, conspiracy to manufacture methamphetamine; 21 U.S.C. § 841(d)(1), possession of a listed chemical; and 21 U.S.C. § 843, various telephone counts. He is still awaiting trial on a related ...
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MEMORANDUM OPINION Pending are two pretrial motions: (1) Black & Decker and Better Mousetraps have moved to bar National Presto from seeking or recovering damages based upon a reasonable royalty; (2) National Presto has moved to strike two of Black & Decker’s affirmative defenses from its second amended answer. The first motion will be entered and continued, as discussed in the opinion be...
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ORDER GRANTING MOTION TO QUASH SUBPOENA DUCES TECUM This matter comes before the court on petitioner Rutherford Kinerics, Inc.’s (“RKI”) motion to quash subpoena duces tecum no. 12041CR, filed November 28, 1990. For the reasons below, the motion to quash is hereby GRANTED. I. On March 15, 1989, Bradley K. Edwards (“Edwards”), then President of RKI, wrote to the law firm of Patto...
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MEMORANDUM ORDER The Federal Deposit Insurance Corporation as Receiver for First Savings Association of East Texas (FDIC) filed a motion to vacate and set aside judgment of dismissal, and an amended motion to vacate and set aside judgment of dismissal. The United States of America (United States), plaintiff in the underlying forfeiture action, responded.1 The court has considered the motions and r...
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MEMORANDUM OPINION AND ORDER Before me are cross motions for summary judgment filed by defendant United States and plaintiff ICM Mortgage Corporation (ICM) on ICM’s complaint and the United States’ counterclaim. This dispute arises over the relative priority of competing liens held by ICM and the Internal Revenue Service (IRS) against certain real property. ICM asks that I declare its lie...
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MEMORANDUM I. Introduction. Defendant, Legg Mason Wood Walker, Inc. (Legg Mason), has filed a motion to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). The plaintiffs, James R. Denison and his wife, Theresa M. Deni-son, filed this lawsuit against Legg Mason, a stock brokerage, and the other defendant, Steven D. Kelly, a former broker for Legg Mason, alleging ...
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ORDER THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: Defendant, Legg Mason Wood Walker, Inc. (Legg Mason), has filed a motion to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). The plaintiffs, William S. Miller III, Joanne T. Miller, David H. Miller, Ann M. Snoddy and W.S. Miller And Sons, Inc., filed this lawsuit against Legg Mason, a stock brokerage, and the other defendant, Steven...
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*434 OPINION Plaintiffs have requested the court to reconsider its decision of October 30, 1990 granting defendants’ motion to dismiss plaintiffs’ Racketeer Influenced and Corrupt Organizations Act (RICO) claims on statute of limitations grounds. 1 See Panna v. Firstrust, 749 F.Supp. 1372 (D.N.J.1990). The court has reconsidered that decision and, after closer e...
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759 F. Supp. 341 (1991) Katie WEBER, Plaintiff, v. PORT ARTHUR SCHOOL BOARD and Port Arthur Independent School District, et al., Defendants. Marian BAZILE, Plaintiff, v. PORT ARTHUR SCHOOL BOARD and Port Arthur Independent School District, et al., Defendants. Civ. A. Nos. B-89-306-CA, B-89-589-CA. United States District Court, E.D. Texas, Beaumont Division. January 31, 1991. Kurt G. Clarke, Houst...
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ORDER This matter is before the Court on cross-motions for summary judgment the determination of which will by agreement of counsel be dispositive of the issues in this matter. Plaintiffs assert that a Consent Decree entered into in 1974 has by its operation denied them rights conferred by the laws of the State of Ohio. In accordance with Rule 52, Fed.R.Civ.P., the Court does hereby set f...
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759 F.Supp. 560 (1991) Douglas FRIESEN, Jr., Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant. No. 88-1573-C-5. United States District Court, E.D. Missouri, E.D. March 20, 1991. *561 Paul W. Kopsky, Richard R. Vouga, Kopsky and Vouga, Chesterfield, Mo., for plaintiff. James E. McDaniel, Robert Kaiser, Lashly, Baer & Hamel, St. Louis, Mo., for defendant. MEMORANDUM LIMBAUGH, District Judge...
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ORDER DENYING SUMMARY JUDGMENT This cause comes before the Court upon Defendants’ Motion for Summary Judgement on the basis of the qualified immunity defense of good faith, filed March 20, *796 1990. 1 After due consideration, it is hereby ORDERED and ADJUDGED that Defendants’ motion is DENIED. FACTS and PROCEDURAL HISTORY Plaintiffs Amended Complaint all...
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MEMORANDUM AND ORDER The defendant Sierra-Garcia moves pursuant to Rule 12(b), Fed.R.Crim.P., and pursuant to the Due Process and Double Jeopardy clauses of the Fifth Amendment, for an order dismissing the indictment on the following grounds: (1) Counts 2-4 and 6-8 are multiplicitous; (2) Counts 5 and 9 are multiplicitous; (3) Counts 1-4 and 6-8 fail to state cognizable offenses, and (4) ...
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OPINION AND ORDER Plaintiff Federal Deposit Insurance Corporation (“FDIC”) moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment in the amount of the unpaid balance of principal and interest due under a note for a principal amount of $300,000.00 and attorney’s fees, costs and disbursements. For the reasons stated below, the motion for summary judgment...
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ORDER Pending is the appeal of John E. Venn, Jr., as bankruptcy trustee, from the bankruptcy judge’s ruling on the parties’ cross motions for summary judgment. The bankruptcy judge granted summary judgment for Roberts Supply Co., Inc. (“Roberts”), defendant below, and denied the trustee’s motion. For the reasons stated below, I REVERSE and REMAND for further proceedings. The debtors,...
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STIPULATED ORDER APPROVING CLASS ACTION SETTLEMENT AGREEMENT On December 19, 1990, this Court provisionally approved the Stipulated Settlement Agreement submitted by the parties. Published notice of the pendency of the Settlement Agreement and of the fairness hearing was given to class members as provided in the Order Preliminarily Approving Stipulated Settlement Agreement by counsel for ...
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ORDER NATURE OF THE ACTION The plaintiff, Sally Conforte (“Con-forte”), commenced this action against the defendants, United States of America, Internal Revenue Service (“IRS”), and other named officers and agents of the IRS seeking (1) a preliminary and permanent injunction as to the sale of certain real property formerly titled in the name of Conforte pursuant to 26 U.S.C. § 7506; ...
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ORDER Now before the Court are motions by both parties in this action which previously was tried before a jury on August 8 and 9, 1989. A judgment against Defendant William Finnel was entered on August 9, 1989 and was subsequently affirmed by the Eighth Circuit. Plaintiff Ronald Hankins has filed a motion for a writ of mandamus to stay state court proceedings and a motion for proceedings ...
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MEMORANDUM AND ORDER This matter is before the Court on Defendant City of Chesterfield’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This Court may grant a motion for summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any ma...
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ORDER ON MOTION FOR JUDGMENT OF ACQUITTAL This prosecution for mailing a “threat” involves rather bizarre behavior of Defendant. The evidence presents a tragicomedy from a Theater of the Absurd. The question is whether the letters were a threat. Defendant went “steady” with Kathleen McHugh in a high school near Chicago. She tried to break off the romance, but Defendant couldn’t accept it. She...
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OPINION AND ORDER Plaintiff, a black woman, brings this action alleging discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and alleging various state law violations including breach of contract, tortious inference with contract, negligent infliction of emotional distress and defamation. Defendant has moved t...
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*184 OPINION This is a motion brought by David F. Bolger (“Bolger”) and by Two-Forty Associates, a Pennsylvania limited partnership of which Bolger is the general partner (“Two-Forty Associates”) (collectively, the “Plaintiffs”), for preliminary and permanent injunctive relief. The Plaintiffs seek to enjoin First State Financial Services, Inc. (“First State”) from holding its 16 ...
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758 F.Supp. 782 (1991) John FORWARD, Plaintiff, v. George THOROGOOD, Jeff Simon, and Ronald Smith, Defendants. Civ. A. No. 88-1554-T. United States District Court, D. Massachusetts. March 21, 1991. *783 Kenneth M. Goldberg, Lynnfield, Mass., for plaintiff. Gordon P. Katz, Widett, Slater, & Goldman, Jay Fialkov, Boston, Mass., for defendants. MEMORANDUM TAURO, District Judge. I Background I...
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I. INTRODUCTION Pursuant to Federal Rule of Criminal Procedure 32(d), the defendant moves this Court to set aside his guilty plea to the charge of possessing with intent to distribute 5 or more grams of a mixture or substance containing detectable amounts of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii). The defendant makes two claims in support of the *903 motion: (1...
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MEMORANDUM AND ORDER Plaintiff Nester’s Map & Guide Corp. brings this action for copyright infringement, unfair competition, unfair trade practices, and trademark infringement contending that defendant Hagstrom Map Company copied certain portions of plaintiffs taxi driver’s guide. Defendant asserted a counterclaim contending that plaintiff’s use of the word “official” in the title of its ...
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MEMORANDUM AND ORDER This matter is before the court on motion of defendant and counterclaimant Kansas Power and Light Company (“KPL”) for an order allowing communication with the jurors in the above-captioned matter. In this case, the jury found for plaintiff Green Construction Company (“Green”) on its breach of contract claim and awarded plaintiff “$222,312.56 plus accumulated interest.” The ju...
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MEMORANDUM BACKGROUND Plaintiff Robert J. Beirne filed this diver *1122 sity action 1 in his capacity as Administrator of the Estate of James C. Benjamin, to recover for Benjamin’s death as a result of a fire that occurred at the residence of his mother, Winona Benjamin, on January 10, 1988. Defendant Security Heating—Clear-water Pools, Inc. (“Security Heating”) installed a wood-oil combi...
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MEMORANDUM OPINION On February 15, 1991, the parties in this matter appeared before this Court to argue cross-motions for summary judgment. This is an action challenging defendants’ failure to comply with various review procedures before approving § 2(a)(10)(L)(b)(110) of the D.C. Comprehensive Plan Amendments Act of 1989, an amendment to the District of Columbia Comprehensive Plan (the “...
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MEMORANDUM At approximately 5:30 a.m. on the morning of July 11, 1989, the fire department of Greensboro, North Carolina received a call to respond to a fire in the parking lot of an apartment building. When they arrived at the scene, they found a 1989 Buick Riviera fully involved in flames. Although the fire was extinguished within minutes, the car had burned to the extent that some of its gla...
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MEMORANDUM In this § 1983 action, plaintiff Edward Harris, an inmate and former parolee, claims to have been illegally detained beyond the expiration of his original sentence. Defendant Donald T. Vaughn, superintendent of the State Correctional Institution at Graterford, moves for summary judgment. Fed.R.Civ.P. 56.1 I. The following is undisputed: On April 9, 1985 plaintiff Edward Harris pleaded ...
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MEMORANDUM AND ORDER The case comes before the court on the defendant’s motion for summary judgment (Dk. 22) and motion to dismiss (Dk. 48). Plaintiff brings this civil rights action alleging certain of his constitutional rights *755 were violated when he was denied access to the Air Force One project area. Defendant argues in support of summary judgment that the plaintiff ei...
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MEMORANDUM AND ORDER On March 14, 1984, plaintiff Gillikin was an able-bodied seaman aboard the U.S.N.S. MAUMEE, an 85 class tanker, owned by the defendant, the United States, and operated by the Military Sealift Command through a contract operator. 1 On that day, Gillikin injured his knee while performing his duties during one of the MAUMEE’s transatlantic military missions. ...
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MEMORANDUM OPINION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW This is an employment discrimination action brought under the federal employee provisions of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 633a. On January 18, 1989, plaintiff Fred B. Ivey filed a complaint against James F. McGovern, then Acting Secretary of the Department of the Air Force, ...
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MEMORANDUM OPINION FACTUAL AND PROCEDURAL BACKGROUND Tim McAfee (“McAfee”) is the Commonwealth’s Attorney for Wise County, Virginia. He is also a Special Assistant United States Attorney for the Western District of Virginia. During 1988 and 1989, McAfee, as Commonwealth’s Attorney, unsuccessfully prosecuted the brothers Belcher, Marshall Edward (“Eddie") and Patrick Lee (“Patrick”), in the Ci...
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MEMORANDUM AND ORDER Petitioners David W. Reynolds and Great Northern Nekoosa Corporation are the fiduciary and sponsor, respectively, of an employee welfare benefit plan known as the GNN Employee Protection Plan, which is governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132, et seq. Petitioner Georgia-Pacific Corporation is the parent corporation o...
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ORDER Defendant Northern Rebuilders, Inc. (Northern) moves for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure against the plaintiffs, Kayser Ford, Inc. (Kayser), Fox Valley Ford-Nissan, Inc. (Yakim) and Gleue Ford-Lincoln-Mercury, Inc. (Gleue). This Court has jurisdiction based upon 28 U.S.C. § 1332. Defendant’s motion for summary judgment is granted. INTRODUC...
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ORDER Defendant here seeks credit for time served against her sentence as a result of a pre-trial conditional release in which she was under 24-hour house arrest. Defendant pled guilty to an information charging a violation of 21 U.S.C. § 841(a)(1). After making the calculations under the sentencing guidelines, this court sentenced defendant to sixty-three months, with a supervised releas...
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*563 MEMORANDUM AND ORDER BACKGROUND This is an action arising under the court’s diversity jurisdiction. 28 U.S.C. § 1332. Plaintiff Marjorie Ann Serio Gallagher alleges she was involved in an automobile accident, and suffered personal injuries as the result of the negligence of the other driver, Celeste Bergez. Defendant State Farm Mutual Insurance Company (“State Farm”) is the automobile ...
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758 F.Supp. 1317 (1991) Susan KRAMER, Plaintiff, v. ST. LOUIS REGIONAL HEALTH CARE CORPORATION, Defendant. No. 90-2342C(6). United States District Court, E.D. Missouri, E.D. March 20, 1991. *1318 Theodore Dearing, Dearing & Hartzog, St. Louis, Mo., for plaintiff. Michael P. Burke, Cornelius McGrath, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for defendant. MEMORANDUM GUNN, Dist...
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MEMORANDUM OPINION AND ORDER Defendant William P. Bailey (Bailey) moves for release pending appeal under Fed.R.App.P. 9(b). Bailey has not shown that he is not likely to flee, that his appeal raises a substantial question, and that there are exceptional reasons why detention is not appropriate. Therefore, his motion must be denied. Bailey is serving a five year prison sentence imposed after h...
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ORDER This matter was before the undersigned United States Magistrate on November 16, 1990 upon plaintiff’s motion for a protective order pursuant to Fed.R.Civ.P. 26(c) that discovery not be had. James M. Sherburne, Esq. appeared on behalf of plaintiffs. John M. Anderson, Esq. appeared on behalf of XIM Products, Inc. Ted E. Sulli*557van, Esq. appeared on behalf of Lindstrom Cleaning and Constructi...
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MEMORANDUM AND ORDER This action arises out of the review and disapproval by the Secretary of Agriculture (the “Secretary”) of the fiscal year 1989 state plan for administration of the Food Stamp Employment and Training (“FSET”) Program in the Commonwealth of Massachusetts (the “Commonwealth”). Both parties have filed motions for summary judgment,1 asking this Court to determine whether the Secre...
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OPINION AND ORDER This action is between two corporations involved in the transportation of goods and involves a dispute over demurrage charges. Before the court is defendant’s motion to dismiss based on want of federal jurisdiction. For the reasons outlined below, we deny defendant’s motion. I. Facts Plaintiff Trailer Marine Transport Corp. (“TMT”) is a Delaware corporation. Plaintiff maintains ...
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*1311 MEMORANDUM AND ORDER Nearly five years ago, plaintiffs Ivan Von Zuckerstein (“Von Zuckerstein”), De-vabhaktuni Ramaswami (“Ramaswami”), Han Chang (“Han Chang”), Mohan Jain (“Jain”), and Josip Vresk (“Vresk”) filed this action against defendant Argonne National Laboratory (“Argonne”), their former (or, in the case of Vresk, present) employer, under Title VII of the Civil Rig...
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MEMORANDUM OPINION Attorney Charles R. Willis appeals from an order of Bankruptcy Judge David P. McDonald of the United States Bankruptcy Court, Eastern District of Missouri, Northern Division, directing him to pay over to the trustee in the captioned matter $1,200 in legal fees received from the debtors. Appellant Willis challenges the Bankruptcy Court’s jurisdiction for its order, alleging:...
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OPINION Defendant Chemical Bank (“Chemical”) has moved pursuant to Rules 54 and 58 of the Federal Rules of Civil Procedure for entry of judgment in its favor in accordance with the opinion dated February 16, 1990, which granted its motion for summary judgment. Plaintiff Lund’s, Inc. (“LI”) has renewed its motion for reconsideration of the February 16 opinion. For the following reasons, the motion...
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*786MEMORANDUM OPINION AND ORDER I. INTRODUCTION Pending before the Court is the motion of defendant County of DuPage (“Du-Page”) for a directed verdict. For the reasons set forth below, the Court denies the motion. II. ANALYSIS Because this is a diversity case, the Court must look to Illinois law for guidance on the defendant’s motion for directed verdict. See Consolidated Bearings Co. v. Ehret-...
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OPINION AND ORDER This case arises out of a claim of age discrimination in violation of 29 U.S.C. § 621 et seq. (hereinafter the “ADEA”). On October 5, 1990 the jury returned a verdict for plaintiff, finding that the defendants violated the ADEA and that their actions were willful. Judgment awarding plaintiff $112,000 was entered on October 12. Pursuant to Fed.R.Civ.P. 50(b), o...
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OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW sitting as a United States District Court Judge by designation: INTRODUCTION Millie George (“George”), a black female employee of the United States Postal Service, brings this action under Title VII of the Civil Rights Act of 1964, § 701, 78 Stat. 253, as amended, 42 U.S.C. § 2000e, et seq., against Postmaster General Anthony Frank (“Postma...
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OPINION Plaintiff Paper Corporation of the United States (“Paper Corporation”) has moved pursuant to Rule 15, Fed.R.Civ.P. to amend its complaint in its action against defendant Schoeller Technical Papers, Inc. (“Schoel-ler”) as well as to compel discovery from Schoeller pursuant to Rule 37, Fed.R.Civ.P. The instant motions mark another round in the litigation between the sales representa...
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MEMORANDUM OF LAW Defendant Leona M. Helmsley moves to disqualify this judge from ruling on her motion for a new trial pursuant to Fed.R. Crim.P. 33. She argues, in substance, that hostility and antagonism demonstrated toward me by her lawyer prior to his representation of her makes it questionable whether I can act impartially in her case. Helmsley contends that my recusal is required un...
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MEMORANDUM AND ORDER Plaintiff Foreign Motors, Inc. (“FMI”), commenced this action in response to an attempt by the Defendants Audi of America, Inc. and Volkswagen of America, Inc. (hereinafter collectively referred to as “Audi”), to terminate FMI’s franchise to sell, lease and service Audi automobiles. Plaintiff’s complaint alleges that Audi terminated FMI's franchise arbitrarily and wit...
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OPINION Defendant Eugene T. Briody (“Briody”) and individuals allied in interest with him together with Local 1-2 Chapter (the “Local”) of the Utility Workers Union of America (“UWUA”) have moved for summary judgment dismissing the complaint of plaintiff Henry J. Helmer (“Helmer”) and individuals allied in interest with him. For the reasons set forth below, the motion for summary judgment is gr...
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MEMORANDUM OPINION AND ORDER This action has been heard on the motion of plaintiff Computer Care for a preliminary injunction against defendants Service Systems Enterprises, Inc. (“Service Systems”) and Larry Aronson (“Aronson”). 1 Both Computer Care and defendants, each *1334 represented by able counsel, appeared at the preliminary injunction hearing (the “Hearing...
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MEMORANDUM AND ORDER GRANTING MARSHAL’S REQUEST TO EVICT In November, 1990, Plaintiff brought this forfeiture action under 21 U.S.C. § 881(a)(7), alleging that Judith A. Baker used Defendant real property to commit a violation of the Controlled Substances Act. United States Magistrate Judge David M. Cohen issued a Warrant of Seizure and Arrest in Rem directing the United States Marshal to seize a...
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ORDER Pending before the Court are 1) Plaintiffs Motion to File First Amended Complaint, 2) Motion of Defendants Johnson to Dismiss, and 3) Default Judgment as to defendant Candy Crittenden. The action is one for declaratory judgment filed pursuant to 28 U.S.C. § 2201, et seq. Jurisdiction of the Court is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. The plain...
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MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANT ERNST & YOUNG’S MOTION TO DISMISS This case is one of numerous securities fraud claims brought against banks in the wake of the recent downturn in the New England real estate market.1 Plaintiffs are shareholders of Defendant The One Bancorp, a bank holding company. Plaintiffs allege that The One Bancorp’s 1987 and 1988 financial statements were ...
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OPINION AND ORDER 7. Introduction Before the court are defendant’s motions (1) for a new trial; (2) for disclosure, to interview jurors, and for a hearing on extraneous influences on the jury verdict; and (3) for judgment of acquittal. The government has opposed all of the motions. For the reasons herein stated, defendant’s motions are DENIED. II. Background A. The Jury Tampering Incident Defen...
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*251OPINION AND ORDER Wong Chi Keung was convicted by a jury on charges that he conspired to possess with intent to distribute more than 20 kilograms of a substance containing a detectable amount of heroin, and did possess more than a kilogram of such a substance, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C) and 846. The Court of Appeals then vacated the conviction and remanded the ca...
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MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO STRIKE CLAIMS Both Katherine Baker Carter and Kristina Baker have asserted claims to Defendant property in this forfeiture action. The Government has moved for entry of default against these claimants for failure to file an answer. The Government has also filed a motion to strike their claims on the grounds that neither claimant has standing to contest...
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MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE IN RESPECT TO NONUSE OF SEAT BELTS This is an action to recover damages on behalf of the operator of a motor vehicle and minor passengers of that vehicle as the result of a collision which occurred on July 13, 1988, on Route 1 in Orland, Maine. The action is brought against the United States of America under the F...
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ORDER DENYING GATX’S MOTION FOR SUMMARY JUDGMENT AND GRANTING BOEING’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST GATX INTRODUCTION The issues addressed in this order arise from several motions. First, GATX moved for summary judgment. Boeing then responded by filing its own cross-motion for partial summary judgment against GATX. GATX then filed its reply in support of its own m...
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OPINION AND ORDER A special proceeding brought by Novelty Textiles, Inc., pursuant to §§ 5225(b) and 5227, N.Y.Civ.Prac.L. & R., against the shareholders of a judgment debtor was tried before me on consent of the parties pursuant to 28 U.S.C. § 636(c). Judgment in favor of the petitioner in the amount of $203,491.23 was thereafter duly entered. During the trial, respondents moved to amend the Con...
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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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MEMORANDUM DECISION AND ORDER On November 13, 1990, plaintiffs’ motion to amend complaints and for partial summary judgment, defendant National Steel and Shipbuilding Company’s (“NASSCO”) motion to dismiss amended cross claims, and defendant Cleveland Machine Controls’ (“CMC”) motion for leave of court to file counterclaims and cross-claims came on for hearing before the Honorable Earl B. Gilliam...
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ORDER AND OPINION ON MOTION FOR SUMMARY JUDGMENT Defendants have moved for summary judgment on all causes of action. The motion has been opposed, argued, and sub *601 mitted for decision. The court has reviewed the moving papers, the opposing papers, the very substantial factual record filed in support of and in opposition to the motion, 1 the arguments of counsel,...
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MEMORANDUM AND ORDER After a bench trial on plaintiff’s claims, the Court finds in favor of defendant/third-party plaintiff. BACKGROUND This bifurcated action was tried by the Court without a jury. Having heard and carefully considered all the evidence in this matter, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rule...
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MEMORANDUM AND ORDER This is a religious discrimination action, brought by The Equal Employment Opportunity Commission (“EEOC”), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1345. The EEOC charges that Remedial Educational and Diagnostic Services, Inc. (“READS”) failed to hire Cynthia Moore (“Moo...
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MEMORANDUM AND ORDER Plaintiffs Michael Corrente and Richard Alan Burke are correctional officers at the Rhode Island Adult Correctional Institutions (“ACI”). They allege that in Novem *76 ber of 1989 an inmate at the ACI was assaulted by fellow correctional officers. Plaintiffs contend that they reported the incident and identified the officers responsible for the assault. A...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on Motor Wheel Corporation’s (“Defendant”) Motion To Compel Production Of Privileged Documents filed March 14, 1991. Kelsey-Hayes Company (“Plaintiff’) filed a response in opposition to Defendant’s motion. Defendant’s motion is granted as modified by this Court’s order. Defendant has charged Kelsey-Hayes Corporation (“Plaintiff’) w...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The following constitute the Findings of Fact and Conclusions of Law required by Rule 52 of the Federal Rules of Civil Procedure. FINDINGS OF FACT Kay Austen was found to have become “permanently and totally disabled for work *614 as of January 19, 1987” by the decision of the Director, Disability Compensation Division, Department of Labor and Indus...
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OPINION This is a Title VII action instituted in 1986 by plaintiff, United States of America (“Government”), against defendant, City of Warren (“Warren” or “City”). Presently before the Court is the Government’s motion for preliminary injunction which seeks to enjoin Warren from using a firefighter “eligibility list” (“1989 eligibility list”) created as a result of a recruitment effort for fire p...
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ORDER THIS CAUSE has come before the Court upon the defendants’ Motion To Amend Notice of Removal. The defendants also have filed an Amended Notice of Removal. PROCEDURAL HISTORY On November 8, 1990, the plaintiff filed his complaint in the Circuit Court of the 15th Judicial Circuit, in and for Palm Beach County, Florida. It is unclear from the record when the plaintiff first served the defendant...
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Lucia Vanderwalk moved to a sofa and took a seat by the tea service. It was a signal for the men to sit. Her hands moved powerfully, gracefully, over the silver, seeming to communicate with it. “Tell me about yourself, Leftenant.” She pronounced his rank that way, British. Lef not lou. “I was born in New York, I grew up in New York, I became a cop in New York.” ...
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MEMORANDUM OPINION AND ORDER Petitioner, Kenneth David Caley, at the time an inmate at the Lakeland Correctional Facility of the Michigan Department of Corrections, filed a petition for writ of ha-beas corpus on August 13, 1990, challenging his confinement for parole violation on the ground that the Michigan Parole Board denied him a revocation hearing by relying on an unconstitutional provisio...
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OPINION This matter is before the Court on plaintiffs motion for an award of attorney’s fees, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C.A. § 552(a)(4)(E). Also before the Court is defendant’s motion to strike plaintiff’s supplemental mem-oranda and for sanctions. On July 31, 1986, this Court granted summary judgment in favor of the defendant. Tax Analysts v. United States Dept, o...
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*384 MEMORANDUM OPINION In this civil rights action complaining of overcrowding in the Philadelphia County prisons, the court approved a Stipulation and Agreement of the parties and entered it as an order of the court. That Order of March 11, 1991, revises and replaces in part a Consent Decree in effect since December 30, 1986. The court now states its reasons for approval. ...
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MEMORANDUM OPINION AND ORDER This case concerns an ongoing dispute between the United States of America and Cook County over the imposition of ad valo-rem property taxes by Cook County on two federal buildings being purchased by the General Services Administration on an installment basis pursuant to the Purchase Contract Program, 40 U.S.C. § 602a. Both parties have filed motions for summary jud...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff sued defendants for breach of state law fiduciary duties, civil violation of *1550 the Racketeer Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. § 1961 et seq., and violation of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. The alleged violations ste...
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MEMORANDUM OPINION AND ORDER Spraying Systems Company (“Spraying Systems”) has sued Delavan, Inc. (“Dela-van”) to obtain (1) cancellation of Delavan’s two federal trademark registrations for various spray nozzles and related goods bearing the mark “COLOR JET,” alleging likelihood of confusion (Count I) and fraud in the procurement (Count II), and (2) in-junctive relief on several claims: ...
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ORDER ON MOTIONS TO DISMISS Rainsford J. Winslow and other named and unnamed plaintiffs (collectively, “Win-slow”) commenced this action on December 11, 1990. 1 The complaint names as defendants certain public officials and entities, other individuals, three law firms, and 200 unnamed “John/Jane Doe” defendants. 2 The allegations in the complaint are grouped by defen...
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OPINION This matter is before the Court on plaintiff’s motion to remand. Defendants have 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 Oakland County Circuit Court. Defendants removed this case to this Court on the basis that the Employee Retirement Income Security Act o...
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OPINION This is a Title VII action 1 instituted in 1986 by plaintiff, United States of America (“Government”), against defendant, City of Warren (“Warren” or “City”). Presently before the Court are two motions: (1) the Government’s renewed motion for partial summary judgment, and (2) Warren’s renewed motion for summary judgment. 2 I. Background In 1958, Wa...
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OPINION This matter is before the Court on plaintiffs’ request for a permanent injunction barring the display of a menorah on Calder Plaza.1 Plaintiffs filed their complaint in this matter, accompanied by a motion for a preliminary injunction, on November 13, 1990. The Court held a hearing on plaintiffs’ motion on December 5, 1990. At the hearing, the Court granted the plaintiffs’ motion and enjo...
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ORDER Introduction This diversity action arising out of a helicopter crash is before the court upon defendant Bell Helicopter Textron’s (“Bell Helicopter”) motion for summary judgment. For the reasons set forth below, the court grants defendant’s motion. Background Plaintiff Robert Gerhard (“Gerhard”) was employed as a helicopter pilot by Claire Flying Service, an agricultural spraying business. O...
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OPINION AND ORDER This action, brought by plaintiffs under the provisions of Bivens v. Six Unknown Named Agents, 1 is now before the Court on defendants’ motion to dismiss (docket entry 8) and the corresponding opposition (docket entry 11). The basis for the action is main plaintiff Millie Padro’s claim that her constitutional right not to be deprived from liberty an...
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*665 MEMORANDUM OPINION AND ORDER Plaintiffs are members of a class of disabled individuals who were denied care under Colorado’s Home and Community Based Services program. HCBS is a program administered by the Colorado Department of Social Services. The program provides various statutorily defined services designed to assist disabled people to live at home and avoid nursing institutions. T...
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ORDER AND REASONS This matter came before the Court on the objection of defendant Bradford Marine, Inc. (“Bradford Marine”) to Magistrate’s ruling of March 15, 1991, allowing the plaintiff, a Jones Act seaman, to amend her complaint to add her spouse, Tommy Cater, and his claim for loss of “society.” Defendant argues that Miles v. Apex Marine Corporation, — U.S. -, 111 S.C...
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MEMORANDUM OPINION AND ORDER This action comes before the court as an appeal from orders of the United States Bankruptcy Court, Northern District of Texas, Fort Worth Division, the Honorable Massie Tillman presiding. The court, having reviewed the briefs of appellant, Council of Apartment Owners of Bellaire House Condominiums, Inc., (“Council”), and appel-lee Richard D. Yentis (“debtor”),...
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RULING ON MOTION The motion by defendants Co-Mar Offshore Marine Corp. (“Co-Mar”) and Conoco Inc. (“Conoco”) for partial summary judgment as to claims by Mrs. Carolyn Turley for loss of consortium, loss of services, and loss of society was submitted on a prior date. Plaintiff Mr. Turley filed suit on July 11, 1990, against Co-Mar for injuries he allegedly sustained while employed by Co-Mar on...
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MEMORANDUM AND ORDER 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 the la...
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759 F.Supp. 567 (1991) Robin Mabry HUBBARD, Plaintiff, v. SOUTHWESTERN BELL TELEPHONE CO., Defendant. No. 90-2244C(6). United States District Court, E.D. Missouri, E.D. March 25, 1991. *568 Susan E. Hamra, Chesterfield, Mo., for plaintiff. Christian A. Bourgeacq, St. Louis, Mo., for defendant. MEMORANDUM GUNN, District Judge. This matter is before the Court on the plaintiff's motion to remand an...
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*1181 ORDER AND REASONS This matter came before the Court on Motion of defendant, Aetna Casualty & Surety Company (“Aetna”) for Summary Judgment. The gravamen of Aetna’s motion is that summary judgment is proper either because the policyholder validly rejected uninsured and underinsured (“UM”) coverage altogether, and/or that a valid selection of lower UM limits was made, which l...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the court on a motion for summary judgment by the County Defendants and a motion for summary judgment by the City Defendants. The court has reviewed the motions, the exhibits, the entire court file, the applicable law, has heard argument from counsel in open court, and is fully advised in the premises. The court incorporates herein its oral co...
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OPINION This matter is before the Court on plaintiff’s motion for a preliminary injunction. Upon consideration of the pleadings, the parties’ oral arguments, and the entire record herein, the Court denies plaintiff’s motion. Background This is an action for breach of contract, breach of fiduciary duty, tortious interference, unfair competition, and injunctive relief enforcin...
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MEMORANDUM ORDER This matter is before the Court on defendant J. Michael Slocum’s motion for partial summary judgment, defendant Family Federal Savings & Loan Association’s motion for partial summary judgment, and plaintiff’s motion to strike Family Federal’s motion. The facts of the case are set forth in detail in the Court's April 16, 1987, Memorandum Opinion, 659 F.Supp. 611, and will not be r...
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OPINION AND ORDER A requester who “substantially prevails” in litigation brought to obtain information from a federal agency under the Freedom of Information Act becomes “eligible” for an award of attorney’s fees under the statute. Before fees may be awarded, however, the requester bears the additional burden of demonstrating that he or she is “entitled” to the award, on the ground that s...
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*1506FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER BACKGROUND MeNeil-PPC (a subsidiary of Johnson & Johnson) has moved for a preliminary injunction against Procter & Gamble. P & G is introducing a product which PPC claims infringes on a PPC patent. The product is a new “ultra-thin” external feminine sanitary napkin which P & G plans to market under the brand name, “Always Sheer Confidence.” The ...
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ORDER This is a Title VII disparate treatment case in which plaintiff, a black male and Department of the Army civilian employee, claims that he (i) received an undeserved poor performance rating and subsequent unfair performance appraisals, (ii) suffered a wrongful deduction from his pay, (iii) was forced to accept a job reclassification, and (iv) was repeatedly relocated, all because of...
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MEMORANDUM AND ORDER The parties seek an entry of judgment. Fed.R.Civ.P. 58. Accordingly, the Clerk is directed to enter judgment against Owens-Illinois, Inc. in the amount of $0.00. BACKGROUND By memorandum and order dated July 26, 1990, this court denied plaintiffs motion to set aside portions of the jury verdict assigning percentages of liability on asbestos-related claims to settling codefend...
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MEMORANDUM OPINION This case is before the Court for the second time, having already been remanded to the Circuit Court for Baltimore City by this Court’s Order dated July 6, 1990, under docket number Civil S 90-1363. Mesne proceedings in the Circuit Court for Baltimore City have resulted in the entry of an Order (within the last thirty days) by a judge of that court granting defendant su...
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MEMORANDUM Plaintiff Young-Robinson Associates, Inc. (“Young-Robinson”), a minority-owned small business based in Montgomery, Alabama, contends that the Air Force improperly solicited an interim contract for warehousing services at Gunter Air Force Base *213in Alabama as a small business set-aside when that contract should have been reserved for small socially and economically disadvantaged busin...
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ENTRY DENYING DEFENDANTS’ MOTION FOR RECUSAL I. General Background In the federal courts, a party with a reasonable suspicion that the judge is biased may seek to have the judge removed from the case. In such a situation, the judge is required to retire from the case if “an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal [...
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MEMORANDUM OPINION ORDER THIS CAUSE comes before the Court pursuant to the Parties’ Oral Argument with respect to the dispositive legal issues in the instant case. The undersigned ruled regarding a numbers of matters presented at Oral Argument in open court on February 21, 1991 — these oral rulings are incorporated herein. Because of dearth of case *809law in this area, however, this Court feels ...
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ORDER This matter is before the court on motion to dismiss filed by the defendants on December 24, 1990. Plaintiffs responded to the motion on January 11, 1991 and defendants replied to plaintiffs’ response on February 4, 1991. In deciding a motion to dismiss for failure to state a claim, this court must take the well pleaded factual allegations of the plaintiff’s complaint as true. Ashbrook...
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ORDER Plaintiffs Mergentime Corporation and Perini Corporation have moved to compel the defendant Washington Metropolitan Area Transit Authority (WMATA) to produce certain documents withheld on the basis of the attorney/client privilege. 1 The documents sought relate to communica *2 tions between WMATA and its counsel concerning the decision to terminate its Shaw and U Street Station contra...
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OPINION Within the zoning code of the Town of Orangetown is a provision which reads as follows: “No sign other than signs placed by agencies of the government shall be placed on any public property unless written consent is first obtained from the Or-angetown Town Board.” Zoning Code of the Town of Orangetown, § 4.28(c). 1 Plaintiff Steven Abel was a candidate for the position ...
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Currently pending before the court is Plaintiffs’ Motion to Amend and Defendant’s Motion to Dismiss. Each of the parties have briefed the respective motions which now await a ruling from the court. Background Facts The case at bar is a Title VII action in which the plaintiffs seek only to have the court determine if they are entitled to the remedies of reinstatement and attorney’s fees. The liab...
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MEMORANDUM OPINION I. BACKGROUND The Plaintiff, James D. Ricks, is a teacher in the District of Columbia public schools (“DCPS”) who desires to submit a nominating petition on or before April 30, 1991 for the presidency of the Washington Teachers’ Union (“WTU”). However, in November of 1990, after years of litigation surrounding the Plaintiff’s membership status in the WTU, an Arbitrator rend...
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OPINION On March 26, 1991, this Court heard oral argument on defendants’ Order to Show Cause why Counts I, II, III and IV of plaintiff’s Amended and Supplemental Complaint (“Complaint”) should not be dismissed. At that time the Court issued an oral Opinion denying defendants’ motion and reserved the right to issue a subse *364 quent written Opinion. The following constitutes that written Opin...
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MEMORANDUM In this diversity action — one of several similar actions, involving the same parties *69(and their corporate affiliates) and the same underlying transaction, being pursued simultaneously in federal and state courts both in Pennsylvania and in New York1 — defendant NAB Construction Company (NAB) has moved, pursuant to Rules 12(c) and 12(h)(2) of the Federal Rules of Civil Procedure, fo...
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MEMORANDUM AND ORDER Hill Petroleum Company (HPC) brings this diversity of citizenship action to recover money for petroleum products sold and delivered to defendant Pathmark International, Inc. The other named defendants are individuals who executed guarantees in favor of HPC. This matter comes before the court upon HPC’s motion for summary judgment against Pathmark and the guarantors. T...
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MEMORANDUM OPINION AND ORDER Plaintiff Christine Barsella brings this action pro se against the United States of America, various government agencies, various present and former government officials, and assorted other entities and individuals. The government moves to dismiss plaintiff’s amended complaint for failure to comply with Fed.R.Civ.P. 8(a) and for failure to state a cause of action unde...
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OPINION This is a personal injury action arising out of a multi-ear collision on February 27, 1988. At bar are the summary judgment motions of Agency Rent-A-Car, Ronald B. Fisher and Refiner’s Transport and Terminal Corporation. Plaintiffs allege that defendant Demetra Gikas (“Gikas”) crashed her rental car into a car driven by Constance Ingerson. Mrs. Ingerson was then rear-ended by a truck drive...
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ORDER Plaintiff brought this action to review a final determination of defendant Secretary of Health and Human Services denying plaintiffs claim for a period of disability, disability insurance benefits, and Supplemental Security Income benefits under the *107 Social Security Act. The court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(e)(3). Plaintiff’s present application for benefi...
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MEMORANDUM AND OPINION On January 19, 1988, PaineWebber hired Mr. Robert Berlacher as an investment executive in its Washington, D.C. office. Upon joining PaineWebber, Mr. Berlacher executed a Form U-4 — the Uniform Application For Securities Industry Registration Or Transfer — in which he agreed to arbitrate any claim or controversy that might arise between him and PaineWebber. On Februa...
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MEMORANDUM AND ORDER TABLE OF CONTENTS I. Introduction II. Procedural Background III. Facts A. Household Members B. Connection of Household to Drug Activity C. Clara Smith and the Apartment IV. Law Public Housing Forfeiture Preseizure Notice and Hearing Required Procedures to Obtain Forfeiture 1. Adequate Notice 2. Claimants’ Obj...
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MEMORANDUM OF DECISION In this action pursuant to 42 U.S.C. § 1983, plaintiff claims that defendant William Young, the Chief of Police for the Village of East Rochester, New York, violated his constitutional rights (1) by using excessive force during processing at the stationhouse in connection with an arrest otherwise conceded to be upon probable cause and (2) by denying him requested me...
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OPINION AND ORDER A class of private plaintiffs and the Equal Employment Opportunity Commission (“EEOC”) brought two civil rights actions in 1973 against the Newspaper and Mail Deliverers’ Union of New York and Vicinity (“NMDU” or “Union”) and more than fifty publishers and news distributors within the Union’s jurisdiction. Both suits charged that the Union, with the acquiescence of the publisher...
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759 F. Supp. 1337 (1991) Burl SPANGLER and Bonnie Spangler, Plaintiffs, v. SEARS, ROEBUCK AND CO. and Roper Corporation, Defendants. No. IP 87-1013-C. United States District Court, S.D. Indiana, Indianapolis Division. March 8, 1991. Morris L. Klapper, Klapper & Isaac, Indianapolis, Ind., for plaintiffs. William M. Osborn, Osborn, Hiner & Lisher, Indianapolis, Ind., for defendants. ENTRY DENYING P...
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MEMORANDUM AND ORDER This is a diversity of citizenship medical malpractice case arising out of treatment provided by Robert Quackenbush, M.D., to Wayne Fehrenbacher, from mid-1973 through mid-1982, in St. John, Kansas. Fehrenbacher claims that Quackenbush’s negligent prescribing of drugs has injured him and caused him to become addicted to various medications. Fehrenbacher also claims th...
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ORDER The plaintiff, a former West Point cadet, was separated from West Point on June 14, 1990. Prior to taking this action, the Army held a Full Honor Investigative Hearing (FHIH) on January 29, 1990 concerning allegations of lying and cheating. Complaint ¶ 6. The FHIH panel determined that the plaintiff had violated the Cadet Honor Code by cheating and later denying that she had cheated. Id....
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The United States brought the principal suit on behalf of the United States Postal Service (the “Postal Service” or the “Service”) to condemn land for the construction of a new General Mail Facility and Vehicle Maintenance Facility (“GMF/VMF” or “facility”) to serve all of Westchester and Putnam Counties, New York. 1 The City of New York (the “City”) filed a separate suit for declaratory and ...
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MEMORANDUM ORDER This matter comes before the court upon Julie Delaney’s motion to reconsider and to certify the question presented concerning the “loss of chance of a more favorable recovery” to the Kansas Supreme Court, or in the alternative to grant permission to take an interlocutory appeal to the United States Tenth Circuit Court of Appeals. Delaney primarily contends the court, in its Januar...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiffs, all major publishing houses in New York City, brought this suit against Kinko’s alleging copyright infringement pursuant to the Copyright Act of 1976. 17 U.S.C. § 101, et seq. More specifically, plaintiffs allege that Kinko’s infringed their copyrights when Kinko’s copied excerpts from books, whose rights are held by the plaintiffs, with...
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MEMORANDUM OPINION This admiralty suit arises from an allision 1 which occurred in the early morning *394 hours of January 21, 1990, when the tanker RICH DUKE struck the drillship NEDD-RILL 2, which was anchored and engaged in drilling operations off the coast of Aruba. The Court has jurisdiction pursuant to 28 U.S.C. § 1333. Plaintiffs, the owner, time charte...
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ORDER This matter is before the Court on plaintiff’s motion for preliminary injunction, pursuant to Rule 65, Federal Rules of Civil Procedure. A hearing was held on March 5,1991, at William Mitchell College of Law. The Court finds that it may not consider the requested relief as this Court is without subject matter jurisdiction. Background Plaintiff’s Airline Transport Pilot ...
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ORDER This matter is before the court on defendant’s motion to dismiss on the following grounds: 1. Lack of personal jurisdiction; 2. Improper venue; and 3. Insufficient service of process. In the alternative, defendant moves to transfer venue to the District of Connecticut pursuant to 28 U.S.C. § 1404(a). Also before the court is plaintiffs’ renewed motion to con...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS COMMON LAW CLAIMS THIS MATTER comes before the court on defendants’ motion to dismiss the government’s common law claims. Having reviewed the motion, together with all documents filed in support and opposition, and being fully informed, the court finds and rules as follows. FACTUAL BACKGROUND On December 10, 1988, near Lost Harbor, Al...
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OPINION The matter before the court is the motion for summary judgment (# 12) of the defendant, Protection Mutual Insurance Company (Protection Mutual). This is an action for breach of contract in which the plaintiff, Linnton Plywood Association (Linnton Plywood), seeks to recover damages under an insurance policy issued by Protection Mutual. UNDISPUTED FACTS Linnton Plywood is ...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS COMPLAINT THIS MATTER comes before the court on defendants’ motions to dismiss. 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. BACKGROUND This suit is a class action brought by plaintiffs Daley’s Dump Truck Se...
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MEMORANDUM OPINION Currently pending is the motion of the plaintiff, State Farm Mutual Automobile Insurance Company, for summary judgment. Defendants, Martin Hollingsworth and Leslie Borgognoni have timely responded. At issue is the interpretation of an automobile liability insurance policy issued to William Jordan, deceased, by the plaintiff. I.Factual Background Martin Hol...
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ORDER A number of discovery motions have been brought before the court by defendant Santos Valles. The court finds that certain of these motions are moot. The remainder are granted or denied for the reasons stated below. I. Motion to Preserve Agents’ Notes- First, defendant requests that government agents and local investigative personnel be required to retain and preserve all notes taken during t...
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MEMORANDUM AND ORDER Defendants Chase Manhattan Bank, Matthias & Berg, Jeffrey P. Berg, and Michael R. Matthias each move to dismiss the plaintiffs claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), the Securities Exchange Act of 1934, and state law, and defendant Gruntal & Company moves to dismiss plaintiffs RICO claim. For the reasons stated below, the motion ...
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OPINION AND ORDER Plaintiff Carlos Soba (Soba) has applied, pursuant to 42 U.S.C. § 1988, for attorneys’ fees in the amount of $251,768.40 and disbursements in the amount of $13,063.51 based on his having received a jury award of $60,000 against defendants McComiskey and O’Brien, members of the Police Department of the City of New York, for excessive use of force in effecting his arrest f...
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OPINION AND ORDER The Court has reviewed defendant Bankers Trust’s memorandum of law dated February 26, 1991 and the letter from defendant’s counsel dated March 7, 1991 enclosing a “bench memorandum,” as well as the letters from plaintiff Liberty Mutual’s counsel dated March 4 and March 18, 1991, respectively, and its “bench memorandum,” relating to the Court’s invitation for comments con...
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OPINION This is a consolidated appeal 2 from a bench opinion issued by the Honorable Helen S. Balick, Judge of the United States Bankruptcy Court for the District of Delaware, on January 30, 1991, in which Judge Balick ruled that creditors leasing aircraft equipment by “sale-leaseback” transactions are not entitled to rights under § 1110 of the bankruptcy code. 123 B.R. 713. ...
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OPINION Defendant George Friedman (“Friedman”) has moved for an order granting him reasonable expenses incurred in the defense of this action, including sanctions and attorneys’ fees, pursuant to 42 U.S.C. § 1988 and Rule 11, Fed.R.Civ.P. For the reasons set forth below, the motion is granted in part and denied in part. The Parties The plaintiff in the underlying action is the New Alliance Party...
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MEMORANDUM ORDER In 1984, plaintiff Continental Bank N.A. (“Continental”) loaned a substantial sum of money to a North Carolina corporation. After that corporation filed for bankruptcy, Continental demanded repayment from eight individuals who guaranteed the loan. Having been paid by five of the guarantors, Continental seeks payment from the remaining three: Robinson Everett, Kathrine Eve...
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ORDER Plaintiff in this insurance coverage dispute has filed a three-count complaint for declaratory relief. One of the defendants, the Chicago Housing Authority (“CHA”), *447 moves to dismiss Counts II and III of plaintiff's complaint. For the reasons stated herein, the CHA’s motion to dismiss is denied. FACTS Plaintiff Imperial Casualty and Indemnity Company (“Imp...
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RULING ON PLAINTIFF’S MOTION TO AMEND COMPLAINT Plaintiff brings this action pursuant to 42 U.S.C. § 1983, claiming he was unlawfully terminated from employment as a police officer by the defendants. On March 6, 1991 plaintiff filed a Motion for Leave to Amend Complaint. For the reasons articulated below plaintiffs motion will be DENIED. DISCUSSION I. Amendment Untimely Pursuant to Fed.R....
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OPINION AND ORDER The Court has before it plaintiff Nike International’s Motion for Summary Judgment on the Fourth Claim for Relief and defendant Venrod’s Opposition thereto. Defendant Athletic Sales Inc. (“ASI”) is judgment proof and thus has not filed a response to Nike’s Motion. On June 30, 1988, the District Court granted partial judgment by granting Nike’s request for declaratory jud...
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FURTHER ORDER ON MOTION OF FRED L. PROCTOR, SR. TO IMPOSE SANCTIONS UNDER RULE 11 (# 29) On February 21, 1991, I allowed the Motion Of Fred L. Proctor, Sr., To Impose Sanctions Under Rule 11 (# 29). The facts are that the original complaint was filed in the Suffolk Superior Court. The defendants removed the case to this Court on grounds of diversity of citizenship and the fact that the amount in ...
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OPINION AND ORDER Defendant AT & T moves pursuant to Rules 12(b) and (c) of the Federal Rules of Civil Procedure to dismiss the local law, state law and common law claims in Counts IV, V and VI of the complaint, which allege discrimination on the basis of sexual orientation and marital status and breach of contract, on the grounds that those claims are preempted by ERISA and that plaintif...
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ORDER AND OPINION This is an action for trademark infringement under section 32 of the Lanham Act, 15 U.S.C. § 1114, and for unfair competition under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and under common law. Plaintiffs now move for summary judgment on the issue of liability. For the reasons set forth below, plaintiffs’ motion is granted. BACKGROUND The essentia...
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OPINION Defendant SZS Associates, L.P. (“SZS”) has moved pursuant to Rule 56, Fed.R. Civ.P., for summary judgment of the personal injury action brought by plaintiff Eleanor Monaghan as guardian ad litem for her husband William Monaghan (“Mon-aghan” or collectively, the “Monaghans”). Additionally, SZS has also moved pursuant to Rule 26, Fed.R.Civ.P., for a protective order relating to certain ...
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MEMORANDUM OPINION AND ORDER Pro se plaintiffs Edith Cobb, Robert De Vario Harrison and Donnell Cobb commenced this action against the City and County of Denver, the State of Colorado, the Denver Department of Social Services, the Denver Department of Health and Hospitals, the Denver Public Defenders Office, Karen Mallender, Jeffery Pagliagua, Eileen White and Henricka Cantwell. Plaintiffs at...
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OPINION AND ORDER REJECTING RULE 11 PLEA AGREEMENT FACTS: Pursuant to a Rule 11 plea agreement, the Defendant, Andrea Lynn Muxlow, has pleaded guilty to one count of distribution of cocaine, a Schedule II narcotic controlled *1259 substance, in violation of 21 U.S.C. § 841(a)(1). The plea agreement provides that the maximum term of imprisonment shall not exceed 30 months. At the time of t...
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MEMORANDUM AND ORDER Plaintiffs brought this action pursuant to § 2 of the Voting Rights Act, 42 U.S.C. § 1973, as amended. Plaintiffs contend that the current at-large election scheme for electing school board directors in the Blytheville, Arkansas School District No. 5 violates the Act by effectively denying the black minority voters in the district an equal opportunity to participate i...
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OPINION & ORDER Plaintiffs move for a preliminary injunction ordering (i) defendants to conduct the next union membership meeting during proscribed month, (ii) to have a proposed by-law voted on at next union meeting, and (iii) to have access to, photocopy, and distribute union documents to the union membership prior to the next union meeting. For reasons to be discussed, plaintiffs’ moti...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT I.INTRODUCTION This four-count lawsuit is presently before the Court on four dispositive motions filed by the parties between November 20, 1989 and January 14, 1991. These motions are as follows: (1) Defendants’ Fed.R.Civ.Pro. 56 Motion for Summary Judgment on Counts I, II and III of Plaintiffs’ Compl...
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MEMORANDUM OPINION AND ORDER This cause is before the court on cross motions of plaintiff Palmer Exploration, Inc. (Palmer) for partial summary judgment and of defendant George Dennis for dismissal. The parties have each responded to the motion of the other and the court has considered memoranda with attachments submitted by both parties in ruling on the motion. The parties to this action wer...
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ORDER In their amended complaint, plaintiffs Dynabest Inc., (“Dynabest”), Dynabest (Hong Kong) Ltd., (“Dynabest H.K.”), and *706 Dalvey Products Supply Ltd., (“Dalvey”) bring a host of state and federal claims against defendants Jeff Yao, Midas-Lin Co., Ltd., (“M-L”), and Midas-Lin Chicago, Ltd., (“Midas”). Defendants Yao and Midas move to dismiss Count VII which alleges comm...
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OPINION AND ORDER Defendant moves for judgment on the pleadings and plaintiff moves to file a second amended complaint in this § 1983 class action, commenced by plaintiff pro se on June 10, 1985, seeking injunctive, declaratory and monetary relief from defendants who he alleges were responsible for the six-year delay in his state criminal appeal. 1 The facts underlyi...
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OPINION Oak Hollow South Associates (“Oak Hollow”) appeals from the dismissal of its Complaint Objecting to Discharge of Debt- or. This court has jurisdiction of the action pursuant to 28 U.S.C. § 158(a). For the reasons set forth below, I shall reverse the dismissal and order the complaint reinstated. *419 I.BACKGROUND The current dispute arose after the clerk of the b...
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OPINION AND ORDER Plaintiff Terje Nilsen, a resident of Monaco, charges that defendant Prudential-Bache Securities, Inc., a “futures commission merchant,” lied about and then “churned” his commodity option trading account, and thereby committed fraud in violation of sections 4b and 4o of the Commodity Exchange Act, as amended (“CEA”), 7 U.S.C. §§ 6b, 6o (1990). Nilsen has also brought sta...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of defendants Richard Wilbourn, Archie McDonnell, Sr. and Archie McDonnell, Jr. and the separate motion of defendants Citizens National Bank and Stonewall Bank for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs Jessie L. Johnston, Sarah Johnston and Fred F. Johnston, Jr. hav...
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DECISION AND ORDER Introduction Plaintiff William S. Flickinger commenced this action against defendants Harold C. Brown & Co. (“Brown”) and Bradford Broker Settlement, Inc., n/k/a Fidata Brokerage, Inc. (“FBI”), alleging against each defendant (1) violation of § 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j, and SEC Rule 10b-5 promulgated thereunder, 17 C.F.R...
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MEMORANDUM OPINION Introduction In this unusual case, a series of errors by local and state officials led to the mistaken *1158 arrest and jailing of plaintiff for failure to appear to serve a sentence he had in fact already served. The question presented by defendants’ summary judgment motions is whether the errors are intentional acts of constitutional magnitude so...
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BACKGROUND Plaintiff, Richard L. Sandstrom, (“Richard L.”) commenced this action on behalf of his son and legal ward, Richard C. Sand-strom, (“Richard C.”) against defendants ChemLawn Corp. and ChemLawn Services Corp. (collectively “ChemLawn”), seeking damages for injuries sustained by Richard C. allegedly as a result of exposure to pesticides used by defendants on lawns bordering plaintif...
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MEMORANDUM OPINION AND ORDER In this consolidated class action and shareholder derivative suit, plaintiffs are disappointed purchasers of securities issued by one or more of five real estate investment trusts and three real estate limited partnerships (collectively, “the funds”). The funds were allegedly sponsored by defendant VMS Realty Partners (“Realty Partners”). In connection with their inve...
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MEMORANDUM AND ORDER This cause is before the court on the defendant’s motion for summary judgment on the former Sharon Smith’s two-count complaint that defendant CSX Transportation, Inc. (“CSX”) violated the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”), with respect to her late husband, H. Freeman Smith. CSX denied the plaintiff’s claim f...
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765 F.Supp. 227 (1991) Salvatore N. VALENTI and Paula J. Valenti v. Donald W. SHEELER, individually and in his capacity as Chief of Police of the Manor Township Police Department; Gary L. Strock, individually and in his capacity as Officer of the Manor Township Police Department; and Peter J. Savage, Jr., individually and in his capacity as Officer of the Manor Township Police Department. Civ. A....
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MEMORANDUM OPINION On February 7, 1987, Kathleen Zlogar (“debtor”) filed a Chapter 7 bankruptcy petition. Zlogar’s only asset at issue here is an undivided one-half interest in her residence, the value of which was stipulated at $40,000 on February 27, 1987. There also exists competing liens on this interest which exceed $40,000. On May 12, 1987, the bankruptcy trustee filed a “no-asset” ...
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MEMORANDUM AND ORDER The appellants challenge the bankruptcy court’s dismissal of their adversary proceeding against The First Bank of Whiting (“First Bank”) on the grounds that it lacked subject matter jurisdiction. This court has jurisdiction over the appeal pursuant to 28 U.S.C. § 158(a). Before seeking relief under Chapter 11, debtor R.F.I. Services Corporation had obtained loans from First B...
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MEMORANDUM AND ORDER This litigation arises out of the May 9, 1987 crash of a LOT Polish Airlines (LOT) aircraft. Defendant LOT renews its motion to dismiss the Pogorzelska and Kiela complaints, brought by the representatives of two victims killed in the crash. The court denied the previous motion in a Memorandum and Order dated March 6, 1989, In re Air Crash Disaster Near Warsaw, P...
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MEMORANDUM OPINION The plaintiff, Howard Grafman, has filed this 8 count complaint alleging two separate injuries. The first is to himself, and the second is to the corporation, Century Broadcasting Corporation (“Century”). This opinion deals only with the latter. This court first discussed this action in Grafman v. Century Broadcasting Corp., 727 F.Supp. 432 (N.D.Ill.1989...
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MEMORANDUM OPINION Introduction Where a purchaser sues a seller alleging that the product sold is defective, the seller typically denies the product’s defectiveness, but also contingently impleads its source of supply for the product or the product’s manufacturer. In these circumstances, the seller must prepare two positions. Against the purchaser, the seller must prepare the position supportin...
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MEMORANDUM DECISION Having obtained a verdict that will produce cash benefits for the class of hundreds of millions of dollars, the plaintiffs’ counsel, Brown & Seymour, now moves for an award of attorneys’ fees and the appointment of a Special Master. The Department of Health and Human Services (“HHS”) opposes both applications. This case has an extensive history which has been repo...
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OPINION AND ORDER The plaintiffs, all former employees of the New York City Transit Authority (“TA”), challenge the TA’s drug testing requirements, methodology and policy, and also its disciplinary procedures as discrimi-natorily directed against minorities. The Amended Complaint alleges six causes of action throughout this sixty-nine page pleading with 323 numbered paragraphs, and the pl...
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MEMORANDUM OPINION AND ORDER Plaintiff William G. Riel commenced this action asserting claims for harassment and retaliatory discharge under 42 U.S.C. § 1981 (first claim), denial of equal employ *853 ment opportunity under 42 U.S.C. § 1983 (second claim) and denial of Fourteenth Amendment procedural due process under § 1983 (third claim). Defendants Gary Reed, Warren Fairfie...
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ORDER This cause is before the Court on both parties’ motions for summary judgment. The Court also has for consideration the defendant’s motion to strike certain affidavits filed by the plaintiff. The Court denies Defendant’s motion to strike certain affidavits filed by the Plaintiff in response to the Defendant’s motion for summary judgment. The Court has read those affidavits and h...
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MEMORANDUM OPINION AND ORDER This case requires the Court to consider the impact of the administrative claims procedures contained in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), 12 U.S.C. § 1821(d), upon the retaining and charging liens of attorneys who rendered services to an insolvent national banking association. Background On Dece...
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Plaintiffs Jennifer Loper and William Kaye have moved for an order pursuant to Rule 23(c)(1), Fed.R.Civ.P. for an order determining that this action brought, inter alia, under the First, Eighth and Fourteenth Amendments to the Constitution of the United States, is maintainable as a class action. The proposed class is defined as “all needy persons who live in the State of New York, who beg on the p...
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OPINION On November 3,1990, defendants Evelyn Rivera and Angel Rodriguez weré arrested by officers of the New York City Police Department in an apartment located at 1920 Anthony Avenue, Bronx New York, and transferred to the custody of Special Agents with the Bureau of Alcohol, Tobacco and Firearms (“ATF”). Rivera and Rodriguez were subsequently indicted and charged with possessing with intent to ...
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MEMORANDUM AND ORDER Plaintiff Barbara Samuelson alleges that her former employer and supervisor discharged her because of her sex and age and in retaliation for her earlier claim of sex discrimination. She relies on 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. § 623(a). Defendants Durkee/French/Ai...
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RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BACKGROUND Plaintiff, Nabisco Brands, Inc. (“Nabisco”) commenced this action against defendants Arnold Kaye and Arnie’s Deli, Ltd. (collectively “Kaye”) claiming that defendants’ use of the mark “A.2.” constitutes trademark infringement in violation of 15 U.S.C. § 1114. In addition, plaintiff claims that the use of the “A.2.” mark ten...
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MEMORANDUM OPINION AND ORDER This matter is before this court on the parties’ cross-motions for summary judgment on David Edward Maust’s (“Maust”) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Maust, a state pre-trial detainee, alleges that excessive delay in bringing him to trial has violated his sixth amendment right to a speedy trial, that he has been denied effective assis...
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MEMORANDUM AND ORDER This case comes before the court upon Frank R. Waitt’s motion to dismiss, pursuant to Fed.R.Crim.P. 12, the information filed against him upon the basis that the information fails to charge an offense pursuant to 18 U.S.C. § 213, which makes it a crime for a bank examiner to accept a loan or gratuity from any bank examined by him. Frank Waitt was a bank examiner. On October...
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MEMORANDUM AND ORDER Presently before the Court are defendant India Exotics’ (“India”) Motion to Withdraw 1 Adversary Action No. 90-2447, and *36 plaintiff Reading China & Glass Company’s (“Reading”) response. 2 For the following reasons, defendant’s Motion is DENIED. I. FACTUAL BACKGROUND On March 28, 1990, Reading filed a petition for Chapter...
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APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA This cause is before the Court on appeal from the Order granting Debtor’s Motion for Authority to Merge Defined Benefit Pension Plans entered on March 29, 1990, by Chief Bankruptcy Judge Alexander L. Paskay. STANDARD OF APPELLATE REVIEW Findings of fact by the Bankruptcy Court will not be set aside...
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OPINION AND ORDER This is an action by a clothing importer against its foreign suppliers and a non-vessel operating common carrier (“NVOCC”) for breach of contract, fraud, negligence and conspiracy. 1 On October 10, 1990 plaintiff filed (1) a motion pursuant to Rules 19, 20 and 21 of the Federal Rules of Civil Procedure to join a defendant and pursuant to Rule 37 to compel defe...
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DECISION AND ORDER Plaintiff moved by order to show cause for a preliminary injunction pursuant to Rule 65(a)(1) of the Federal Rules of Civil Procedure on January 18, 1991. After ordering the parties to provide the necessary discovery, the Court on its own motion set the matter down for hearing on March 12, 1990 and ordered that the trial of the action be advanced and consolidated with hearing of...
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MEMORANDUM OF DECISION AND ORDER This action concerns monetary damages pursuant to 42 U.S.C. § 1983. Defendants City of Irwindale, City of Irwindale Redevelopment Agency, City of Irwindale Planning Commission, and Carlos Alvarado moved for judgment on the pleadings of Plaintiffs’ Second Amended Complaint claiming that Plaintiffs have failed to allege the deprivation of any constitutionally prot...
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OPINION I. INTRODUCTION One of the constitutional dilemmas facing the federal judicial system today is the philosophical and legal conflict between the forces seeking the elimination of discrimination against females and racial minorities in the work place, and the impact that laws and legal decisions upholding minority rights have had against others seeking employment in that same w...
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MEMORANDUM AND ORDER An inmate contends that his transfer, through no fault of his own, to a prison with greater security and restrictions violated his constitutional rights. The various state and prison officials that he has sued have moved for dismissal or summary judgment. The plaintiff has filed his response, supporting affidavit, and exhibits in opposition to the motion. As per its order of ...
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*1548 ORDER ON MOTIONS TO SUPPRESS This cause is before the Court on Defendant Ibekwe’s motions to suppress statements and physical evidence, allegedly obtained in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments. The Court held a hearing on the motions February 7 and 8, 1991. On the Government’s motion, the Court reopened the hearing on March 28, 1991, for the taking of additi...
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MEMORANDUM AND ORDER On July 12, 1990, plaintiff Vanessa Sivig-lia instituted this action against her father, Dominic Siviglia, alleging that he sexually abused her for approximately ten years while she was a minor living at home. Plaintiff contends that her father engaged in various types of sexual relations with her, including fellatio and sexual intercourse. Plaintiff’s father appeared for a d...
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MEMORANDUM On September 12, 1990, Plaintiff, Architectural Systems, Inc. (“ASI”) filed suit seeking to recover the sum of $348,155.00 remaining unpaid under a subcontract entered into with the contractor, Gilbane Building Company (“Gilbane”), Defendant. On November 2, 1990, Gilbane filed this Motion for Partial Summary Judgment, stating that there were no disputed issues of material fact ...
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AMENDED MEMORANDUM OPINION and ORDER Introduction The U.S. Trustee (the UST) appeals Judge Ecker’s denial of its motion to dismiss the Harris’s (the debtors or, individually, Rhonda and Ron) Ch. 7 petition for substantial abuse under § 707(b). In re Harris, 122 B.R. 744 (Bkrtcy.D.S.D.1990). Jurisdiction This Court takes jurisdiction over this matter pursu...
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MEMORANDUM OPINION AND ORDER Plaintiffs, Illinois Council on Long Term Care (a non-for-profit health care association representing over 150 proprietary Illinois nursing homes) and three nursing homes with at least 70% Medicaid recipients as residents, bring this action for declaratory and injunctive relief against the director of the Illinois Department of Pub- *1310 lie Aid (IDPA), the state...
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MEMORANDUM OPINION AND ORDER Edward Hamilton (“Hamilton”) has sued former Director of the Illinois Department of Corrections (“Department”) Michael Lane (“Lane”), Stateville Correctional Center (“Stateville”) Warden Michael O’Leary (“O’Leary”) and three other Department officials — Vern Scott (“Scott”), Samuel Ingram (“Ingram”) and Abraham Flagg (“Flagg”) — under 42 U.S.C. § 1983 (“Sectio...
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MEMORANDUM OPINION AND ORDER Joseph and Noemi Andreuccetti appeal from Bankruptcy Judge John D. Schwartz’ confirmation of a plan of reorganization *186 pursuant to their Chapter 11 bankruptcy proceedings. Household Bank, f.s.b. (“Household”) moves to dismiss the appeal. For the reasons set forth below, we grant Household’s motion. The Andreuccettis argue that the reorgan...
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MEMORANDUM OPINION AND ORDER This cause is before the Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the Motion of Defendants for Summary Judgment. Plaintiffs have responded to the Motion. The Court, having considered the Motion and response, together with memoranda of authorities and attachments thereto, is of the opinion that Defendants’ Motion is not well taken ...
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*316MEMORANDUM OPINION AND ORDER This Court’s lengthy April 10, 1990 memorandum opinion and order (the “Opinion,” 736 F.Supp. 845 1) disposed of, via summary judgment under Fed.R.Civ.P. (“Rule”) 56, virtually all of the numerous claims asserted by 54 investors in one or more oil and gas limited partnerships. All that survived of this action was the claim brought under 15 U.S.C. § 77Z(2) (“Section...
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*1429MEMORANDUM OPINION AND ORDER By previous order I granted defendants’ motions to dismiss based on the exclusivity provisions of Colorado’s Workmen’s Compensation Act (the Act), Col.Rev.Stat. §§ 8-42-102, 8-52-102 (1986 Repl.Vol.). The Building and Construction Trades Department v. Rockwell International Corp., 756 F.Supp. 492 (D.Colo.1991). I dismissed the claims of the plaintiff unions, the ...
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MEMORANDUM AND FIRST ORDER ON DEFENDANT’S MOTION TO COMPEL FURTHER ANSWERS TO INTERROGATORIES (# 18), DEFENDANT’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (#20), AND PLAINTIFFS’ MOTION FOR A PROTECTIVE ORDER (# 25) The five-named plaintiffs (“the Funds”), employee benefit plans within the meaning of § 3(3) of ERISA, 29 U.S.C. § 1002(3), have instituted the instant...
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OPINION Plaintiff George A. Fuller Company (“Fuller”) commenced this action on Janu *383 ary 21, 1988 to recover $300,000 which it alleges was improperly released from escrow by escrow agents, defendants Alexander & Reed, Esqs. (“Alexander & Reed”). Fuller claims that Alexander & Reed breached the escrow agreement and their fiduciary duty by releasing escrow funds prior to th...
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OPINION Plaintiffs seek an order of this court declaring that O.R.S. 279.334(3) is constitutionally invalid in that it is preempted by the National Labor Relations Act, as amended, 29 U.S.C. §§ 151 et seq. (NLRA), and violates plaintiffs’ rights under the equal protection clause of the Fourteenth Amendment to the United States Constitution. Defendants contend that plaintif...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION The United States of America (the “government”) has appealed from an order of the Bankruptcy Court awarding attorneys’ fees and costs for the Internal Revenue Service's willful violation of the automatic stay of attempts to collect upon the pre-petition obligations of the debtors. In re Price, 103 B.R. 989 (Bankr.N.D.Ill.1989). ...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for trial on August 13, 1990 on the Defendant’s Counterclaims against the Plaintiffs for outrageous conduct, malicious prosecution, and for attorneys’ fees and costs pursuant to Fed.R. Civ.P. 11, 28 U.S.C. § 1927, and Colo.Rev. Stat. § 13-17-101 (1987 Repl.Vol.) for the bringing of a substantially frivolous and groundless action. Final argu...
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ORDER Patrick S. Cunan, claimant in these civil forfeiture proceedings, has moved to dismiss the Verified Complaint In Rem (“complaint”) filed by the plaintiff United States of America. Following hearing, the court addresses the issues raised by such motion and the plaintiff’s objection thereto. 1. BACKGROUND The complaint seeks forfeiture of the premises known as 155 Bemis Road...
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FINAL JUDGMENT The Court has reviewed the Report and Recommendation in this cause. The findings of fact and conclusions of law are adopted. Because the adjudication of contempt is an unconstitutional violation of the petitioners’ qualified privilege under the First Amendment, it is: ORDERED that the application for writs of habeas corpus is GRANTED and the sentences of 30 days e...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION This matter came before the court for hearing on January 14 and 15, 1991 on an order to show cause why defendant George R. Heublein should not be held in contempt for violating temporary restraining orders entered by the United States Bankruptcy Court on December 14, 1987 and December 30, 1987. The order of December 14, 1987 provid...
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*1069 DECISION AND ORDER INTRODUCTION Now before this Court for decision is defendant Bruce Mahon’s (“Mahon”) Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. Affiliated Capital (“plaintiff”) sues defendants jointly and severally for breach of contract, unjust enrichment and fraud seeking compensatory and punitive damages. By its breach of contract and unjust en...
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FINAL ORDER ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO COMPLY WITH DISCOVERY ORDER (# 19) On December 12, 1991, upon review of the pleadings in this case, I recommended that Defendant’s Motion To Dismiss Plaintiff’s Complaint For Failure To Comply With Discovery Order (# 19) be allowed and that the Complaint in the above-styled case be dismissed pursuant to Rules 16(f) a...
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OPINION Does a decision by a Public Law Board pursuant to the Railway Labor Act (RLA), 45 U.S.C. §§ 151-161 (1926), have a preclu-sive effect on the availability of damages in a subsequent action brought pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60 (1982)? In short, yes. I. Factual Background Plaintiff Daniel Kulavic (Kulavic), a car-m...
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ORDER In 1985, appellant, Universal Life Church (“ULC”), filed a petition in the tax court seeking redetermination of income tax deficiencies for the 1978, 1979, and 1980 tax years. Over a three year period, the trial date was continued four times, finally re-suiting in a December 4, 1989, trial date. On November 24, 1989, less than two weeks before the start of trial, ULC filed a motion ...
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MEMORANDUM OF DECISION AND ORDER Defendants Insco Limited, Old Republic Insurance Company, Nutmeg Insurance Co., Twin City Fire Insurance Co., Hartford Casualty Insurance Co., Pacific Insurance Co., and Hartford Fire Insurance Co. (collectively the “Issuing Company defendants”) move to stay this action in favor of arbitration based on the arbitration clauses in their reinsurance contracts...
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OPINION Presently before us is plaintiff’s appeal from the order of the Honorable Howard Schwartzberg dated August 17, 1990 which dismissed plaintiff’s complaint because it was time barred. 1 I. FACTS In September 1984, defendants/appellees Larrie S. Rockmacher and Phyllis Lee Rockmacher, husband and wife, purchased an interest in a limited partnership located in Pennsyl...
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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 six officials of IMCF. Plaintiff’s pro se complaint alleges that his First Amendment rights were violated when defendants rejected written materials sent to plaintiff by another inma...
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MEMORANDUM OPINION AND ORDER Pending before the Court are Defendant’s Motion for Judgment on the Pleadings or alternatively, for Summary Judgment, filed July 6, 1990, and Plaintiff’s Motion for Summary Judgment, filed October 12, 1990. After careful consideration of the Motions, the parties’ briefs and the applicable law, the Court is of the opinion that summary judgment should be entered...
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OPINION Plaintiff Cassie A. Hubbard1 filed an action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., on May 7, 1990. Service was not made until September 24, 1990. On November 9, 1990, defendant Aid Associates, Inc., filed a motion to dismiss based upon Fed.R.Civ.P. 4(j) by reason of plaintiffs failure to make service within 120 days of the filing of the complaint.2 This c...
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MEMORANDUM AND ORDER The defendants’ motions to dismiss the Complaint raise the novel issue of whether the defendants’ alleged fraudulent activity as trial counsel for the plaintiff’s attorney-decedent in tort litigation, is sufficient to state a claim for relief under the Racketeering Influenced Corrupt Organization Act, 18 U.S.C. § 1961, et seq. (“RICO”). I. BACKGROUND ...
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MEMORANDUM This diversity action stems from a business and development agreement entered into by plaintiff Hough/Loew Associates (Hough/Loew) and defendant CLX Realty Company (CLX). Defendant Martin H. Fowler is the President and Chief Executive Officer of CLX. Plaintiffs complaint asserts causes of action against both defendants for tortious interference with prospective contractual rela...
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*121 MEMORANDUM AND ORDER I. This is a prisoner civil rights case. 42 U.S.C. § 1983. Plaintiff Adam Danny Thomas (Thomas) was confined at the State Prison of Southern Michigan (SPSM) in Jackson, when defendants allegedly engaged in a series of actions violating the constitutional guarantee of due process and the Eighth Amendment’s prohibition against cruel and unusual punishment. Thomas’s c...
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OPINION AND ORDER This matter is before the Court pursuant to the motion filed by the defendants on April 4,1989, for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, and venue is proper in the Southern District of Ohio, pursuant to 28 U.S.C. § 1391(b). FACTS In January 1987, the Columbu...
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OPINION AND ORDER Defendant has moved for an order pursuant to Rules 11, 37(a) and 37(b) of the Federal Rules of Civil Procedure directing plaintiff (1) to produce certain documents allegedly previously demanded and ordered to be produced by this Court, (2) to conduct a thorough search of its records to be sure that all relevant documents have been produced, (3) to compel Sandy Wong, Vice Presiden...
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ORDER Defendant Miljack, Inc. and defendant Ryan and Davis, Inc. have moved to dismiss, stay, or transfer the action filed by plaintiff Budget Rent A Car Corporation (“Budget”). For the reasons stated below, the court grants defendants’ motion to stay. FACTS The underlying action is based on licensing agreements between Budget and each of the defendants. In the normal course of ...
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MEMORANDUM AND OPINION I. BACKGROUND Plaintiff, the Louisiana Department of Health and Hospitals, administers the State’s Medical Assistance Program under the federal Medicaid Program, which is administered by the defendant United States Department of Health and Human Services (HHS). The Medicaid Program requires participating states to submit State Plans setting forth the types of medical assista...
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MEMORANDUM AND ORDER In the above-referenced action, petitioner pro se Robert Germaine (“petitioner”) seeks credit towards his federal sentence, pursuant to 28 U.S.C. § 2255, for time he served in state custody before being transferred to federal custody. For the reasons stated below, petitioner’s motion is granted. BACKGROUND The facts are undisputed. On December 4, 1986, petitioner was ar...
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MEMORANDUM AND ORDER On October 9, 1990, plaintiffs L & O Partnership and American National Bank and Trust Company of Chicago (collectively “L & O”) filed in the Chancery Division of the Circuit Court of Cook County a declaratory judgment action to determine the rights of the parties under a mortgage note secured by a parcel of land in Chicago. Defendant Aetna Casualty and Surety Company ...
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MEMORANDUM AND ORDER ON ATTORNEY’S FEES AND LITIGATION EXPENSES I. Before the Court for decision is plaintiffs motion for attorney fees and costs in this thrice jury tried combined Age Discrimination In Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Michigan’s Elliott-Larsen Civil Rights Act, Mich.Stats.Ann. § 3.548(101) et seq. [M.C.L.A. § 37.2101 et seq.] case. On October 5, 1990, a jury r...
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MEMORANDUM OPINION On August 8, 1990 Kollmorgen Corporation (“Kollmorgen”) filed suit against Get-tys Corporation (“Gettys”) alleging patent infringement. Gettys filed an answer to the complaint and then moved to transfer the case to the United States District Court for Wisconsin pursuant to 28 U.S.C. § 1404(a). The parties have fully briefed the transfer motion and it is now ready for decision...
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MEMORANDUM AND ORDER I. This case arises from a denial of benefits under a pension plan governed by Michigan contract law and an alleged violation of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. On September 20, 1989, plaintiff Melvin Stenke (Stenke) filed suit in Oakland County Circuit Court against Quanex Corporation (Quanex), the Michiga...
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ORDER ORDER This matter comes before the Court on the motion of the defendant, Farm Fresh, Inc. (Farm Fresh), to disqualify the law firm that represents the plaintiffs. The plaintiffs, present and former employees of Farm Fresh, have brought this action against Farm Fresh under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219. The plaintiffs claim that Farm Fresh has violate...
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MEMORANDUM AND ORDER Pending before the Court in the above-captioned case are the following motions in limine: 1) defendant’s motion in limine regarding the applicable legal standard for allocation; 2) plaintiffs motion in limine to prohibit certain testimony by defendant’s expert; and 3) plaintiff’s motion in limine to prohibit defendant’s intr...
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MEMORANDUM This matter is before the Court on defendant Nathaniel David Ward’s Motion to Suppress Physical Evidence and Statements and the government’s opposition to the motion. At the motions hearing, Officer Oscar Garibay testified on behalf of the government. The defendant presented no evidence. For the reasons set forth below, the Court denies the defendant’s motion to suppress. FACTS Officer ...
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FINDINGS OF FACTS AND CONCLUSIONS OF LAW INTRODUCTION This matter having come before the Court for non-jury trial, and the Court having duly considered the evidence and arguments presented and being otherwise duly advised, does hereby find as follows: NATURE OF PROCEEDINGS Plaintiff, Walter Dartland, brought this cause of action, pursuant to 42 U.S.C. §§ 1983 and 1988, against Defendants,...
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In this unusual case filed under 42 U.S.C. § 1983, the plaintiff has moved this court to issue a preliminary injunction prohibiting the State of Georgia from seeking to have him indicted on criminal charges. Jurisdiction is based on § 1983 and 28 U.S.C. § 1343. The court is well aware of the importance of the issues presented, and after reviewing both the facts and the law, has decided to grant...
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OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE The plaintiffs, two animal welfare groups and two individuals, allege that the defendants, the United States Department of Agriculture (“USDA”), the Secretary of USDA (“Secretary”), and the Administrator of the Animal Plant Health Inspection Service, have violated the mandate of the Federal Laboratory Animal Welfare Act (“FLAWA” or...
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MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO REMAND AND DEFENDANT’S MOTION TO DISMISS THE COMPLAINT This is an action brought by the plaintiff, James McCoy, Administrator of the Electrical Workers Trust Funds (“the Funds”), Local 103 I.B.E.W., to enforce a lien against property owned by the defendant, Massachusetts Institute of Technology (“MIT”). The complaint was filed pursuant to M.G....
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MEMORANDUM AND ORDER Pending before the Court in the above-captioned case is plaintiffs’ (“Polansky”) motion for reconsideration of its order granting defendant’s (“Ryobi”) motion in limine. Pursuant to Local Rule 105 subd. 6 (D.Md.1989), the Court will decide defendant’s motion without a hearing. For the reasons set forth below, the motion for reconsideration will be granted. ...
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OPINION Before the court is plaintiffs’ motion for a new trial pursuant to Fed.R.Civ.P. 59. I. FACTS AND PROCEDURE Michael J. Pepe, Jr. was admitted to Shore Memorial Hospital, Somers Point, New Jersey on July 4, 1989, after he sustained injuries in a crash of an ultralight plane. He was admitted to the hospital through the emergency room. As a result of the accident, the decede...
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MEMORANDUM The above captioned action arises from the explosions of two aircraft engines which were rebuilt and installed by defendant/third-party plaintiff, Cap Aviation, Inc. (“Cap Aviation”), in one of plaintiffs, Lease Navajo, Inc., planes. Since third-party defendant, Avco Lycoming Division-Avco Corporation (“Avco Lycoming”, improperly designated in the caption), manufactured the explosive...
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*511 MEMORANDUM AND ORDER Pending before the Court in the above-captioned case are defendant’s (“Morgan”) motion for summary judgment on count III of the complaint and plaintiffs (“Dorsey”) motion for summary judgment as to liability only on counts I and II of the complaint. Pursuant to Local Rule 105, subd. 6 (D.Md. 1989), the Court is now prepared to rule without need for a hea...
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MEMORANDUM OPINION This is an action by plaintiff, United Mine Workers of America (hereinafter “UMWA”), against defendants, Covenant Coal Corporation and its officers and directors, alleging that in violation of federal and state law, defendants tortiously interfered with contract rights established under the National Bituminous Coal Wage Agreement (hereinafter “NBCWA”). UMWA alleges that...
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MEMORANDUM AND ORDER I. This is an employer-employee wrongful discharge and an unjust enrichment case. Plaintiff Melvin K. Conrad (Conrad) was terminated by his employer, defendant Ro-fin-Sinar, Inc. (Rofin-Sinar), a manufacturer of laser systems. Conrad says the termination violates a “just cause” employment contract. Alternatively, Conrad, who was a salesperson for Rofin-Sinar, mak...
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ORDER DENYING MOTION TO RECONSIDER Presently before the Court is the motion of plaintiff Billy R. Thompson to have this Court reconsider its August 23, 1990 order granting summary judgment in favor of defendants David Dodd, Sherry Folse, Mark Fox, Andrew Kaplan, and Peter Turk. 748 F.Supp. 575. In its August 23, 1990 order, this Court found that no genuine issues of material fact existed as to whe...
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*1259 MEMORANDUM OPINION AND ORDER Plaintiff John Doe (“Doe”) has filed a petition (the “Petition”) for the award of attorneys’ fees and related out-of-pocket expenses under 42 U.S.C. § 1988 (“Section 1988”), based on his having been the “prevailing party” in 42 U.S.C. § 1983 (“Section 1983”) litigation against the Village of Crestwood and its Mayor Chester Stranc-zek (collectively “Village” ...
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MEMORANDUM AND ORDER I. This case involves a claim for unpaid overtime wages under federal and state law. Plaintiff Robert Fegley (Fegley) alleges that he was improperly denied overtime compensation by defendant Ronald Higgins, Sr. (Higgins); the companies run by Higgins, Foremost Industries, Inc. (Foremost) and CMRA, Inc. (CMRA); and CMR Associates (CMR), a general partnership composed of Hi...
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MEMORANDUM DECISION This is an action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). 42 U.S.C. § 9601 et seq. Plaintiff seeks to recover costs incurred in removing asbestos dust from leased office space in a commercial building. Defendants, the owners of the building, have moved to dismiss for failure to state a claim. F.R.Civ....
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MEMORANDUM AND ORDER I. This is a securities fraud case. Plaintiffs Sidney Silverman, Lee Silverman, Barry P. August, Samuel August, and Judi Ellias (collectively, plaintiffs) allege that defendants George F. Field, Jr. (Field); Thomas R. Niswonger (Niswonger); Field Corporation; Your Attic, Inc. (YAI); Your Attic Properties, Inc. (YAP); Your Attic Management, Inc. (YAM); Your Attic ...
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MEMORANDUM AND ORDER Plaintiff Vernon Jantz has brought the present action under 42 U.S.C. § 1983, alleging a violation of his right to equal protection. The plaintiff alleges that he was denied by the defendant, then-school principal Cleofas Muci, employment as a public school teacher on the basis of Muci’s perception that Jantz had “homosexual tendencies.” The defendant has now moved fo...
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ORDER AND REASONS Before the Court is the motion of Intercontinental Shipping Party, Ltd. to vacate writ of attachment and/or alternatively, to dismiss on the grounds of forum non con-veniens. After reviewing the motion, mem-oranda of counsel, the record and the law, the Court grants the motion to dismiss on the grounds of forum non conveniens and denies the motion to vacate the writ of attachmen...
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MEMORANDUM OPINION By this action, Plaintiffs seek to recover benefits owed under the Custom Engineering Co. Employee Health Benefit Plan (the “Plan”) maintained by the Custom Engineering Company (“Custom”). Custom and the Plan, in turn, have sued Self-Funded Plans, Inc. (Self-Funded), the third party defendant, for indemnification. By our order of January 9, 1991 we granted plaintiff’s summary j...
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ORDER This matter is before the court on cross-motions for summary judgment. For the reasons I explain below, plaintiffs’ motion for summary judgment is DENIED, the motion of defendant United States for summary judgment is GRANTED, and the motion of defendant Orland Unit Water Users’ Association (“OUWUA”) is GRANTED in part and DENIED in part. I BACKGROUND The instant actio...
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MEMORANDUM OF DECISION This consolidated bankruptcy appeal presents several issues of law arising out of three different decisions of the Bankruptcy Court. See In re Hemingway Transport, Inc., 108 B.R. 378 (D.Mass.1989); 105 B.R. 171 (D.Mass.1989); 73 B.R. 494 (D.Mass.1987). Briefly, the underlying facts are these: On July 28, 1982, the Debtors, Hemingway Transport, Inc. and Br...
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MEMORANDUM AND ORDER I. This is a prisoner civil rights case. 42 U.S.C. § 1983. Plaintiff Aubrey Haynes (Haynes) was stabbed by fellow inmate Paul Saunders-El (Saunders-El) on August 8, 1988, while incarcerated at the State Prison for Southern Michigan (SPSM) in Jackson. Haynes alleges that he told defendant corrections officers Gregory Lark-ens (Larkens) and Douglas Carpenter (Carpenter) tha...
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*424 MEMORANDUM AND ORDER Defendant Allied Capital Corporation (“Allied”) has moved to dismiss for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). For the reasons stated in this memorandum, the motion is DENIED. I The following describes the factual allegations of the complaint as if true. Raymond, Colesar, Glaspy & Huss, P.C. (“Raymond, Colesar” or “RCGH”) i...
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MEMORANDUM AND ORDER This decision is in response to, and in compliance with, the Tenth Circuit Court of Appeals’ remand for a full evidentiary hearing in connection with defendant Wyeth’s motion to disqualify plaintiff counsel’s law firm, Michaud & Hutton, now Michaud, Hutton & Bradshaw (hereinafter “Hutton”). See Graham v. Wyeth Laboratories, 906 F.2d 1419 (10th Cir.1990). The Tenth Circuit als...
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MEMORANDUM RULING Daniel Warwick seeks recovery against GOC arising from an injury that he incurred while working aboard the Phoenix Three (3) when he lifted a journal to replace a pin in an Emsco pump. Plaintiff premises his cause of action upon the Jones Act, 46 U.S.C. App. § 688 and Section 5(b) of the LHWCA. He asserts that he is a seaman and is entitled to the special remedies incide...
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MEMORANDUM AND ORDER This case was recently reversed by the Tenth Circuit Court of Appeals and remanded for new trial. Graham v. Wyeth Laboratories, 906 F.2d 1399 (10th Cir.1990). Defendant Wyeth, through its counsel A.J. Knopp, now moves for disqualification of this court pursuant to 28 U.S.C. § 455(a), and to bar this court from participation in the retrial of this case on Ju...
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OPINION Plaintiffs Maud Hill Schroll, J. Christopher Schroll, and Susannah Schroll seek declaratory and injunctive relief under 42 U.S.C. § 1983. Defendant, The Honorable J. Jerome Plunkett, moves for judgment on the pleadings. I grant the motion, or alternatively, dismiss with prejudice. BACKGROUND Plaintiffs are beneficiaries of the 1917 Maud Hill Schroll Trust. Plaintiffs seek to enjoin ...
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MEMORANDUM AND ORDER Capri Optics Profit Sharing [“Capri”] brought this class action under § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b) 1 and Rule 10b-5, 17 C.F.R. *228 § 240.10b-5, 2 alleging fraud on the market and misrepresentation. 3 Capri asserts that nine misleading statements, made by Digital representatives to various newspapers and through press releases, were des...
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MEMORANDUM Plaintiff, Manuel Andujar, is suing the City of Boston and an individual police officer, J.R. McCabe, for damages resulting from an arrest based on mistaken identity. Plaintiff’s amended complaint contains five Counts based on violations of his fourth, fifth and fourteenth amendment rights under 42 U.S.C. § 1983 (1981) and 42 U.S.C. § 1988 (1981), and violations of Mass. Gen.L. ch. 1...
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MEMORANDUM OF DECISION This appeal and cross-appeal arise out of an adversary proceeding commenced in *652 Bankruptcy Court, wherein Herbert C. Kahn, Trustee of Hemingway Transport, Inc. and Bristol Terminals, Inc. (collectively “Hemingway”), filed a third-party complaint against Woburn Associates for contribution under the Comprehensive Environmental Response, Compensation, ...
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*934 MEMORANDUM AND ORDER Pending before the Court in the above-captioned case is an appeal from a final decision of the United States Bankruptcy Court for the District of Maryland, Rock-ville Division, In Re Columbia Data Products Inc., No. 85-A-0718-PM, and Lowry v. RPC Computer Electronics, Inc., Adversary No. 86-A-165-PM. The non-core proceeding was subm...
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ORDER INTRODUCTION On February 6, 1991, a grand jury returned a two-count indictment against *1392 Richard Rose McElrath (“McElrath”) and Tyawanda Renee Anderson (“Anderson”). Count I of the indictment charges McEl-rath with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Count II charges McElrath and Anderson with conspiring to possess with intent to distribute...
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MEMORANDUM AND ORDER DEA Agents Otto Privette and Robert Benton have removed the contempt action against them to this court, seeking an end to the proceedings to show cause which were undertaken against them in state criminal proceedings. Agents Privette and Benton had been subpoenaed as expert witnesses by the defendants in a state criminal prosecution. Neither Privette nor Benton had any dire...
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ORDER DENYING MOTION OF PLAINTIFF FOR PRELIMINARY INJUNCTION AND GRANTING MOTION OF THE DEFENDANT TO ENFORCE CEASE AND DESIST ORDER OF OFFICE OF THRIFT SUPERVISION The court has previously issued a temporary restraining order enforcing a cease and desist order of the Office of Thrift Supervision (OTS) of the Department of the Treasury directed toward the plaintiff in this case, Tommy M. Parker,...
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ORDER THIS MATTER comes before the Court on the Plaintiffs’ motion for preliminary injunction filed December 13, 1990. Oral argument was heard on February 7, 1991. The Court makes the following ORDER as a result of the hearing on the motion for preliminary injunction. THE COMPLAINT The Complaint for Declaratory Judgment and Preliminary and Permanent Injunctive Relief was filed D...
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ORDER This was an action for breach of express warranties and fraud brought by plaintiff Estel Mozee arising out of his purchase of a 1978 Ford dump truck from defendants Steven Kuplen and Ber-Kup, Inc. A trial was conducted in this case from August 6 through August 8, 1990. The jury returned a verdict in favor of plaintiff in the amount of $14,680.00. Judgment was entered in that amount on August...
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MEMORANDUM OPINION AND ORDER This court is presented with the issue of whether the plaintiff, as a dissolved corporation, can compel the defendant, its former insurer, to defend the plaintiff in its action as a potentially responsible party (“PRP”) under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) against the United States Environmental Protection ...
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MEMORANDUM OPINION This case comes before the Court on appeal from a decision of the Bankruptcy Court. The appellee, 1301 Connecticut Avenue Associates (“Associates”), has filed a voluntary petition for protection under Chapter 11. One consequence of this petition is an automatic stay of actions by creditors. In an Amended Decision filed on August 14, 1990, the Bankruptcy Court denied a m...
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MEMORANDUM OPINION AND ORDER West American Insurance Company (West American) brought this subrogation action against Ford Motor Company (Ford) for damages suffered by Melissa Lum, insured by West American, in an automobile accident. West American alleges that the 1983 Ford Escort in which Lum was a passenger at the time of the accident was defectively designed and that its defects caused her inju...
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MEMORANDUM AND ORDER Plaintiff Timothy Neff brings this product liability action against defendant Coleco Industries, Inc., for injuries he sustained when he dived head first into a swimming pool manufactured by defendant. The case now comes before the court on defendant’s motion for summary judgment (Doc. 96) pursuant to Fed.R.Civ.P. 56(b). 1 Plaintiff has responded (Doc. Ill)...
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ORDER GRANTING SECOND MOTION OF UNITED STATES FOR PARTIAL SUMMARY JUDGMENT AND DISMISSING IN PART RSR’s FIRST AND SEVENTH COUNTERCLAIMS I. PROCEDURAL BACKGROUND This Court previously disposed of RSR Corporation’s (RSR) Second through Sixth and Eighth Counterclaims concerning indemnification and injunctive relief. The First and Seventh Counterclaims survive that order and seek contribution from th...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion for new trial, based upon newly discovered evidence, pursuant to Rule 33 of the Federal Rules of Criminal Procedure. A hearing was held on the matter on February 22, 1991. For the reasons set forth below, the court will deny defendant’s motion. Defendant, a local physician, was indicted on fourteen counts of mail fraud...
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ORDER ON MOTION TO DISMISS This is a consolidated action in which the Resolution Trust Corporation (RTC), as Receiver of First Federal Savings and Loan Association of Colorado Springs, seeks to collect a deficiency on the foreclosure of two promissory notes, one made by defendants Wellington Development Group, Richard H. Sucher, William D. Ritchie, Michael S. Kessler and Donald T. Gladsto...
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MEMORANDUM AND ORDER This matter is before the Court on defendant’s motion for transfer or dismissal of plaintiff’s claims. *1398 FACTS Defendant Master Lease Corporation is incorporated in Michigan and has its principal place of business in Pennsylvania. Defendant is in the business of providing equipment leasing and financing to business-end users. Plaintiff Cathy H. ...
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MEMORANDUM OPINION This cause comes before the court on the motion of the plaintiffs for declaratory and injunctive relief and the motion of Commodity Credit Corporation for intervention. The court held an evidentiary hearing on December 20, 1990, which the parties agreed to treat as a trial on the merits. After due consideration of the pleadings, the evidence, proposed findings of facts ...
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MEMORANDUM OPINION Comes now before the court, defendants Cutter Biologies and Cutter Laboratories [Cutter] and Miles, Inc., the successor corporation to Cutter, pursuant to 28 U.S.C. § 1404(a), on motion to transfer venue of this action to the United States District Court for the Western District of Tennessee, Western Division at Memphis. Upon due consideration of the parties’ pleadings and me...
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MEMORANDUM OPINION AND ORDER Plaintiffs filed suit on January 11, 1991, seeking declaratory and injunctive relief *641 enjoining the issuance by the United States Department of the Army Corps of Engineers (COE) of its permit under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 403) and Section 404 of the Clean Water Act (33 U.S.C. § 1344) authorizing the City d...
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MEMORANDUM AND ORDER This breach of contract action was originally filed in the District Court of Wyan-dotte County, Kansas, and subsequently removed to this court by defendant pursuant to 28 U.S.C. § 1441. Now before the court is plaintiffs motion for remand. Plaintiff argues that remand is warranted because defendant has failed to satisfy its burden to establish subject matter jurisdict...
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ORDER This case must be dismissed, pursuant to Rule 41(b) of the Fed.R.Civ.P. After considerable deliberation, I now conclude that it should be dismissed with prejudice. The plaintiffs, primarily through Mr. Kelso, have demonstrated an inexcusable disregard for this court’s orders and for the Rules of Civil Procedure. In the early stages of the lawsuit, the plaintiffs moved for a preliminary inju...
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MEMORANDUM OPINION This cause comes before the court on the plaintiffs motion for, inter alia, summary judgment or enforcement of an agreement of compromise and settlement, a motion of Dave A. Matison, the plaintiff’s husband, to intervene, and defendant Glenn L. White’s cross-motion to dismiss and, in the alternative, for summary judgment. The plaintiff seeks an amendment of o...
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MEMORANDUM AND ORDER This is a suit for the refund of claimed overpayment of income tax for the year 1982. On November 15,1990, we entered a Memorandum and Order (Doc. 18) in this case denying defendant’s motion for summary judgment with respect to this claim. Defendant has filed a motion for reconsideration (Doc. 27) of that Memorandum and Order. For the reasons stated below defendant’s motion...
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OPINION AND ORDER This matter comes before the Court for factfinding and final resolution of claims by Plaintiffs Isom Harris, Willie Minor, and Eddie Pugh, each of whom is black, that Defendant International Paper Company discriminated against them because of their race in violation of the Maine Human Rights Act (hereinafter MHRA), 5 M.R. S.A. § 4551 et seq. A trial was held b...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion for summary judgment, or in the alternative, for partial summary judgment. In this action, pursuant to Title VII, 42 U.S.C. §§ 1983, 1985, and 1988 and the first and fourteenth amendments, plaintiff, a white female formerly employed as a fire inspector/code enforcement officer with defendant City of Shawnee, claims that ...
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ORDER GRANTING DEFENDANTS’ AND COUNTERCLAIMANTS’ MOTION FOR TEMPORARY RESTRAINING ORDER Before the Court is Defendants’ and Counterclaim Plaintiffs’ motion for a temporary restraining order to enforce a statutorily imposed temporary cease-and-desist order. I. FACTS Plaintiff and Counterclaim Defendant Tommy M. Parker is a former director, officer, loan committee member and share...
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ORDER GRANTING MOTION TO DISMISS INDICTMENT The government has filed an indictment against Derwood McCullough, charging one count of conspiracy and two counts of embezzlement. Mr. McCullough is the Chancery Clerk of Chickasaw County. The cornerstone of all three counts of the indictment is an alleged violation of § 25-4-105(3)(a), Miss.Code Ann. (1972), which prohibits any public official from co...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs’ motion to strike affirmative defenses and defendants’ motion for leave to amend answer. Having reviewed the motions, the court is now prepared to rule. Plaintiffs Gloria Lange (“Lange”), Joyce Pino (“Pino”), Marianne Crowley (“Crowley”) and Levetta Sneathen (“Sneathen”) filed this action on February 22, 1990, pursuan...
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MEMORANDUM OPINION AND ORDER Plaintiffs Herbert, Marsha and Evan Klein instituted this negligence and contract action against Robert Morgen, M.D. They seek damages for Morgen’s alleged failures to timely complete and deliver several Attending Physician Statements that were required parts of Herbert Klein’s applications for disability and life insurance. Those failures allegedly caused thr...
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MEMORANDUM OPINION Plaintiffs filed these actions on July 13, 1990, seeking judicial review of administrative actions taken by defendant Bryson in his capacity as Executive Director of the Mid-Atlantic Regional Fishery Management Council and approved by defendant Mosbacher, the Secretary of Commerce (“the Secretary”), under the Magnuson Fishery Conservation and Management Act of 1976, 16 ...
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760 F.Supp. 767 (1991) EDISON BROTHERS STORES, INC., Plaintiff, v. BROADCAST MUSIC, INC., Defendant. No. 90-328C(1). United States District Court, E.D. Missouri, E.D. April 3, 1991. *768 Robert Haar, William Kohlburn, Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, Mo., Michael A. Kahn, Katharine Livingston, J. Daniel Sharp, Folger & Levin, San Francisco, Cal., for plaintiff. Georg...
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MEMORANDUM AND ORDER Plaintiffs, the Chicago Plastering Institute (the Institute), and the trustees of several pension and health and welfare trust funds, 1 have brought this suit against the William A. Duguid Company (Duguid), alleging that Duguid has sought to avoid its obligation to make contributions to their funds as required by its collective bargaining agreements with th...
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ORDER This matter is before the court on defendant Ted Rohlwing’s resisted motion to dismiss Count VII of plaintiffs’ complaint, filed August 6, 1990. Under Count VII, plaintiffs S.K. and R.K. seek to recover for the loss of consortium of their child, plaintiff E.L.K., and punitive damages stemming from Ted Rohlwing’s alleged assault and battery upon E.L.K. Defendant moves to dismiss Coun...
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SENTENCING MEMORANDUM On the day his trial was scheduled to begin, Darrell Tolson pleaded guilty to participating in an extensive conspiracy to distribute, and to possess with intent to distribute, cocaine. 21 U.S.C. § 846. Mr. Tol-son agreed to cooperate with investigators, and the government agreed to bring no further known charges and to dismiss five counts of interstate travel in aid of mar...
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MEMORANDUM AND ORDER This action arises out of the alleged anticipatory breach of three “time charter” agreements. 1 It is before the court pursuant to its admiralty and maritime jurisdiction. U.S. Const. Art. 3, sec. 2, cl. 1; 28 U.S.C. § 1333(1). The plaintiff also alleges pendent jurisdiction over various related state law claims. United Mine Workers v. Gibbs, 383...
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759 F. Supp. 1522 (1991) Louis A. WHITTEN, Larry J. Warren, Alan T. Fenstemaker, and Carl A. Bonham, Plaintiffs, v. FARMLAND INDUSTRIES, INC., Defendant. Civ. A. No. 88-2637-O. United States District Court, D. Kansas. March 19, 1991. *1523 *1524 *1525 *1526 *1527 Dennis E Egan, Popham, Conway, Sweeny, Fremont & Bundschu, Kansas City, Mo., John B. Gage, II, Overland Park, Kan., for plaintiffs....
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MEMORANDUM AND ORDER DENYING JOINT MOTION FOR STAY Plaintiff and Defendant have filed a joint motion for a stay of this action pending arbitration. Counterclaim Defendant Alden assents to the granting of the motion. Party in Interest Kansallis-Osake-Pankki (KOP) objects. The Court held a hearing on the motion on March 19, 1991, and has had the benefit of initial and supplemental written s...
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MEMORANDUM OF DECISION AND ORDER REJECTING THE RECOMMENDED DECISION OF THE UNITED STATES MAGISTRATE JUDGE Plaintiffs bring this securities and common law fraud action against a securities broker and two of its employees. Plaintiffs allege that over a two-year period, Defendants fraudulently induced them to purchase securities by making material misrepresentations, and that as a result they sustain...
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MEMORANDUM Defendant administers the National Flood Insurance Program (“NFIP”). This case involves plaintiffs claim under a Standard Flood Insurance Policy (“SFIP”) issued by NFIP for damage from a flood on October 6, 1986, and defendant’s counterclaim for return of amounts paid on a separate and earlier claim under the same policy for damage from a flood on March 4, 1985. On August 9, 1989, this ...
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ORDER This matter is before the court on plaintiffs motion for summary judgment seeking reversal of the final decision of the Secretary of Health and Human Services and request for oral argument, filed September 11, 1990, and defendant’s brief in support of the Secretary’s decision, filed October 29, 1990. In this action, plaintiff seeks reversal of the final decision of the Secretary terminating...
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MEMORANDUM OPINION AND ORDER Martha Phaup (“Phaup”), Dorothy Moore (“Moore”), Shirley Fitzpatrick (“Fitzpatrick”) and Carol Maleske (“Maleske”) have sued their former employer 1 Pepsi-Cola General Bottlers, Inc. (“Pepsi”), alleging discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 (“Title VII,” 42 U.S.C. §§ 2000e to 2000e-17 2 ...
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MEMORANDUM OPINION AND ORDER Plaintiffs Eric C. Hauser (“Hauser”) and Harvey Minars (“Minars”) seek a declarato *479 ry judgment in this diversity action exonerating them from personally liability on a certain wraparound partnership note held by defendant Western Group Nurseries, Inc. (“WGN”). The parties have conducted extensive discovery. Plaintiffs now move, pursuant to Ru...
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FINDINGS AND CONCLUSIONS WITH RESPECT TO SENTENCING This case presents several novel issues under the Sentencing Guidelines, including the extent to which a conspiracy defendant may be held responsible for drug quantities distributed by co-conspirators, the availability of “remorse points” for a defendant who pleaded guilty on the eve of a two- *1324 week trial, and the conduct necessary to d...
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MEMORANDUM I. The current action arises out of a dispute between a motor carrier, Dan Barclay, Inc. (“Barclay”), and a shipper, Stewart and Stevenson Services, Inc. (“Stewart”). Jurisdiction is founded upon diversity of citizenship, and the amount in controversy exceeds $50,000. The case is currently before this Court on Barclay’s motion for summary judgment, and Stewart’s cross-moti...
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This matter is presently before the court on the separate motions of defendant Pat Charles and Charles, Sturm & Masters (hereinafter “Charles”), and defendant Norman Cohen to dismiss or stay these proceedings pending the outcome of a related tax court case, or in the alternative, to dismiss or grant summary judgment on various counts of the complaint. These defendants played limited roles in th...
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OPINION Presently before the Court is a motion for summary judgment by plaintiffs, Glass, Molders, Pottery, Plastics and Allied Workers International Union, AFL-CIO and its Local Union Number 4 (collectively “the Union”) to enforce an arbitration award and for prejudgment interest, costs and reasonable attorneys fees, and a cross-motion for summary judgment by defendant, Owens-Illinois, I...
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MEMORANDUM AND ORDER This matter is before the court on: (1) defendant/third-party plaintiff Richard A. Bendis’ motion to dismiss or stay; (2) defendant/third-party plaintiff W. Terrance Schreier’s motion to dismiss or stay; and (3) plaintiff State Farm Fire and Casualty Company’s (“State Farm’s”) motion to bifurcate or sever. State Farm filed this action seeking a declaratory judgment that certa...
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OPINION AND ORDER Petitioner Sun Refining and Marketing Company moves pursuant to section 10 of the United States Arbitration Act, 9 U.S.C. § 10 (1990) (the “Act”), to vacate an arbitration award by two of three arbitrators on a panel in New York, pursuant to the Arbitration Rules of the Society of Marine Arbitrators, Inc. The award arose from an alleged shortage in a cargo of fuel oil lo...
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MEMORANDUM DECISION I. FACTS Familiarity with our decisions of April 20, 1989 and May 16, 1989 is presumed. 1 Therefore, only a brief recitation of the facts is necessary. On October 9, 1986 plaintiff drove the number two horse in the eighth race at Roosevelt Raceway. While warming up his horse, plaintiff was heard to yell, “Get the seven,” to an unidentified patron. The patron was never ...
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MEMORANDUM AND ORDER This cause is before the court following withdrawal of reference to the bankruptcy court of two motions. In one motion, debt- or-in-possession Environmental Waste Control, Inc., d/b/a Four County Landfill (“EWC”), seeks a determination of the propriety of its payment of groundwater monitoring and related expenses. In the other, EWC seeks a determination of the payment...
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MEMORANDUM This case is before the Court on the defendants’, 1200 Beacon Properties, Inc. (“1200 BPI” or “Borrower”) and A. James Derderian, motion for summary judgment, and the plaintiffs’, Baybank Middlesex (“Baybank” or “Trustee”) and Guardian Life Insurance Company of America (“Guardian Life”), motion for summary judgment pursuant to Fed.R.Civ.P. 56(c). This action arose out of the fi...
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In the liability phase of this case, U.S. Patent Re. 31,167 (the “reissue patent”) held by Windsurfing International, Inc. (“WSI”) on its sailboard design was found to be valid. BIC Leisure Products, Inc. (“BIC”) was found to have infringed the WSI reissue patent and enjoined from any further infringement. 1 A successful plaintiff in a patent infringement action is entitled to “dam...
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MEMORANDUM AND ORDER This cause is before the court on the defendants’ motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Background This is the fourth original action filed in this court concerning the Four County Landfill in Fulton County, Indiana, which this court ordered closed in United States v. Environmental Waste Control, Inc., ...
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754 F. Supp. 193 (1991) Clifford RAY and Louise Ray, individually and as the natural guardians of their minor children, Randy Ray, Robert Ray and Ricky Ray, Plaintiffs, v. CUTTER LABORATORIES, DIVISION OF MILES, INC., and Armour Pharmaceutical Co., Defendants. Civ. A. Nos. 88-693-CIV-T-17(A) to 88-695-CIV-T-17(A). United States District Court, M.D. Florida, Tampa Division. January 10, 1991. *194 ...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This cause is before the Court on Defendant’s motion for summary judgment and Plaintiffs’ response thereto. Plaintiffs Jack and Mary Fields along with twenty four others, all of whom reside in close proximity to the Sarasota-Braden-ton Airport, brought an action for damages under 42 U.S.C. Section 1983 alleging violations of the ...
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MEMORANDUM Presently before the court is the timely motion of plaintiff, Marie V. Keyes (Document No. 22) to reconsider my order dated February 6, 1991 granting summary judgment in favor of defendant National Railroad Passenger Corporation (Amtrak), and all supporting and responsive papers 756 F.Supp. 863. I shall consider the motion as made pursuant to Fed.R.Civ.P. 59(e). For the reasons...
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SUPPLEMENTAL OPINION RE: VACATING STAY SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW PRELIMINARY STATEMENT This is a motion by plaintiff Refco, Inc. (“Refco”) to vacate the stay of this action imposed by this Court’s Order dated January 4, 1991, in favor of a foreign liquidation proceeding in Dubai, United Arab Emirates. Refco argues that the receivership proceedings in D...
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The court has considered the unrebutted testimony of the defendant and movant Nancy Beam Winter presented at the hearing on March 25 and 26, 1991 in relation to the Motion of Defendant Nancy Beam Winter for Imposition of Attorney’s Fees and is now prepared to make its Findings of Fact and Conclusions of Law and decision. FINDINGS OF FACT 1. This case was originally filed in state court to redress ...
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MEMORANDUM OPINION . AND ORDER This matter is before the Court on cross-motions for summary judgment. In addition, this Court has accepted an Amicus brief filed on behalf of the Associated Concrete Contractors of Michigan. FACTS Plaintiff, Bricklayers’ Local Union # 14, and three affiliated pension and fringe benefit funds (hereinafter collectively Local 14), filed this suit against defendant, Co...
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ORDER GRANTING MOTION TO DISMISS Plaintiffs Michael and Sandra Appell (Appells) own Northstar Imports (North-star), a sole proprietorship. Plaintiffs entered into a Distribution Agreement with defendant George Philip and Son, Ltd. (Philip), the subject of which was astronomical materials published by Philip. Philip is alleged to be an English corporation, partnership, or joint venture, and a su...
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*184ORDER This matter comes 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, claims (1) the United States Parole Commission (“Commission”) erred in changing the administrative rating assigned to his parole violation conduct from Greatest II to Category Eight and (2) the Commiss...
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MEMORANDUM Plaintiff sues for breach of fiduciary duty and professional malpractice and to rescind a $2.75 million employee “settlement and release” agreement, which the complaint alleges was obtained by extortion. Defendant William A. Clark’s motion to disqualify the firm of Hogan & Hartson from representing plaintiff Ferranti International pic in this action will be denied for the follo...
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MEMORANDUM In this litigation, the plaintiff, American Ambulance Service of Pennsylvania, Inc. (AASI), challenges the methods by which Medicare Part B reimbursement decisions for ambulance service providers are made. AASI and the defendants, the Secretary of Health and Human Services (the Secretary), the Administrator of the Health Care Financing Administration, and the Medical Service Associatio...
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ORDER By order dated July 10, 1990, 741 F.Supp. 899, the Court granted summary judgment in favor of defendants on the constitutional issues in this case. The Court must now determine the propriety of plaintiffs’ remaining claims. For the reasons stated below, the Court will grant defendants’ motion for summary judgment on the remaining issues and will deny plaintiffs’ motion for summary judgment o...
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MEMORANDUM AND ORDER Plaintiffs or petitioners in this case are Allen and Leslie Brown acting on behalf of Crystal and Melanie Brown. The defendants or respondents are Betty Rice, a social worker with Native American Family Services and the Prairie Band of Potawato-mi Indians Tribal Council. Native American Family Services (NAFS) is a child protective services agency which works with thre...
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ORDER GRANTING SUMMARY JUDGMENT The cause is before the Court on Defendant Sandra L. Santmyer’s motion for judgment on the pleadings, alternatively for summary judgment, filed January 30, 1991; response thereto, filed February 12, 1991; Plaintiff’s cross-motion for summary judgment, filed February 12, 1991; and response, filed February 20, 1991. This circuit clearly holds that summary judgmen...
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ORDER This matter is before the court on defendant’s motion for summary judgment. Plaintiff, an inmate at the United States Penitentiary, Leavenworth, Kansas (“Leavenworth”), filed this pro se civil rights complaint on October 15, 1990, asserting (1) he is entitled to back pay from March 1986 through January 1988 and (2) that his financial situation has improperly required *870 his family to ...
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MEMORANDUM AND ORDER Plaintiff is a purchaser of shares of common stock of Defendant Barry Wright Corporation (Barry Wright). Plaintiff alleges that the defendants, in May and August of 1988, disseminated materially false and misleading information to the investing public. This information, asserts the plaintiff, artificially inflated the price of Barry Wright’s common stock during the time in wh...
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MEMORANDUM ORDER AND JUDGMENT Glen Morgan, plaintiff, originally filed this lawsuit in the 172nd Judicial District Court, Jefferson County, Texas, on January 8, 1987. He alleged breach of contract, violations of the Texas Deceptive Trade Practices-Consumer Protection Act, and fraudulent misrepresentations against Heights Savings Association (New Heights), and seven individual defendants: William R...
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ORDER DENYING PETITIONER’S § 2255 MOTION Petitioner Anthony Call was found guilty by a jury of possession of crack cocaine with intent to distribute, possession of cocaine with intent to distribute and use of a firearm during and in relation to possession of cocaine with intent to distribute. On August 14, 1988, Call was sentenced to 190 months incarceration on Count I, 100 months incarceration on...
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MEMORANDUM AND ORDER Plaintiff, the Golf Course Superintendents Association of America (“GCSAA”), filed this action to recover certain monies pursuant to an insurance policy issued by defendant, Underwriters at Lloyd’s of London (“Lloyd’s”). GCSAA was a defendant in the case of Zahid Iqbal v. Golf Course *1487 Superintendents Association of America, 717 F.Supp. ...
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OPINION This case is before the Court on two motions: 1) defendant’s motion for relief from judgment; and 2) plaintiff’s motion for attorney fees, costs, and interest. I. Defendant’s motion for relief from judgment On July 18, 1990, this Court entered judgment in favor of plaintiff, Allstate Insurance Company, and against defendant. 750 F.Supp. 827. The basis for the judgment was the finding th...
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ORDER Before the court are: (1) Plaintiff General Environmental Science Corp.’s (“GES”) Motion to Compel; (2) Defendants Biosys Corporation (“Biosys”), Gustavo Gysler, John L. Strauss and Frank L.‘ Horsfall’s Motion for a Protective Order; (3) Defendants Biosys and Gysler’s Motion for a Protective Order Against a Deposition in the United States; and (4) Defendant Hors-fall’s Motion to Compel Disc...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. STATEMENT OF THE CASE During hours of darkness on January 27, 1988, plaintiff attempted to enter the United States illegally. While in the United *295States, but just north of the border, plaintiff and two companions had an altercation with six members of the Border Crime Prevention Unit (BCPU), in which the two companions were fatally shot...
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ORDER DENYING RELIEF UNDER SECTION 2255 Background On July 21,1987, an Indictment was filed charging petitioner, Douglas Cox, with conspiracy to distribute cocaine in violation of 42 U.S.C. § 846 and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On August 27, 1987, petitioner pled guilty to the charge contained in Count IY, and the charges contained in Counts I...
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MEMORANDUM ORDER Movants have each filed motions for stay and requests for stay pending appeal of the judgment denying motions to vacate, set aside [or] correct sentence pursuant to 28 U.S.C. § 2255 (2255).1 Judgment denying *1241the motions to vacate, set aside, or correct sentence was entered October 4, 1990, by Magistrate Earl Hines. Movants filed their notices of appeal of that judgment to thi...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I.BACKGROUND Plaintiff Missouri Professional Liability Insurance Association (MPLIA) brings this action seeking indemnity and/or contribution from defendant American Casualty Company of Reading, Pennsylvania (ACC). MPLIA seeks to recover $500,000 of the $700,000 paid out to settle three related lawsuits filed by Jack and Lori Arn...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT This cause is before the Court on the following: 1. Plaintiffs’ motion for summary judgment filed on August 20, 1990. 2. Plaintiffs’ memorandum of law in support of motion for summary judgment filed on August 20, 1990. 3. Plaintiffs’ request for oral argument filed on August 20, 1990. 4. Stipulation by the parties filed on August 2...
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*1159 TABLE OF CONTENTS Page I. INTRODUCTION.1160 II. PARTIAL TERMINATION CLAIMS.1161 A. General.1161 B. Vertical Partial Termination.1163 1. Significant Number or Percent.1163 2. What Number or Percent is Significant?.1164 3. How is the Number or Percent Calculated?.1164 a. Vested or Non-Vested Terminations.1164 b. Employees Who Transf...
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MEMORANDUM AND ORDER On October 2, 1990, this court directed defendant to give an accounting of disclosures of ELSUR documents to third parties as provided by 5 U.S.C. § 552a(c)(3). The court also directed defendant to explain what seemed to be misleading answers to two of plaintiff’s interrogatories (# 49 and #55). In response to this order, defendant asked for reconsideration of the accounting ...
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MEMORANDUM ORDER This case is before the Court on defendants’ motion to dismiss or in the alternative for summary judgment. Upon consideration of the motion, plaintiffs’ opposition, and the entire record, the Court denies the motion to dismiss. Plaintiffs, Marc Pagan and his parents, brought this action under the Education of the Handicapped Act (EHA), 20 U.S.C.A. § 1400 et seq., and the Rules of ...
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MEMORANDUM Currently before the Court is the motion of defendant Bruton Gallery, Inc., pursuant to Fed.R.Civ.P. 12(b)(2) to Dismiss Amended Complaint for Lack of Personal Jurisdiction or in the Alternative Motion to Transfer Venue, 28 U.S.C. § 1404(a). For the reasons that follow, the Motion to Dismiss will be denied, and the Motion to Transfer Venue will also be denied. I. Bac...
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Defendants Threadtex, Inc. (“Thread-tex”), Sea Island Cotton Growers Ltd. (“Growers”), and Bernard Richman (“Rich-man”) move, pursuant to Rule 56, Fed.R. Civ.P., for summary judgment dismissing the complaint in the above-captioned action. Defendants further move, pursuant to Rule 12(c), Fed.R.Civ.P., to dismiss claims fifteen and sixteen of the complaint, and to dismiss the entire complaint as ...
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OPINION This is an action brought by plaintiffs for damages against the United States of America, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 1346(b), *152 2671-2680. A bench trial was held on July 5 and 6, 1990. After careful consideration of the evidence presented at trial and the parties’ proposed findings of fact and conclusions of law, the Court makes ...
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OPINION AND ORDER This matter is before the Court pursuant to the motion filed by the plaintiff on March 31, 1989, and the cross motion filed by the defendant on May 15, 1989, for summary judgement pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff initiated this action on January 14, 1988 in the Franklin County Court of Common Pleas, seeking relief under 29 U.S.C. Section 113...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on cross motions for summary judgment. For the reasons outlined below, the Court must grant partial summary judgment as to liability to Plaintiffs. Plaintiffs brought this action pursuant to 42 U.S.C. § 1983, alleging abridgement of their right to travel in violation of the Equal Protection Clauses of the Constitutions of the United...
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OPINION INTRODUCTION Plaintiff brings this action against the United States and various employees of the Internal Revenue Service for the unauthorized disclosure of confidential tax information. The Court has jurisdiction of Plaintiffs claims against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. Those claims have been tried to the ben...
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OPINION AND ORDER In this personal injury case, third-party defendant United States (the “government”) moves for summary judgment. For reasons that follow, the motion is denied. BACKGROUND On August 29, 1986, plaintiff Terry Collins, an employee of the government’s National Park Service, was injured on Ellis Island while using a stump grinder manufactured by defendant Promark Products, Inc. Since ...
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*1480 ORDER This matter is before the court on the following motions: 1. Plaintiff American Computer Trust Leasing and counterclaim defendant Automatic Data Processing, Inc.’s motion for summary judgment; 2. Counterclaim defendant Navistar International Corporation’s motion for summary judgment; 3. Counterclaim defendant J.I. Case Co.’s motion for summary judgment;...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This action was commenced by plaintiff Lois Robinson pursuant to Title VII- of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and Executive Order No. 11246, as amended. Plaintiff asserts defendants created and encouraged a sexually hostile, intimidating work environment. Her claim centers around the presence in the workplace o...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON ITS COUNTERCLAIM FOR RESCISSION AGAINST ROYAL AMERICAN MANAGERS, INC., JAMES R. WINING AND WILLIE A. SCHO-NACHER, JR. I. Background On February 18, 1988, Royal American Managers, Inc. (RAM), James R. Wining (Wining) and Willie A. Schonacher, Jr. (Schonacher) brought a declaratory judgment action seeking a determination...
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OPINION Plaintiff National Microsales Corporation (“NMC”) has moved for summary judgment on its complaint against defendant Chase Manhattan Bank, N.A. (“Chase”). NMC has also moved for sanctions against Chase for its conduct in discovery. For the following reasons, the motion for summary judgment is granted in part and denied in part. The motion for sanctions is denied at this time, with leave ...
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ORDER Before this court is defendants’ Motion for Summary Judgment on Count II of Plaintiff’s Complaint, filed August 30, 1990. Plaintiff filed his Memorandum Opposing Defendants’ Motion for Partial Summary Judgment on October 3, 1990. Defendants filed their Reply Suggestions on October 10, 1990. Before the court could rule on the pending motion, plaintiff’s counsel advised the court...
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MEMORANDUM OPINION AND ORDER Now before the court are the objections of plaintiff, Joyce Swider (“Swider”), and defendants, Edward T. Coughlin (“Cough-lin”), Myron McKinley (“McKinley”), Robert Bohse (“Bohse”), and James Hahn (“Hahn”) (collectively “the individual defendants”) 1, to Magistrate Judge Ronald Guzman’s Report & Recommendation (“Report”) as to defendants’ motions to dismiss. Magistrat...
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MEMORANDUM Plaintiffs in this class action suit are persons who purchased stock in defendant Green Tree Acceptance, Inc. (“Greentree”) during the period from May 20, 1985 through March 28, 1989. They assert that Green Tree and six of its present and/or former officers and/or directors made material misrepresentations and omissions in public statements and filings, resulting in an artifica...
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TENTATIVE FINDINGS OF FACT Pursuant to Section 6A1.3(b) of the United States Sentencing Guidelines, and Rule 32 of the Federal Rules of Criminal Procedure, the court hereby submits the following “tentative findings” related to disputed sentencing factors. The parties are hereby advised that they shall, on or before, 4:00 p.m. on Monday, March 25, 1991, file with the court any written objections...
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*654 ORDER GRANTING IN PART AND DENYING IN PART WILLIAM L. HART’S MOTION FOR DISCLOSURE OF BRADY MATERIAL AND EVIDENCE FAVORABLE TO THE DEFENDANT William L. Hart seeks pretrial disclosure of Brady material, Jencks Act material and Fed.R.Crim.P. 16 material. The government does not oppose the motion with respect to the Fed.R.Crim.P. 16 material. With respect to the Brady and Jencks Act...
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MEMORANDUM AND ORDER Plaintiff Mutee El-amin, proceeding pro se, filed this complaint as a Bivens action 1 and under the Federal Tort Claims Act (the “FTCA”), as well as numerous other federal statutes. He sues defendants U.S. Veterans Administration (the “V.A.”) and adjudication officer Fred Rathgeber (jointly the “government”), and state defendant Dr. McClure, alleging violations of his...
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ORDER ON MOTION TO RECONSIDER REMAND Before the court is defendant Jaydev Patel’s motion to reconsider the remand order of February 15, 1991. Movant relies on 14 Wright, Miller & Cooper Section 3732 criticism of the general rule. The general rule set out in J. Moore, Moore’s Federal Practice § 0.168 [3.5-5], 586-87 (2d ed. 1985) is that “[i]f the first served defendant abstains from seeking remov...
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OPINION AND ORDER This case comes before the Court pursuant to Defendants’ 1 motion for summary *505 judgment pursuant to Rule 12(b)(6) of the Rules of Civil Procedure. Defendants seek summary judgment on the following grounds: 2 1) that the defendants violated no right, substantive or procedural, granted to Plaintiff under the Due Process Clause of the Fourteenth Amendment. 2) that a...
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OPINION In this qui tam 1 action, LaWanda Givler (“Givler” or “the relator”) is suing on behalf of the United States of America (“United States” or “Government”) to recover statutory penalties for fraud in the award of contracts. On May 9, 1990 defendant Buckl and Jankowski (“B and J”) 2 filed a motion to dismiss. B and J provided four separate grounds for...
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*417 MEMORANDUM OPINION In this suit the plaintiffs seek declaratory, injunctive and other relief against the City of Alexandria. Potomac Greens asserts that the City of Alexandria imposed conditions for site plan approval that exceeded its authority. Those conditions include the construction of additional lanes on the George Washington Memorial Parkway, the elimination of a leve...
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RULING Plaintiffs Edwin L. Barton and Alice F. Hanks are suing defendant Gifford-Hill & Co., Inc. for breach of contract. Plaintiffs leased a parcel of land in Rapides Parish, Louisiana to defendant, who was to mine it for sand and gravel and pay royalties to plaintiffs for all minerals removed and sold. Plaintiffs claim this contract was breached in two ways. First, plaintiffs allege tha...
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RULING This lawsuit arose from the ashes of American Bank, one of the many financial institutions that failed during the past few years. The Louisiana Commissioner of Financial Institutions closed American on 26 September 1986 and appointed plaintiff Federal Deposit Insurance Corporation (FDIC) as its receiver and liquidator. The FDIC subsequently sued the directors of the bank, alleging that t...
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ORDER FACTS Plaintiff filed this action for recovery of penalties and interest paid to Defendant. The parties have cross-moved for summary judgment, and have stipulated to the following facts: During the calendar year 1984, Plaintiff prepared the federal income tax returns and purchased the federal income tax refunds of the taxpayers identified on Amended Exhibit A to the Compla...
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MEMORANDUM In this diversity action, plaintiff alleges that the defendant breached an automobile insurance agreement by refusing to pay a claim which arose from an accident in Philadelphia. Presently before the court is defendant’s motion to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). I. BACKGROUND On March 19, 1988, plaintiff purchased an automo...
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MEMORANDUM DECISION AND ORDER This matter is before the court on defendant Showa Denko K.K.’s motion to dismiss plaintiff’s Amended Complaint for lack of personal jurisdiction and for insufficient service of process. A hearing on the motion was held March 15, 1991. Showa Denko K.K. was represented by Tracy H. Fowler, William H. Christensen and John M. Bredehoft. Defendant City Market, Inc...
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MEMORANDUM OPINION AND ORDER Before the Court are Plaintiffs’ Motion for Class Certification, filed April 22, 1986, and related pleadings. The Court held a hearing on the present motion on January 22, 23, and 24, 1991. Following the hearing, the parties submitted additional briefing. The Court enters this Order pursuant to Federal Rule of Civil Procedure 23(c)(1) and (3). For the reasons stated b...
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MEMORANDUM ORDER This case is before the Court on plaintiffs’ motion to compel answers to interrogatories and for attorney’s fees. Upon consideration of the motion, defendants’ opposition, and the entire record, the Court grants the motion to compel in part and *7denies it in part. The Court denies the motion for attorney’s fees. Plaintiffs, Marc Fagan and his parents, filed this action alleging ...
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ORDER Before the Court is Plaintiff’s motion for a preliminary mandatory injunction directing Defendant to grant Plaintiff authorization to work until a final hearing and determination of the merits in this case. On February 27, 1991, after initial briefing, a hearing was held at which the Court informed the parties that it would treat the motion as one for a permanent injunction, i.e. that it wo...
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*1058 OPINION AND ORDER Plaintiff, a non-profit educational institution, charges defendants with copyright infringement in violation of the Copyright Act of 1976, 17 U.S.C. § 101 et seq., trademark infringement in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and common law unfair competition. Plaintiff moved by order to show cause for a preliminar...
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ORDER Before the court is a petition seeking to consolidate arbitrations pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-14 (1988), and Respondents National Casualty Company (“National”) and Scottsdale Insurance Company’s (“Scottsdale”) motion to dismiss. Jurisdiction in the federal district court is predicated upon 28 U.S.C. § 1332 (1988). I. FACTUAL BACKGROUND “In cases...
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ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT On June 4,1990, Joseph M. Tritico, representing himself, filed a Petition for Preliminary Injunction and Temporary Restraining Order. Tritico does not set forth a jurisdictional basis for his Petition. However, jurisdiction exists under 28 U.S.C. § 1331 because his Petition involves a federal question. Plaintiff is a former federal prisoner wh...
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OPINION Plaintiff filed this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to obtain documents from the files of the Federal Bureau of Investigation (“FBI”), with processing fees waived under 5 U.S.C. § 552(a)(4)(A). The matter subsequently was referred to a federal magistrate for evaluation of defendants’ claims that certain documents were exempt from disclosure und...
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AMENDED DECISION AND ORDER INTRODUCTION This is an adversary proceeding brought by the trustee in bankruptcy in In re 1733 Ridge Road East. Inc. d/b/a Dodgetown, Bk. No. 90-21442. The debtor corporation (“Dodgetown”) was an auto dealership. The defendants are 10 shareholders in the debtor corporation who allegedly signed promissory notes to infuse capital, up to a combined...
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OPINION This case arises from the notorious helicopter crash on October 10, 1989 in Lacey Township, New Jersey, in which three top executives in Donald Trump’s organization were killed. Plaintiffs are the three Trump owned Atlantic City casinos (collectively “Trump”) and Helicopter Air Services, Inc., a Delaware corporation with its principal place of business in Linden, New Jersey. Defen...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion to dismiss plaintiff’s civil RICO claims (Doc. 102) and defendants’ motion for partial summary judgment (Doc. 119). 1 *873 This action arises out of the defendants’ sale of contact lenses to plaintiff Susan Skeet (“Skeet”) on four different occasions (1980, 1982, 1984, and 1985). Skeet alleges...
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OPINION AND ORDER Defendant Farley has filed post-trial motions with a supporting memorandum of law for arrest of judgment or alternatively a new trial. The government has submitted a brief in opposition to these motions as well as exhibits and an affidavit. The court heard further testimony and arguments on the motions at a February 8, *462 1991, hearing in Easton, Pennsylvania. For the foll...
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ORDER GRANTING PARTIAL SUMMARY JUDGMENT This is an employment discrimination case in which plaintiff alleges that defendant violated R.S.Mo. § 213.055 because it refused to offer plaintiff a promotion due to her gender. Plaintiff also asserts a claim of intentional infliction of emotional distress. Plaintiff seeks lost wages and benefits, punitive damages and attorney’s fees for both clai...
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MEMORANDUM AND ORDER On May 1, 1989, Leco Enterprises, Inc., an electrical contractor, and its procedurally consolidated subsidiaries (collectively referred to as the “Debtor”) filed a voluntary bankruptcy petition pursuant to Chapter 7 of Title 11 of the United States Code. On February 3, 1990, Kenneth P. Silverman, plaintiff herein, was appointed the Chapter 7 Trustee. *387 ...
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MEMORANDUM AND ORDER These are bankruptcy appeals brought by two law firms from an order denying their motions to reconsider an earlier order that had disallowed a particular amount or percentage of their requested fees. Because the issues are similar in both ap? peals, the court consolidates them for purposes of entering this order. This Chapter 11 bankruptcy was filed by the debtor...
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MEMORANDUM This is a civil enforcement action brought by the Federal Election Commission (“FEC”). It presents questions of first impression concerning the meaning and effect of the Federal Election Campaign Act (“FECA”), 2 U.S.C. § 431 et seq. and related regulations which govern limitations on campaign donations by political committees, including those affiliated with national...
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ORDER Two motions are pending before this court. They are defendant’s Motion to Dismiss, filed December 3,1990, and plaintiffs' Motion to Amend Scheduling Order, filed March 7, 1991. Plaintiffs filed their Suggestions in Opposition on January 11, 1991, and defendant filed its reply to the motion to dismiss on February 15, 1991. Defendant filed its response to plaintiffs’ motion on March 1...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This case revisits the district court on defendants’ pending motion for summary judgment. The early history of this case begins with the court’s published decision in Bell v. Trustees of Purdue University, 658 F.Supp. 184 (N.D.Ind.1987). There, the court granted defendants’ motion to dismiss under Fed.R.Civ.P. 12(b)(6), holding that “the complaint fails to...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This court is not inclined to grant the relief requested by the plaintiffs. This conclusion has been reached after scrupulous attention at a five-day trial, review of our copious notes taken contemporaneously with the testimony of the many witnesses and arguments of counsel, examination of each admitted trial exhibit, study of the post-trial briefs,...
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RULING ON MOTION FOR SUMMARY JUDGMENT This case requires the Court to determine whether plaintiffs claim under Louisiana products liability law for an alleged manufacturing or design defect in an automobile airbag is preempted by the National Traffic and Motor Vehicle Safety Act (National Safety Act) and the federal safety standards. 1 On March 4, 1986, Lynda D. Perry suffered ...
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RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT In this case, the plaintiff, Frank Longo (“Longo”), sues the defendant, the United States Postal Service (“USPS”), for violating his constitutional rights under the First and Fifth Amendments to the United States Constitution by preventing him from soliciting signatures on a petition enabling him to run for political office. The plaintiff alleg...
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OPINION AND ORDER This action was originally instituted by plaintiff for recovery of damages from defendants in connection with a claimed breach of contract. On February 16, 1990, the action was stayed pending arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. On September 13, 1990, Arbitrator Max N. Osen issued his award, which was expressly reaffirmed ...
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ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER TRIAL VENUE Introduction Defendant, charged in a 72-count superseding indictment with, inter alia, the December, 1989 mail-bomb deaths of Eleventh Circuit United States Court of Appeals Judge Robert S. Vance and Savannah alderman and civil rights attorney Robert E. Robinson, moves under Federal Rule of Criminal Procedure 21(a) for transfer of ve...
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ORDER Alleging a violation of section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a), and the Truth in Lending Act, 15 U.S.C. § 1601 et seq., the Federal Trade Commission (“FTC”) filed this lawsuit against World Travel Vacation Brokers, Inc. (“World Travel”), C-S-K Enterprises, Inc., and the principals of these two corporations, Scott Walker and Carol Walker. Specifically, the FTC accuse...
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*138ORDER AND REASONS Before the court are two motions filed by defendants Royal Nissan (Royal) and Diamond Motors (Diamond). The defendants have moved the court to alter or amend the order granting the preliminary injunction to omit reference to the defendants Royal and Diamond. The defendants have also filed a motion to dismiss for failure to state a claim upon which relief can be granted, lack...
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ORDER RE ERISA PREEMPTION OF PLAINTIFF’S NEGLIGENCE CLAIM AND PARTIAL REMAND Briefly, this case involves an employee who was severely injured and rendered a quadriplegic in a non-work related accident. Plaintiff’s employer, defendant Assured Content, had obtained group medical insurance for its employees. The insurance was placed by defendant Peter C. Foy and Associates, a broker, and written b...
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ORDER The United States appeals a decision of the U.S. Bankruptcy Court discharging an estate from tax liability under 11 U.S.C. § 505(b). The United States contends that, contrary to the bankruptcy court’s ruling, the estate is not a “successor to the debt- or” as defined in § 505(b). For the reasons set forth below, the decision must be reversed. An estate is not included as a discharge...
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ORDER Nearly one year after judgment was entered in this case, the litigants are still trying to stake out their rights and liabilities. The dispute centers around a defective motor home that was manufactured by Executive Industries, Inc. (“Executive”), and distributed by Motor Vacations Unlimited, Inc. (“Motor Vacations”). The purchasers of the motor home, Kenneth and Marlene Schaap, filed sui...
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DECISION AND ORDER INTRODUCTION Before this Court is defendant’s motion for summary judgment pursuant to Fed.R. Civ.P. 56. Plaintiff Douglas R. Townsend (“Townsend”) sues defendant Harrison Radiator Division, General Motors Corporation (“Harrison”) for Harrison’s breach of an implied employment contract. Although Townsend initiated this lawsuit in state court, on May 1, 1989, de...
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MEMORANDUM AND ORDER In September, 1985, this court entered a finding of liability against the Metropolitan District Commission of Massachusetts and its successor agency, the Massachusetts Water Resources Authority (“MWRA”), for polluting Boston Harbor with untreated sewage from the greater metropolitan Boston area in violation of the Water Pollution Control Act, 33 U.S.C. §§ 1251-1377. ...
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*244MEMORANDUM Plaintiff brought this action for employment discrimination against defendants UNC Associates Inc. (“UNC”) and its president, Edward Duggar III. Plaintiff, a Massachusetts resident, began working for UNC on July 2, 1984. UNC, a Massachusetts corporation, provides venture capital to minority-owned companies. On February 23, 1989, Duggar informed plaintiff, who was five months pregna...
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MEMORANDUM AND ORDER This matter is before the Court on the Commonwealth’s motion to modify or stay my order of February 25, 1991, 757 F.Supp. 121, and my later order of April 1, 1991, 761 F.Supp. 206. Those orders imposed a sewer moratorium on certain residential, commercial and industrial sewer connections within the area served by the MDC systems that did not qualify for exemption under those o...
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MEMORANDUM I. BACKGROUND Plaintiff Sheila Garvey alleges in this Title VII action 1 that she was sexually harassed and subjected to gender-based discrimination from 1985 to 1987 while she was employed as a professor of drama at Dickinson College (“Dickinson”) in Carlisle, Pennsylvania. In addition to Dickinson, *1179 Garvey names as defendants George Allan, Ph...
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MEMORANDUM OPINION AND ORDER Plaintiff-Appellant United Merchants and Manufacturers, Inc. (“UMM”) appeals from an order of the United States Bankruptcy Court for the Southern District of New York (Blackshear, J.), which, upon consideration of whether a less severe sanction than dismissal would be appropriate, adhered to its original decision dismissing plaintiff’s complaint for failure to prosecu...
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CBL & Associates, Inc., has requested a preliminary injunction, later to be made permanent, to force McCrory Corporation to continue operating its store in the Georgia Square Mall in Athens, Georgia, under the terms of the lease agreement. This case was originally filed in Clarke County Superior Court, but has been removed to this court. I. BACKGROUND CBL owns and operates Georgia Squ...
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OPINION AND ORDER In this bankruptcy appeal, appellant, Hartford Accident and Indemnity Company (“Hartford”), challenges the United States Bankruptcy Court’s order extinguishing a judgment lien Hartford recorded on certain residential real property owned by appel-lees, Benjamin and Pamela Vanden Bossche (the “Vanden Bossches”). Having considered the pleadings and oral argument of counsel,...
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OPINION Defendant Metropolitan Life Insurance Company (“Metropolitan”) has moved for summary judgment dismissing the complaint of plaintiff Catherine Arthurs (“Ar-thurs”). For the following reasons, the motion is denied. THE PARTIES Arthurs is the widow of Raymond Ar-thurs, who was, at the time of his death, employed as a splicer by the Consolidated Edison Company of New York, I...
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OPINION Plaintiff Ariel Maritime Group, Inc. (“Ariel”) commenced this action on October 20, 1987 to recover $21,997 in damages which it allegedly incurred due to the breach of a maritime contract by defendants Zust Ba-chmeier of Switzerland, Inc. (“Zust”) and Royal Forwarding, Inc. (“Royal”). Ariel claims that it provided ocean carriage for eight 20-foot containers of calcium hypochl...
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MEMORANDUM In this action for declaratory relief, plaintiff Firemens Insurance Company of Newark, New Jersey (Firemens) seeks a declaratory judgment that the defendant Patricia M. Calorio may not stack coverages in ex*108cess of the liability limits of her Firemens automobile insurance policy. Calorio had a Firemens automobile insurance policy with liability coverage limits of $100,000 per acciden...
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MEMORANDUM ORDER The defendants, Cox and Macicek, have filed a motion to suppress approximately $484,000.00 of currency seized from them at the San Francisco International Airport on February 28, 1990. They argue the seizure was unlawful and violative of their Fourth Amendment rights. This court has reviewed the motion to suppress, the government’s response, and the defendants’ supplemental motion...
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OPINION Defendant Alan Raphael (“Raphael”) has moved pursuant to Rules 8(b) and 14, Fed. R.Crim.P. to sever his trial from that of co-defendants Mario Alegría (“Alegría”), Rafael Mercedes (“Mercedes”), George Es-pinal (“Espinal”), and Victor Pena (“Pena”), and, pursuant to Rule 7(f). Additionally, Raphael has moved pursuant to Rule 16 Fed.R.Crim.P., for the United States (the “Government”) to p...
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MEMORANDUM OPINION AND ORDER CAME ON TO BE HEARD this day the appeal of First City National Bank of Beaumont (the bank) in the above-captioned and numbered cause, and the court, after considering said motion, the reply and the various arguments of counsel at the hearing, is of the opinion that the appeal is meritorious. The court, therefore, vacates the order of allowance of claims and re...
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OPINION AND ORDER This is the damages phase of a bifurcated patent infringement action involving Coriolis mass flowmeters, which measure the mass flow rate of liquids. Since 1977, plaintiff, Micro Motion, Incorporated (“Micro Motion”), a Colorado corporation and a wholly-owned subsidiary of Emerson Electric Company (“Emerson Electric”) since 1984, has manufactured and sold Coriolis mass f...
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OPINION AND ORDER Defendant John Morrell & Co. (“Morrell”) moves pursuant to 28 U.S.C. § 1404(a) to transfer this action to the United States District Court for the Southern District of Ohio. The motion is denied. This action was commenced by plaintiff Congress Financial Corporation (“Congress”) in New York State Court by service of a summons and verified complaint on defendant on Oc...
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MEMORANDUM AND ORDER This matter is before me on two motions filed by the City of Boston and the Boston Redevelopment Authority, and one motion filed by the United States. The first two motions were triggered by my Memorandum and Order, February 25, 1991, 757 F.Supp. 121. That order imposed a ban on certain new sewer hook-ups to the sewer system of the Massachusetts Water Resources system. The bac...
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OPINION AND ORDER Plaintiffs, resident California state and federal taxpayers, filed a declaratory relief action against defendants 1 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 Improvement Act of 1981, 20 U.S.C....
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ORDER AND MEMORANDUM ON DATA GENERAL’S MOTION FOR SUMMARY JUDGMENT ON GRUMMAN’S ANTITRUST COUNTERCLAIMS, AND GRUMMAN’S MOTION FOR EXPENSES AND FEES Data General (DG) sells computer systems and provides services for their maintenance and repair. Grumman Systems Support (Grumman) provides services for the maintenance and repair of numerous computer systems, including those manufactured by D...
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*224MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Background This case arises out of the drowning death of William J. Rodrigue while he was serving as an airman for the United States Air Force at Kadena Air Base, Okinawa, Japan. On March 8, 1986, Airman Ro-drigue and several other airmen went to Hedo Point, a beach approximately twenty-five miles ...
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RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Donald Chube filed this action seeking damages against his former employer, Exxon Chemical Americas (Exxon), for an alleged wrongful termination of his employment. In addition, the plaintiff is seeking damages for intentional infliction of emotional distress, defamation, and violation of the federal Fair Credit Reporting Act, 15 U.S.C. § 1...
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OPINION AND ORDER On April 8, we filed an opinion denying the government’s motion seeking dismissal of the third-party complaint against it. Thereafter we received a letter from the government in further support of such motion. Construing that letter as a motion for reargument, we grant it. The letter includes citations to several cases which the government accurately asserts contain...
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MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO HAVE THE COURT REVIEW THE CERTIFICATION OF THE ATTORNEY GENERAL AND DEFENDANT’S MOTION TO DISMISS THE PLAINTIFF’S THIRD AMENDED COMPLAINT This action arises out of the alleged sexual harassment of Theresa H. Wood during her employment with the United States Army as a secretary for Major Charles D. Owens and Lieutenant Colonel Ronald P. Dale. O...
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MEMORANDUM OPINION AND ORDER This marine insurance case arises from the destruction of several large shipments of fruit as a result of a United States and Canadian government embargo of fruit from Chile. The question presented is whether defendant insurer may deny coverage based on certain exclusions that were named but not set forth in the policy issued to the insured. BACKGROUND ...
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AMENDED OPINION This case illustrates how ineptitude and dilatory tactics can complicate a relatively simple matter. BACKGROUND These consolidated actions relate to a 90-day renewable certificate of deposit, in the amount of approximately $500,000, issued by National Westminster Bank (the “Bank”). It is disputed whether the account was held solely by Benjamin Ghitel-man or joint...
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MEMORANDUM OF DECISION INTRODUCTION Plaintiffs filed this action to enjoin the Internal Revenue Service (“IRS”) from collecting past due taxes, interest, and penalties allegedly owed by plaintiffs for the tax years 1980, 1981, and 1983. The basis for plaintiffs’ action is that the IRS failed to provide the plaintiffs with proper notice of the deficiency prior to the running of the st...
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MEMORANDUM ORDER The plaintiff, Ira Johnson, filed an application for supplemental security income, based on disability, pursuant to 42 U.S.C. § 405(g). That application was denied initially and on reconsideration. The plaintiff requested and received a hearing before an administrative law judge (ALJ). The ALJ issued an opinion denying the plaintiff disability benefits. Review of the AU’s decision...
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MEMORANDUM OPINION Introduction This employment contract dispute raises the somewhat novel question whether an agreement providing for the payment of an employee’s share of certain company profits in installments over a five-year period is an “employee pension benefit plan” or an “employee welfare benefit plan” subject to the provisions of the Employee Retirement Income Security ...
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OPINION Before the court is defendant’s motion to modify a permanent injunction entered into with the consent of both parties. Introduction A settlement of litigation involves an analysis by the parties which invariably takes into account the issues of fact and the existing state of the applicable law, and each party measures its settlement position and offers against its li...
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MEMORANDUM OPINION AND ORDER This case comes before the Court on plaintiff’s motion, filed March 12, 1991, seeking to preliminarily enjoin various activities of defendants, including a meeting scheduled for April 11, 1991. Oral argument was heard on March 28, 1991. For the reasons stated below, plaintiff’s motion for a preliminary injunction is DENIED. I. THE FACTS On November 29, 1989, the...
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ORDER ON MOTION FOR SUMMARY JUDGMENT The cause is before the Court on Defendant’s motion for summary judgment, filed March 22, 1991, and response thereto, filed April 4, 1991. 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 genuine issue as to any material fact when all the evidence is ...
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ORDER In this suit, State Farm Fire & Casualty Company (“State Farm”) seeks a declaration that it has no duty to indemnify the insured, Thomas Ezrin, for damages arising from an alleged sexual assault. In its motion for summary judgment, State Farm contends that Ezrin’s conduct was intentional and thus excluded by the terms of the policy and by California Insurance Code § 533. For the rea...
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MEMORANDUM AND ORDER ON THE UNITED STATES’ MOTION FOR SUMMARY JUDGMENT This action arises from the mid-air collision between a Piper Navajo and a Cessna. The plaintiff was a student pilot in the Cessna and claims, in relevant part, that the Federal Aviation Administration’s (FAA) negligent conduct in not issuing a travel advisory to the Piper Navajo was a proximate cause of his injuries. ...
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MEMORANDUM Presently before the Court is an action brought by the plaintiff’s attorney1 to recover fees and expenses incurred in his representation in the above-styled employment discrimination action. Also before the Court is a motion by the defendants for sanctions against the plaintiff’s counsel under Rule 11 of the Federal Rules of Civil Procedure. Upon the stipulations of the parties and tes...
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ORDER In this action, pro se plaintiff L. Dickinson Bennett (“Bennett”) brings suit against Centerpoint Bank (“Centerpoint”), its chairman and president Philip M. Stone, and its general counsel Edward L. Hahn (collectively referred to as “Centerpoint defendants”). Additionally, Bennett sues defendants David B. Salzman, Richard P. Dem-ers, Michael J. Kennedy, Anthony J. Frederic...
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ORDER On January 11, 1991, plaintiffs in a pending state civil action, In re Complex Blood Bank Litigation, No. 908843 (San Francisco Superior Court), filed a letters rogatory in this court seeking permission to depose *161Dr. Donald P. Francis, an employee of the Centers for Disease Control. Plaintiffs seek to depose Dr. Francis concerning statements he made at a meeting at the CDC on January 4,...
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ORDER This is an in rem seizure action under the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 — 393 (1972 & Supp.1991) (the “Act”). The plaintiff, the United States of America through the Food and Drug Administration, seeks the condemnation and destruction of two drums of black currant oil (“BCO”). The claimant, Traco Labs, Inc., asserts that the drums belong to it and...
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MEMORANDUM OPINION In this case plaintiff, Regional Director of the Washington, D.C. Region of the Federal Labor Relations Authority, seeks a temporary injunction against the Federal Deposit Insurance Corporation (“FDIC”), to compel the FDIC to recognize and bargain with the union representing certain of the FDIC’s employees. The union, National Treasury Employees Union (“Union”), ...
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*432 MEMORANDUM OPINION Defendants’ summary judgment motion presents, inter alia, the question whether a Virginia county can validly assign to a developer its rights under a subdivision agreement and performance bond. In connection with the development of certain property in Loudoun County, the County entered into a subdivision agreement with the property owner defenda...
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ORDER This matter comes before the court on defendants’ second motion to dismiss the first amended complaint, and individual defendant Rollnick’s motion to dismiss and to strike portions of the first amended complaint in the above-captioned matter. Plaintiff having remedied deficiencies in the original complaint, defendants’ second motion to dismiss is DENIED in part and GRANTED in part f...
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*877 MEMORANDUM AND ORDER This matter is before the court on several pretrial motions filed by the defendants. The court held a hearing on Friday, March I. 1991. The court has received the post-hearing submissions of the parties and is prepared to rule. The defendants, brothers Rick, Terry and Kenny Cantrall, are charged with conspiracy to distribute cocaine and attempt to p...
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AMENDED MEMORANDUM OPINION AND ORDER Pending before the Court are the cross-motions of the parties for summary judgment. On consideration of the pleadings, the administrative record, and the oral hearing held on this matter, and for the reasons set forth below, defendants’ and defendant-intervenor’s motions are granted and plaintiff’s motion is denied. I. BACKGROUND Plaintiff Et...
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MEMORANDUM AND ORDER This matter is presently before the Court on defendant Rockwell International Corporation’s motion for summary judgment on plaintiff’s claim pursuant to 42 U.S.C. § 1981. Defendant argues that the allegations of plaintiff’s amended complaint do not state a cause of action under section 1981 in light of Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2...
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MEMORANDUM DECISION AND ORDER REVERSING THE JUDGMENT OF THE MAGISTRATE This matter is before the court on defendant’s appeal of the Judgment of the magistrate revoking defendant’s probation and sentencing him to thirty days in the Federal Halfway House. A hearing on the appeal was held April 3, 1991. Defendant was represented by Kristine K. Smith. The government was represented by James D. Gilson...
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OPINION The matter before the court is the motion (# 14) of defendant, Transamerica Occidental Life Insurance Company (Trans-america), for summary judgment in its favor on the claims of plaintiff, Mary Louise Thomas. This is a declaratory judgment action in which Mary Louise Thomas seeks a declaration that her husband, Donald Eugene Thomas, suffered an “accidental death” as defined b...
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MEMORANDUM AND ORDER This matter is before the court on the court’s own motion. The plaintiff Debra Vogt Sipka, proceeding pro se, filed this action, alleging that she was denied due process and equal protection, and that full faith and credit was not given to a State of Kansas court order. Plaintiff alleges jurisdiction under 42 U.S.C. §§ 1983, 1985 and 18 U.S.C. §§ 241-242. Plaintiff al...
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761 F.Supp. 672 (1991) UNITED STATES of America, Plaintiff, v. ONE HUNDRED THOUSAND DOLLARS ($100,000.00), Defendant. No. 90-2085C(1). United States District Court, E.D. Missouri, E.D. April 11, 1991. *673 Daniel E. Meuleman, Asst. U.S. Atty., St. Louis, Mo., for plaintiff. Coggan Mills, Clayton, Mo., for defendant. MEMORANDUM NANGLE, District Judge. The United States brings this forfeiture acti...
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OPINION AND ORDER Petitioner, William P. Nicoletti, moves to modify an arbitration award, dated December 7, 1990 and rendered in his favor in the amount of $200,000. BACKGROUND Mr. Nicoletti was employed by respondent E.F. Hutton from 1969 until 1988 when his employment was terminated by respondent Shearson after it acquired E.F. Hutton. At the time of his termination, Mr. Nicol...
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MEMORANDUM OPINION This is an appeal pursuant to 28 U.S.C. § 158 from the United States Bankruptcy Court for the Northern District of Illinois (No. 81 B 9964). The decision of the bank *188 ruptcy court is reversed, and the case is remanded for further proceedings. FACTS Dr. Douglas R. Prince (“Prince”), an orthodontist, and his wife Jane (collectively “the debtors”) filed a joint Chapter...
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*4 MEMORANDUM OPINION This case is before the Court on defendant Ian Ashley’s motion to suppress tangible evidence. On January 29, 1991, a Metropolitan Police Officer searched Mr. Ashley and recovered approximately 77.4 grams of crack cocaine from his person. Mr. Ashley seeks to bar introduction of this evidence at trial. The Court held an evidentiary hearing on April 8, 1991. Because the s...
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OPINION In the action before the court, plaintiff, Floor Covering Union and Industry Welfare Trust (the trust), seeks a money judgment in the amount of $47,101.59 against defendants, Wayne Tompkins and Esther Tompkins. The trust contends that it is entitled to restitution in the amount of $47,-101.59 in medical benefits paid by the trust on behalf of Wayne and Esther Tompkins after June, 1986 b...
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These are expedited appeals from a decision reached by the Bankruptcy Court for the Southern District of New York on April 3, 1991 in the Chapter 11 proceedings of Financial News Network, Inc. (“FNN”). In re Financial News Network, Inc., 91 B 10891 (FGC). *159 The Bankruptcy Court ruled orally on that date that any antitrust objections or actions by the Federal Trade Commission (FTC) or sta...
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OPINION I. Plaintiff Plastic Films, Inc. (“Plastic”) is the holder of U.S. Patent No. 3,791,573. It alleges defendant Poly Pak America, Inc. (“Poly Pak”) is infringing this patent by producing and selling chains of plastic bags incorporating the patented invention. Plastic also alleges that these bags have been sold to the Millburn Peat Company, Inc. (“Millburn”) in Three Rivers, Mic...
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MEMORANDUM & ORDER THIS CAUSE IS before the court upon several motions of the parties relating to an attempt by the defendants to dismiss Plaintiffs claim for punitive damages and attorneys’ fees. 1 Plaintiff State of Wisconsin Investment Board (“SWIB”) is an independent state agency which invests and manages pension funds for the benefit of Wisconsin’s public employees. SWIB h...
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MEMORANDUM OPINION This is an action brought pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., by Cassie A. Hubbard, f/k/a Cassie Wickes, the plaintiff, against the defendant National Bond and Collection Associates. (Docket Item [“D.I.”] 1). Discovery was completed on January 14,1991 (D.I. 6), and the case is presently before the Court on ...
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ORDER This matter is before the Court on defendant’s motion to dismiss the third count of the complaint. After a hearing on the motion, the Court took the matter under advisement. United Dominion Industries, Inc. (“United Dominion”) brought this action against Overhead Door Corporation (“Overhead Door”) regarding its recent purchase of the assets of AEP-Span, a division of Overhead D...
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762 F.Supp. 844 (1991) ELECTRO BATTERY MFG. CO. and Fireman's Fund Insurance Cos. Plaintiffs, v. COMMERCIAL UNION INSURANCE CO., Defendant. No. 89-0297-C-5. United States District Court, E.D. Missouri, E.D. February 26, 1991. *845 *846 Dennis C. Burns, Godfrey, Vandover & Burns, Inc., St. Louis, Mo., for plaintiffs. Russell F. Watters, Brown & James, St. Louis, Mo., for defendant. MEMORA...
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*344 MEMORANDUM This matter comes before this Court by way of the Bankruptcy Court, in which plaintiff originally filed her complaint to determine nondischargability of debt. The Eighth Circuit has held that Bankruptcy Courts, as Article I courts, lack the statutory authority to conduct jury trials on legal proceedings. In re United Missouri Bank of Kansas City, N.A., ...
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OPINION In this action for declaratory and injunc-tive relief, plaintiffs claim that defendants have violated their constitutional rights by discriminating against them in awarding road construction projects. In granting contracts containing federal funds, the State of Michigan has set aside 1.32% of the dollars awarded for Disadvantaged Business Enterprises (“DBEs”). Plaintiffs contend t...
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MEMORANDUM OPINION AND ORDER Plaintiffs, residents of an Elgin mobile home park, filed a seven-count complaint seeking declaratory, injunctive relief, and damages on their own behalf and on behalf of approximately 1100 other park residents against defendant, De Anza Santa Cruz Mobile Estates (“De Anza”). On April 25, 1988, the court certified a class and three sub-classes of tenants depen...
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ORDER Sitting by Designation, Northern District of Georgia. Introduction Defendant Walter Leroy Moody, Jr., charged in a 72-count superseding indictment with, inter alia, the December, 1989 mail-bombing assassinations of Eleventh Circuit United States Court of Appeals Judge Robert S. Vance and Savannah alderman and civil rights lawyer Robert E. Robinson, makes various pretrial motions. Al...
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MEMORANDUM AND ORDER Petitioner, George Herghelegiu, currently serving a seven year sentence for drug offenses, moves that his time on bail between arrest and sentencing, be credited towards service of his sentence as time “in custody” under the applicable statute, 18 U.S.C. § 3568. The conditions of George Herghelegiu’s bond were: 1) Defendant was held on $100,000-10% cash bail, 2) Defendant was ...
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OPINION 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 Consent Decree provi...
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MEMORANDUM OPINION AND ORDER As a result of damage from some leaking pipe allegedly sold by Greenwood International, Inc. (“Greenwood”) to S.G. Supply Company (“SG”), SG has filed a two-count Complaint against Greenwood: 1. Count I alleges that Greenwood breached its express warranty that the pipe was of a certain type. 2. Count II alleges that Greenwood breached its implied war...
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OPINION The matter before the court is defendant’s motion for summary judgment (# 21) dismissing the amended complaint. Plaintiff, Thod S. Madsen, brings this action for breach of a contract of insurance against the defendant, Allstate Insurance Company (Allstate), and, in the alternative, for reformation of the contract of insurance. Madsen also alleges claims for breach of contract...
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ORDER GRANTING SUMMARY JUDGMENT This cause comes before the Court upon Defendant’s Motion for Summary Judgment, originally filed September 13, 1990. 1 The parties having filed their supplemental memoranda, and the Court having carefully reviewed the file, it is hereby ORDERED and ADJUDGED that Defendant’s motion is GRANTED. FACTS In December 1988, Sunrise Savings and ...
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ENTRY This cause comes before the Court on the motion of Koetter Woodworking, Inc. for summary judgment. For the following reasons, the motion is granted. Background The plaintiff, David Sprigler (Sprigler) was injured while working as a woodworker for Koetter Woodworking, Inc. (Koet-ter). On February 12, 1988, Sprigler climbed inside a large woodgrinder manufactured by defendant Osnabrucker Me...
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ORDER DENYING MOTION TO DISMISS DEFENDANT’S COUNTERCLAIM AND DENYING MOTION TO REFER ISSUES TO THE FCC This cause is before the court on the plaintiff’s motion to dismiss the defendant's counterclaim and on the defendant’s motion to refer issues to the Federal Communications Commission. The plaintiff’s complaint seeks over $50,000 for telecommunications services which it asserts are due and owing...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 12(b)(2), 12(b)(6), and 12(f) MOTIONS This cause is before the court upon motions by defendants Henry F. Seebach III, Eyelematic Manufacturing Company, Inc., Henry F. Seebach, Jr., and Laurie Seebach to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). In the alternative, defendants Ey-elematic ...
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MEMORANDUM OPINION By an order of February 22, 1991, this court certified this case as a class action, and it is currently before us on crossmotions for summary judgment. In count I, plaintiffs allege breach of contract as a violation of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, while in count II they proceed under the Employee Retirement Income Security Act (ERISA), *87129 U.S....
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ORDER GRANTING PLAINTIFF’S MOTION FOR RELIEF FROM FINAL JUDGMENT This cause is before the court upon the plaintiff’s motion to reopen judgment and to amend the complaint to add a damage claim on behalf of John J. Rivera, the minor son of the plaintiff’s decedent. The plaintiff, Mary Rivera, has filed this motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. In essence, Mary River...
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ORDER This action brought under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, et seq., is before the court on Defendants’ motion to dismiss pursuant to Fed.R. Civ.P. 12(b)(6). The relevant facts are brief. Plaintiffs are all firefighters employed by Cobb County. In 1976 the Supreme Court barred application of the FLSA, including its overtime provisions, to State and municipal em...
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MEMORANDUM ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Edward Wasko, a state prisoner presently serving a life sentence for first-degree murder, petitions this Court for a writ of habeas corpus. The petition presents the question of whether a defendant’s sixth amendment right to confront the witnesses against him is violated if he is forbidden from inquiring into the terms of a plea agreemen...
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OPINION These are consolidated appeals from a decision of the United States Bankruptcy Court for the Western District of Michigan in an action arising out of the bankruptcy of Gordon and Joan Zwagerman, d/b/a Zwagerman Farms (hereinafter “Zwager-man” or “the debtors”). 115 B.R. 540. Bankruptcy Trustee James D. Robbins (hereinafter “Trustee”) and Comerica Bank-Detroit (hereinafter “Co...
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DECISION AND ORDER I. FINDINGS OF FACT 1. Plaintiff Carson Concrete Company (“Carson”) is a Pennsylvania corporation engaged in the business of concrete construction contracting, with principal offices in Conshohocken, Pennsylvania. Carson is owned and operated by Anthony Samango and Howard Cohen. Plaintiff the General Building Contractors Association (“GBCA”) is an association of building co...
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ORDER THIS MATTER is before the Court on Plaintiffs motion, filed February 11, 1991, to amend a judgment previously entered in this matter in which the Court dismissed fraud claims alleged in the complaint. Plaintiff has requested that the Court certify the appeal of those dismissed claims pursuant to Rule 54(b) of the Federal Rules of Civil Procedure or 28 U.S.C. § 1292(b) prior to the d...
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MEMORANDUM AND ORDER This matter comes before the court on the motion of defendant for summary judgment. The action is for recovery of insurance benefits under a group health plan, pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B). *879 Plaintiff John R. Frerking became an employee of Bank IV on October 29, 1986. As an emplo...
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FINDINGS AND RECOMMENDATION The instant matter has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. Section 636 for findings and recommendation. Presently before the Court is defendant’s motion to strike plaintiff’s demand for jury trial in the instant matter pursuant to Fed.R.Civ.P. 39(a). Statement of Facts In her complaint, plaintiff, Kathy Noviel-lo, brings a discrim...
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MEMORANDUM OPINION AND ORDER Louis DeSalle (“DeSalle”) sues Illinois Department of Professional Regulation (“Department”) Director Kevin Wright (“Wright”) 1 and the members of the Illinois Medical Licensing Board (“Board”)— Jere Fridheim, M.D., Arvind Goyal, M.D., Lawrence Hirsch, M.D., John Holland, M.D., Roger Pope, D.C., and Larry Patton, D.O. — pursuant to 42 U.S.C. § 1983 ...
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*451ORDER THIS MATTER is before the Court on Plaintiffs Motion, filed 5 December 1990, for an Order of this Court compelling Defendant to fully answer Plaintiffs first set of interrogatories and for an Order of this Court awarding Plaintiff its reasonable expenses, including attorneys fees, incurred in obtaining compelled discovery as well as sanctions. On 21 December 1990, Defendant filed a resp...
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MEMORANDUM OPINION AND ORDER Plaintiffs commenced this action asserting securities fraud claims under both federal and state law. Defendant Joseph Gardner has moved to dismiss the action, arguing that the plaintiffs have not complied with Fed.R.Civ.P. 4(j).1 Plaintiffs have responded by opposing the motion. The parties have fully briefed the issues and oral argument would not materially facilitate...
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*546 ORDER THIS MATTER is before the Court on Defendants’ motion, filed March 14, 1991, for limited disclosure of grand jury transcripts. On March 27, 1991, Plaintiff filed a memorandum in opposition to Defendants’ motion. Defendants were the subject of an Ire-dell County Grand Jury Report made on January 14, 1991. The Grand Jury was convened to investigate Defendants pursua...
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DECISION This is a Rule 11 petition in which the defendants Chester Stranczek and others claim that plaintiff’s complaint, that had been dismissed before an answer was filed pursuant to Rule 41(a)(1), Fed.R.Civ.P., was not well-grounded in fact or law. They seek reasonable attorney’s fees for having been required to defend the action.1 A hearing was held before me and a decision, dated October 26...
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762 F. Supp. 1324 (1991) Dewan HULLUM, by his next friend Valerie WATSON, Plaintiff, v. Louis SULLIVAN, Secretary, Department of Health and Human Services, Defendant. No. 90 C 4311. United States District Court, N.D. Illinois, E.D. April 15, 1991. *1325 Steven Coursey, Thomas Yates, Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiff. Eileen M. Marutzky, Asst. U.S. Atty., Chicago...
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MEMORANDUM-DECISION AND ORDER Background This is the fifth memorandum-decision and order issued by this court concerning *31 the present action, which was filed in November, 1980; and familiarity with the facts and circumstances surrounding the proceedings involved in this case is presumed. See Cayuga Indian Nation of New York et al. v. Cuomo et al., 565 F...
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MEMORANDUM AND ORDER This matter is before the court on the defendant’s motion to vacate sentence pursuant to 28 U.S.C. § 2255. The defendant has filed a motion for summary judgment which has been fully briefed by the parties. The court held oral argument on March 14, 1991 and is now prepared to rule. The only issue presented by the motion is whether Coffman was a convicted felon within the mea...
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On appeal, Magistrate Judge Azrack’s order, requiring the appellant to produce allegedly privileged documents, is affirmed on the basis of her opinion set out below. So ordered. ORDER JOAN M. AZRACK, United States Magistrate Judge. Plaintiffs have moved this court for an order directing defendant Seaview Association of Fire Island, New York, Inc., (Sea-view), to respond a request for documents. Th...
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*301 MEMORANDUM AND ORDER This matter is before the court on the joint motion of defendants Service Business Forms, Inc. (“SBF”), the Ganzer Corporation, Inc. (“Ganzer Corp.”), Kevin Ganzer, and Lawrence Wolfberg for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) and (b)(5). The action is one in diversity for breach of an oral contract made in 1984. Defendants’ motion is made on the...
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MEMORANDUM The above-captioned action was brought by plaintiff, Jesse C. Wagner, II, in the Lancaster County Court of Common Pleas alleging that his discharge from the employ of defendant, General Electric Company, was wrongful and violated the law of Pennsylvania as being contrary to public policy. The law of Pennsylvania controls this case since the action was removed to the United Stat...
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MEMORANDUM AND ORDER This matter is before the court on the plaintiff’s appeal of the magistrate’s order (Doc. 34) and motion to consolidate discovery (Doc. 49). This is a personal injury action arising out of a motor vehicle accident. This appeal arises out of defendants’ motion to allow ex parte interviews with plaintiff’s treating physicians. Plaintiff opposed this motion, arguing only that th...
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ORDER THIS CAUSE has come before the Court upon the defendants’ Motions To Abate Or Dismiss For Lack of Jurisdiction. The plaintiffs have filed a Response, and the defendants each have rejoined with a Reply. The motions are now ripe for disposition. I. Background The plaintiffs have brought suit against American Importers of South Carolina, Inc. and Pedro Land, Inc., seeking red...
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MEMORANDUM RULING This matter is before the court upon the Second Supplemental Magistrate’s Report of United States Magistrate Stephen C. Riedlinger, dated January 9, 1991.1 Objections have been filed by plaintiff, by inter-venor, J. Courtney Wilson (plaintiff’s former attorney), and by defendants, David Bonnette and Robert Rowe. Preliminarily, the court notes that the magistrate has spent conside...
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MEMORANDUM AND ORDER Plaintiffs are a class, certified by order of January 24, 1990, consisting of: All past, present and future [Aid to Families with Dependent Children (“AFDC”) ] recipients whose right to receive child support has been assigned to the Rhode Island Department of Human Services and (a) on whose behalf child support has been or will be paid to DHS or to its counterpart in anot...
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MEMORANDUM OPINION AND ORDER This is an appeal under 42 U.S.C. § 405(g) of a final decision of the Secretary of the Department of Health and Human Services (Secretary) denying Jose Gomez’s request for Supplemental Security Income (SSI). There are two issues in this appeal: (1) whether the Appeals Council erred in denying further review by failing to consider the transcript of Mr. Gomez’s ...
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OPINION and ORDER This is an appeal from a- final order of a United States Bankruptcy Judge, in which appellant challenges the bankruptcy court’s authority to permit a discharged debtor to reopen a Chapter 7 proceeding to obtain lien avoidance on property that was either undervalued or not claimed as exempt during the original proceeding. Also, appellant challenges the bankruptcy court’s decisi...
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MEMORANDUM OF DECISION AND ORDER ON DEFENDANT GRUNTAL’S MOTION TO DISMISS This matter comes before the Court on Defendant Gruntal & Co., Inc.’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the Motion will be granted in part and denied in part. I. FACTS AND PROCEDURAL HISTORY Plaintiff Rosemary Reid, a Maine resident, en...
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761 F.Supp. 180 (1991) UNITED STATES of America, Plaintiff, v. 21 APPROXIMATELY 180 KG. BULK METAL DRUMS, MORE OR LESS, OF AN ARTICLE OF FOOD AND DRUG...., Defendant, Efamol, Inc., Claimant. No. 88-0101-P. United States District Court, D. Maine. April 9, 1991. *181 David R. Collins, Asst. U.S. Atty., Portland, Me., Mary K. Pendergast, Associate Chief Counsel for Enforcement, Office of the Gen. Co...
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OPINION The plaintiff filed suit in this case on April 6, 1990 alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692 et seq. (“FDCPA” or “the Act”). At bar are plaintiffs motion for partial summary judgment on the question of defendant’s 1 liability and defendant’s cross-motion for summary judgment. For the reasons which follow, defendant...
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MEMORANDUM OPINION AND ORDER This is an action to remedy alleged violations of the Sherman Act, 15 U.S.C. §§ 1 and 2. The plaintiff, Camellia City Telecasters, Inc. (Camellia) claims that the defendants, Tribune Broadcasting Company, Inc. and WGN of Colorado, Inc. (Tribune) illegally restrained trade in the Denver commercial television market by tying Tribune’s purchases of “quality syndi...
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MEMORANDUM OPINION AND ORDER Sheridan Square Partnership developed a 75 unit apartment complex catering to elderly people in Sheridan, Wyoming. The project is publicly assisted under Section 8 of the United States Housing Act of 1937, as amended, 42 U.S.C. § 1437f (1978). Section 8 is administered by the Department of Housing and Urban Development, the defendant in this suit. Under S...
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OPINION ON SUMMARY JUDGMENT Chapman and Cole’s motion to remand will be denied because they have no cause of action against the two non-diverse parties they attempted to join in the lawsuit. Chapman and Cole’s fraud claim will be dismissed because they lack standing to bring the action. Motorola’s motion for summary judgment on the guaranties will be granted because Chapman and Cole failed to p...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff filed suit in the Circuit Court of Macomb County, Michigan for claims arising out of defendant’s refusal to pay benefits under an alleged group health insurance policy. Specifically, plaintiff averred state law claims for breach of contract and for violations of various provisions of the Michigan Unfair Trade Practices Act. Plain...
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MEMORANDUM AND ORDER On March 26, 1985, Charles R. Hinckle pleaded guilty to two counts of making false statements to a bank, in violation of 18 U.S.C. § 1014. Mr. Hinckle was sentenced on June 3, 1985. On Count One, the court committed Mr. Hinckle to a work release program for a term of ninety days and ordered him to pay a $5,000 fine. On Count Two, the court placed Mr. Hinckle on probation for a...
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762 F. Supp. 147 (1991) Gary SCOTT, Plaintiff, v. COMMUNICATIONS SERVICES, INC., and Metromedia Company, Defendants. Civ.A. No. H-90-2502. United States District Court, S.D. Texas, Houston Division. April 5, 1991. *148 Charles E. Johanson, Austin, Tex., for plaintiff. Philip P. Sudan, Jr., Houston, Tex., for defendants. OPINION ON REMAND HUGHES, District Judge. After the corporate plaintiff-coun...
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*920 OPINION Alison Rollins, the daughter of Philip and Priscilla Rollins, died after being electrocuted while working on board the research vessel “Endeavor.” The United States owned, the Board of Governors for Higher Education leased, Peterson Builders built, and John W. Gilbert Associates designed the ship. Alison’s parents sue the Board under the Jones Act, 46 U.S.C.App. § 68...
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OPINION ON DENIAL OF REMAND Discharging an employee in retaliation for filing a workers’ compensation claim violates art 8307c of the Texas Revised Civil Statutes. Federal law prohibits removal of a claim to federal district court when the claim arises under the workers’ compensation laws of a state. 28 U.S.C. § 1445(c). Because the court finds that a claim for retaliatory discharge does ...
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OPINION ON SUMMARY JUDGMENT 1. Introduction. Richard L. Britt and Timothy Jackson, Jr., brought this class action against Grocers Supply Company, Inc., and the Teamsters Local 968 alleging that the employer’s change in the wage calculations from a flat rate system to one based on productivity was age discrimination. The plaintiffs have abandoned their claims against the Union, and they consente...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the court on Defendant Federal Deposit Insurance Corporation's Motion for Summary Judgment and Torke’s Request for Sanctions. The court has reviewed the motion and all the related briefs, the exhibits, the applicable law, has heard argument from counsel at the April 4, 1991 hearing, and is fully *755 advised in the premise...
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MEMORANDUM I.BACKGROUND This action involves a dispute over the rights and liabilities of the parties relating to the ownership of land within the Wallen-paupack Preserve. Plaintiff Patrick McCormick II initiated this action by filing a complaint on August 5, 1988. By Order dated September 7, 1988, the Honorable William J. Nealon granted plaintiff’s request for a temporary restraining order restr...
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MEMORANDUM ORDER On September 19, 1985, while employed by defendant J.J. Flanagan Stevedores (J.J. Flanagan), the plaintiff Henry Vickers (Vickers) sustained an on-the-job injury. Vickers was covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. Vickers filed a claim for compensation under the LHWCA, and was paid $63,121.73 in compensation benefits and med...
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ORDER In the above captioned case, the plaintiffs’ decedent was electrocuted while working on the ship-to-shore power cable connection of the vessel, Endeavor. Defendants have filed two motions in limine. In the first, they seek to exclude evidence of actual changes in procedures or hardware made after the August 11, 1986 incident. In the second, they move to exclude all reference to an i...
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ORDER Plaintiff brought this action pursuant to section 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 deceased wife’s claim for a period of disability and for disability insurance benefits under sections 216(i) and 223 of Title II of the Act, 42 U.S.C. sections 416(i) and 423. Plaintiffs wife (claiman...
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762 F. Supp. 86 (1991) AIR COURIER CONFERENCE OF AMERICA/INTERNATIONAL COMMITTEE, International Express Carriers Conference, DHL Airways, Inc., Dworkin-Cosell Interair Courier Services, Inc., Federal Express Corp., Intertrade Courier International, Inc., TNT Skypak, Inc., and UPS Air Forwarding, Inc., Plaintiffs, v. UNITED STATES POSTAL SERVICE, Defendant. Civ. A. No. 89-557-JRR. United States Di...
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OPINION This diversity case returns to the court on motion by plaintiff for preliminary injunction filed five days after the court had denied for lack of ripeness plaintiff’s earlier motion for a preliminary injunction after granting a Temporary Restraining Order. Plaintiff, APV Baker, Inc. (“APV Baker”), a Grand Rapids-based manufacturer of baking equipment, again seeks injunctive relief...
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*16MEMORANDUM OF DECISION AND ORDER On February 14, 1991 this Court ruled on three separate motions for discovery orders brought by parties to this litigation. See In re The One Bancorp Securities Litigation, 134 F.R.D. 4 (D.Me.1991). The issue now before the Court is the allocation of expenses associated with portions of those motions. I. Rule 37(a)(4) of the Federal Rules of Civil Procedure gov...
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762 F. Supp. 173 (1991) Gary MAURO, Plaintiff, v. Susan MAURO, Fayette Arnold, Lori Arnold, Katie Lasater, Joe Doe, commonly known as Raymond Randall Lasater, and Cecilia Lasater, jointly and severally, Defendants. No. 90-CV-70443-DT. United States District Court, E.D. Michigan, S.D. April 18, 1991. Curtis G. Rundell, II, Regina L. Meo, Suo, Rundell & Hechtman, Troy, Mich., for plaintiff. Jam...
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MEMORANDUM AND ORDER The above-captioned case has been extensively litigated over the past several years. For clarity’s sake, I will repeat the basic premises of this action. Alison Rollins, the daughter of Philip and Priscilla Rollins, died after being electrocuted while working on board the research vessel “Endeavor.” The United States owned, the Board of Governors for Higher Education ...
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MEMORANDUM AND ORDER As I have recited on several occasions, this is an action brought by the parents of Alison Rollins under the Jones Act for negligence against the Board of Governors of Higher Education, under general maritime law, the Public Vessels Act and the Suits in Admiralty Act against the United States and under the general maritime and products liability law against Peterson B...
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*1103 OPINION This is a claim brought by plaintiff Glen-side West Corporation (“Glenside”) against Exxon Company, U.S.A., a Division of Exxon Corporation (“Exxon”), and counterclaims brought by Exxon against Glenside arising out of the decision by Exxon to terminate the retail motor fuel service station franchise of Glenside (Glenside and Exxon are collectively referred to as the...
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OPINION AND ORDER This action was filed barely a month before the expiration of a one-year period of amnesty for undocumented aliens which had been authorized by the Congress in landmark immigration legislation. The plaintiffs here claim, in substance, that certain regulations issued by the Attorney General to implement the legislation were constitutionally and statutorily defective, caus...
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ORDER Defendant Horizon Savings Bank, F.S.B. (“Horizon”) has moved to dismiss an action brought against it by plaintiffs Marsha Drury and Richard Drury (collectively “Drurys”).1 The Drurys challenge actions taken by Horizon pursuant to the Expedited Funds Availability Act, 12 U.S.C. § 4001 et seq. For the reasons stated below, the court grants defendant Horizon’s motion to dismiss. FACTS Simply p...
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MEMORANDUM Defendants move to dismiss the complaint for failure to comply with Fed. R.Civ.P. 9(b).1 Plaintiffs’ first amended and consolidated complaint2 sets forth securities law claims under sections 10(b), 20(a) and Rule 10b-5,3 together with a pendent state law count for negligent misrepresentation.4 Jurisdiction is federal question. 15 U.S.C. § 78aa; 28 U.S.C. § 1331. In part, the complaint ...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Jurisdiction Plaintiff Brigitte Lewkowicz filed this complaint October 26, 1990, in the Circuit Court for the County of Oakland. Defendant Judith Lewkowicz removed this action to federal court January 7, 1991. Defendant had filed a motion for summary judgment November 6, 1990. Plaintiffs response to this motion wa...
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OPINION This is a civil action brought pursuant to Sections 1962(c) and (d) of the Racketeer Influenced and Corrupt Organizations (“RICO”) provisions of United States Code, 18 U.S.C. § 1961, et seq., and tortious interference with contract rights which are grounded in Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185, and state law. This C...
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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 on May 9, 1985. On June 13, 1985, Plaintiff paid $2.00 as a partial filing fee and thereafter paid $118.00 on October 19, 1989. Plaintiff is not proceeding in forma pauperis in...
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MEMORANDUM DECISION AND ORDER This case involves plaintiff’s challenge to the determination by defendant, through its fiscal intermediary, Blue Cross/Blue Shield, of the amount of money to which plaintiff was entitled for the years 1976-1981 under the Medicare reimbursement provisions. In the present motion, plaintiff moves to (1) compel discovery of six documents it considers relevant to that po...
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ORDER GRANTING ALLSTATE’S MOTION FOR JUDGMENT ON THE PLEADINGS I. INTRODUCTION By the instant motion for judgment on the pleadings, Allstate Insurance Company (“Allstate”) seeks a declaration that it has no duty to defend or indemnify its insured, Lisa LaPore, in a defamation action filed in state court by Mark Jozwiak. Allstate contends that (1) the policy only covers “accidents,” a...
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MEMORANDUM OPINION The plaintiff, Dr. Edward Senigaur (Sen-igaur), brings this suit against the Beaumont Independent School District (BISD) and individual defendants O.C. “Mike” Taylor (Taylor), former Superintendent; Joe Austin (Austin), Superintendent; and Bill Christian (Christian), former president of the BISD Board of Trustees (BISD Board). Senigaur alleges that he was denied various promoti...
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This suit to recover unpaid ad valorem taxes, penalties, interest, collection costs, and attorney’s fees requires the court to interpret 12 U.S.C. § 1825(b), to decide whether a provision of FIRREA 1 that amended former 12 U.S.C. § 1825 should be applied retroactively, and to determine whether plaintiffs may recover their attorney’s fees from the Federal Deposit Insurance Corporation...
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MEMORANDUM OPINION AND ORDER Defendants in this case, First Chicago Corporation, First National Bank of Chicago (“First Bank”), First Capital Corporation of Chicago, First Chicago Investment Corporation, and Richard C. Gallagher, have moved for summary judgment on the remaining counts of the amended complaint of plaintiff Shields Enterprises, Inc. (“SEI”). For the reasons stated below, defendants...
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ORDER The present action originally came before the court upon Metropolitan Life Insurance Company's (“Met Life”) motion for declaratory judgment and interpleader. By this court’s order, Met Life paid into the registry of the court the proceeds due under the Federal Employees Group Life Insurance (“FEGLI”) policy which is the subject of the present dispute. Met Life was then dismissed from this ca...
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Sitting by Designation. Plaintiff Chevene B. King, Jr., an Albany, Georgia attorney, as a result of being (1) arrested by deputy United States marshals while in Brunswick, Georgia for fail *338 ing to arrange for his law partner or an associate to appear in his stead before a United States magistrate judge at a hearing scheduled in Savannah, Georgia, (2) handcuffed and waist c...
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762 F. Supp. 327 (1991) Jerry L. JACOBS, Plaintiff, v. CITY OF JACKSONVILLE, James E. McMillan, as Sheriff of Duval County, Florida, Defendants. No. 90-247-Civ-J-16. United States District Court, M.D. Florida, Jacksonville Division. April 8, 1991. *328 Howard L. Dale, Jacksonville, Fla., for plaintiff. Leonard S. Magid, City of Jacksonville, Gen. Counsel's Office, Jacksonville, Fla., for defendan...
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ENTRY AND ORDER The plaintiff in this action, Patricia D. Rush,- was employed by defendant McDonald’s Corporation as a word processor *1352 technician from November 11, 1985, until her discharge on May 6, 1988. 1 Defendant Sharon Funston-Renihan was Rush’s supervisor from January, 1988, until Rush’s discharge. Defendant William Rose was a McDonald’s regional manage...
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RULING The newly-enacted La.Rev.Stat.Ann. 22:1220 creates for insurers a duty to make a reasonable effort to settle claims. Before the court is the motion for summary judgment of Employers Reinsurance Corporation, asking the court to hold not only that the new statute is not to be applied retroactively but also that it does not regulate or measure an insurer’s conduct after the commenceme...
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MEMORANDUM OPINION This diversity case arises out of an industrial accident which occurred in Bophuthat-swana, a homeland created by the South African government and granted independence from South Africa in 1977. Plaintiff Jan Abraham DuToit, a citizen and resident of South Africa, worked for defendant Vametco Minerals Corporation (“Vametco”) at a vanadium ore processing mill it operates in Boph...
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*1250 MEMORANDUM OPINION AND ORDER The government has moved for clarification of our December 28, 1990 order (An drews III), 754 F.Supp. 1206, which granted in part the government’s motion to reconsider our final severance order issued December 4, 1990 (Andrews II), 754 F.Supp. 1197. 1 The government’s instant motion concerns that portion of Andrews III that vacated our Rule 403 rulin...
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RULING Each petitioner is a Cuban national who came to the United States in 1980 *1265during the Mariel boatlift. The Immigration and Naturalization Service detained petitioner upon his arrival at the United States border and eventually decided to exclude him from admission into the country. 8 U.S.C. § 1226. De jure, petitioner has never entered this country. De facto, he is physically present an...
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ORDER The plaintiffs, James H. Hanley, et al, wish that their claims against the defen*41dants, First Investors Corporation and John Marceaux, be heard in a state courthouse. For, since the defendants first removed this lawsuit of state and federal claims and promptly moved for summary judgment, the plaintiffs have barraged this court with requests for continuances and motions to remand. First, th...
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OPINION I. FACTS In February 1988, Bank Audi (U.S.A.) (the “Bank”), a New York corporation, loaned $615,000 to New Era Company (“New Era”), a New York general partnership, for the purchase of a five-story residential building in Manhattan. The property is the sole partnership asset and is now worth approximately $650,000. It is unclear precisely what the property was worth at the tim...
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ORDER FACTS: The motion by defendants, Zapata Gulf Marine Corporation (“Zapata”), to dismiss for failure to state a claim upon which relief can be granted, as to loss of consortium, was submitted on a prior date. Plaintiff, Sandra West was employed as a cook by Zapata. Ms. West was a mem *503 ber of the crew of the M/V CHESAPEAKE SEAHORSE, a supply vessel. On or about March 30, 1988, Ms. ...
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RULING Each petitioner is a Cuban national who came to the United States in 1980 during the Mariel boatlift. The Immigration and Naturalization Service detained petitioner upon his arrival at the United States border and eventually decided to exclude him from admission into the country. 8 U.S.C. § 1226. De jure petitioner has never entered this country. De facto he is physically present a...
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OPINION AND ORDER Plaintiff, proceeding pro se, brought this action against her former employer, Southeastern Public Service Authority of Virginia (hereinafter “SPSA”), and Thomas Per-otti, an SPSA employee and plaintiff’s former supervisor. Plaintiff alleges that the actions of both of the defendants during the term of her employment, culminating in her discharge, constitute r...
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OPINION ON SUMMARY JUDGMENT 1. Introduction. An off-duty police officer working for a Texas public school assisted in detecting a student’s violation of the school’s drug policy. The student was not prosecuted criminally, but he was disciplined by the school. The process afforded the student was constitutionally adequate. The student will take nothing by his suit. 2. ...
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OPINION This is an action brought by plaintiff Glenside West Corporation (“Glenside”) against Exxon Company, U.S.A., a Division of Exxon Corporation (“Exxon”), and counterclaims brought by Exxon against Glen-side arising out of the decision by Exxon to terminate the retail motor fuel service station franchise of Glenside (Glenside and Exxon are collectively referred to as the “Parties”). ...
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ORDER The plaintiff in this action, R. Cameron Hammersley, severely damaged his eye when he walked into an anchor stock that protruded from a boat over the dockway of a marina. Before the Court is the summary judgment motion of the defendants, Dr. E.D. Hood and his wife, Mrs. Betty Hood, on their affirmative defenses under the Limitation of Liability Act, 46 U.S.C. App. § 181 through 188 ...
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ORDER RE MOTION FOR INTERNAL REVENUE SERVICE AUDIT LIST I. Introduction Defendant Stribling moves the Court pursuant to 26 U.S.C. § 6103(h)(5) to order the attorney for the government to obtain from the Secretary of the Treasury a yes or no answer regarding whether any of the prospective jurors has been the subject of any audit or other tax investigation by the Internal Revenue Servi...
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ORDER On 25 October 1990 this court dismissed the underlying suit in the case at bar. In that decision the court found that plaintiff Titus Stanfield’s complaints against Brook-shire Grocery Co. were without merit and sanctioned Edward Larvadain, Jr., attorney for plaintiff, for using degrading language that reached beyond the bounds of permissible advocacy in his post-trial brief. The court or...
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MEMORANDUM OPINION AND ORDER Interpleader defendants, the United States of America (“the Federal Government”) and the State of Illinois (“the State”), have made cross-motions for summary judgment on the amended interpleader complaint of plaintiff Dennis W. Hoorns-tra. For the reasons stated below, the Federal Government’s motion must be granted and the State’s motion denied. *108I. BACKGROUND FACT...
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OPINION On October 10, 1989, a two-count indictment was filed against defendants Cornelio Espinal and Jose Antonio Dominguez, charging them with: (1) conspiracy to possess with intent to distribute over 500 grams of a substance containing detectible amounts of cocaine, in violation of 21 U.S.C. § 846 (1989); and (2) possession with intent to distribute the same within one thousand feet of a sch...
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MEMORANDUM OPINION AND ORDER This case is before this court on appeal from a decision of the Hon. Prudence B. Abram of the United States Bankruptcy Court for the Southern District of New York. Appellants Morris Ehrlich, Preston Leschins and Irving Baum appeal a November 28, 1989 order of the Bankruptcy Court enjoining them from interfering with the implementation of an order approving the compr...
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OPINION AND ORDER This case involves allegations of tortious interference with an alleged contract to purchase a distressed vessel, the M/V Brazilian Friendship (the “Friendship” or “the *1070 ship”), and its cargo. Defendants American General Resources, Inc. (“AGR”), and Richard Jaross (“Jaross”) have moved for summary judgment dismissing the amended complaint as against the...
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RULING Each petitioner is a Cuban national who came to the United States in 1980 during the Mariel boatlift. The Immigration and Naturalization Service detained petitioner upon his arrival at the United States border and eventually decided to exclude him from admission into the country. 8 U.S.C. § 1226. De jure, petitioner has never entered this country. De facto, he is physically present...
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ORDER This is a discrimination suit filed pursuant to the Equal Pay Act of 1963, 29 U.S.C. §§ 206 and 215(a)(3). Plaintiff, a male physician, claims that because of his sex he was paid less money than a female physician. Plaintiff also claims that he was wrongly terminated from his job in retaliation for complaining about the unequal wages. Defendants contend that the female physician rec...
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762 F. Supp. 733 (1991) ALLEN COUNTY CITIZENS FOR THE ENVIRONMENT, INC., et al., Plaintiffs, v. BP OIL COMPANY, et al., Defendants. Civ. No. 3:89CV7690. United States District Court, N.D. Ohio, W.D. February 22, 1991. *734 *735 Richard E. Siferd, Siferd & Siferd, Lima, Ohio, for plaintiffs. Louis E. Tosi, Fuller & Henry, Toledo, Ohio, for defendants. OPINION AND ORDER JOHN W. POTTER, Dis...
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OPINION AND ORDER Plaintiff Sara Williams (“Williams”), a resident of Pennsylvania, originally brought suit against her insurance company, State Farm Mutual Automobile Insurance Company (“State Farm”), in the Court of Common Pleas of Philadelphia County. The matter was then removed, on October 19, 1990, by defendant State Farm, based upon the diversity jurisdiction of this court. 28 U.S.C...
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OPINION Defendants Veterans’ Administration, Thomas K. Turnage, Ronald F. Lipp, C. Alex Alexander, and Almira U. Yusi (collectively, the “VA”) have moved, pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. 1 Plaintiff has moved for class certificat...
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MEMORANDUM AND ORDER This is an action for wrongful discharge and defamation brought by a pilot formerly employed by defendant Wayfarer Ketch Corporation (“Wayfarer”). Defendant has filed a motion to dismiss for, inter alia, lack of in personam jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). For the reasons stated below, I grant de *1219 ...
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OPINION AND ORDER Plaintiff, an inmate in the New York State prison system, sues defendants under 42 U.S.C. § 1983, claiming that they violated his due process and First Amendment rights by seizing papers, including a petition, from his cell and punishing him under prison disciplinary rules for circulating the petition. Plaintiff has moved for partial summary judgment, and defendants have...
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MEMORANDUM OPINION This matter is before me on motions for summary judgment and motions to dismiss filed by several different groups of defendants. The plaintiff in this action is a large corporation now in bankruptcy. The defendants are former shareholders of the plaintiff who sold their shares to the company as part of a leveraged buyout that converted Craddock-Terry into a closely held...
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MEMORANDUM OPINION This is a class action brought on behalf of children who are in foster care under the supervision of the District of Columbia Department of Human Services (DHS) 1 and children who, although not yet in the care of the DHS, are known to the department because of reported abuse or neglect. 2 It is a case about thousands of children who, due to family ...
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RULING ON MOTION TO DISMISS This is an action for civil contempt. Pursuant to a consent judgment entered in 1984, defendants were enjoined from violating the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and ordered to comply prospectively with the FLSA by payment of overtime, minimum wage, and record keeping. In July 1988, after an investigation of Lombardi...
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ORDER Plaintiff Estherline Pendleton has filed a FELA action for injuries she allegedly received while operating a pin lifter in the course of uncoupling railroad cars in a Burlington Northern railroad yard. She seeks $900,000 for her injuries. Defendant has moved to transfer the suit from this district to the Central District of Illinois, Peoria Division. For the reasons stated below, the mo...
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RULING ON PENDING MOTIONS Plaintiffs are former employees of the defendant Combustion Engineering, Inc. (“CE”), and they allege that defendants have violated their rights under a retirement benefit plan. In their Second Amended Complaint (filed Aug. 9, 1990) (“Complaint”), plaintiffs allege that between 1983 and 1985 CE offered to certain eligible employees a new retirement program — the ...
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ORDER Plaintiff brings this defamation action in response to two articles published in Business Week magazine in August 1986 and July 1989. Presently before the court is defendants’ motion to (1) dismiss for lack of subject matter jurisdiction, (2) dismiss for lack of personal jurisdiction, or (3) transfer this action to the United States District Court for the Western District...
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MEMORANDUM AND ORDER This matter is before the Court on appeal from the United States Bankruptcy Court, *608 Eastern District of Missouri, pursuant to 28 U.S.C. § 158(a). The United States appeals from the decision of the bankruptcy court holding that a supplemental claim filed by it does not relate back to the date it originally filed a proof of claim. On July 25, 1988, George and Bonnie B...
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DECISION AND ORDER The parties’ cross-motions for summary judgment are before the Court. I. PROCEDURAL BACKGROUND Baker filed this action on March 8, 1990, alleging inter alia that Amoco violated the Petroleum Marketing Practices Act (“PMPA”), 15 U.S.C. § 2801 et seq., by terminating and not renewing his franchise. Amoco filed its answer and counterclaim on...
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Printables, Inc. (“Printables”) alleges that Brittany Dyeing & Printing Corp. *163(“Brittany”) has wrongfully retained or converted property belonging to Printables, and seeks the return of the claimed property, pursuant to 11 U.S.C. § 542, or, in the alternative, for damages for its alleged conversion. In 1989, this Court granted Brittany’s motion under 28 U.S.C. § 157(d) for withdrawal of the ad...
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OPINION Age Discrimination in Employment Act (ADEA). Should a county and the county State’s Attorney’s office be considered a single employer for the purpose of determining whether the ADEA’s twenty employee jurisdictional requirement has been satisfied? No. Summary judgment for Defendants. This cause is before the Court on Defendants’ Motion to Dismiss the Complaint a...
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OPINION AND ORDER Defendants Cheryl Purvis (“Purvis”) and Cynthia Johnson (“Johnson”) move pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure for an order dismissing the bribery counts contained in the indictment (Counts Four, Six, Eight, Ten, Fourteen, Seventeen, Nineteen, Twenty-One and Twenty-Three) and deleting from Count One all references to bribery. Defendant...
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RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiff Anthony Golino has brought this action under 42 U.S.C. § 1983 (“section *964 1983”), seeking money damages for alleged violations of his constitutional rights. These claims arise from an eleven-year investigation of the murder of Concetta “Penny” Serra, who was killed in New Haven in 1973. The investigation led event...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Defendant Luis Perez-Reyes (Dr. Perez) was indicted on eleven counts of illegal distribution of controlled substances and two counts of mail fraud. On August 2, 1990, Dr. Perez pleaded guilty to one count of illegal distribution of a controlled substance (Count Eleven) before Judge Nicholas Bua. On October 10, 1990, Dr. Perez moved to withdraw his guilty pl...
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MODIFICATION OF JANUARY 28, 1991 ORDER AND MEMORANDUM DECISION SUPPORTING PARTIAL SUMMARY ADJUDICATION This matter is before the court on the objection of defendant SkyWest Airlines, Inc. (SkyWest) to the magistrate’s Report and Recommendation (R & R) which recommends denying SkyWest’s motion for partial summary judgment. The court determined that oral argument was not necessary to resolv...
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*362MEMORANDUM OPINION AND ORDER Plaintiff Christopher Youker (“Youker”) sues defendants Edward Schoenenberger (“Schoenenberger”) and the Town of Milton (“Milton”) (collectively, “defendants”) for violation of his first amendment rights under 42 U.S.C. § 1983 (Count I), and for retaliatory discharge under Illinois law (Count II). Defendants move to dismiss the complaint for failure to state a cla...
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761 F.Supp. 1398 (1991) ROLLA CABLE SYSTEM, INC., Plaintiff, v. CITY OF ROLLA, Defendant. No. 89-2101C(2). United States District Court, E.D. Missouri, E.D. April 15, 1991. *1399 *1400 *1401 R. Lawrence Ward, Philip W. Bledsoe, Shughart, Thomson & Kilroy, Kansas City, Mo., and Anthony J. Sestric, Sestric & Cipolla, St. Louis, Mo., for plaintiff. Thomas M. Utterback, William A. Hellmich, W...
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MEMORANDUM AND ORDER Plaintiff Morris Silver is a Professor of Economics. He brings this employment discrimination action against defendants the City University of New York (“CUNY”), its Board of Trustees, Bernard W. Harleston, Joseph S. Murphy and James P. Murphy, claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1983...
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MEMORANDUM AND ORDER Plaintiffs Ronald and Richard Pokrandt, 1 proceeding pro se, filed this civil rights suit alleging claims under 42 U.S.C. §§ 1983, 1985, 1986, and 1988, as well as direct claims under various articles and amendments to the United States Constitution 2 against the following defendants: District Justice Earl H. Matz, Jr.; President Judge...
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MEMORANDUM AND ORDER Plaintiff Wisconsin League of Financial Institutions, Ltd. and two of its member organizations, First Financial Bank, FSB and North Shore Bank, FSB, commenced this action for declaratory relief against the defendants Commissioner of Banking and Attorney General for the State of Wisconsin. Plaintiffs seek a determination that Federal Regulations preempt a Wisconsin State Statu...
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ORDER AND OPINION This is a class action for violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (“RICO”), and for violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (the “1934 Act”), and Rule 10b-5 promulgated thereunder,, and § 9(a) of the 1934 Act. Each defendant is named in each of the five claims in the complai...
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MEMORANDUM Plaintiffs, The Trustees of the University of Pennsylvania (the University) and University Patents, Inc. (UPI), commenced this action to recover royalties allegedly owed to them by defendants for a preparation for photoaged skin invented by Dr. Klig-man and marketed under license by Johnson & Johnson (J & J), and to seek a declaration of ownership in the patent rights to this p...
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OPINION AND ORDER This suit involves claims of patent and copyright infringement, unfair competition, and other claims of plaintiff Franklin Electronic Publishers (“Franklin”) against defendants Unisonic Products Corporation (“Unisonic”) and Maurice Lowinger (“Low-inger”). Defendants move pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure for dismissal of Franklin’s cla...
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ORDER This case is before the Court on the Motions of Defendants Martinez and But-terworth to Dismiss, filed on December 7, 1990, and the Florida Department of Transportation’s Motion to Dismiss, filed on December 10, 1990. The plaintiff filed a response in opposition on December 18, 1990. Defendants Martinez and Butterworth filed a supplemental memorandum on January 22, 1991, to which the plai...
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ORDER Defendant Jessie James Harris has been convicted of mailing death threats to his former wife, in violation of 18 U.S.C.A. § 876. The government has noted two objections to the pre-sentence report submitted by the United States Probation Office. First, the government claims that Harris’s offense level under the federal sentencing guidelines should be increased because the nature of his let...
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OPINION AND ORDER This is an action alleging copyright, trademark, trade dress and design patent infringement and various common law violations. Defendant Starcrest of California (“Starcrest”) moves for summary judgment on all counts pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant’s motion is denied in its entirety. BACKGROUND ...
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MEMORANDUM AND ORDER This matter is before the court upon defendants’ motion to dismiss following the trial of the matter to the court. For the reasons set forth below, defendants’ motion is GRANTED. FACTS This is a prosecution for sale of migratory bird feathers pursuant to the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712. More specifically, the case arises out of the sale of various it...
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MEMORANDUM I. Introduction. Plaintiff Henkel Corporation (“Henkel”) brought this action alleging that defendants Degremont, S.A. (“Degremont”) and L’Air Liquide (“Air Liquide”) breached a joint venture agreement through which Henkel would acquire control over an ozone technology business in North America. Henkel’s Complaint alleges breach of contract in Count One, promissory estoppel in Count Two...
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ORDER This cause was transferred to the United States Magistrate for a Report and Recommendation. Magistrate James G. Carr filed his Report and Recommendation on October 26, 1990. Defendants filed objections to the Report and Recommendation on November 9,1990 and, since the government responded to defendants’ objections on November 19, 1990, the cause is now decisional in this Court. This Court h...
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RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT This is an action for review, under the Administrative Procedure Act, 5 U.S.C. §§ 703, 704, of the denial of a visa petition filed by plaintiffs on behalf of a citizen of the United Kingdom. Plaintiffs seek a declaratory judgment, under 28 U.S.C. § 2201, reversing the final decision of the Commissioner of the Immigration and Naturalization Serv...
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ORDER Before the Court is plaintiffs’ Motion to Remand and Motion for Costs, Fees, and Sanctions. For the reasons that follow, the Motion to Remand is GRANTED, the Motion for Costs, Fees, and Sanctions is DENIED. Discussion On December 25, 1987, Lonnie Eugene Smith (“Decedent”) fell to his death from *457 an offshore drilling platform located approximately eighty (80) miles off the coas...
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OPINION AND ORDER OF REMAND IT IS HEREBY ORDERED that Plaintiff’s and Defendant’s motions are denied and this case is remanded to the Secretary of Health and Human Services (“Secretary”) for further administrative action consistent with this Opinion. PROCEEDINGS Plaintiff filed a “Complaint for Review of the Proceedings of the Secretary of Health and Human Services” on August 30...
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*666 AMENDED ORDER INTRODUCTION This matter is before the court on defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, for summary judgment under Rule 56(c). After a review of the file, record and proceedings, the court denies both motions. FACTS Plaintiffs D.B.S., C.R.S. and N.A.S. bring this action against the Unit...
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ORDER This matter is before the court on defendants’ Mayo Foundation and Rochester Methodist Hospital (“defendants”) appeal of an order of Magistrate Judge Floyd E. Boline dated October 2, 1990. That order denies defendants’ motion to compel plaintiff Joyce Filz (“Filz”) to sign a medical authorization permitting defendants to conduct ex parte interviews with her treating physicians. Based on a r...
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OPINION Faced with a rising tide of lawsuits stemming from the alleged chemical contamination of the areas surrounding a number of its chemical plants, the Olin Corporation (“Olin”) filed suit in 1984 against its primary and excess liability insurance carriers, seeking a declaration that they were obligated to defend and indemnify in the underlying lawsuits. Now, after seven years of disc...
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MEMORANDUM Plaintiff herein was provided leave to proceed in forma pauperis by order of this court dated December 7, 1990. The matter was heard before this court on April 1, 1991. The plaintiff’s complaint, filed under 42 U.S.C.A. § 1983, alleged that he is “a prisoner in the state hospital and there is no law library here to use at all.” The state hospital referred to is Norristown State Hospital...
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MEMORANDUM AND ORDER The ultimate issue in this declaratory judgment action is whether an insurance *112company must provide to the operator of an automobile the cost of defense in an underlying state action brought to recover damages for injuries he allegedly caused. The immediate issue is whether the insurance company should provide that operator with an attorney to represent him in the declara...
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OPINION Plaintiff William Nesbitt commenced this action in the Kent County Circuit Court *1152 against The Bun Basket, Inc., a Michigan corporation with its principal place of business in Kent County, Michigan, alleging the breach of an implied employment contract and a violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. Defendant timely re...
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ORDER The defendant is charged with possession of 500 grams or more of cocaine with intent to distribute. Defendant resides in Massachusetts and when he appeared before a Magistrate Judge, he was released on his personal recognizance. The defendant appeared before this Court for arraignment on March 26, 1991, was arraigned and continued on personal recognizance. The matter is before the C...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This is a civil rights action, filed pursuant to 42 U.S.C. § 1983, in which plaintiff *130 has moved for a permanent injunction prohibiting enforcement of two provisions of Canon 7 of the Pennsylvania Code of Judicial Conduct. Plaintiff Samuel C. Stretton is a trial lawyer who seeks election to the Court of Common Pleas of Chester Count...
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MEMORANDUM OPINION I. INTRODUCTION Appellant. Magdi S. Barsoum (“Bars-oum”) appeals the decision of Bankruptcy Judge S. Martin Teel dismissing his Chapter 7 petition filed in the District of Columbia. See In re Magdi S. Barsoum, Bankruptcy Case No. 90-983 (D.D.C. December 21, 1990). Judge Teel also awarded $2,155.00 in attorney’s fees to the appellee. Upon consideration of the briefs1 filed by the...
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RULING ON CROSS-MOTIONS FOR PRELIMINARY INJUNCTION CONT ENTS I. INTRODUCTION 484 II. FINDINGS OF FACT 485 A. General Information—Parties 485 B. General Information—Trocars 486 C. ’773 Patent 487 1. Validity of the Patent 487 a. Was there a Prior Public; ation? 487 b. Was the Alleged Prior Pi iblication “Enabling”? 489 c. Is the Device Claimed i...
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ORDER This matter is before the court on the appeal of plaintiff American Computer Trust Leasing and third-party defendants Automatic Data Processing, Inc., Navistar International Corporation (International Harvester) and J.I. Case Co. from an order of United States Magistrate Judge Floyd E. Boline, dated October 25,1990. Based on a review of the file and record herein, the motion to set aside the...
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ORDER Before the court is defendant Witco Corporation’s motion to dismiss plaintiffs amended complaint, pursuant to Fed.R. Civ.P. 12(b)(6). For the reasons discussed below, the motion is granted. FACTS Plaintiff Young Rhee (“Rhee”) was employed for 21 years by defendant Witco Corporation (“Witco”) and its predecessor, at a company facility in Lemont, Illinois. Sometime in 1985, W...
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MEMORANDUM OPINION AND ORDER Plaintiff Claire Kenneth De Bardossy, a Hungarian born writer of romance novels, commenced this copyright action against Sandor Puski and Corvin Hungarian Books to recover damages for and to enjoin the defendants’ allegedly unauthorized publication of plaintiff’s novels in Hungary. Defendants interposed a counterclaim which sought a declaration that they have ...
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OPINION Plaintiffs in this action, The Miss America Organization and Kenner Products (“Kenner”) have created and plan to mar*1109ket a line of dolls known as “Miss America” dolls. The “Miss America” series includes five dolls — “Devon,” “Tonya,” “Blair,” “Justine,” and “Raequel” — with various accessories, which were introduced to the toy trade to compete in the lucrative fashion doll market. Ken...
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MEMORANDUM This matter is before the Court on defendant KTVI-TV’s (KTVI) motions for summary judgment and to strike plaintiffs’ request for attorneys’ fees. Plaintiffs, International Brotherhood of Electrical Workers, Local No. 4, AFL-CIO (Union) and Michael Barber (Barber), seek an order compelling arbitration of Barber’s discharge grievance. In the alternative, the Union and Barber allege that ...
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MEMORANDUM AND ORDER In 1978, Julio Perez Cestero and others were indicted in this district for United States narcotics law violations. 21 U.S.C. §§ 812, 841, 846, 951, 952, 960 and 963 (1970) (current version 21 U.S.C. §§ 812 et seq. (1991)). I am now called upon to resolve a purported ambiguity in my ruling on Cestero’s motion to dismiss Count II for allegedly improper venue, which was first mad...
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ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT THIS MATTER comes before the court on plaintiffs’ motion for partial 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: Plaintiffs Alaska Center for the Environment, et al. (...
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OPINION AND ORDER This diversity action arose out of a rear-end collision between two tractor trailers that occurred in the early evening hours on a highway located in Port St. Lucie, Florida. Except for the plaintiff and his treating physician(s), all other witnesses and the *986 material evidence are located within the confines of the State of Florida. The plaintiff commenc...
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FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION BACKGROUND A petition pursuant to the Hague Convention was filed by Marie Claire Meredith, October 22, 1990, which seeks the return of a minor child, Christina, born to Petitioner and Respondent March 12, 1987. Petitioner alleges the child was wrongfully removed from Birmingham, England to Phoenix, Arizona where the Respondent resides. A hearin...
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MEMORANDUM OPINION Before the court is the defendant’s motion for summary judgment filed on February 28, 1991. Plaintiff responded to this motion on March 15, 1991. This matter is set for a trial to the court on April 22, 1991. The defendant asserts that no facts are in dispute and that this is a matter of contract interpretation ripe for summary judgment. The defendant argues and th...
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OPINION BACKGROUND October 19, 1990, Elliot Dubowski, a shareholder of Dominion Bankshares Corporation 1 (Dominion Bank or Bank) filed a complaint against Dominion Bank and several Bank directors alleging claims arising under section 10(b) of the Exchange Act of 1934 2 (the Exchange Act), Rule 10b-5 3 of the Securities and Exchange Commission promulga...
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MEMORANDUM RULING This suit was filed by Gallien on August 30, 1990 against Guth Dairy, Inc. Jurisdiction was invoked under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623 et seq. In accordance with Federal Rule of Civil Procedure 4(a), the clerk’s office issued plaintiff a summons to be served on defendant. Rule 4(j) required plaint...
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OPINION This securities fraud class action was filed by the named plaintiff, Robert M. Deutschman, on December 22, 1986. The amended complaint alleges causes of action for violation of federal securities laws, specifically sections 10(b) and 20(a) of the Securities and Exchange Act of 1934, 15 U.S. C.A. §§ 78j(b) & 78t(a) and Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder and f...
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MEMORANDUM OPINION AND ORDER This cause is before the Court, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the Motions of Resolution Trust Corporation to Dismiss the Third-Party Complaints filed against it by Gerald James McNaughton, III and Sally Spainhour McNaughton and by Elwin J. Williams and Mary Ellen Jordan Williams for lack of subject matter jurisdiction. A...
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MEMORANDUM This is an action by a “qualified handicapped person” alleging discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 791, 791(a), as amended. Plaintiff Donald Barth is an insulin-dependent diabetic. He is an engineer and is presently Chief of the Field Support Section, Computer Services Division of the Voice of America (“VOA”), a component of the United States Informatio...
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ORDER BACKGROUND The three consolidated asbestos actions at issue in these summary judgment motions are the lead case, Benshoof v. National Gypsum, 87-2160-PHX-RGS, England v. National Gypsum, 87-2218-PHX-RCB, and Dube v. National Gypsum, 87-2183-PHX-RCB. All three plaintiffs were sheet metal workers and allege personal injuries from occupational expo...
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FINAL JUDGMENT AND PERMANENT INJUNCTION This is an action brought pursuant to the First and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. Section 1983, and Article I, Sections 10 and 19, of the Constitution of the State of North Carolina. The plaintiff, Bernard Obie, was, and in all likelihood will be an unaffiliated candidate for the office of Durham County Commissi...
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ORDER Before the court are respondent (warden of Stateville prison) Thomas Roth’s motion to dismiss petitioner Arthur Sheppard’s ha-beas corpus petition, Sheppard’s motion for summary judgment, and Roth’s motion to strike Sheppard’s summary judgment motion. For the reasons stated below, Sheppard’s petition is dismissed and his summary judgment motion is stricken. In December 1986, after a bench tr...
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MEMORANDUM DECISION AND ORDER This matter is before the court on the motion of defendants Soeng Ting, Isei Na-gakawa, Liu Kuo-Song and the Soeng Ting Group (collectively the “individual defendants”) for summary judgment on the second claim alleged in the Complaint. A hearing on the motion was held April 19, 1991. Plaintiffs were represented by D. David Lambert and Linda Barkley. Defendant...
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ORDER Before the court is the jury trial demand filed by the claimant, Lovenia Moses, on March 26, 1991. The complaint of forfeiture was filed on October 31, 1990. An order of arrest was issued for the subject property on the same day by the Honorable Beverly R. Stites, United States Magistrate. Lovenia Moses filed a claim to the subject property on November 16,1990, and an answer to the complain...
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OPINION This is an action brought pro se by Southern State Correctional Facility inmate Carthel Wheeler (“Wheeler”) against Ama-lio Nieves, Jr. (“Nieves”) and Ronald Humphrey (“Humphrey”), his arresting officers (collectively, the “Defendants”), arising out of events leading up to his arrest and occurring at trial. While Wheeler does not state the basis for jurisdiction, it appears the cl...
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MEMORANDUM OPINION CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE was tried before the Court without a jury on March 27, 28, 29 and April 2, 1991. The Court has carefully considered all of the testimony and exhibits offered by the parties at trial, the proposed findings and conclusions, and memoranda of law submitted by the parties. Having done so, and being otherwise fully...
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OPINION The matter before the court is the motion (# 49) of the plaintiff, Craig Allen Showal-ter, for clarification, enlargement and reconsideration of the order of December 6, 1990, 752 F.Supp. 963 (D.0r.l990) dismissing his claim against defendant Bradley Rinard. BACKGROUND This dispute involves claims arising from a motor vehicle accident and the settlement of those claims. On or about ...
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MEMORANDUM ORDER On September 7, 1990, plaintiffs filed a civil rights complaint seeking monetary damages alleging that on September 8, 1988, Trooper David B. Marker of the Pennsylvania State Police applied for a search warrant and, with six to eight unknown law enforcement officers, executed it on their residence in Somerset County in violation of their constitutional rights. The Commonwealth of ...
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MEMORANDUM ORDER Presently before the Court is defendant Jeffrey R. Crosby’s Motion to Modify Sentence Pursuant to Title 18, U.S.C. § 3582(c)(2). A jury convicted Mr. Crosby of escape from a work camp outside the fence, but part of, the Federal Correctional Institution at McKean, Pennsylvania. On August 2, 1990, this Court sentenced him to a term of 37 months imprisonment. For the following rea...
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ORDER This is a case where the plaintiff Tokio Marine and Fire Insurance Company Ltd. alleges that codefendant Grove Manufacturing Co., manufactured a defective crane. Thus the issue of crane defects is crucial in the adjudication of this claim of the case. During the trial the plaintiff moved for the qualification of an alleged expert by the name of Philip Alternan. Mr. Alter-man cu...
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762 F. Supp. 196 (1991) Constance HILL, Plaintiff, v. HUMAN RIGHTS COMMISSION, et al., Defendants. No. 89 C 3012. United States District Court, N.D. Illinois, E.D. March 6, 1991. Constance Hill, pro se. Mary Ellen Coghlan, Asst. Atty. Gen., Office of the Atty. Gen., Chicago, Ill., for defendants. ORDER NORGLE, District Judge. Before the court is the summary judgment of defendants Human Rights Co...
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ORDER AND REASONS This matter is before the Court on the motion of defendant, Robert Cheramie (“Cheramie”), to reconsider his motion to dismiss the plaintiff’s complaint for declaratory judgment. After reviewing the motion, memoranda of counsel, the record and the law, the Court hereby grants the motion and exercises its discretion to dismiss this action for the reasons set forth below. ...
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MEMORANDUM OPINION Defendants’ pretrial suppression and dismissal motions attack (i) the relitigation of the suppression motion on the ground that a prior state court ruling is entitled to preclusive effect, (ii) the execution of the search warrant for failure to comply with the “knock and announce” statute, (iii) the search warrant itself on grounds of staleness, and (iv) the entire pros...
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OPINION AND ORDER Plaintiffs Ramón Mojica, his spouse, and the conjugal partnership formed by them, filed this action pursuant to 42 U.S.C. § 1983 against the Puerto Rico Telephone Company (“PRTC”) and against various officials of PRTC.1 Plaintiffs allege that defendants’ actions have resulted in the denial of contract awards to plaintiff Mojica, a maintenance contractor. Federal jurisdiction is ...
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MEMORANDUM-DECISION & ORDER On September 5,1990, this court issued a memorandum-decision and order in which it awarded $776,000.00 in damages to the plaintiffs, a class of former minority shareholders in defendant Chenango Industries, Inc. (“Chenango”), for the fraudulent conduct of Chenango and defendant Great American Industries, Inc. (“GAI”) in issuing a proxy statement as part of Chen...
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OPINION AND ORDER This action arises from the death of seaman Antonios Yassiliou, a Greek national. Plaintiffs are members of decedent’s family suing in both their personal and representative capacities. Defendants are the owners and operators of the ship, the Zoe Christina. The jurisdiction of this court is invoked pursuant to section 20 of the Jones Act of 1920, as amended, 46 U.S.C. Ap...
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OPINION AND ORDER This is a case where the plaintiff Tokio Marine and Fire Insurance Company, Ltd. alleged that the combined negligence of the defendants caused a large screen known by the name of “Diamond Vision Ocean One”, to be destroyed during its installation at the Plaza Las Americas Mall in Puerto Rico. Defendant Grove Manufacturing Company was the company which manufactured the crane that...
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ORDER This matter came on for hearing before this Court on February 6, 1991. Dana Welch of Shearman & Sterling presented arguments on behalf of defendants Network Equipment Technologies, Inc., Daniel Warmenhoven and Steven Schlumberger. K. Louise Francis of Heller, Ehrman, White & McAuliffe argued on behalf of defendant Barrett Roach. Paul Dawes of Latham & Watkins appeared representing d...
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DECISION AND ORDER Presently before the court are defendants’ motions to dismiss Counts VI and VII of plaintiff’s complaint which allege violations of 18 U.S.C. §§ 1962(a), (c) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). For the reasons discussed below, the defendants’ motions are granted. BACKGROUND The facts of this case were extensively discussed in a ...
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OPINION AND ORDER Plaintiff’s mother, Olga Leverock-Has-sell, became disabled and unable to handle her own affairs. A family member, Gloria A. Perkins-Leverock, asked to have a legal guardian appointed in the course of a civil proceeding before Puerto Rico Superior Court. Superior Court Judge Angel D. Ramirez-Ramirez acceded to the request and appointed codefendant José M. Delucca as guardian. In ...
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This matter comes before the Court on the defendants’ motion for summary judgment. For the following reasons, the motion is granted in part and denied in part. Background On May 25, 1988, a fire began inside a building located at 3333 East Massachusetts Avenue in Indianapolis. The premises had been acquired by the City of Indianapolis and Marion County (collectively, the City) following tax...
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ORDER Before the court is an appeal by the Internal Revenue Service (“IRS”) from an order of the Bankruptcy Court compelling the turnover of bank account funds upon which the IRS had levied prior to the filing of the bankruptcy petition of debtor George Brown, Jr. (“Brown”). For the reasons discussed below, the Bankruptcy Court’s decision is reversed. FACTS On November 9,1987, the IRS asses...
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MEMORANDUM AND ORDER This is a motion for a preliminary injunction enjoining the State of New York from enforcing a section of the state’s Environmental Conservation Law. The following facts are essentially undisputed for purposes of this motion. The individual plaintiffs in this case operate a commercial fishing trawler on the Long Island Sound. The institutional plaintiff is an ass...
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MEMORANDUM The plaintiffs in this action are members of the Pennsylvania Bar and the United States Attorneys or Acting United States Attorneys for the three districts of Pennsylvania. They seek relief from a state disciplinary rule that impresses an ethical obligation on them, as prosecutors, to obtain judicial approval before subpoenaing any lawyer to give evidence about his or her clien...
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ORDER In this interpleader action, the claimants to the fund are two real estate brokers who claim entitlement to a $74,000 commission from the sale of a property. At issue is which of these brokers was the selling broker under Maryland law. Before the Court is defendant O’Brien & Associates’ (“O’Brien’s”) Motion for Summary Judgment which is opposed by defendant Long & Foster Real Estate, Inc. (...
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OPINION In this case, the Court must decide the scope of application of the New Jersey Environmental Cleanup and Responsibility Act (“ECRA”) to a corporate transaction involving a parent corporation and its subsidiary. Before the Court are defendant’s motion to dismiss this suit pursuant to Federal Rule 12(b)(6) and plaintiff’s cross-motion for partial summary judgment pursuant to Federal...
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ORDER Came on to be considered the Federal Deposit Insurance Corporation’s (FDIC) Motion to Dismiss. The FDIC files this motion pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). The Defendants have not answered. I. Background United Bank interplead funds from Laura Head’s saving account into the state court’s registry on February 3, 1988. United Bank request...
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762 F.Supp. 1159 (1991) CARTERET SAVINGS BANK, FA, Plaintiff, v. OFFICE OF THRIFT SUPERVISION, in its own capacity and as successor in interest to Federal Home Loan Bank Board; T. Timothy Ryan, Jr., individually and in his official capacity as Director of Office of Thrift Supervision; and Federal Deposit Insurance Corporation, in its own capacity and as successor in interest to Federal Savings an...
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PRETRIAL ORDER On March 1, 1991 at 11:00 a.m. in Yakima, Washington the court conducted a pretrial conference and motion hearing in the above-captioned criminal cases. In ruling on the parties’ various motions the court shall consider, except as specifically noted below, all material on file. Accordingly, all motions to: (1) shorten time; (2) file overlength briefs; (3) allow late fi...
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ORDER On December 7, 1990, this court entered an order granting attorneys’ fees against plaintiff United States Equal Employment Opportunity Commission (“EEOC”) in favor of defendant Elmhurst Community Unit School District No. 205 (“District 205”). Before the court is EEOC’s motion to reconsider that order and District 205’s motion to amend the order to increase the amount of fees awarded. For th...
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MEMORANDUM Before the court is defendant Envi-rotech Corporation’s motion to dismiss plaintiff’s second cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion has been fully briefed and oral argument was held on February 14, 1991. The Pennsylvania Department of Environmental Resources (“DER”) has filed an amicus curiae brief in support of plaintiff. Th...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion for review of a March 8, 1991, ruling of the United States Magistrate in this medical malpractice action. In his Memorandum and Order filed March 8, 1991, the Magistrate overruled plaintiff’s motion for a protective order preventing counsel for defendant from communicating ex parte with plaintiff’s treating physicians witho...
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OPINION This is an action under the Administrative Procedure Act, 5 U.S.C. § 706 (1988), to set aside a contract to build fast patrol craft awarded by the United States of America to defendant-intervenor Bollinger Machine Shop and Shipyard, Inc. (Bollinger). Plaintiff Robert E. Derecktor of Rhode Island, Inc. (Derecktor), as a disappointed bidder, contends that the contract should not hav...
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762 F. Supp. 1503 (1991) FEDERAL DEPOSIT INSURANCE CORP., as Receiver for the National Bank of Washington, Plaintiff, v. Conrad CAFRITZ, Peggy Cooper Cafritz, John Doe, as Trustee Under an Escrow in the District of Columbia, Defendants. Civ. A. No. 91-883 (CRR). United States District Court, District of Columbia. April 26, 1991. As Amended April 26, 1991. Ira H. Parker, Keith Ligon, and Jamey Bas...
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OPINION The plaintiffs in this action are six mortgage brokers: Christiana Mortgage Corporation, Consolidated Mortgage Corporation, Sunvest Mortgage Corporation, Landmark Mortgage, Inc., Amato & Stella Mortgage Corporation, and Mortgage Associates, Inc. They filed suit against the Delaware Mortgage Bankers Association (“DMBA”), David C. Sorber (“Sorber”), and the Delaware Trust Company (“Delaware...
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MEMORANDUM AND ORDER INTRODUCTION Several emergency motions filed by the plaintiff require an analysis of what the Federal Rules of Civil Procedure require a party to do when it seeks to defer the disclosure of an opposing party statement, otherwise discoverable pursuant to Rule 26(b)(3), Fed.R.Civ.P., until after the opposing party’s deposition has been taken. THE FACTS The facts are that on May...
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MEMORANDUM The plaintiff, Thomas Rey, has brought a six count complaint based on a set of facts involving the defendant towing company, Classic Cars, and a Massachusetts State Police Officer, William Kenney. The case was removed from state court, and is currently before this Court on the plaintiff’s motion to remand it to Superior Court for Middlesex County. For the reasons stated below, ...
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MEMORANDUM OPINION AND ORDER Appellant Michele Ann Schwenn (Schwenn) appeals from the bankruptcy court’s judgment that her withholding of joint venture funds constituted a defalcation while acting in a fiduciary capacity making discharge unavailable under 11 U.S.C. § 523(a)(4). I affirm. Schwenn and appellee Robert Beebe (Beebe) entered into a joint venture to purchase oil and gas le...
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765 F. Supp. 1343 (1991) ILLINOIS HOSPITAL ASSOCIATION, et al., Plaintiffs, v. Jim EDGAR, in his official capacity as Governor of the State of Illinois, et al., Defendants. No. 90 C 6394. United States District Court, N.D. Illinois, E.D. April 26, 1991. *1344 James J. Casey, Lawrence A. Manson, Dorothy Voss Ward, Keck, Mahin & Cate, Chicago, Ill., Mark D. Deaton, Illinois Hosp. Ass'n, Napervi...
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ORDER On February 4, 1991 plaintiff’s motion to remand this action to state court on the grounds of improper removal was submitted without oral argument. Defendants’ 12(b)(6) motion to dismiss or, in the alternative, for more definite statement was also submitted on that date. Upon consideration of the papers submitted on these motions the court, for the reasons detailed below, hereb...
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AMENDED ORDER GRANTING DEFENDANTS’ MOTION UNDER FED.R. CRIM.P. 29 FOR JUDGMENT OF ACQUITTAL ON COUNT- SEVEN OF THE INDICTMENT A. SUMMARY Defendants have properly motioned for a judgment of acquittal, pursuant to Fed.R. Crim.P. 29, on count seven of the indictment after the close of all evidence and prior to submission to the jury. For the reasons set forth herein, defendants’ motion is granted. B...
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MEMORANDUM AND ORDER Defendant was arrested in October of 1989. During pre-trial detention, he was diagnosed as having testicular cancer. The affected organs were surgically removed. Thereafter, he received chemotherapy and radiation. In a subsequent examination, multiple pulmonary nodes were discovered, and the attending physician diagnosed a metastatic germ cell tumor. He pled guilty to con...
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OPINION Plaintiff Specialty Measurements, Inc. (“SMI” or plaintiff) moves for a preliminary injunction and for partial summary judgment. Defendant Láveme F. Wallace, a former employee of plaintiff, formed defendant Measurement Systems, Inc. (“MSI”) and competes with plaintiff. Plaintiff’s motions relate to its claims that defendants’ use of the initials MSI violate plaintiff’s trademark r...
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OPINION Plaintiff Joseph Pancza (“Pancza”) sues defendants Remco Baby, Inc. and Azrak-Hamway, Inc. (“Remco”) for breach of contract and in tort. All claims arise out of the termination of Pancza’s employment by defendants. Plaintiff Jane Pancza sues for loss of consortium. Defendants move for summary judgment on all claims. BACKGROUND Remco is a New York corporation which was es...
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ORDER Before the court is the summary judgment motion of defendants County of Lake (the “County”) and Harry Frossard (“Fros-sard”). For the reasons discussed below, defendants’ motion is granted. *200 FACTS Plaintiff Eddie Washington (“Washington”) was employed as a jailer with the Lake County Sheriffs Office from September 12, 1986 to July 13, 1987, when he was dischar...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is an action for securities fraud brought pursuant to the Securities Act of 1933 and the Securities Exchange Act of 1934. The complaint includes a count for common law fraud. Plaintiff Harry Simon (“Simon”) alleges that he was defrauded by defendants Pay Tel Management, Inc. (“Pay Tel”), Cornwall Securities, Inc. (“Cornwall”), Rothsch...
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MEMORANDUM OPINION AND ORDER Before the court is a motion to dismiss filed by defendants CNA Financial Corp. (“CNA”), Edward J. Noha, Lawrence A. Tisch, Dennis H. Chookaszian, Thomas R. Igleski, Barbara Demytrasz, and Chrissy Gresey (collectively, “CNA defendants”). The motion is directed at plaintiff Mark Stephenson’s three-count employment discrimination complaint. As set forth below, t...
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MEMORANDUM OPINION AND ORDER This is an appeal of the bankruptcy court’s December 21, 1990 order denying the motion of appellant Western Cities Broadcasting, Inc. for relief from the court’s previous order deferring consideration of Western Cities’ proposed reorganization plan. Western Cities argues, among other things, that the court exceeded its jurisdiction in ordering deferral of the ...
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762 F. Supp. 722 (1991) UNITED STATES, et al., Plaintiffs, v. PRODUCTION PLATED PLASTICS, INC., et al., Defendants. No. K87-138 CA. United States District Court, W.D. Michigan. January 24, 1991. *723 *724 Michael L. Shiparski, Thomas J. Gezon, Asst. U.S. Attys., John A. Smietanka, U.S. Atty., Grand Rapids, Mich., Elliot Eder, U.S. Dept. of Justice, Environment & Natural Resources Div., Enviro...
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MEMORANDUM AND ORDER The instant Petition for a writ of habeas corpus raises the issues of whether allowing the jury to view photographs of the victim’s scars was unconstitutionally prejudicial, whether the Petitioner’s sentence should be reduced in light of his prior exemplary conduct and whether the Petitioner’s convictions contravene the Double Jeopardy Clause of the Fifth Amendment. BACKG...
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OPINION Defendant Ronald E. Blair (“Blair”) is charged, inter alia, with one count of violating the Hobbs Act, 18 U.S.C. § 1951, in that Blair allegedly “did knowingly and *1385 intentionally obstruct and attempt to obstruct ... and affect commerce by extortion ... in that defendant obtained cash ... and other property from ... Raymond Vyeda ... under color of official right.” Superseding I...
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OPINION Plaintiff, J & A Realty (“J & A”), moves to strike defenses. Defendants oppose the motion. BACKGROUND In 1988, the City of Asbury Park (“the city”) enacted an ordinance which established the city sewer system as a self-liquidating municipal utility. To fund its new sewer plant, the city passed a sewer ordinance which established a system for assessing property...
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Presently before the Court is the plaintiffs’ motion for a supplemental award of attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3) of the Fair Debt Collection Practices Act (“FDCPA”). (D.I. 26 & 27). The defendant opposes the plaintiffs’ motion on the grounds that the plaintiffs were not prevailing parties in the post trial phase of the proceedings, or in the alternative, that the plaintiffs ...
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OPINION Before the court is an appeal on the merits from the December 11, 1989 order of the bankruptcy court brought by First Jersey National Bank (“FJNB”). For the reasons set forth below, the order of the bankruptcy court is reversed and this matter is remanded with instructions to dismiss the petition of the debtor. FACTS AND PROCEDURAL HISTORY The debtor, Rosemary Brown, is ...
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MEMORANDUM OPINION AND ORDER Defendants Sue Suter, Director of the Illinois Department of Children and Family Services (“DCFS”) and Gary T. Morgan, Guardianship Administrator of DCFS, move this court to “reconsider” its November 2, 1990 order granting plaintiffs leave to file a second amended complaint or, in the alternative, to stay or dismiss these proceedings in deference to a parallel feder...
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MEMORANDUM OPINION AND ORDER I. FACTS Defendant Arthur Nickla had emergency surgery performed on his left knee. Alleging failure to promptly diagnose his knee condition, defendant filed a lawsuit in state court for medical malpractice and, on March 28, 1990, a jury awarded him $140,-750. *982 1 At the time of his surgery, Nickla was a participant in the Midwest Op...
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OPINION AND ORDER The Court has before it defendants Dr. David Mehne’s and Dr. Félix Santiago’s Motion to Dismiss, and the plaintiff Rosa Rivera’s Opposition thereto. The defendants have also filed a Reply to the Plain *16 tiffs Opposition. Diversity jurisdiction is invoked pursuant to 28 U.S.C. § 1332. In September of 1988 the plaintiff underwent hip replacement surgery...
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MEMORANDUM In this memorandum, the court addresses the motion of the plaintiffs to compel the production of portions of an affirmative action plan prepared by the defendants. The case involves charges of racial and employment discrimination brought under the Kentucky Civil Rights Act, KRS 344.-010. This court has diversity jurisdiction. For the reasons detailed below, the motion to compel will be...
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ORDER Defendant Robert Sepulveda has filed a motion to vacate his conviction pursuant to the All Writs Act, 28 U.S.C. § 1651. On June 26, 1985, defendant pled guilty to Counts One and Two of an indictment charging him with mail fraud. Defendant now argues that his conviction should be vacated because the indictment charged that he deprived the City of Chicago and its citizens of intangible, and...
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ORDER GRANTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION Plaintiff, Chemicals for Research and Industry, Inc. (“CFRI”), has initiated the above-captioned action challenging the constitutionality of certain actions taken by defendants 1 as well as challenging the constitutionality of a 1988 amendment to section 310 of the Chemical Diversion and Trafficking Act (“the CDTA”), 21 U.S.C. § 830(b),...
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*1101 MEMORANDUM AND ORDER Defendant has moved prior to trial to dismiss this criminal prosecution for violation of the rule of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). A pre-trial evidentiary hearing has been held. The facts developed at that hearing are set forth below. By indictment filed October 2, 1990, Ira B. Kristel is charg...
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MEMORANDUM Presently before the court is defendant Robert Caughey’s Motion to Dismiss Plaintiffs Amended Complaint for improper venue, as well as other grounds. Defendant contends that venue is improper under both the RICO venue provision, 18 U.S.C. § 1965(a), and the general venue provision found in 28 U.S.C. § 1391(b). Once the defendant has raised the defense of improper venue, th...
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MEMORANDUM OPINION AND ORDER Plaintiffs Deborah K. and Herbert Jens-sen filed this action under 28 U.S.C.A. § 1346(a)(2) (Supp.1990) and 39 U.S.C. § 409 (1988) against Lisa Diamond and the United States Postal Service alleging that Diamond negligently operated a Postal Service vehicle so as to cause personal injury to Deborah Jenssen and property damage to Herbert Jenssen’s vehicle. The defendant...
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AMENDED MEMORANDUM DECISION I. Background In this case the United States government is seeking the extradition of Allen David Taitz to the Republic of South Africa. Taitz stands accused by the government of South Africa of 434 counts of fraud in connection with an operation whereby Taitz allegedly smuggled diamonds from South Africa to Swaziland, sold them in the latter country, and failed to pay...
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*1091 OPINION This action stems from an employment dispute in the Police Department of the Town of Fenwick Island, Delaware. Plaintiffs, James E. Sturgess, Jr. (“Sturgess”), Richard C. Banks, Sr. (“Banks”), and George E. Blake (“Blake”), filed this action alleging denial of procedural due process under the Fourteenth Amendment and 42 U.S.C. § 1983 (1988), and asserting pendent st...
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OPINION AND ORDER Plaintiff Mark Goldsmith, M.D., filed a complaint on January 23, 1991 seeking declaratory and injunctive relief against defendant Harding Hospital. Plaintiff asserted in his complaint that he was denied due process of law by reason of defendant’s suspension of his participation in a psychiatric residency program. Plaintiff alleged that defendant’s conduct violated provis...
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MEMORANDUM AND ORDER Defendant seeks summary judgment against plaintiff on the ground that plaintiff’s negligence cause of action alleged in his complaint falls within the purview of the Pennsylvania Workmen’s Compensation Act. For the reasons stated below, I grant defendant’s motion. I. Summary judgment is appropriate if there exists no genuine issue of material fact and the moving party is enti...
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MEMORANDUM AND ORDER This matter is before the court on the motions of all defendants to sever, and to suppress evidence allegedly seized in violation of defendants’ fourth amendment rights. On April 16, 1991, the court entertained oral argument on the motions but reserved decision. The court has considered the briefs of the parties and is now prepared to rule. The challenged searches were conduc...
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MEMORANDUM Plaintiff United States of America and defendants Jack W. Blumenfeld and Alan Feingold cross move for summary judgment. 1 Fed.R.Civ.P. 56(c). In this action, the United States of America sues to enforce the interests of the Department of Housing and Urban Development. In 1982, HUD and Executive House Associates, a limited partnership, entered into a regulatory a...
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ORDER Before the court is the motion of defendant R.J. O’Brien & Associates, Inc. (“RJO”) to vacate and set aside the default order entered against it by this court on February 1, 1991. RJO also moves for leave to file its appearance and answer instanter. For the reasons discussed below, RJO’s motions are denied. FACTS This action was originally filed on April 28, 1989 in the U.S. District Court ...
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ORDER Before the court are the motions of defendant Great American Management and Investment, Inc. (“Great American”) and intervenor-defendant Madison Management Group, Inc. (“Madison”) to dismiss plaintiffs complaint. For the reasons discussed below, the motions are granted. FACTS This case originates from a Florida state court proceeding in which plaintiff Pinellas County (“Pi...
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MEMORANDUM OPINION AND ORDER Defendant Thomas W. Hill, Jr. has moved to dismiss plaintiff Sidley & Austin’s complaint for lack of personal jurisdiction. 1 The complaint seeks a declaratory judgment that Sidley & Austin properly discharged all of its obligations under a consulting agreement it entered into with Hill, that the agreement constituted a valid, enforceable contract, ...
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MEMORANDUM OPINION AND ORDER On January 18, 1991, Magistrate Judge Edward A. Bobrick filed and served upon the parties his Report and Recommendation concerning certain motions by the defendants for partial summary judgment as *412 to four counts of the complaint. Magistrate Judge Bobrick recommended denial of the motion of individual defendants as to Counts II and IV. The Magistrate further f...
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ORDER DENYING MOTION FOR PROTECTIVE ORDER AND MODIFICATION OF SUBPOENA THIS CAUSE IS before the court upon the Florida Department of Professional Regulation’s Motion for Protective Order and Modification of Subpoena. The U.S. Attorney has subpoenaed certain records from the Florida Department of Professional Regulation (“the Department”) concerning an ongoing grand jury investigation into...
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Axel Johnson Inc. (“Johnson”) alleges that Arthur Andersen & Co. (“Andersen”) in 1982 knowingly or recklessly conducted an inadequate audit of a company known as Industrial Tectonics, Inc. (“ITI”), and that Johnson detrimentally relied on that audit when it acquired ITI in that year. Johnson contends that Andersen’s conduct violated Section 10(b) of the Securities Exchange Act of 193...
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RULING ON MOTIONS This matter is before the court on motion of defendants, John Alario, Samuel B. Nunez, Jerry Swearingen, Sylvia Duke, Barbara Goodson, Guy Dicharry, Phillip Reic-hert, Mitchell Stockman, Charles Schwing and the Foundation for Historical Louisiana, for summary judgment and the motion of plaintiffs to join an additional defendant. Timely opposition has been filed to both motions...
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MEMORANDUM OPINION This is a sex discrimination case brought under 42 U.S.C. § 2000e et seq. (Title VII) and, because defendants are creatures of or employees of a subdivision of the State of Arkansas, under 42 U.S.C. § 1983 as well. Plaintiffs, former employees of the Housing Authority of Fort Smith, Arkansas (FSHA), allege that defendants treated them differently from men in a number of way...
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MEMORANDUM AND ORDER This matter is before the court on the State of New Mexico’s motion to dismiss the cross-claim filed by Anadarko Production Company (Doc. 2000). The court does not believe oral argument would be of material assistance in the determination of this motion and therefore denies Anadar-ko’s request for argument (Doc. 2010). The matter has been fully briefed and the court is prepar...
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OPINION AND ORDER These consolidated1 federal civil rights actions with pendent state claims arise from the above-captioned defendants’ alleged efforts to retaliate against plaintiffs Puricelli and Garner for refusing to acquiesce in certain defendants’ allegedly corrupt and illegal activity.2 Plaintiffs claim, inter alia, that defendants Hughes, Ru-benstein, and Reichley convened a Bucks County ...
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MEMORANDUM OPINION AND ORDER Plaintiff in the above-captioned action moves for a preliminary injunction staying an arbitration proceeding initiated by the defendant. The defendant cross-moves to stay the action in favor of arbitration. For the reasons that follow, the plaintiff’s motion is denied and the defendant’s cross-motion is granted. FACTS From 1976 to 1982, Sandvik, Inc....
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ORDER Before the court is the motion of the plaintiffs in case number 91 C 931, Thomas A. Heinz, Heinz & Company and C & W Woodcrafters, Inc. (the “Heinz plaintiffs”), for a preliminary injunction. For the following reasons, the motion is denied. Initially, the court will set out a brief synopsis underlying the more than six year history of the dispute between plaintiff Thomas A. Hei...
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OPINION AND ORDER The petitioner has filed a petition for habeas corpus based on the grounds that the magistrate conducted voir dire and selected the jury for defendant’s felony trial. For the reasons stated below, we deny this petition. I. BRIEF PROCEDURAL HISTORY The petitioner/defendant Rafael A. Val-ladares-Tesis was tried by jury on April 6, 1988, in a five count indictment alleging th...
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MEMORANDUM OPINION AND ORDER This matter is presently before us for decision following a bench trial on case No. 88 C 10244. The plaintiffs, Newman Johnston, III, and Phillip Asher brought this suit seeking to collect on a promissory note which they allege was executed and delivered by the defendant, Lincoln J. Bumba, in connection with Bumba’s acquisition of an interest in a limited part...
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ORDER AND OPINION This is a civil rights action brought pursuant to 42 U.S.C. § 1983, arising from the conditions of plaintiff’s incarceration at the Sing Sing Correctional Facility (“Sing Sing”). Plaintiff’s complaint seeks declaratory, compensatory and injunctive relief. Plaintiff’s counsel now move for an order granting an award of interim attorney’s fees in the amount of $44,120, purs...
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MEMORANDUM This matter is before the Court on the motion of defendants to dismiss plaintiffs’ amended complaint in its entirety. For the reasons explained below, defendants’ motion is denied in part and granted in part. BACKGROUND This action involves a dispute concerning an employee stock option plan created by defendant Smith’s Transfer Corporation (“Smith’s”) for the voluntar...
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MEMORANDUM DECISION I. BACKGROUND This matter is before the court on the motion of defendants Charles R. Canfield, Benjamin F. Armstrong, Theodore May, Newell P. Parkin, Mac Christensen, Richard A. Christensen, Dale R. Curtis, Robert Garff, Lee K. Irvine, Arch Madsen and Ernest Wilkinson to dismiss the complaint. Defendants Aline Skaggs, Ellis Ivory, Ronald Swenson and Frank Diston e...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff Florence McEvilly (“plaintiff”) filed this action in an Illinois state court on behalf of the estate of her deceased husband, William R. McEvilly (“McEvilly”), alleging that he contracted Acquired Immune Deficiency Syndrome (“AIDS”) after receiving an infusion of blood contaminated with Human Immune Deficiency Virus (“HIV”). The ...
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DECISIONS AND ORDERS RE MOTION TO DISMISS AND MOTIONS FOR PARTIAL SUMMARY JUDGMENT On November 28, 1988 the court heard defendant’s Motion for Order Dismissing Intervenor’s Complaint and plaintiff and intervenor’s respective Motions for Partial Summary Judgment. Upon due consideration of the written and oral arguments of the parties and the record herein, the court denies defendant’s moti...
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MEMORANDUM AND ORDER On October 22,1990, this court dismissed plaintiff’s cause of action for lack of personal jurisdiction over the defendant. Plaintiff claimed that jurisdiction was founded on the creation of a contract and the commission of a tort within Missouri; however, the facts established that the contract at issue in this case was created in New York and that plaintiff’s count for conve...
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OPINION This is an action brought under § 205(g) of the Social Security Act, as amended (“Act”), 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services (“Secretary”), that plaintiff received overpayment of retirement insurance benefits under the Act and denying plaintiffs request for waiver of recovery of overpayment. For the reasons set forth below, the ...
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MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ APPLICATION FOR ATTORNEYS’ FEES AND EXPENSES This matter is now before the Court on Plaintiffs’ Application for Attorneys’ Fees and Expenses, filed on February 27, 1991 (Docket No. 14), to which Defendant’s Opposition was filed on February 20, 1991 (Docket No. 17). By the application, Plaintiffs seek reimbursement for attorneys’ fees in the ...
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DECISION AND ORDER INTRODUCTION Now before this Court is defendant’s motion for summary judgment pursuant to Fed.R.Civ.P. 56. Dolores Sabatowski (“plaintiff”) sues defendant Fisher-Price Toys (“defendant”) for damages stemming from defendant’s alleged breach of an employment contract, defamation and intentional infliction of emotional distress. This Court has diversity juri...
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MEMORANDUM OPINION AND ORDER The plaintiff, Michael J. Hennessy, has brought this three-count personal injury diversity action against the defendant, Commonwealth Edison Company (“ComEd”), for negligent infliction of emotional distress, strict liability and battery. Hennessy’s claims arise as a result of receiving an internal contamination by radiation while he was working in ComEd’s Dres...
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FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW I.INTRODUCTION This matter concerns a dispute between the Plaintiffs, which hold mineral rights in certain land located in Wayne National Forest, and the United States, which owns the surface rights in the same property. It essentially involves that portion of the Fifth Amendment to the United States Constitution which requires that co...
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OPINION This matter is before the court on the objections of the defendants The Ormond Shops, Inc. (“Ormond”), Thomas J. Lipton, Inc. (“Lipton”) and Lionel Leisure, Inc. (“Lionel”) (collectively, the “Defendants”) to the Proposed Findings of Fact and Conclusions of Law in Non-Core Proceedings Submitted to District Court Pursuant to 28 U.S.C. § 157(c)(1) and Bankruptcy Rule 9033 (the “Prop...
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OPINION BACKGROUND On October 9, 1990, plaintiffs, Lawrence Jones et al., filed an action pursuant to 42 U.S.C. section 1983 challenging the constitutionality of Virginia Code sections 19.2-310.2 — 310.7 which direct the Virginia Department of Corrections to take and store the blood of a convicted felon for subsequent deoxyribonucleic acid (DNA) analysis. Plaintiffs sought a temporary restr...
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MEMORANDUM OPINION AND ORDER Midwest Concrete Products Co. (“Midwest”) has moved for summary judgment under Fed.R.Civ.P. (“Rule”) 56 on its mechanic’s lien counterclaim in this mortgage foreclosure action initially brought by FirstSouth Federal Savings & Loan Association (“FirstSouth”). FirstSouth later became, via corporate name change, First-South, F.A. At this point, however, Federal D...
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OPINION AND ORDER This action to stay arbitration proceedings was initiated in state court on January 22, 1991. The matter is currently before this Court on the motion of CBS Inc. (“CBS”) to remand this action to state court, pursuant to 28 U.S.C. § 1447(c). CBS argues that the Notice of Removal is fatally defective as it does not allege complete diversity both at the time of the commence...
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MEMORANDUM AND ORDER Economic developments of the last several years have taken their toll on many segments of society. On March 29, 1990, The First Chicago Corporation (“First Chicago”) announced that it too was suffering from economic woes: net income was down 45 percent, provisions for loan losses had been increased, and nonperforming loans were up. Contrasting this performance with ea...
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MEMORANDUM AND ORDER This matter is before the court on the motions of various parties to dismiss the claims of the third-party plaintiffs; to strike plaintiffs’ claim for punitive damages; and to review an order of the magistrate. The action involves the legal fallout from the failure of the Rooks County Savings and Loan Association (“RCSA” or “the Association”) in Plainville, Kansas. Th...
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ORDER • Plaintiff, an insurance company, filed this declaratory judgment action to resolve a dispute over liability insurance coverage. Plaintiff contends that the insured parties are not entitled to liability coverage for injuries they sustained in an automobile accident. Pursuant to Fed.R.Civ.P. 56, plaintiff now moves for summary judgment. For the reasons stated herein, plaintiff’s motion is gr...
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ORDER This suit involves an age discrimination claim brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Contract claims arising under state law have been brought as *815 well. The plaintiff in this case, A. Lawrence Farr, claims that he was constructively discharged on account of his age. Defendants Continental White Cap, Inc.,...
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ORDER DISMISSING COUNTS 1 AND 5 OF THE INDICTMENT, DISMISSING THE MOTIONS THEREBY RENDERED MOOT, AND DENYING THE VARIOUS MOTIONS FOR PRODUCTION OF GRAND JURY PROCEEDINGS, FOR SEVERANCE, AND TO DISMISS COUNTS 6 AND 7 I. Introduction This cause came before the court on several motions filed by various defendants. *1405 The first two motions seek dismissal of Count ...
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ORDER This matter is before the court on defendant’s motion to dismiss or, in the alternative, motion to transfer venue filed on February 4, 1991. Plaintiffs responded to the motion on February 26,1991 and defendant replied to plaintiffs’ response on March 29, 1991. Factual Background On May 22, 1985, Resource Savings Association (Resource) 1 made a loan to Jerry ...
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MEMORANDUM AND ORDER AND FINAL JUDGMENT In a Memorandum and Order dated October 23, 1990 I considered the propriety of awarding the plaintiffs the cost they incurred in enlisting the services of experts who assisted them in the preparation of the case and at trial 749 F.Supp. 62. After reviewing the relevant reported decisions for and against such an award, I concluded that faithfulness to the spi...
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ORDER This opinion addresses two motions pending in this action. First, plaintiffs move this Court to certify an immediate appeal of the Court’s opinion and order dated October 9, 1990 pursuant to 28 U.S.C. § 1292(b), 748 F.Supp. 190. Plaintiffs argue that the Court’s findings that it lacked subject matter jurisdiction over plaintiffs’ RICO claims and that plaintiffs failed to demonstrate a “depr...
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MEMORANDUM ORDER Bancboston Mortgage Corporation (“Bancboston”) has just filed this mortgage foreclosure action against mortgagors Daniel J. Pieroni, Sr. and Mary Ann Pieroni without naming any other defendants— even “unknown owners and non-record claimants.” Bancboston invokes federal jurisdiction under 28 U.S.C. § 1332, predicated on the asserted diversity of citizenship and the requisi...
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ORDER Defendant SUNFLOWER CARRIERS, INC. made a Motion to Dismiss/Motion to Strike (document # 8), filed June 29, 1990, which defendant THOMAS WOOD THORNDIKE joined by a motion (document # 12) filed July 3,1990. This motion was rendered moot by the filing of the First Amended Complaint (document # 30) on October 16, 1990. See Minute Order dated October 16, 1990 (document # 29)....
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SENTENCING MEMORANDUM On November 5, 1990, Tonya Davis pled guilty to one count of distributing a mixture or substance containing cocaine base, commonly known as “crack,” in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). As part of her plea agreement, the Government dismissed a second count of possession with intent to distribute 5 grams or more of cocaine base. The Assistant United Stat...
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*604OPINION AND ORDER By motion filed February 14, 1991 plaintiff moved for reconsideration of our January 10 order dismissing this action as against defendant Sharon Flood (“Flood”) or, in the alternative, for an order pursuant to Fed.R.Civ.P. 54(b) for the entry of a final judgment with respect to this claim. By order dated February 26 we denied plaintiffs motion for reconsideration. For the re...
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OPINION AND ORDER The vessel NORTHERLY ISLAND is a hopper dredge owned by North American Trailing Company and operated under a bareboat charter by NATCO, a limited partnership, both plaintiffs in this action (collectively “North American”). During October 1990, the NORTHERLY ISLAND was engaged in dredging in Oregon Inlet, North Carolina, under a contract between NATCO and the Army Corps o...
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OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR NEW TRIAL Defendants Kenneth A. Weiner, Steven M. Lewin and Alvin B. Gendelman (“Weiner” “Lewin” “Gendelman”) were found guilty after a jury trial of numerous charges of wire and mail fraud, 18 U.S.C. §§ 1341 and 1343; interstate transportation of property taken by fraud, 18 U.S.C. § 2314; conspiracy to defraud the United States, 18 U.S.C. § 371; an...
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OPINION AND ORDER This matter is before the Court pursuant to the Defendant, AMCA International Corp.’s (“AMCA” or “Varco-Pruden”, a unit of AMCA International Corp.) motion for partial summary judgment as to Counts I, II, and III of Plaintiff, Columbus Trade Exchange, Inc.’s (“Tradecorp”) Complaint. The plaintiff has filed a Memorandum Contra, to which the defendant has filed a Reply Mem...
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ORDER Motion Picture Industry Pension Plan, et. al. (“Plaintiffs”) in the above captioned action have moved for Judgment upon the Master’s Decision and attorney’s fees. The Klages Group, Inc. (“Defendant”) timely filed opposition. In addition, Defendant in the above captioned action has moved for an order granting summary judgment and attorney’s fees. Plaintiffs timely opposed that motion. Both m...
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MEMORANDUM DECISION Plaintiff Harry J. Diduck (“Diduck”) brings this class action 1 against defendants William Kaszycki and Kaszycki & Sons Contractors, Inc., defendant John Senyshyn, a trustee of the House Wreckers’ Union Local 95 (“the Union”), and defendants Trump-Equitable Fifth Avenue Co. (“Trump-Equitable”) 2 , the Trump Orga *805 nization, Inc., D...
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MEMORANDUM AND ORDER I. Introduction This matter is before the court on defendant Oscar Purísima Viernes’ (“Viernes”) Motion to Dismiss Indictment (“Motion to Dismiss”) for failure to charge a criminal offense. The premise underlying his motion is that methamphetamine, which defendant is charged with importing, distributing and possessing, is not a controlled substance. II. Background The Indictme...
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MEMORANDUM AND ORDER This declaratory judgment action raises many issues concerning the rights of the parties under an insurance policy issued to Julie Lynn Fisher before her death in an automobile accident. The defendant and plaintiff have each filed motions for summary judgment. For the reasons stated below, I grant defendant’s motion for summary judgment and deny plaintiff’s motion for...
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OPINION Before us is a matter of significance as its resolution may force yet another of America’s airlines into bankruptcy. The facts presented are uncontroverted and can be summarized as follows. In February 1986, defendant Trans World Airlines, Inc. (“TWA”) entered into an Equipment Trust Agreement (the “Agreement”) with plaintiff The Connecticut National Bank (“CNB”). The Agreement is what ...
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MEMORANDUM Defendant Davis was arrested on August 13, 1990 on charges of distributing and possessing with intent to distribute a mixture or substance containing cocaine base. Although she was initially detained without bail, Magistrate Judge Attridge ordered her released from detention on the condition that she “return to custody for specified hours following release for employment, schoo...
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ORDER AND REASONS Defendants Odeco Drilling Services, Inc., Old Odeco, Inc., and Conoco, Inc. (hereinafter collectively “Odeco”) have filed a motion to dismiss the claims of Betty Barbin Donaghey for loss of consortium. Plaintiff Betty Donaghey opposes this motion. Plaintiff Lonnie Donaghey, a seaman, filed suit against the defendants pursuant to the Jones Act, 46 U.S.C.App. § 688, and the Ge...
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DECISION AND OPINION The parties have cross-moved pursuant to Rule 56 Fed.R.Civ.P., for summary judgment herein in favor of the plaintiffs and defendants respectively. Defendant has also moved for judgment on the pleadings in pursuance of Rule 12(c). The parties have filed a Joint Statement of Undisputed Material Facts. Those facts and the depositions which are part of the record for...
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762 F. Supp. 931 (1991) Thomas W. HILL, Jr., Plaintiff, v. SIDLEY & AUSTIN, et al., Defendants. No. 91-8019-CIV. United States District Court, S.D. Florida. April 30, 1991. *932 Thomas W. Hill, Jr., plaintiff pro se. Cecil H. Albury, Alley, Maas, Rogers & Lindsay, Palm Beach, Fla., for defendants. ORDER GONZALEZ, District Judge. THIS CAUSE has come before the Court upon the petition for ...
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OPINION Defendants First Blood Associates, A. Frederick Greenberg and Richard M. Greenberg (collectively, “First Blood”) have moved for summary judgment dismissing the complaint of plaintiff Stanley B. Block and others (“the Investors”) on the grounds that their claims are barred by the statute of limitations. For the following reasons, the motion is granted. Prior Proceedings ...
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OPINION AND ORDER Plaintiff, National Solid Waste Management Association (NSWMA), brings this action challenging the constitutionality of certain provisions of Ohio’s solid waste disposal statute. Ohio Rev.Code § 3734.131 and § 3734.57. The NSWMA asserts that the Act violates the Commerce Clause of the U.S. Constitution, art. L, § 8, by discriminating against and placing undue burdens on ...
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MEMORANDUM OPINION Before the court is a motion filed by the defendants Sonat Offshore Drilling (Sonat) and Amoco Production Company (Amoco) to dismiss the claims of the plaintiff Louvi-nia Rebstock for loss of consortium, service, and society. After reviewing the motion, memoranda of counsel, the record, and the law, the court denies the motion. Following the Supreme Court decision in Miles...
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ORDER Isaac Roby has filed a pro se complaint against Officer George Skupien, a member of the Conrail police force, charging Officer Skupien with violating his constitutional rights. Since filing suit, Roby has attempted to recover attorney’s fees as the attorney of record. His request was denied because he is proceeding as his own attorney in the case. To circumvent that problem, Roby sought the...
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762 F. Supp. 1501 (1991) UNITED STATES of America v. Clifford Leon WILSON, III, et al., Defendants. Crim. No. 90-61-MAC (WDO). United States District Court, M.D. Georgia, Macon Division. May 1, 1991. William P. Gifford, Macon, Ga., for U.S. Denmark Groover, Jr., Macon, Ga., for defendants. ORDER OWENS, Chief Judge. On August 11, 1990, defendant Wilson was arrested and detained on a warrant charg...
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ENTRY This cause is before the Court on appeal from the order of the United States Bankruptcy Court for the Southern District of Indiana dismissing adversary proceeding No. 90-27. For the following reasons, the decision of the Bankruptcy Court is affirmed. Background The appellant in this case, Sparmal Enterprises, Inc., (Sparmal), filed a Chapter 11 bankruptcy proceeding on...
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OPINION AND ORDER The defendants, Jose Peralta and Jesus Ramos, were indicted in Count I for possession of a controlled substance with intent to distribute under 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B), and in Count II for use of a firearm in connection with a drug trafficking offense under 18 U.S.C. §§ 924(c) and 2. On the fifth day of trial, after the jury had been charged but before it ha...
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OPINION Presently before the Court is a motion by the plaintiffs/claimants for a judgment on *98 the pleadings, pursuant to Fed.R.Civ.P. 12(c), on the issue of the validity of the defendants’/petitioner’s affirmative defense based on the Limitation of Liability Act, 46 U.S.C.A. §§ 181-89 (West 1958 & Supp.1990). In the alternative, plaintiffs/claimants request dismissal of th...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion for summary judgment. Plaintiff, a Missouri inmate housed at the Lansing Correctional Facility, Lansing, Kansas, (“L.C.F.”) filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff claims (1) he received disciplinary reports which were deliberately excessive and as a result was subjected to ...
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ORDER OF REVERSAL ON BANKRUPTCY APPEAL THIS CAUSE has come before the Court upon the appeal from the Order of The Bankruptcy Court of the Southern District of Florida, Hon. Sidney M. Weaver, Judge dated November 1, 1990. That order, denied the appellant’s motion to vacate a previous order of the bankruptcy court which dismissed the case. This Court has appellate jurisdiction over this matter pursu...
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MEMORANDUM OPINION AND ORDER The Equal Employment Opportunity Commission (“EEOC”) contends that defendant University Club of Chicago (the “University Club”) must file certain reports (EEO-1 Reports) that are required to be filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and applicable EEOC regulations. Title VII empowers the EEOC to require “every emplo...
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AMENDED ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Before the Court are Defendants’ motion to dismiss filed on September 12, 1990, and Agreed Stipulations of Fact filed on February 15, 1991. This Order refers to the Agreed Stipulation of Fact as though reproduced fully herein. Plaintiff, MDPhysicians & Associates, Inc., is the plan administrator of the MDP Plan which is a self...
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ORDER Pending before this Court is a motion to dismiss or, in the alternative, for abatement of proceedings (Document # 6) filed by the defendants. The Court held a hearing on the motion in open court on April 26, 1991. After having considered the motion, the submissions of the parties, the argu *157 ment of counsel, and the applicable law, the Court determines that it should...
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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS The United States brought this suit seeking to reduce to judgment tax assessments against defendants Raytown Lawnmower Co., Greenlawn Fertilizer, Inc., and Louis E. Mattoon and to foreclose upon certain property in which they or the other defendants have an interest. Louis Mattoon and L. Mattoon Development Company (hereinafter ...
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MEMORANDUM OPINION AND ORDER Plaintiffs brought this action on behalf of themselves and others who sold Allegis Corporation common stock or puts in Alleg-is Corporation common stock between October 29, 1987 and December 8, 1987 (the “class period”).1 Plaintiffs seek damages under § 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934, and under state law, for losses sustained from these sa...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion for summary judgment. In this case, plaintiff Henrietta Hendricks (“plaintiff”) seeks damages from defendant Comerio Ercole (“defendant” or “Comer-io”), an Italian manufacturer of component parts of a wire calender machine, for injuries to her hand (including the loss of four fingers) while using a wire calender ma...
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In January 1990, Defendant Abraham Caram, a resident of Mexico, came to Nevada on vacation. While in Las Vegas, Defendant applied for and received four hundred thousand dollars through a line of credit at the Mirage Casino-Hotel (“the Mirage”). In July 1990, the Mirage presented Defendant’s signed “marker” to Defendant’s bank in Laredo, Texas, and was denied payment. The casino filed its Complaint...
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OPINION Plaintiff Traverse Bay Area Intermediate School District brought the present action against defendants Hitco, Inc., et al. to recover environmental clean up costs under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). 42 U.S.C. §§ 9601 et seq. Presently pending is defendant Hitco, Inc.’s (“Hitco”) motion to dismiss the complaint against defendant ...
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OPINION AND ORDER Fourth-party defendant Buel Staggers (“Staggers”) moves pursuant to Rule *36412(b)(1) of the Federal Rules of Civil Procedure to dismiss the Fourth-Party Complaint on the ground that this Court lacks in personam jurisdiction over Staggers. Fourth-party plaintiff George Campbell Painting Corp. cross-moves for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure on...
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OPINION Presently before the Court are several motions for summary judgment. Every party, except the plaintiff, has moved for summary judgment against every other party. These motions are the culmination of months of discovery disputes and motions for sanctions. Specifically, the tedious and tortured path of this case has now led to the following motions: 1) Defendants/third-par...
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ORDER AND OPINION This diversity action is brought by plaintiff for damages resulting from an alleged overpayment to its subcontractor in connection with the Marriott Marquis Hotel project. Plaintiff Morse/Diesel, Inc. (“Morse/Diesel”), alleges, in addition to its breach of contract claim, fraud and breach of the covenant of good faith and fair dealing. Defendant Fidelity and Deposit Comp...
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ORDER We are confronted in this case with the peculiar question of when a three-judge district court may dismiss an appeal of one of its orders to the United States Supreme Court. Plaintiffs have moved to dismiss defendants’ appeal to the Supreme Court of this court’s August 20, 1990 order,1 on the ground that defendants failed to file a jurisdictional statement within 60 days after filing their ...
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OPINION This is a civil rights action filed under 42 U.S.C. § 1983, arising out of the rezoning of property in Emmet County, Michigan. Plaintiff has alleged both federal and state claims involving issues of taking without just compensation, procedural due process, substantive due process, equal protection and conspiracy. The matter is currently before the Court on defendants’ motion for j...
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OPINION AND ORDER Defendants Wesleyan University (“Wesleyan”), The President and Trustees of Williams College (“Williams”), and the Trustees of Dartmouth College (“Dartmouth”) have moved pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(3) to dismiss this putative class action antitrust case against them on the. grounds that this Court lacks personal jurisdiction and that ven...
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Before the Court is the defendant’s Motion to Dismiss or for Summary Judgment. The plaintiff, a federal employee, complains that the Postal Rate Commission has failed to promote her because of race and gender discrimination. The plaintiff has alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Equal Pay Act, 29 U.S.C. § 201 et seq., ...
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OPINION OF THE COURT This matter is before the court on the defendant’s (1) “Joint Motion to Dismiss Indictment,” 1 filed December 24, 1990, and (2) “Motion to Suppress and Reject Evidence,” filed April 5, 1991. On April 16, 1991, the court entered a summary order denying both motions and deferring its opinion so that trial might proceed as scheduled on April 18, 1991. The cour...
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OPINION AND ORDER This case is one in a series of claims concerning AIA Industries, Inc. See In re AIA Industries, Inc. Securities Litigation, Master File No. 84-2276 (E.D.Pa.). Here, plaintiff claims defendant, an accounting firm, produced fraudulent audits and financial statements for AIA and that plaintiff relied on these reports when purchasing AIA securities. Plaintiff all...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendant United States of *1460 America (“defendant”) to dismiss, or in the alternative, for summary judgment. This is an action alleging invasion of privacy against the United States of America, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq. The relevant contentions and allegations of ...
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MEMORANDUM OPINION AND ORDER Plaintiff Kenneth Baily (Baily) seeks to recover for injuries allegedly incurred as a result of defendant Allen Lewis’ acts of sexual molestation and abuse while Baily was a minor. Because I find that all of Baily’s claims are barred by the applicable statute of limitations, I will grant Lewis’ motion for summary judgment. FACTUAL ALLEGATIONS The complaint in th...
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MEMORANDUM AND ORDER Defendant Rodney Lee, convicted of one count of attempting to possess marijuana with the intent to distribute, has filed a memorandum with the court in which he argues that an application of the mandatory sentencing provision contained in 21 U.S.C. § 841(b)(l)(B)(vii) would cause an unconstitutional violation of equal protection guarantees. The government has responded, con...
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MEMORANDUM AND ORDER The defendant argues that the current prosecution for tax evasion cannot be maintained, since the instruction booklets accompanying the tax forms did not contain the appropriate control numbers of the Office of Management and Budget (OMB), as required by the Paperwork Reduction Act of 1980 (PRA), 44 U.S.C. § 3501, et seq. The main argument relied on by the defendant is th...
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OPINION AND ORDER Before the court is defendants’ motion to dismiss or stay this suit in deference to a parallel proceeding in the Commonwealth court. In Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), the Supreme Court held that in exceptional circumstances a federal court may decline exercise of its jurisdiction...
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MEMORANDUM OPINION AND ORDER This action is brought by plaintiff Samuel, an employee of defendant Merrill Lynch Pierce Fenner & Smith (hereinafter “Merrill Lynch”), for alleged violation and intentional violation of the Age Discrimination in Employment Act (hereinafter “ADEA”), 29 U.S.C. § 621 et seq. and violation of Section 296 of the New York Execu *48 tive Law....
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ORDER OF REMAND This cause comes before the court sua sponte. Having reviewed the record and relevant authorities, the court enters the following order for the reasons set forth hereinafter. BACKGROUND On March 27, 1991, the Plaintiff, William Bahr (“Bahr”) commenced the above styled action in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward Co...
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AMENDED ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND MOTIONS TO REFER CASE TO ICC These two cases are consolidated for the purpose of ruling on the parties’ motions for summary judgment. I will also address the defendants’ motions for orders of reference to the Interstate Commerce Commission. I. On March 12, 1991, I issued a memorandum opinion and order in Covey v. ConAgra, ...
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MEMORANDUM This matter is before the Court for sentencing of defendant. Having been author *1514 itatively diagnosed as mentally ill, but competent to stand trial, he has pled guilty to a one count information charging him with bank robbery in violation of 18 U.S.C. § 2113(b). The robbery occurred on August 18, 1989, at the Citicorp Savings Bank, 1001 Pennsylvania Avenue, N.W., Washington, D....
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*592 ORDER On December 14, 1990, a jury found Walter Leroy Moody guilty of one count of conspiracy and multiple counts of subornation of perjury, obstruction of a criminal investigation, obstruction of justice, tampering with a witness and bribery. This case is presently before the Court on Moody’s motion for a new trial. Moody alleges five grounds of error. First, he contends th...
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763 F.Supp. 1030 (1991) GERMANIA BANK, Plaintiff, v. Carol BREHM, Defendant. No. 90-191C(1). United States District Court, E.D. Missouri. May 3, 1991. *1031 Marvin Klamen, St. Louis, Mo., for plaintiff. Robert Hoemke, Lewis, Rice & Fingersh, St. Louis, Mo., for defendant. MEMORANDUM NANGLE, District Judge. Plaintiff brings this action seeking to recover on a promissory note. The case was tri...
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ORDER On February 6, 1991, the court entered an order dismissing the petition for review of an arbitration award filed by Andres A. Escobar and Pedro Escobar (petitioners). Before the court is petitioners’ motion under Rule 60(b)(6) of the Federal Rules of Civil Procedure requesting reconsideration and/or relief from our order of February 6, 1991. I. INTRODUCTION Pursuant to the...
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OPINION AND ORDER This civil rights action is representative of the new wave of political discrimination cases that has flooded this district and it rolls in the form of a "political demotion” claim. Plaintiff Roberto Pietri Bonilla alleges that his constitutional rights under the First and Fourteenth Amendments of the U.S. Constitution were violated when he was “demoted” from the positio...
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MEMORANDUM OPINION AND ORDER Central States Trucking Company (“Central States”), an interstate common freight carrier, brings this collection action pursuant to the Interstate Commerce Act, 49 U.S.C. § 1 et seq., against J.R. Simplot Company (“Simplot”), for shipping charges related to Simplot’s freight. What would normally be a simple collection matter is complicated by the insolvency of the Per...
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MEMORANDUM On December 14, 1988, this Court granted summary judgment and permanent in-junctive relief for plaintiffs. National Coalition for the Homeless v. Veterans Administration, No. 88-2503, 1988 WL 136958 (D.D.C. Dec. 14, 1988) (“Permanent Injunction Decision”). Plaintiffs have now moved this Court for a further order enforcing the Court’s permanent injunction o...
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This matter is before the court on appeal from a final order of the bankruptcy court in the bankruptcy of Westchase I Associates, L.P. Both the debtor Westchase and Lincoln National Life Insurance Company, a secured creditor, have filed appeals. Lincoln appeals the ruling of the bankruptcy court involving the distribution of rents from a building development which is the principal asset of the ...
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MEMORANDUM The matter before the Court is a motion by defendant to stay these judicial proceedings pending the outcome of arbitration. After carefully reviewing the record and the applicable law, the Court concludes that plaintiff is not required to submit her claims to arbitration and the defendant’s motion shall be DENIED. Plaintiff has invoked the Court’s diversity jurisdiction pu...
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*922 OPINION AND ORDER This case involves the importation and sale of athletic shoes made in Korea. Plaintiff, Shonac Corporation (“Shonac”), asserts claims under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68; as well as claims under state statutory and common law. This matter is before the Co...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on the Motion of Plaintiff, Board of Trustees of State Institutions of Higher Learning, for Summary Judgment and the Cross-Motion of Defendant Louis W. Sullivan, M.D., Secretary of Health and Human Services, for Summary Judgment. Both parties have submitted memoranda and documentation in support of their respective positions and ...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion for summary judgment. Following a motor vehicle accident, plaintiff Farm Bureau Mutual Insurance Company, Inc. (Farm Bureau), a Kansas corporation, brought an action in Johnson County District Court seeking to recover from defendant Select Insurance Company (Select), a Texas Corporation, amounts Farm Bureau expended as a r...
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MEMORANDUM Plaintiffs Renee and Roy Vandervelde were dairy farmers in Oregon until they contracted with the Department of Agriculture (USDA) to sell their cattle for slaughter under the Dairy Termination Program (DTP). 7 U.S.C. § 1446(d)(3)-(7). After plaintiffs sold their cattle for slaughter, a local committee responsible for administering the DTP found that they had breached the te...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion for partial summary judgment on Count IV of the Complaint. In Count *907 IV, plaintiff Resolution Trust Corporation (RTC), as conservator for Valley Savings (Valley), a Federal Savings and Loan Association, seeks recovery from Interstate Federal Corporation (IFC), parent company of Valley, for amounts ...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO STRIKE The plaintiff, the Heil Company, has filed this civil action pursuant to 35 U.S.C. § 146 complaining of the decision of the United States Patent and Trademark Office Board of Patent Appeals and Interferences (“Board”). In that proceeding the Board decided that the plaintiff’s assignor, Fred Smith, was not entitled to the patent because ...
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*1512MEMORANDUM ORDER This matter is before the Court on the motions of plaintiffs Shenan Smith and Sharon Parrish to amend the complaint in Civil Action No. 90-1021 and the United States’ motion for summary judgment in Civil Actions No. 90-1021 and 90-2052. On consideration of the entire record, the Court denies plaintiffs’ motion to amend the complaint and grants the United States’ motion for su...
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MEMORANDUM OPINION The defendants were convicted in this court of charges relating to the structuring *442 of currency transactions to avoid the filing of a Currency Transaction Report. After this court had ruled on several preliminary motions, Mr. Aversa pled guilty to one count of structuring a currency transaction to avoid the reporting laws, but retained the right to...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion to dismiss or, in the alternative, for summary judgment. Plaintiff, Gregory Raymond (Raymond), filed this diversity action against his former employer, Archer Daniels Midland Co. (ADM), alleging he was wrongfully discharged from his employment in violation of Kansas public policy. Archer argues for dismissal of the actio...
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MEMORANDUM AND ORDER This matter comes before the court on the motion of defendant Beverly Enterprises-Kansas, Inc. (hereinafter “Beverly Enterprises”) for partial summary judgment. Defendant contends that Frank J. Bremen-kamp (hereinafter “Bremenkamp”) has failed to make a prima facie showing of negligence on the part of Beverly Enterprises. Defendant also asserts that plainti...
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*474 ORDER THIS MATTER comes before the Court on Defendants’ motion for summary judgment. The matter has been fully briefed and oral argument has been heard. The Complaint This action was originally filed in the Denver District Court, and was removed by Defendants. The complaint is filed under 42 U.S.C. § 1983 as “wrongful adoption.” The Plaintiff alleges that Defen...
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OPINION Wilfred J. Smyly III (Smyly) and Smyly Hyundai, Inc. (SH) sue Hyundai Motor America (HMA) for claims arising out of an automobile dealership established in June, 1986, and renewed in June, 1988. Both agreements were in two parts: relatively brief special terms, containing the particular operative provisions applicable to the parties, and so-called standard terms, uniformly found i...
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MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS COUNTS I, II, AND IV, AND DEFENDANTS PRYOR AND APEX, AND FOR A MORE DEFINITE STATEMENT OF THE CLAIMS IN COUNTS V AND VI This case arose from the creation and development of a computer magazine, SunExpert. The plaintiff David Fickes was the originator of the venture, defendant Sun Expert, Inc., and its CEO. Defendants Sterling Crum and...
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ORDER Presently pending before the Court is defendant’s motion to dismiss, plaintiffs motion to cancel Court order, and plaintiffs motion to amend complaint. Oral argument was heard on April 12, 1991, and the matter was taken under advisement. I. FACTS On October 25, 1989, the Department of Veteran Affairs denied plaintiffs claim for vocational rehabilitation benefits.1 On November 7, 1989, plaint...
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MEMORANDUM OPINION AND ORDER Defendants, Lucien and Lucille Caminita (for convenience hereinafter “defendants”), have moved to dismiss this case for lack of personal jurisdiction pursuant to FRCP 12(b)(2) or, in the alternative, to transfer *371 this case to the United States Court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 1404(a). In the alternative, the ...
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OPINION Plaintiff Susan M. Kallas, natural mother and guardian of Tim Kallas, filed a claim against the United States government under the Federal Tort Claim Act, 28 U.S.C. Sec. 2671-2680 and Sec. 1346(b). Tim was injured when he ignited the contents of some munitions he had taken from an Air National Guard facility in Gulfport, Mississippi, and the contents flared up, causing an injury to his le...
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MEMORANDUM AND ORDER This matter comes to the court on the motion of State Bank of Spring Hill (hereinafter “Spring Hill”) for stay of a writ of execution. Spring Hill requests the court to stay a writ of execution issued by the Clerk of the United States Bankruptcy Court on March 13, 1991. The writ was to be served by the United States Marshal to collect on a judgment entered by Judge Be...
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MEMORANDUM AND ORDER Plaintiff filed this action alleging her former employer, MCI Communications Corporation (MCI), defrauded its salespersons by failing to pay proper commissions pursuant to written compensation plans. Subsequently, the court granted Smith’s motion to certify a class as to several counts of her complaint. Presently before the court is plaintiff’s “Motion and Memorandum in Suppor...
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MEMORANDUM AND ORDER Plaintiff Hope’s Architectural Products, Inc., brought this action to recover damages for an alleged default of defendant Lundy’s Construction, Inc., (Lundy’s) under a contract to provide construction materials, and to recover against the statutory bond secured through defendant Bank IV Olathe, N.A. (Bank IV). Defendant Bank IV now moves the court (Doc. 21) for summar...
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MEMORANDUM AND ORDER This matter comes before the court on the motion of plaintiff United States of America for a preliminary injunction *490 against MPM Contractors, Inc. (hereinafter “MPM”), Asbestos Removal Contractors, Inc. (hereinafter “ARC”), and Michael P. McGill (hereinafter “McGill”), individually, pursuant to Rule 65(a) of the Federal Rules of Civil Procedure. The U...
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MEMORANDUM AND ORDER This matter is before the court on appeal by Roadrunner Freight Systems, Inc. (“appellant”) from a Judgment (R. Doc. 11), and Memorandum of Decision (R. Doc. 12), entered on January 17, 1990 (as amended on January 31, 1990) (R. Doc. 15), by the United States Bankruptcy Court for this District in which the bankruptcy court granted the motion of the debtor, American Fre...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff Ronald E. Stone (“Stone”) has moved, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, for post-judgment relief in the form of additional attorneys’ fees and costs incurred in the post-judgment collection process. On March 29, 1990, this Court granted plaintiff’s motion for summary judgment against defendant Chicago Builders and...
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MEMORANDUM OPINION Plaintiff Michael Sneed filed this action against American Bank Stationary Company (ABS) for wrongful discharge. Plaintiffs amended complaint alleges three counts: breach of contract, fraud, and violation of Virginia’s Rights of Persons With Disabilities Act. The Court’s jurisdiction is founded upon 28 U.S.C. § 1332(a) (1988), as the parties are diverse in citizenship a...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion to dismiss. Because both parties have presented matters outside the pleadings for the court’s consideration, the court will treat the motion as one for summary judgment pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Plaintiff Jo Ann Foutty (Foutty) brings this action pursuant to the Age Discri...
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Plaintiffs Thomas and Myra Waller in the above captioned action allege that the defendants proximately caused the wrongful death of their son Michael Jeffery Waller by inciting him to commit suicide through the music, lyrics, and subliminal messages contained in the song “Suicide Solution” on the album “Blizzard of Oz.” Defendants deny all allegations of wrongdoing on their part and now have pe...
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OPINION The court has before it a motion by plaintiff to enforce settlement that is opposed by defendant on the ground that the settlement was conditioned upon the approval of the board of directors of defendant’s insurer, and the board did, thereafter, disapprove. The facts are these. The case was assigned for trial on March 11, 1991, and was reached, but plaintiff reported sick. A jury was empan...
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ORDER TRANSFERRING CASE Before the Court is Standard Havens’ motion for a temporary restraining order to enjoin the Commissioner from continuing a *1350reexamination proceeding in which the Patent and Trademark Office (PTO) is reexamining the patentability of a process for which the PTO earlier issued a patent, known as the Hawkins patent, owned by Standard. Havens. Alternatively, Standard Havens ...
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MEMORANDUM OPINION This is a suit for breach of contract by Torco Oil Company against Innovative Thermal Corporation (ITC) and two corporations affiliated with ITC — Caldwell Aircraft Trading Company and Charlotte Aircraft Corporation. Federal jurisdiction is based on diversity, and Illinois law governs the substantive issues. A jury awarded Torco damages of $2,554,110 against all three d...
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MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Bernard Bolender petitions the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his convictions and sentences of death were obtained in violation of the Fifth, Sixth, Eighth and Fourteenth amendments to the United States Constitution. Specifically, Bolender alleges, inter alia, that he was de...
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MEMORANDUM OPINION AND ORDER Ruby Brooks (“Brooks”) seeks judicial review of a final decision of the Secretary *586of Health and Human Services (“Secretary”) denying Brooks’ claim for supplemental security income (“SSI”) benefits under the Social Security Act (“Act”), 42 U.S.C. §§ 416(i), 423 and 1381a.1 As is customary in these cases, the parties have filed Fed.R.Civ.P. (“Rule”) 56 cross-motions ...
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ORDER GRANTING FEDERAL DEFENDANTS’ MOTION TO DISMISS Plaintiffs own property within the area surrounding Memphis International Airport. They claim that the noise pollution generated by the Airport has resulted in damage to their persons and property. On *423 November 13, 1989, plaintiffs commenced this action against the Memphis-Shelby County Airport Authority and its president, Larry D. Cox,...
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ORDER On July 13, 1990, Defendant Artem Bau-tista David filed a Motion for Return of Property and Suppression of any Evidence Received from Said Property (# 15). On January 8, 1990, the Honorable Lawrence R. Leavitt entered a Report and Recommendation (# 63) recommending granting in part Defendant’s above-referenced Motion. No Objections were filed in accordance with Local Rule 510-2 of the Rul...
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ORDER The plaintiff, Hassan M. Al-Hashimi (“Al-Hashimi”), complains that the defendants discriminated against him because of his race, age, and national origin in violation of 42 U.S.C. § 1981 (1988), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1988), and the Age Discrimination in Employment Act of 1967, (“ADEA”) 81 Stat. 602 (1967), 29 U.S.C. §§ 621-34 (198...
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ORDER This lawsuit involves an alleged conspiracy between defendants to restrain trade, create a monopoly, and fix prices in commercial ground transportation to and from the Orlando International Airport. Each defendant has moved for summary judgment and the court held a hearing on the matter. At the hearing, plaintiff filed its memorandum of law in opposition to the motions. Based on a r...
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OPINION The Long Island Railroad (“LIRR”) and the Metropolitan Transit Authority (“MTA”), claimants in this action for exoneration or limitation of liability, have *858moved for summary judgment dismissing all claims, cross-claims and counterclaims against them arising out of an explosion and fire at the Ditmas Oil Associates Terminal in Long Island City (the “Terminal”). For the following reason...
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ORDER AND OPINION This action was brought pursuant to 42 U.S.C. § 1983, seeking injunctive and declaratory relief with respect to certain New York State regulations regarding the review of proprietary trade school advertising, and the bonding and licensing of proprietary trade school personnel.1 By stipulation and order signed by this Court on December 21, 1990, this action was dismissed with pre...
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MEMORANDUM AND ORDER Plaintiff John Lukaszewski filed this civil action asserting claims under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), the Pennsylvania Human Relations Act, 43 P.S.A. § 951 et seq. (“PHRA”), and state common law. Defendant moved to dismiss, or in the alternative for summary judgment, on each count. That motion was unopposed with respect to...
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MEMORANDUM OPINION AND ORDER Plaintiffs Trifinery, Petcor Services, Inc., and Petroserve Ltd. (collectively “Trifi-nery”) bring this action against Banque Paribas (“Paribas” or “the Bank”) alleging that Paribas wrongfully refused payment on a letter of credit opened by Vitol, S.A., Inc. (“Vitol”) in favor of Trifinery. Presently pending before the Court is Paribas’ motion for summary judg...
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MEMORANDUM OPINION This action challenges a final decision of the Secretary which determined that a farm at Scott County, Virginia was a non-excludable resource with a market value of $19,000.00, and that, accordingly, plaintiff was not eligible for supplemental Social Security (disability) income benefits under the Social Security Act (Act), as amended, 42 U.S.C. § 1381 et seq.1 The case has been...
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MEMORANDUM This action arose out of plaintiff Sullivan Asko’s termination from public employment, which, he alleges, occurred in retaliation for his support of a political candidate and because of his age. Before the Court is the defendants’ motion for summary judgment on Counts I, III, and Y of the plaintiff’s complaint. The motion will be granted in part. Asko was the Recorder of D...
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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”) embodied in the voluntary consent order entered March 14, 1989 (the “Consent Decree”). The provisions in the Consent D...
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MEMORANDUM The Hill-Burton Act, 42 U.S.C. § 291 et seq., (hereinafter Hill-Burton or the Act), requires medical facilities that are recipients of its funds to assure a reasonable amount of uncompensated services, determined by a formula based on a percentage of operating costs or of federal assistance provided, to patients who are deemed unable to pay according to prescribed in...
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OPINION AND ORDER This is an action removed to this Court on January 14, 1991 from the Supreme Court of the State of New York for the County of New York pursuant to 28 U.S.C. § 1441(a). Plaintiff, a Wisconsin insurer, seeks a declaratory judgment. Defendants move to dismiss the complaint pursuant to Rule 12(b) 1 of the Federal Rules of Civil Procedure or, in the alternative, to...
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ORDER GRANTING SUMMARY JUDGMENT Pending are cross-motions for summary judgment filed by defendant St. Paul Fire and Marine Insurance Company (“St. Paul”) (doc. 105) and the plaintiffs, Anna Rue Camp and John E. Venn, as trustee of the estate of Fariss D. Kimbell, Jr., M.D., (doc. 90). For the reasons stated below, I GRANT defendant’s motion and DENY the plaintiffs’ motion. This diver...
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MEMORANDUM I. Introduction And Background We are currently considering the motion of defendants, Kimberly Quality Care Nursing Service (Kimberly) and Barbara Parks (Parks), to dismiss certain counts of the complaint, pursuant to Fed.R.Civ.P. 12(b)(6). The plaintiffs, Kathleen P. Arnold and her husband, Lynn Arnold, initiated this lawsuit based upon alleged sexual harassment b...
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MEMORANDUM OPINION The parties appeared before this Court on May 3, 1991 for a hearing on the single issue of whether plaintiff timely filed this action pursuant to Title VII, 42 U.S.C. § 2000e et seq. Both sides presented testimony and evidence to the Court. Based on such, the Court renders the following findings and conclusions. This Court finds that the evidence overwhelmingly points to receipt...
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OPINION Petitioner, William Emmet Dougherty, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 asserting that his statutory and due process rights are being violated by the refusal of the respondent to credit as time served in custody the time he spent as a resident of the Alpha House, a residential treatment center, as a condition of his probationary sentence. ...
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ORDER The jurisdiction of this case is based upon diversity of citizenship, hence, we must follow the substantive law of Missouri. Before this Court is Defendant’s Motion for Summary Judgment or Motion to Dismiss. Fed.R.Civ.P. 56(c) states that “judgment sought shall be rendered forthwith if pleadings, depositions ... show that there is no genuine issue as to any material fact and that th...
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MEMORANDUM OPINION AND ORDER Unfortunately, we apparently were overly optimistic when we asserted our belief in our order of January 23, 1991 (“Andrews IV”) that “the severance chapter of these proceedings is now closed.” United States v. Andrews, 764 F.Supp. 1248, 1251 (N.D.Ill.1991).1 Now before us, however, is the “Government’s Motion to Introduce Evidence Regarding Each Racketeering Act Charge...
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OPINION The matter before the court is the objection (# 16) of defendant, The American Red Cross, to the order entered by the Honorable George E. Juba, United States Magistrate Judge, granting the motion (#7) of plaintiffs, Jane and John Doe, to remand this case to the Circuit Court of the State of Oregon for the County of Multnomah. BACKGROUND The Does are residents of the Stat...
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*1353MEMORANDUM OPINION AND ORDER BACKGROUND Defendant Hartford wrote a fidelity bond for plaintiff First Federal Bank with an effective date of October 1, 1985 and a limit of liability of $1,280,000. The insuring agreement for the fidelity coverage insured against: “(A) Loss resulting directly from dishonest or fraudulent acts of an Employee committed alone or in collusion with others.” The bond...
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RULING ON THIRD-PARTY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT The primary question presented by the pending motion is whether an attorney may be liable to a non-client accounting firm for negligent rendering of services to a client that the attorney and the accounting firm both have in common. Another question presented is whether, under Connecticut law, the non-client accounting firm is ...
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MEMORANDUM OPINION AND FINAL JUDGMENT Background In this antitrust action, plaintiff Remington Products, Inc. (“Remington”) challenged the acquisition of the electric shaver assets of defendant Schick Incorporated (“Schick”) by defendant North American Philips Corporation (“Philips”) and its parent, defendant N.V. Philips’ Gloeilampenfa-brieken (“N.V. Philips”). On January 7...
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MEMORANDUM OPINION AND ORDER Vacuum Industrial Pollution, Inc. (“VIP”) brought this diversity action against Union Oil Company of California (“Union Oil”) and National Union Fire Insurance Company of Pittsburgh (“National Union”), alleging breach of contract, negligence, and breach of duty of good faith. Union Oil and National Union have filed separate motions to dismiss for failure to st...
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ORDER This case in which Plaintiffs seek judicial review of a report generated by Defendants in accordance with environmental laws is before the court on Defendant’s motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted, and on Plaintiffs’ motions to add documents omitted from the original complaint and to supplement t...
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RULING ON PLAINTIFF’S MOTION IN LIMINE The question presented, apparently for the first time in any Federal or state court in Connecticut,1 is whether Rule 4.2 of the Connecticut Rules of Professional Conduct—which prohibits a lawyer representing a client from communicating about the subject of the representation with an adverse party represented by another lawyer without the consent of that othe...
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ORDER On June 1, 1990, 138 F.R.D. 675, this Court entered an order finding that plaintiff Carol J. Pope was in violation of Federal Rules of Civil Procedure 11 and 26(g); and the Court ruled that it would impose sanctions on Ms. Pope and dismiss her cause of action pursuant to Rule 41(b) because of her dishonest conduct in this case. The sanctions and dismissal were based on the Court’s finding t...
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OPINION Before this court is a motion for summary judgment by defendant, American Telephone and Telegraph Company, Inc. (“AT & T”), against plaintiff, Joan C. Gorham. Gorham brought suit against AT & T alleging age, race and sex discrimination claims under 42 U.S.C. § 1981 of the Civil Rights Act of 1966; the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et. seq. (“ADEA”),...
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MEMORANDUM AND ORDER In early 1987, plaintiffs Ernest Gutman, Joseph Karlin, Edward J. Kineke, Thomas R. Casey, Robert Downing, Efrem Hian, Michael R. Tongel, Norman Wall, Ralph A. Jessar, Salvatore J. Vernace, Elliot A. Heller, Ahmad Hashemiyoon, Alf Abrahamsen, Michael A. Gold, Barry Jay Kaye, Alan H. Kotz, Joseph V. Cooper, Harris Trust and Savings Bank as Executor of Lloyd V. Conant’s...
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ORDER Presently before the court is the defendants’ due process claim and motion to declare the penalty phase of the statute and related sentencing guidelines unconstitutional. FACTUAL BACKGROUND The defendants have been charged with conspiracy to manufacture marijuana in violation of 21 U.S.C. sec. 846 and 841. The defendants allege that the statutory penalty scheme under which they are ch...
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The Commonwealth of Pennsylvania and the State of Illinois move to withdraw their antitrust cases 1 from the Bankruptcy Court pursuant to 28 U.S.C. § 157(d), and the Consumer News and Business Channel Partnership (CNBC) moves to refer Dow Jones/Group W’s antitrust suit, No. 91-3101 (MEL) (S.D.N.Y.), to the Bankruptcy Court pursuant to § 157(a). The central legal question presented by the Stat...
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OPINION This matter is before the Court on three motions: plaintiffs’ motion for class certification, defendants’ motion to dismiss counts II and III of the amended complaint, and defendants’ motion for an extension of time in which to respond to count I. Upon consideration of the motions, the parties’ oppositions and replies, and the entire record herein, the Court denies plaintiffs’ mot...
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ORDER DENYING MOTIONS FOR RECONSIDERATION AND GRANTING CLASS COUNSEL’S MOTION FOR STAY AND SETTING STATUS CONFERENCE. The Law Office of David B. Gold has moved the court to set aside its earlier orders1 and to substitute the Gold firm as class counsel in place of Lowey, Dannen-berg, Bemporad & Selinger, P.C. The Gold firm contends that the Lowey bid was unethical and competitive selection of clas...
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OPINION Plaintiff Albert J. Miller (“Miller”) brings this action against defendant United States of America (“Government”) seeking: a) damages for failure to release a lien pursuant to 26 U.S.C. § 7432; b) reimbursement of attorneys’ fees under 26 U.S.C. § 7430; and c) damages for unauthorized collection actions pursuant to 26 U.S.C. § 7433. The Government now moves for summary judgment o...
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MEMORANDUM OPINION AND ORDER Claus Scherer (“Scherer”) has sued his former employer Rockwell International Corporation (“Rockwell”) for a declaratory judgment finding a post-employment restrictive covenant invalid or unenforceable (Count I), as well as asserting two claims based on the circumstances surrounding his termination from Rockwell: one for breach of contract (Count II) and the o...
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ORDER This cause is before the Court on Plaintiff’s Amended Motion for Protective Order or for Order Striking Deposition of Frank Burke, and for Attorney’s Fees (hereinafter Plaintiff’s Motion), filed January 14, 1991. It is claimed Mr. Burke’s deposition was not properly noticed and it should, therefore, be stricken and the fees of Plaintiff’s attorney should be paid by Defendants. Plaintiff’s Mo...
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OPINION AND ORDER This is an action in which petitioners, CBS, Inc. (“CBS”) and two of it managerial employees, Neal Pilson and Ted Shaker, seek to stay labor arbitration initiated by James “Jimmy the Greek” Snyder. The arbitration arises out of CBS’s January, 1988 termination of the employment of Mr. Snyder, a well-known football analyst and sports commentator. Snyder has sought arbitration purs...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. FACTS AND PROCEDURE/SUMMARY OF CLAIMS The above-entitled action was brought by Plaintiffs Gulf Resources & Chemical Corporation and Pintlar Corporation 1 against Defendants Ian Buchanan Gavine and other underwriters at Lloyd’s, London, who had subscribed to Certificate No. CFL 13200, for the non-payment of insurance...
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Pan Am Corporation and affiliated companies (hereinafter collectively “Pan Am”), debtors in a proceeding commenced in this district under Chapter 11 of the Bankruptcy Code, move under 28 U.S.C. § 157(b)(5) to transfer to this district certain wrongful death claims pending in a Florida state court and arising out of the crash on December 21, 1988 of Pan Am Flight 103 in Lockerbie, Scotland. Pan ...
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OPINION AND ORDER A superseding indictment filed February 12, 1991 charges defendants with conspiring to possess heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Count 2 charges defendant Norman Ransom (“Ransom”) with illegal use of a firearm in relation to a crime of drug trafficking under 18 U.S.C. § 924(c)(1). On May 6, 1991 the Court heard oral argument on various motion...
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OPINION AND ORDER I. INTRODUCTION This is a patent and service mark case which also includes various state law claims and counterclaims. It was filed more than four years ago and, as evidenced by the size of the court’s file (which contains 106 separate filings to date, not including depositions), has been actively litigated. For most of that time, Drustar, Inc., one of the defendants, was represe...
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MEMORANDUM OPINION AND ORDER GRANTING IN PART PLAINTIFFS’ MARCH 12, 1990 MOTION FOR ORDER AWARDING BACK PAY AND RETROACTIVE SERVICE CREDIT FOR PURPOSES OF PENSION/RETIREMENT INTRODUCTION AND BACKGROUND Prior to the initiation of this suit, women working for the Detroit Police Department were consigned only to the women’s division, a separate unit of the Detroit Police Department. There they invest...
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MEMORANDUM OPINION This matter came on for trial before this Court, sitting without a jury, on June 27, 28 and 29, 1990. Plaintiff, Ralph M. Güito, Jr., seeks a refund of $12,730.75 paid by him as a result of an assessment made against him by Defendant pursuant to 26 U.S.C. §§ 6671 and 6672. Defendant sought the assessment from Plaintiff as a responsible officer of All-Right Pest Control, Inc. ...
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MEMORANDUM ORDER This matter is before the Court on third-party defendants’ motions for summary judgment on the complaint, third-party complaint, and cross-claims. For the reasons set forth below, third-party defendant David Anderson’s motion for summary judgment is denied, and third-party defendant Potomac Electric Power Company’s (PEPCO’s) motion for summary judgment is granted. In addi...
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ORDERS ON MOTION TO AMEND JUDGMENT AND MOTION FOR PERMANENT INJUNCTION On March 20, 1991, I granted plaintiffs’ motion for summary judgement and invalidated portions of Colorado’s Home and Community Based Services program regulations. 759 F.Supp. 664. Although application of the Most in Need Screen or “MINS” is a valid, short hand selection tool which automatically admits deserving applicants i...
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*1155 OPINION This matter is before the Court on the motion of defendant United States of America to dismiss the complaint in the above-entitled action. For the reasons set forth below, defendant’s motion is granted, and the case is dismissed. Background In considering a motion to dismiss, the Court must accept as true the factual allegations of plaintiffs’ complaint, and any ambiguitie...
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ORDER DENYING PLAINTIFFS’ MOTION TO REMAND This matter came before this Court on Plaintiff’s Motion to Remand. The motion is DENIED. BACKGROUND: Plaintiffs Kimball Small Properties, We-stall Corporation, Kimball Small Investments 103, Camsi III, and Oakmead Holdings, Inc., sued defendants for breach of insurance contract and bad faith. Plaintiffs in this suit are defendants in an underlying...
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MEMORANDUM These two cases, consolidated in the bankruptcy court below, arose from the failure of a condominium development in Nashville, Tennessee, and the subsequent personal bankruptcy filings of the two partners in the development. The bank that financed the development, alleging that it had disbursed the loan proceeds because of fraud, sought to have the partners’ debt to it declared...
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ORDER AND MEMORANDUM On April 24, 1991, the Court heard oral argument on various post-trial matters related to the entry of judgment in this case. The Court took under advisement and requested supplemental briefing on the issue of whether defendant and third-party plaintiff Beardsley & Piper should be awarded prejudgment interest on its contribution claim against third-party defendant DeZu-rik. B...
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OPINION AND ORDER By memorandum and order dated June 20, 1990 we dismissed the complaint in this action as against Dr. Malm on the ground that the New York State statute of limitations for medical malpractice actions barred all claims against him. Sweeney v. Presbyterian/Columbia Presbyterian Medical Center (S.D.N.Y.1990) 738 F.Supp. 802. Familiarity with that decision is presumed. Defendant ...
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ORDER THIS CAUSE comes on for consideration of the following motions: 1. Defendant’s Motion for Protective Order or Alternatively Motion for Direction of Procedure by the Court (Dkt. 23), filed April 16, 1991; 2. Plaintiff’s Request for Order Directing Service of Subpeona’s [sic] (Edward Litton) (Dkt.27), filed April 2, 1991; 3. Plaintiff’s Request for Order Directing Service of Subpeona’s [sic] (...
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*1226 MEMORANDUM AND ORDER Through its unincorporated division known as NAMCO Booking, plaintiff National Artists Management Company, Inc. (“NAMCO”) is engaged in the business of representing and booking in-house talent and productions and independent theatrical productions throughout the United States. In the last five years, under the direction of its former president, defendan...
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MEMORANDUM This bankruptcy appeal involves a dispute between the appellants and the Trustee over certain assets of the Debtor. The appellants are alleged partnership creditors of the Debtor and appeal the Bankruptcy Court’s decision that the assets claimed by both sides are assets of a sole proprietorship operated by the Debtor at the time of the filing of his Chapter 7 petition. For the followin...
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RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This is a suit for a tax refund. Plaintiff L & H Co., Inc. alleges that on March 5, 1984 it mailed to the Internal Revenue Service (IRS) an application for an automatic extension of time to file its corporate income tax return for the taxable year 1983. The IRS claims it never received it. Whether the IRS received it is the only fact at is...
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OPINION Presently before the court is the government’s request for review of the magistrate judge’s April 22,1991 order releasing the defendant prior to sentencing on two counts of aggravated rape and one count of unlawful sexual contact. This court conducted a de novo hearing on April 25, reserved decision and stayed imposition of the release order until a decision was reached. The court has deci...
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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT FACTUAL ALLEGATIONS The government alleges that on April 24, 1989, at approximately 4:40 p.m., claimant *910 Kenneth Holmes was observed by Task Force Agent Terry Saunders arriving at Detroit Metropolitan Airport. Gilbert Dep. at pp. 17-18. The government claims Holmes was dropped off at t...
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OPINION This matter is before the Court on the cross-motions for summary judgment of plaintiff Industrial Bank of Washington (IBW), defendant Officepro, Inc. (Office-pro), and defendant United States Internal Revenue Service (IRS). Upon consideration of the entire record, the Court grants the motions for summary judgment of IBW and the IRS and denies Officepro’s motion for summary judgmen...
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ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON ADEA CLAIM Defendant Bay View Federal Savings and Loan (“Bay View”) has moved for summary judgment on plaintiffs’ ADEA1 *1382claim, arguing that the claim is barred by the statute of limitations. For the reasons set forth in this Order, the motion is DENIED. BACKGROUND Plaintiffs, former employees of Bay View, timely filed a complaint under...
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OPINION Defendant the Metropolitan Museum of Art (the “Museum”) has moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment of the claims brought against it by Sean and Janet McNally (the “McNallys”) in their defamation action against the Museum and James Yarnall (“Yarnall”). For the reasons set forth below, the Museum’s motion is granted in part and denied in part. The Parties The ...
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MEMORANDUM & ORDER This order 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 Con...
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MEMORANDUM OPINION AND ORDER Before the Court are the Motion for Summary Judgment of Plaintiff Resolution Trust Corporation as Conservator of First Savings of Arkansas, F.A. (“RTC/Conservator”), filed December 20, 1990; the Response of Defendants Trammell Crow, Harlan R. Crow, Charles M. Holbrook, Tom Teague, Pear Ridge II Associates, Chase- *889 wood Pear Ridge II Associates...
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ORDER In this action, Rash Raneo Corporation (“Rash Raneo”) brings a breach of contract claim against B.L.B., Inc. d/b/a American Surplus Trading (“BLB”). BLB has moved to dismiss the suit for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(h)(3). BLB claims that Rash Raneo has not satisfied the amount-in-controversy requirement of diversity jurisdiction. For...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on defendant GenCorp’s motion to dismiss plaintiffs’ claim for punitive damages and defendant GenCorp, Inc. pursuant to Rule 12(b)(6). GenCorp seeks dismissal from this action on two grounds: a) it claims that since the only remedy sought from it is punitive damages and this being unavailable to plaintiffs as a matter of la...
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ORDER Plaintiff Thurman Russell began receiving federal disability benefits in 1984. Three years later, the Social Security Administration determined that Russell’s medical condition had improved to such an extent that he was no longer entitled to benefits. The Social Security Administration notified Russell that his benefits would cease in September 1987. Russell then requested an administrative ...
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MEMORANDUM This case arises out of a dispute regarding the relative priority of two competing lien creditors in assets belonging to a single debtor. The creditors — plaintiff Park City Leasing and defendant Internal Revenue Service — have stipulated to the facts and have submitted competing cross-motions for summary judgment. I. FACTS Park City Leasing (“Park City”) leased mobile telephones and of...
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MEMORANDUM AND ORDER Clayton Runck, Jr. has filed his third petition for relief under 28 U.S.C. § 2255. He alleges that the plea agreement was breached and that the sentence of restitution is illegal. These claims were made in his first petition and rejected by the Eighth Circuit Court of Appeals. See United States v. Runck, 817 F.2d 470 (8th Cir.1987). He also requests a change in the judgment, w...
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MEMORANDUM OPINION This is an effort to disqualify an expert. It is occasioned by unusual circumstances: Both sides in a patent infringement suit, first plaintiff Wang Laboratories, Inc. (“Wang”) and then the NEC defendants (“NEC”), 1 apparently engaged the same expert for the same purpose, namely to furnish an opinion on the validity of the patents in issue. Wang moves to disq...
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MEMORANDUM AND ORDER This matter is before the court on the motion of counterclaim and crossclaim defendant Donald W. Chesser for an order of the court establishing the amount of assessment at issue (Doc. 85). The court held oral argument on this motion April 4, 1991. The court has received and reviewed the parties’ joint statement to the court on the amount of the assessment at issue, Do...
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MEMORANDUM OPINION AND ORDER VACATING BANKRUPTCY COURT’S JUDGMENT AND REMANDING TO BANKRUPTCY COURT FOR FURTHER PROCEEDINGS BEFORE THE COURT is the United States of America’s appeal of the March 9, 1989 judgment by the Bankruptcy Court in the above-entitled matter, heard without oral argument on April 22, 1991. Having reviewed the record and fully considered this matter, the court ORDERS that the...
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MEMORANDUM OPINION AND ORDER This matter is here on the motion by the Official Committee of Unsecured Creditors of Twenver, Inc. (“Committee”) to dismiss this appeal for lack of jurisdiction. The Committee contends that (1) this is not an *468 appeal of right under 28 U.S.C. § 158(a), (2) the grounds for appeal under the collateral order doctrine are not satisfied, and (3) in...
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MEMORANDUM This matter is before the Court on the motion of defendant Bi-State to dismiss. Plaintiffs oppose the motion. Plaintiffs filed this action against defendants in state court, alleging a violation of 42 U.S.C. § 1983 (Count I) and also a breach of contract claim (Count II). Count III asserts a claim for injunctive relief. Defendants then removed the action to this Court, pursuant to 28 U...
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MEMORANDUM OPINION AND ORDER Plaintiff Ronald C. Young (Young) was officially employed by defendant Federal Deposit Insurance Corporation (FDIC), but worked for defendant Resolution Trust Corporation (RTC). He was fired effective July 20, 1990. Young alleges he was denied due process because he was not given a hearing concerning the termination. He also alleges breach of contract. Young seeks c...
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ORDER THIS MATTER is before the Court on Plaintiff’s motion, filed February 6, 1991, for Judgment Notwithstanding the Verdict (“JNOV”), or in the alternative, for a new trial. On February 27, 1991, Defendant Bill G. King (the only remaining Defendant in this action and hereinafter referred to as “Defendant”) filed a response to Plaintiff’s motion. Plaintiff, on March 15, 1991, filed a reply memor...
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MEMORANDUM The sentencing of the defendant in this case presents two significant issues. I. Uncounseled Misdemeanor Conviction Paragraph 22 of the presentence report assesses the defendant one criminal history point for a 1983 DUI misdemeanor conviction in the State of Georgia. The defendant was not incarcerated but received a $250 fine in connection with that offense. The defendant mai...
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MEMORANDUM OPINION AND ORDER Petitioner in the above-captioned action moves to confirm an arbitration award and *56 respondent cross-moves to vacate that award. For the reasons that follow, petitioner’s motion is granted and the arbitration award is confirmed and respondent’s motion is denied. FACTS On or about August 13, 1986, Italmare, S.p.A. (“Italmare” or “Owner...
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MEMORANDUM OPINION Plaintiffs, purchasers of the residence at 132 Carolina Forest Road in Chapel Hill, North Carolina, bring this diversity action against Merrill Lynch Realty, two of its employees, and the prior owners of the residence. Plaintiffs allege Merrill Lynch *382 and its employees are liable for fraud, negligent misrepresentation, breach of fiduciary duty of agency...
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OPINION Plaintiff Pan American World Airways, Inc. (“Pan Am”) has moved to dismiss this action pursuant to Fed.R.Civ.P. 41(a)(2), or, in the alternative, for summary judgment on the counterclaims of defendant Robert Abrams, the New York State Attorney General (“the State”). The State has cross-moved to amend its answer to assert two new counterclaims. For the following reasons, the motion...
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MEMORANDUM I. The defendant, James C. Lewis, has been growing marijuana in a barn behind his *1315 house. During a search of the premises, law enforcement officials found 86 marijuana plants and 20 marijuana plant “root-balls,” which the defendant admitted were the remnants of marijuana plants that he had cut within the six weeks prior to his arrest. Mr. Lewis has pled guilty to violating...
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OPINION Defendants/respondents Koehring Company and AMCA International Corporation (collectively “AMCA”) have moved pursuant to Rules 12(b)(6), 56(b), 60(b)(6), and 62(b) of the Federal Rules of Civil Procedure and Sections 3 and 4 of the Federal Arbitration Act, 9 U.S.C. §§ 1-14 (1970) to dismiss the complaint of plaintiff Blue Tee Corporation (“Blue Tee”) in 90 Civ. 2701 (the “Injunction Action...
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ORDER THIS MATTER is before the Court on Defendant Scott’s (hereinafter “Defendant”) motion, filed April 9, 1991, for an Order treating a Bankruptcy Court Order as a report to the District Court pursuant to Bankruptcy Rule 9033 or, in the alternative, leave to appeal an Order of the Bankruptcy Court. On April 19, 1991, Plaintiff filed a response to the motion. The primary issue befor...
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ORDER This matter comes before the Court on defendant’s motion to compel production of documents served on March 26, 1990. Plaintiffs responded with a cross-motion to compel defendant to answer interrogatories and produce documents for their own discovery served on February 1, 1990. Finally, defendant moves for a protective order limiting access to the discovery which plaintiffs seek in their mot...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on Respondents' motions, filed October 22, 1990, for summary judgment. The motions are in response to a petition filed by Petitioners on August 31, 1990 in which Petitioners St. John and Peterson seek relief from incarceration under 28 U.S.C. § 2254, and Petitioner Cinema Blue seeks relief from paying a fine under 42 U.S.C. § 1983...
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ORDER This patent infringement case pits Keyes Fibre Company (“Keyes”) against Packaging Corporation of America (“PCA”). *375 Keyes accuses PCA of willfully infringing upon its patent for a particular type of polymer-coated food container. In defense of the accusation of willful infringement, PCA may attempt to show that its business decisions were made in reliance on the advice of competen...
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MEMORANDUM AND ORDER On February 8, 1991, to facilitate the administration of a large number of cases pending in this district involving the insolvent Bank of New England, N.A. or one of its subsidiaries (collectively, the “Bank”) as a party, this court entered two orders on the Miscellaneous Business Docket (Docket No. 6 and Docket No. 8) that substituted (1) the New Bank of New England,...
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*873 OPINION The plaintiffs, Hird/Blaker Corporation (“Hird/Blaker”) and Chye-ong Lim (“Lim”), have moved under Rule 56, Fed.R.Civ.P., for summary judgment to reverse the ruling of William S. Slattery, District Director, Immigration and Naturalization Service (the “INS”), denying Hird/Blaker’s application to classify Lim as eligible for temporary worker status as an architectural...
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ORDER THESE MATTERS are before the Court on motions by the movant properties (hereinafter “Movants”), filed March 26, 1991, to vacate and strike lis pendens placed on the above property by the United States Attorney (hereinafter “the Government”). On *151April 16, 1991, the Government filed a response to the motions. From the sketchy facts before the Court, it appears that the Government contends...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the court on the motion of Ilapak Research & Development (Ilapak R & D) and Ilapak, Inc. (Ila-pak) for a temporary restraining order against the defendants Record SpA. and Giuseppe Fioravanti. The court granted the motion and set the case for hearing on the parties’ cross motions for preliminary injunction. The matter came befo...
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ON SUMMARY JUDGMENT THIS MATTER comes before the court on plaintiffs’ and defendants’ 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 Plaintiffs in this case are owners of housing projects ...
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MEMORANDUM OPINION The issue before the court involves the circumstances under which the district court should, upon motion by a party, withdraw a case or proceeding from the bankruptcy court. The two proceedings involved are an action by the estate of the deceased seller of a now bankrupt business, Contemporary Lithographers, Inc. (“Contemporary”), to collect part of the purchase price f...
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OPINION AND ORDER Plaintiff Federal Deposit Insurance Corp. (“FDIC”) has moved to “reopen and reinstate” its action against defendants Chris Sarandon and Lisa Sarandon following entry on October 12, 1988 of an order by the Hon. John M. Cannella of this Court dismissing this action as settled, with leave to reopen “upon application made within ninety (90) days of entry of this Order ... if the sett...
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ORDER ON APPEAL FROM DECISION OF BANKRUPTCY COURT “The interpretation of Section 541(c)(2) of the Bankruptcy Code and its application to qualified employee benefit *195 plans has generated considerable litigation and divergent results have been reached by the courts.” This classic understatement by Judge Al-tenberger in In re Sundeen, 62 B.R. 619, 619 (...
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MEMORANDUM DECISION AND ORDER This matter is before the court on the motion of plaintiff SCFC ILC Inc. d/b/a MountainWest Financial (MountainWest)1 for a preliminary injunction to prevent Visa U.S.A. Inc. (Visa) from prohibiting Mounta-inWest from participating in its Visa program. The hearing on this motion took place on February 7, 1991. William H. Pratt, Esq. argued on behalf of Mountain-West ...
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RULING Before the court is defendant Petrostar Corporation’s Motion for Summary Judgment. *1262 Plaintiff Darryl Melancon filed suit under the Jones Act and the general maritime law for damages allegedly suffered in September 1988 during his service on a vessel owned by defendant. Plaintiff Irene Me-lancon joined her husband’s complaint seeking damages for loss of consortium...
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OPINION AND ORDER Defendant Wayne Harrison (“Harrison”) moves pursuant to Rule 12 of the Federal Rules of Criminal Procedure for dismissal of the indictment against him on the ground that pre-indictment delay in bringing the prosecution violated his right to due process under the Fifth Amendment to the United States Constitution. Defendant requested that a hearing be held on the issue. Or...
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OPINION AND ORDER As disclosed to the parties at a conference on April 18, 1991, the motion of claimant Maruquel Investment, Inc. to dismiss the complaint for lack of jurisdiction and for failure to state a claim is denied. The defendant accounts are alleged to be owned or controlled by Pedro Lora, a defendant in a criminal case in this District who is accused of narcotics trafficking. Complain...
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This case involves the allocation of loss resulting from a failed satellite mission. Although the details may be complex, the essential facts can be stated simply. International Telecommunications Satellite Organization (“INTELSAT”) is an organization which operates commercial satellite and telecommunications systems for international clients representing approximately 119 countries. In Au...
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MEMORANDUM OPINION AND ORDER Before the Court is the motion of defendants’, Barron P. Millet (“Millet”), Tom Jones, d/b/a Tom Jones Aircraft Sales (“Jones”), Hassel V. “Scotty” Boggs (“S. Boggs”) and Rodney Boggs (“R. Boggs”), d/b/a the Boggs Company, to dismiss the complaint of the plaintiff, Dennis Wysnoski (“Wysnoski”), pursuant to Federal Rule of Civil Procedure 12(b)(2), or to transf...
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MEMORANDUM Before the court is defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) counts III and IV of plaintiff’s complaint. The issues raised have been fully briefed, and the matter is ripe for consideration. Background Plaintiff Karen L. Gruver had been a warehouse worker employed by defendant Ezon Products. In her complaint, the allegation...
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*655 ORDER Plaintiffs, David Fordyce and Yvonne Knickerbocker, citizens and taxpayers of Los Angeles County, initiated this action against defendants National Endowment for the Arts (“NEA”), an independent agency created by Congress under the National Foundation on the Arts and the Humanities Act of 1965, and John Frohnmayer, at all times relevant to the instant action Chairperso...
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OPINION AND ORDER This is a diversity action in which plaintiff, former general counsel of defendant Alfa-Laval, Inc. (“Alfa-Laval”), seeks damages for defamation. Defendant moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the complaint on the grounds that further prosecution of this action would violate the New York Code of Professional Re...
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OPINION I. BACKGROUND A large portion of the Town of Ramapo is a state park and undeveloped land. In the occupied area, a “village movement” has resulted in the formation of eleven incorporated villages within the town borders along its perimeter. 1 An incorporated village controls the tax base within its boundaries and has the authority to execute its own zoning laws, run...
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MEMORANDUM OPINION This cause is brought under 29 U.S.C.A. § 206 et seq. of the Fair Labor Standards Act for failure to pay wages earned and for invasion of privacy. Pendent state claims are included. Plaintiff Mark Tombrello is employed by defendant USX Corporation [hereinafter USX] as a maintenance utility employee at its Fairfield, Alabama, works. He has been an employe...
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*819MEMORANDUM & ORDER This decision arises from the implementation of the rules for the International Brotherhood of Teamsters (“IBT”) International Union Delegate and Officer Election promulgated by the Election Officer (the “election rules”) and approved by this Court by Opinion & Order dated July 10, 1990, 742 F.Supp. 94 (S.D.N.Y.1990), and the Court of Appeals United States v. International ...
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MEMORANDUM AND ORDER This Petition for a writ of habeas corpus raises the issue of whether the Fifth or Sixth Amendment of the United States Constitution was violated when a videotaped statement made by the Petitioner after he received a Miranda warning was admitted into evidence at trial, even though nine hours earlier the police obtained a statement from the Petitioner without first adminis...
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MEMORANDUM OPINION AND ORDER Hearing was held April 26, 1991 on four motions to dismiss plaintiff Bank of Denver’s (the Bank) first amended class action complaint (amended complaint). The Bank alleges twelve claims arising from the is *1555 suance, offer and sale of bonds by the Will-O-Wisp Metropolitan District (the district) to finance a district development. The Bank alleg...
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DECISION AND ORDER On April 2, 1991, United States Magistrate Judge Kenneth R. Fisher issued a Decision and Order concerning the defendant’s ex parte application for several pretrial subpoenas duces tecum, pursuant to Fed.R.Crim.P. 17(c). The Magistrate denied the defendant’s motion, which sought review of financial, family, employment, automobile loan, and other documents and information concerni...
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MEMORANDUM OPINION This federal question dispute is before the court on cross motions for summary judgment pursuant to Fed.R.Civ.P. 56. The dispositive issue raised in these motions is whether and to what extent the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. prevents the Commissioner of the Kentucky Department of Insurance (“Commissioner...
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ORDER ON EMERGENCY PETITION FOR WRIT OF HABEAS CORPUS This matter comes before the court on the Petitioners’ Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241(c)(3) (DE 1). Having reviewed the record and the law, the court enters the following order for the reasons set forth hereinafter. BACKGROUND On January 17, 1991, the Petitioners, ANTHONY R. MARTIN III (“MARTIN”), ANT...
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MEMORANDUM OPINION This matter is before the court on the defendant’s motion for summary judgment. The motion challenges the plaintiffs’ ability to prove two elements of their case: negligence on behalf of the defendant and a causal link between the defendant’s conduct and the alleged injuries. Because the plaintiffs are unable to provide sufficient basis on which a jury might find neglig...
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OPINION AND ORDER This matter is presently before the Court pursuant to the defendants Frass, Miller, Huffman and Cline’s motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.1 The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, and venue is proper in the Southern District of Ohio, pursuant to 28 U.S.C. § 1391(b)(1) and (2). FACTS The pla...
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*18 OPINION ON SUMMARY JUDGMENT 1. Introduction. Two creditors of P.T. Eichelberger, Jr., M.D., and Louis B. Hughes, M.D., assert conflicting security interests to a deposit account at Texas Commerce Bank. Citizens Bank and Trust Company of Baytown (Citizens) claims a prior security interest in the account as proceeds of stock pledged to Citizens. Aycock and others (...
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OPINION Plaintiffs Sean and Janet McNally (the “McNallys” or “McNally”) have moved pursuant to Rule 15(a) Fed.R.Civ.P. for leave to amend their complaint in their defamation action against James Yarnall (“Yarnall”) to include as a defendant Yarnall’s lawyer Peter R. Stern (“Stern”), and the law firm of Berger & Steingut, based on certain allegedly libelous statements made by Stern. For th...
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ORDER AFFIRMING THE RECOMMENDED DISPOSITION OF THE MAGISTRATE JUDGE The United States Magistrate Judge filed with the Court on March 21, 1991, with copies to counsel, his Recommended Disposition of Defendants’ Motion for Judgment on the Pleadings, attached hereto and made part hereof as Exhibit A. Plaintiff filed Objections to the Magistrate Judge’s Recommended Disposition on April 5, 199...
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OPINION AND ORDER Defendants have moved pursuant to Rule 3(j) of the Local Civil Rules for the United States District Courts for the Southern and Eastern Districts of New York for reargument of the Court’s Opinion and Order of March 28, 1991 on two grounds: (1) that the Court failed to address the qualified immunity defense of the individual stenographers and (2) that Shamel Atkins, joined as a pl...
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ORDER The plaintiff, Retter Teamer (“Teamer”), brings this action pursuant to § 205(g) of the Social Security Act (“Act”), 42 U.S.C. § 405(g). Teamer seeks judicial review of the Secretary of Health and Human Services’ (“Secretary”) final decision denying Teamer a waiver of repayment of an overpayment of Social Security benefits. This matter is before the court on Teamer’s Motion for Summary Judg...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION In this action the United States seeks to enforce defendant Julius Lorinee’s guarantee of payment upon a promissory note. Pending before the Court are the parties’ cross-motions for summary judgment. For the reasons set forth below, the Court denies the government’s motion for summary judgment and grants Lorince’s cross-motion for summary ...
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MEMORANDUM I. Introduction. The defendant, Joseph J. Ellam, currently the Director of the Bureau of Dams and Waterway Management in the Pennsylvania Department of Environmental Resources (DER), has filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56. The plaintiffs, Gregory and Caroline Bentley, filed this 42 U.S.C. § 1983 action seeking redress for the diminution in the value of thei...
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OPINION AND ORDER Plaintiff in this action, Richard S. Keose-ian, and defendant Hedda Schoonderbeek von Kaulbach, both claim to own a painting by the late German Expressionist Max Beckmann portraying his wife, Mathilde Beckmann, who was known as Quappi. The painting, “Portrait of Quappi,” was devised by Quappi Beckmann to von Kaul-bach, her sister, who is now in her nineties and lives in ...
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ORDER After carefully considering the report and recommendation of the magistrate, the trial transcript, and the objections to the magistrate’s report and recommendation, the court hereby adopts the report and recommendation as the opinion and order of this court. SO ORDERED. SPECIAL MASTERS REPORT The plaintiff brought this action alleging that she was subjected to sexual harassment and ...
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OPINION AND ORDER This case is before the Court pursuant to motions by both Plaintiff and Claimant. Plaintiff has filed a Motion to Strike Claim of Sharon Clough and a Motion for Summary Judgment. Claimant has filed a Motion to Dismiss and Suppress for Lack of Probable Cause. In its motions, respectively, Plaintiff argues that Claimant has failed to comply with the applicable rules for filing a cl...
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OPINION AND ORDER Plaintiff First New York Bank for Business 1 entered into a financing arrangement with Leonard Gold Co., Inc., of which defendants Nicholas DeMarco and John Oddo were the President and Secretary, respectively. Between February 8, 1988 and July 14, 1989 the bank extended credit, in varying amounts, to Leonard Gold, secured by the company’s personal property, ...
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ORDER ON APPEAL This cause is before the Court on appeal from the “Findings of Fact, Conclusions of Law and Memorandum Opinion”, entered January 3, 1990, 109 B.R. 484, and “Final Judgment” entered January 18, 1990, by Bankruptcy Judge Alexander L. Paskay, and request for oral argument. The request for oral argument is denied. ISSUES: I. Whether or not a creditor’s refusal to increase a deli...
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The defendant Estate of Andy Warhol (the “Estate”) moves for summary judgment dismissing, or in the alternative for an order staying, this contract action *44 brought against it by Schlaifer Nance & Company, Inc. (“SNC”). The motion is denied. The stay of discovery in this action, in effect since March 6, 1991, is vacated. BACKGROUND In a November 1987 licensing agre...
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MEMORANDUM OPINION This matter is before the Court on the defendant’s motion for summary judgment, pursuant to Fed.R.Civ.Proc. 56(b), and the government’s motion for partial summary judgment, pursuant to Fed.R.Civ.Proc. 56(a). For the reasons stated below, the defendant’s motion is DENIED and the government’s motion is GRANTED. FACTUAL AND PROCEDURAL HISTORY Defendant Economy Mu...
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*7 ORDER This matter came before the Court for hearing on the appeal of the bankruptcy trustee, Richard W. Hudgins, from a decision of the bankruptcy court granting the defendant/appellee’s Motion for Summary Judgment and dismissing the trustee’s Complaint to Revoke Discharge. For the reasons stated below, the decision of the bankruptcy court is REVERSED and REMANDED for further ...
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OPINION These seven cases, which have been transferred to the District of Maryland pursuant to 28 U.S.C. § 1407 (1988), are brought against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 (1988). Plaintiffs (or persons whom they represent) contracted poliomyelitis, allegedly as a result of the administration of doses of oral polio vaccine (“OPV”) manufactured by ...
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MEMORANDUM OPINION AND ORDER In 1981, defendant Richard Martenson was indicted for violating the RICO statute, 18 U.S.C. § 1961, et seq. 1 The indictment alleged that $115,149.00 that was paid to Martenson by First Guaranty Metals (FGM) was subject to forfeiture. In 1982, Martenson was convicted and the $115,-149.00 was ordered forfeited. Martenson’s conviction before another judge of t...
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OPINION ON SUMMARY JUDGMENT Donald H. Whitt worked for the Her-mann Hospital. After he was injured on the job, Whitt recovered worker’s compensation benefits of about $15,000 from Wau-sau Insurance Company. In addition to the worker’s compensation, the hospital furnished Whitt a disability income policy from Philadelphia American Insurance Company. The supplementary policy guaranteed that Whitt wo...
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MEMORANDUM Presently before me is the motion of the defendant American Packaging Corporation to strike the claim for liquidated and special damages requested in Count I, to dismiss Count II, and to strike the demand for punitive damages and a jury trial in Count III (Document No. 5). For the reasons outlined below, I shall grant the motions to strike the liquidated and special damages cla...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT On November 27, 1985, Plaintiff Warren Flagg was injured when he alighted from his truck and stepped on an I-Beam of a scale manufactured by Defendant Colt Industries and installed at the Boise Cascade Mill in Rumford, Maine. Plaintiffs Warren and Norma Flagg sued Boise Cascade alleging that the company had failed to maintain its pre...
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*474 MEMORANDUM AND ORDER Plaintiff Christopher C. Day, Ph.D., proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983, seeking a declaratory judgment and money damages against defendants Robert M. Morgenthau, District Attorney for New York County, John W. Moscow, Assistant District Attorney, Joseph B. Murray, a court officer who purportedly arrested Day, and other individuals...
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MEMORANDUM & ORDER Plaintiff Adrienne M. Lefkowitz originally commenced this action against her mother Irene B. Marsh to recover death benefits from two defined benefit pension plans (collectively “the Plans”) adopted by two foreign companies, Arcadia Trading Company Limited (“Arcadia”) and Bay Novelty and Inspection Company Limited (“Bay Novelty”) in which her father Nicholas V. Marsh was the so...
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OPINION Plaintiff Herman Resnick (“Herman”) has moved to strike the jury demand contained in the Corrected Answer to the First Amended Complaint filed by defendant Irving Resnick (“Irving”). For the reasons that follow, the motion is granted in part and denied in part. BACKGROUND The facts giving rise to this most recent episode in the longstanding and bitter quarrel between the...
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MEMORANDUM OF DECISION Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing. This case involves the tension between the first amendment free speech claim of a high school student distributing literature and a school district’s claim that the establishment clause of the first amendment overrides free speech guarantees ...
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DECISION AND ORDER The plaintiff, Karen Powell, has filed a “Motion to Remove City Corporate Counsel as Attorneys for Some Defendants Because of Conflict of Interest.” For the reasons discussed below, her motion will be denied. Although the briefs of both sides place major reliance upon the Rules of the Supreme Court of Wisconsin, this court is obligated to decide the legal questions posed by...
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MEMORANDUM This case arose from the failure of a sole proprietorship in Nashville, Tennessee, and the subsequent personal bankruptcy filing of its owner, Marion Thurman, in 1990. Thurman sought to exempt the cash surrender value of a life insurance policy from the claims of his creditors pursuant to T.C.A. § 56-7-201. The bankruptcy court held that Thurman could not exempt the life insura...
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OPINION AND ORDER This case involves allegations of violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”), and of the Wire and Electronic Communications Interception and Interception of Oral Communications Law, 18 U.S.C. § 2510 et seq. (the “Wiretapping Statute”), as well as common law fraud. Defendants David Nor...
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*1519 MEMORANDUM OF DECISION AND ORDER Plaintiff in this diversity action moves for a temporary restraining order. For the reasons that follow, the motion is denied. Background The facts alleged in Plaintiffs complaint are relatively straightforward. Defendant is a Texas corporation involved in the operation of a chain of retail optical stores. In 1984 Plaintiff and Defendant entered in...
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The Court, having considered Fox Software’s motion for summary judgment based on the affirmative defense of Ash-ton-Tate’s inequitable conduct in its dealings with the United States Copyright Office, and Ashton-Tate’s request for judicial notice, together with the moving and opposing papers, It is Ordered that Ashton-Tate’s request for judicial notice be, and hereby is, Granted. The Court fin...
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DECISION AND ORDER On November 25, 1988, the plaintiff, currently incarcerated at the Wisconsin Resource Center, filed this action seeking declaratory relief and money damages under § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. The defendants are employees of the State of Wisconsin who have been named only in their individual capacities; they have filed a motion for summary judgm...
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MEMORANDUM AND ORDER ON PETITION TO VACATE SENTENCE On April 7, 1984, Petitioner was convicted by a jury in this Court of armed bank robbery in violation of 18 U.S.C. § 2113(d). He filed a motion for judgment of acquittal and a motion for a new trial, both of which were denied on June 26, 1984. United States v. Barrett, 598 F.Supp. 469 (D.Me. 1984). The First Circuit Court of Appeals affirmed...
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ORDER Defendant Southern Pacific Transportation Company (“Southern Pacific”) filed a Motion for Summary Judgment on July 2, 1990. Plaintiff Alfredo Jaime Delgado (“Delgado”) filed a Response and a Cross Motion for Partial Summary Judgment on September 28, 1990. Counsel argued the motions on December 3, 1990. The central issue in the motions is whether Southern Pacific owed Delgado a duty ...
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MEMORANDUM AND ORDER This suit was filed by the plaintiff, Project B.A.S.I.C., a tenants organization, challenging the demolition of the Hartford Park Housing Project, the plan for scattered-site replacement housing and the location of a homeless shelter. In an earlier decision, this Court denied plaintiff’s motion to enjoin the demolition and established a timetable for the completion of...
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MEMORANDUM AND ORDER Presently before the court is the motion of defendants for dismissal for lack of jurisdiction and the motion of plaintiffs for class certification. This action is against the Secretary of the United States Department of Agriculture (“USDA”) and various officials of federal agencies associated with that Department. Plaintiffs allege violations of the Agricultural Act of 1949, ...
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MEMORANDUM AND ORDER This cause of action charges plaintiff’s former employer, the General Services Administration (GSA), with unlawful retaliation against plaintiff for his support of fellow employees who filed EEOC complaints against the GSA. Count IV is a common law claim for intentional infliction of emotional distress which the plaintiff brings against the Government under the Federal Tort...
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MEMORANDUM DECISION AND ORDER At a time when Congress considered the passage of a civil “speedy trial” act which would require the disposition of civil actions to be accelerated, several of the defendants in this apparently complex antitrust action seek to stay all discovery pending a disposition on their motion to dismiss and for summary judgment. For the reasons that follow, the motion for a st...
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*794MEMORANDUM I. BACKGROUND The plaintiffs, Edward Chinchello, Douglas Sehoppert and the Lewisburg Prison Project, Inc. (“the Project”), filed their complaint in the United States District Court for the Middle District of Pennsylvania on January 8, 1985. Chinchello is a former inmate at the Federal Correctional Institution at El Reno, Oklahoma (“FCI-E1 Reno”), who currently resides in Virginia. S...
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MEMORANDUM AND ORDER This matter is before the court on the motion of the Secretary for an order affirming his decision to deny disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. After an initial hearing and supplemental hearing with a vocational expert, plaintiff was denied benefits by the administrative law judge. This decision was affirmed by the Ap...
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ORDER GRANTING FINAL SUMMARY JUDGMENT OF FORECLOSURE THIS CAUSE came before the Court upon Plaintiffs Motion for Summary Judgment. The Court has considered the motion, defendants’ memorandum in opposition to plaintiffs motion, plaintiffs reply memorandum, the evidence filed in this matter, including the verified statement of facts and affidavits, and the pertinent portions of the record. For the ...
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ORDER NO. 2 BACKGROUND Plaintiff Sheila Garvey alleges in this Title VII action 1 that she was sexually harassed and subjected to gender-based discrimination from 1985 to 1987 while she was employed as a professor of drama at Dickinson College (“Dickinson”) in Carlisle, Pennsylvania. In addition to Dickinson, Garvey names as defendants George Allan, Ph.D., Dean of the College, and David Pec...
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*370OPINION AND ORDER This is a motion by defendant to compel testimony and document production in this suit by a lawyer against his former client to collect a fee, and for sanctions pursuant to Fed.R.Civ.P. 37(a)(4). Plaintiff asserts that the testimony in question is subject to the attorney-client privilege, notwithstanding that it would come from a lawyer whom plaintiff had hired to serve as c...
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OPINION AND ORDER Defendant North American Polymer Co., Inc. (“North American”) moves for a post-trial order applying New York General Obligations Law § 15-108 to plaintiff Michael McQueen’s claims against it. For the reasons set forth below, the motion is granted. I. Plaintiff was injured on defendant Downtown Athletic Club’s premises on April 9, 1986 while using an overspray machine sold by Nor...
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MEMORANDUM OPINION Defendant Township of Lawrence Park is a political subdivision of the Commonwealth of Pennsylvania, created pursuant to the First Class Township Code. Defendant Paul Jazenski was, at all relevant times, the Zoning Administrator for Lawrence Park. The plaintiff, Mr. Loftus, is a resident of Lawrence Park and a candidate for the Democratic nomination for the office of Tow...
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OPINION AND ORDER This is an action by a Delaware corporation against an insurer for reimbursement of litigation expenses incurred in defending lawsuits brought against former directors of the corporation. The third-party defendants, two former directors and officers of plaintiff Macmillan, Inc. (“Macmillan”), move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismi...
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ORDER In this diversity action, plaintiff The Cheshire Medical Center (“Cheshire”) alleges that defendants manufactured asbestos fireproofing that was incorporated into plaintiff’s buildings between 1971 and 1972, that those products are hazardous and must be removed, and that defendants must pay for their removal. Still pending are seven theories of liability: strict liability, negligenc...
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MEMORANDUM AND ORDER This court takes full judicial notice of the record in this case, including the opinion of the Court of Appeals in Kashani v. Purdue University, 813 F.2d 843 (7th Cir.1987), ce rt. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97. Pursuant to the mandate of that reported decision, this case came back to this court, which again held extensive pr...
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ORDER ON MOTION FOR PRELIMINARY INJUNCTION This case is before the court on the motion of plaintiffs for preliminary injunction. At a prior hearing this court stayed all further proceedings except the pending motion because the Supreme Court has granted certiorari in a similar case which arose in the State of Rhode Island, and its ruling in that case plainly will impact this proceeding. ...
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ORDER AFFIRMING DECISION OF BANKRUPTCY COURT This matter is before the court on debtors’ appeal of a United States Bankruptcy Court decision dated June 20, 1990, 115 B.R. 311. The court heard this appeal on April 4, 1991. Appellant debtors, David and Linda Fullmer (“debtors” or the “Full-mers”), were represented by Matthew M.F. Hilton and Robert G. Norton. Appellee and trustee of the bank...
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ORDER Before the court is an issue of first impression in the First Circuit: whether 18 U.S.C. § 3651 authorizes suspension of sentencing and the imposition of probation for a conviction under 18 U.S.C. § 242 in a case in which the victim of the constitutional deprivation was killed. I. BACKGROUND On October 9, 1990, defendant Gregorio Nieves Rivera was found guilty of willfully depriving Juan Fal...
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MEMORANDUM OPINION AND ORDER This cause is before the Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on Defendants’ Motion for Summary Judgment. Plaintiff has responded to the Motion. The Court, having considered the Motion and Response, together with memoranda of authorities and attachments thereto, now renders the following findings of fact and conclusions of law. ...
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OPINION This matter is before the court on the motion of certain defendants (the “Moving Defendants”) to remand .this case to the *1284 Superior Court of New Jersey, Law Division, Essex County (the “Superior Court”). 1 For the reasons set forth below, the motion is granted. Facts and Procedural History The plaintiff, Mountain Ridge State Bank (“Mounta...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND VACATING ARBITRATOR’S AWARD Before the court are the parties’ cross-motions for summary judgment. Plaintiff, The Regional Medical Center at Memphis (the Med), filed this civil action asking that the court vacate an arbitrator’s award in favor of the defendant, American Federation of State, County and Municipal Employees, Local 173...
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ORDER Defendants John Walker and his company, John Walker Trucking, Inc. (hereafter, “Walker”) purchased combines from John Deere in July of 1985, pursuant to an agreement giving Deere a security interest in the combines. In 1988, Walker sought to sell these combines, and retained Defendant O’Neil to “draft documents and memorialize certain business transactions which Walker had negotiated.” O’Ne...
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MEMORANDUM OPINION AND ORDER Arthur D. Schultz and Dorothy Schultz, husband and wife, filed this lawsuit against Allstate Insurance Company because of Allstate’s denial of insurance benefits allegedly payable under the personal injury protection (PIP) provisions of the Colorado Auto Accident Reparations Act, Colo.Rev. Stat. §§ 10-4-701 to -723 (1987 Repl.Vol.) (the “no-fault” law). Arthur...
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ORDER Came on to be heard the motion of Federal Deposit Insurance Corporation as receiver for First RepublicBank Fort Worth, N.A. (“FDIC-Receiver”) for reconsideration of the court’s April 1, 1991, order striking its intervention. FDIC-Receiver’s motion typifies the bizarre nature of its involvement in this action from the outset. No one has ever made a claim against FDIC-Receiver in this act...
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ORDER Pursuant to the ruling of the Seventh Circuit in United States v. Berkowitz, 927 F.2d 1376 (7th Cir.1991), the court has held an evidentiary hearing concerning the legality of Marvin Berkowitz’s arrest. Based on the evidence presented at the hearing, the court makes the following findings of fact and conclusions of law. FINDINGS OF FACT 1. On November 7, 1988 around 8:45 a.m. Marvin Berkowit...
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MEMORANDUM OPINION AND ORDER In October 1980, petitioner Marvin Flowers was found guilty of murder in the Circuit Court of Cook County, Illinois. Presently pending before this court is Flowers’ petition for writ of habeas corpus. Flowers argues that the state trial court improperly refused the jury’s verdict of voluntary manslaughter and that the state trial court gave confusing instructi...
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MEMORANDUM OPINION Since this court granted plaintiffs’ motion for class certification,1 it has been inundated with paper. A motion for reconsideration generated the usual response and reply, as well as two surreplies, an addendum and finally, an ‘addition’. As much to save those trees that have so far survived the parties’ zeal as to review its earlier decision, the court now rules on the motion...
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MEMORANDUM Daniel J. Podberesky, a freshman at the University of Maryland at College Park (“UMCP”), challenges UMCP’s Benjamin Banneker Scholarship Program. Banneker scholarships are available only to black students, and Podberesky (who is Hispanic) was denied consideration for one. He has sued UMCP and William E. Kirwan, the president of UMCP. Podberesky seeks in-junctive and compensatory relief...
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MEMORANDUM AND ORDER Plaintiff Sheryl Kalchstein (“plaintiff”) brings this action on behalf of her adoptive daughter, Heidi Kalchstein (“claimant”), pursuant to § 205(g) of the Social Security Act (“the 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 claimant’s right to receive child’s insurance benefit...
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ORDER Defendant Raul Palacios asks this court for an order requiring the government to identify and produce, at a mutually convenient time and place, a government informant for the purpose of subpoena and pretrial interview. For the reasons stated below, defendant’s motion is granted. In determining whether the identity of a confidential informant should be disclosed, the court must balance “the p...
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MEMORANDUM I. Introduction. This is a bankruptcy appeal. The debtor, Ruth Grigsby, brought an adversary proceeding in the bankruptcy court against defendant ITT Financial Services, an obli-gee on a mortgage contract with the debt- or." The debtor apparently believed that ITT might file a proof of claim against her on the mortgage contract in her individual Chapter 13 bankrupt...
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MEMORANDUM On February 16, 1990, after a six week jury trial, defendant Frederick A. Gross *303 was found guilty of conspiracy and securities law violations and defendant William Michael Searcy guilty of insider trading and mail fraud as charged in a Superseding Indictment filed July 26, 1989. Currently before me is defendants’ joint motion to set aside the verdict or in...
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MEMORANDUM AND ORDER Following the imposition by defendant Trans World Airlines (TWA) of a four-week cap on the amount of vacation time noncontract employees could accrue each year, a number of senior employees who had earned vacation time in excess of four weeks per year before imposition of the cap filed the instant suit, claiming that TWA had adopted the new policy in violation of the ...
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MEMORANDUM OPINION AND ORDER Tax Investments, Inc. and Howard Harris (“plaintiffs”) brought this action against the Federal Deposit Insurance Corp. (“FDIC”), as receiver for Sun Savings and Loan Association (“Sun Savings”), for breach of contract alleging that the FDIC failed to fund plaintiffs as required by a loan agreement. The FDIC brought a counterclaim against plaintiffs for default on the ...
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MEMORANDUM OPINION AND ORDER I. FACTS In 1973, the United States Department of Justice brought suit against the City of Chicago (the “City”) charging discrimination in hiring and promoting blacks, Hispanics and women within the Chicago Police Department. As a result, in January of 1976, a permanent injunction was entered barring the City from using any tests, qualifications, standard...
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MEMORANDUM OPINION AND ORDER In 1983, in the United States District Court for the Northern District of Ohio, the defendant, Robert J. Febre, (“Febre”), pled guilty to various criminal charges including mail fraud, conspiracy, and income tax evasion. On November 10, 1983 the Ohio District Court sentenced Febre to 22 months of imprisonment and a $100,000.00 fine. On February 23,1987, pursuant to 28 ...
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OPINION This matter is before the Court on plaintiffs’ motion for class certification, pursuant to Rule 23(b)(2) which allows certification of a class when “the party opposing the class has acted or refused to act on grounds generally applicable to the class____” Background Plaintiffs are eleven Hispanic employees of the United States Customs Service who allege they have suffered and continue to...
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782 F. Supp. 122 (1991) Carrie J. TIMUS, Plaintiff, v. SECRETARY OF LABOR, Defendant. Civ. A. No. 87-2699. United States District Court, District of Columbia. May 15, 1991. *123 William J. Dempster, Asst. U.S. Atty., Washington, D.C., for plaintiff. Amy E. Wind, Katherine L. Garrett, Kator, Scott, & Heller, Washington, D.C., for defendant. MEMORANDUM OPINION SPORKIN, District Judge. Plaintif...
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OPINION AND ORDER Defendant Touche Ross & Co. (“Touche”) 1 seeks an Order dismissing plaintiffs’ complaint on the grounds that it fails to state a claim upon which relief can be granted and that it fails to plead fraud with sufficient particularity. Fed.R.Civ.P. 12(b)(6) and 9(b). Oral argument was heard on March 11, 1991, and decision was reserved. FACTS The Complain...
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ORDER Petitioner Van L. Pride, an inmate at the Pontiac Correctional Center, is currently serving a 30-year sentence for a rape and armed robbery conviction. Pride brings a writ of habeas corpus under 28 U.S.C. § 2254 petitioning the court to review his conviction. For the reasons stated below, the court dismisses Pride’s petition without prejudice. Pride sets out three claims in his habeas corpus...
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MEMORANDUM OPINION AND ORDER The United States of America (“Government”) seeks forfeiture of approximately $250,000 in cash and a house located at 16 Sequoia, Hawthorne Woods, Illinois (“16 Sequoia”) pursuant to 21 U.S.C. § 881(a)(6) & (7). The Government contends that the cash is the proceeds of illegal drug transactions and 16 Sequoia was used to facilitate felony drug offenses. Myron K...
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MEMORANDUM OPINION AND ORDER Defendant James Guadagno was indicted on charges of arson, mail fraud and obstruction of justice in connection with a fire that destroyed defendant Guadagno’s liquor store in April, 1988. On September 20, 1990, a jury found defendant Guadagno guilty of arson and mail fraud and not guilty of obstruction of justice. The court referred the case to the probation d...
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MEMORANDUM AND ORDER The defendant was arrested in February 1990. He pled guilty to importation of heroin in April 1990. He is a permanent resident, having arrived in this country in 1979. He is married to a permanent resident. He has a one and a half year old daughter who is a citizen by virtue of having been born in this country. The defendant served six years in the United States Army — ...
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*5OPINION AND ORDER The facts of this case are summarized in the Court’s opinion and order of October 10, 1990 granting plaintiffs’ motion for summary judgment on the amended complaint and dismissing defendant’s counterclaims. Plaintiffs now move pursuant to Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927. for an award of attorneys’ fees in the amount of $42,000 from defendan...
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MEMORANDUM AND ORDER A group of retirees, spouses, and children contend that a series of expired collective bargaining agreements guaranteed them health benefits at certain levels for life. They contend that the defendant violated the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, and the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., by...
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MEMORANDUM OPINION AND ORDER The plaintiff, Zen Petkus, originally filed this action against the defendant in the Circuit Court of Cook County, Illinois (No. 90 CH 08568) claiming that he had been improperly denied certain pension benefits promised him under two pension plans maintained by the defendant, Chicago Rawhide Manufacturing Company (“CR”). CR subsequently removed Petkus’ action to thi...
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MEMORANDUM OPINION AND ORDER This matter is before the court on motion of the defendant, Elizabeth P. Wright, Commissioner of the Kentucky Department of Insurance, to hold plaintiff, National Business Association Trust (“NBAT”) and its executive director, and intervening plaintiff, National Benefit Administrators, Inc. (“NBA”) and its officers and shareholders, in contempt of court for failure to ...
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MEMORANDUM AND ORDER This lawsuit arises out of plaintiff Artcu-rial’s purchase of a painting from defendant Chester Lowenthal, an art dealer and owner of Hand-in-Hand Galleries Ltd. in New York. Artcurial, a French corporation, paid Lowenthal $180,000 for a painting that Lowenthal represented to be an authentic work by the deceased Spanish painter Manolo Millares. Shortly after plaintiff took pos...
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OPINION & ORDER This litigation arises from a dispute between a licensor and its licensee over the right to use the “Gloria Vanderbilt” trademark (the “Mark”) on women’s swimwear, sweaters, and activewear. The parties first appeared before us on September 12, 1989 shortly after the complaint was filed. However, later in the same month the parties advised us that they had entered into seri...
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OPINION The indictment in this case charges Paschal McGuinness, president of the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America (the “Carpenters’ Union”) and of its Local 608, with one count of conspiracy and four counts of substantive offenses. Count One of the indictment charges the defendant with conspiracy to violate Secti...
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OPINION AND ORDER This matter comes before the Court to consider the motion of the intervening plaintiffs, Brian J. Selegue, Bret E. Levin, and a class of similarly situated white male firefighter applicants (hereinafter “Selegue plaintiffs”) to dissolve paragraph 5(b) of the injunction ordered in this case in 1975, as amended in 1986, and for prospective relief from the provisions of the...
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ORDER Before the court is the motion of plaintiff Eveready Battery Company, Inc. (“Ever-eady”) for preliminary injunction. For the reasons discussed below, the motion is denied. FACTS This case arises from a recently made (and not yet aired) beer commercial 1 by *442 defendant Adolph Coors Company (“Coors”) which spoofs a popular series of Eveready batter...
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MEMORANDUM OPINION AND ORDER U.S. Court of International Trade, sitting as a U.S. District Court Judge by designation: INTRODUCTION This is an application by plaintiff, dated March 29, 1991, pursuant to Fed.R.Civ.P. 52 and 59 to reopen, vacate or amend the court’s findings of fact and conclusions of law dated March 19, 1991 and the judgment of dismissal for lack of subject matter jurisdiction ent...
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MEMORANDUM ORDER This dispute presents a thorny issue of federal preemption in the railroad labor context. Plaintiff, a railroad employee, has asserted a retaliatory discharge claim against his employer. The employer, a national railroad, contends that plaintiff’s claim is preempted by the exclusive arbitral provisions of the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. B...
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OPINION AND ORDER The Court has before it the parties’ cross motions for summary judgment. This case, originally part of an action removed to the District Court for the Southern District of Texas, Houston Division, was severed and transferred to this Court pursuant to an agreement and order issued by Honorable Gabrielle McDonald. See Docket Entry # 1. This is an action in which the plaintiff, Rebe...
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OPINION AND ORDER Isla Verde Nursing Home is currently home to thirteen elderly individuals many or most of whom suffer from severe mental or physical handicaps. The Commonwealth of Puerto Rico’s zoning agency, Ad-ministración de Reglamentos Y Permisos (“A.R.P.E.”), refused to grant the nursing home’s owner permission to operate the home in its present site, and ordered the home closed. W...
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OPINION AND ORDER The Court has before it defendants Diversified Information Systems Corp.’s (DISCORP), Roxana Diaz Garcia’s and José Lema Abreu’s joint Motion for Summary Judgment with its later supplements (dockets No. 13, 17, and 21), and the plaintiff Sylvia Domenech Fernández’s Opposition thereto with its later supplements (dockets No. 15, 18, 19, 23, and 29). Federal question jurisdiction i...
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OPINION I.INTRODUCTION On September 6, 1990, the Plaintiffs filed an action pursuant to 42 U.S.C. § 1983 alleging that on October 16, 1987, Defendant Steven Toboz, a Pennsylvania State Trooper, and others conducted an illegal search of a house owned by Plaintiffs Francis and Vera Lowery and resided in by Plaintiff Bratton in violation of their Fourth Amendment rights. Plaintiffs seek an award...
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OPINION AND ORDER Dr. Walter Cervoni, a pathologist, seeks to recover reimbursement from the Medicare program for certain services rendered to Medicare eligible patients between July 1, 1973 and Juné 30, 1980. The defendant, the Secretary of Health and Human Services (the “Secretary”) takes the position that Dr. Cervoni was already compensated for his work since the salary he received at the hosp...
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762 F.Supp. 1521 (1991) TOWN OF BROOKLINE, Plaintiff, v. OPERATION RESCUE, et al., Defendants. Civ. A. No. 89-0805-MA. United States District Court, D. Massachusetts. April 29, 1991. *1522 David Lee Turner, Town Counsel, Brookline, Mass., for plaintiff. Joseph L. Kociubes and Robin A. Driskel, Bingham, Dana & Gould, Boston, Mass., for Harriet Fremont-Smith. Frank L. McNamara, Boston, Mass. Co...
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MEMORANDUM AND ORDER Plaintiff, Bank One, Texas, N.A. (“the Bank”), filed this diversity suit to recover the deficiency due under a note executed by defendant, Paul Montle, in the Bank’s favor and secured by shares of National Environmental Group (NEG) stock. Defendant has counterclaimed and alleged that the Bank’s sale of the collateral was commercially unreasonable and that its actions in selli...
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764 F.Supp. 565 (1991) UNITED STATES of America, Plaintiff, v. MEXICO FEED AND SEED CO., et al., Defendants. Nos. N 87-0030 C, N 89-0132 C. United States District Court, E.D. Missouri, N.D. May 16, 1991. *566 *567 Joseph Moore, Asst. U.S. Atty., St. Louis, Mo., Robert Foster, Wendy E. Wagner, Beverlee Destein, Sam Blesi, Trial Attys., Env. Enforcement Sec., Land & Natural Resources Div., U.S....
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FINAL ORDER This matter comes before the court on plaintiffs objections to the magistrate judge’s Report and Recommendation filed February 28, 1991. After due consideration, in which this court conducted a de novo review of those portions of the magistrate judge’s Report and Recommendation that plaintiff finds objectionable, the court accepts and adopts the magistrate judge’s r...
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OPINION AND ORDER This action involves the shipment of peanuts aboard three cargo vessels owned and operated by defendant Waterman Steamship Corporation from the Sudan to Norfolk, Virginia during the spring of 1981. Waterman, through its agent, Gezira Trade & Services Co., Ltd., issued bills of lading which contained representations that the bags of peanuts were free of fly/weevils, free ...
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OPINION AND ORDER Plaintiffs Alicia Vazquez, Orestes Mórce-lo, and the conjugal partnership formed by them, commenced this action against defendants Jack Kemp, in his official capacity as the Secretary of the United States Department of Housing and Urban Development (“HUD”), and against the Municipality of San Juan, Puerto Rico. Plaintiffs allege that due to defendants’ negligence in processing t...
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OPINION On March 14, 1990, the Government brought the instant antitrust action to prevent and/or restrain an alleged violation of Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18. The violation purportedly arose when Defendant United Tote, Inc. (“United Tote” or “United”) acquired all of the outstanding shares of Autotote Systems, Inc. (“Autotote”). On April 11, 1990, the Governme...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the application of plaintiff Gregory Matthews for review of an order entered by the United States Magistrate Judge December 3, 1990 denying plaintiffs motion to remand. The court, having considered the memoran-da of authorities together with attachments submitted by the parties and having considered argument of counsel, concludes that...
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764 F. Supp. 612 (1991) Donald D. SNYDER III and Fred E. Fowlers, Jr., Plaintiffs, v. NEWHARD, COOK & CO., INC., Richard M. Longsdorf, Harry W. Newhard, Calvin B. Agee, William B. Nicklin, Donald Carlsen and Douglas V. Martin III, Defendants. Civ. A. No. 88-K-1440. United States District Court, D. Colorado. May 16, 1991. *613 Ronald W. Gibbs, Younge & Hockensmith, P.C., Grand Junction, Co...
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MEMORANDUM OPINION AND ORDER This cause is before the court on cross motions for summary judgment. Each side has responded to the motion of the other, and the court has considered the memoran-da of authorities with attachments submitted by the parties in ruling on the motion. Plaintiff Central States Southeast and Southwest Areas Health and Welfare Fund (Central States) filed the ins...
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DECISION and ORDER The above-captioned action has been returned to this court following the unsuccessful appeal of defendants Richard Arti-son, Sheriff of Milwaukee County, and James Pinter, a Milwaukee County deputy sheriff, from an adverse judgment. Defendants Jerome Casper and Rowell’s Towing Service (hereafter collectively referred to as a single entity, “Rowell’s Towing Service”), who success...
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OPINION AND ORDER This is an appeal by the United States from a final order of the United States Bankruptcy Court finding that plaintiff-ap-pellee Hoffman was not responsible for the collection and payment of federal payroll taxes under the terms of his order of appointment as trustee in bankruptcy proceedings. The United States contends that the bankruptcy court lacked jurisdiction to he...
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MEMORANDUM AND ORDER This matter is before the Court on defendant’s motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and for lack of subject matter jurisdiction; to strike plaintiff's jury demand; and to strike plaintiff’s exhibits, numbers two and three. Plaintiff James Coen is suing his employer Elco Chevrolet claiming that termination of his employm...
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ORDER Before this court is defendant ICI Americas Inc.’s Motion to Dismiss, filed September 28, 1990. Plaintiffs filed their Suggestions in Opposition on October 10, 1990. Defendant filed its Reply Memorandum on October 22, 1990. For the reasons set forth below, defendant’s motion to dismiss will be denied. I. STATEMENT OF CASE On August 17, 1989, plaintiffs John and Marilyn Rid...
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770 F. Supp. 1492 (1991) DARRELL HARRIS, INC., Plaintiff, v. UNITED STATES of America, Defendant. No. CIV-90-1282-P. United States District Court, W.D. Oklahoma. May 7, 1991. *1493 Darrell Harris, pro se. Jay P. Golder, Trial Atty., Washington, D.C., for defendant. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PHILLIPS, District Judge. I. INTRODUCTION At issue is defendant United State...
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MEMORANDUM OPINION Following the entry of a plea of guilty by the defendant Eduardo Martinez, 1 this court indicated, in an order dated August 23, 1990, that it had orally denied the defendant’s motion to dismiss the indictment for lack of personal jurisdiction. Although no explanation was given for this denial at that time, the court stated that it would elaborate upon the rea...
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763 F.Supp. 1039 (1991) Fred DOE and Lisa Doe, Plaintiffs, v. ALPHA THERAPEUTIC CORP., et al., Defendants. No. 90-2398C(6). United States District Court, E.D. Missouri, E.D. May 20, 1991. *1040 James P. Holloran, St. Louis, Mo., for plaintiffs. William H. Sanders, James Borthwick, Blackwell Sanders Matheny Weary & Lombardi, Kansas City, Mo., for Alpha Therapeutic. G. Keith Phoenix, Sandberg P...
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ORDER DENYING DEFENDANT’S MOTION TO DISMISS THE INDICTMENT This action arises out of the government’s review of Defendant Manuel Noriega's telephone conversations recorded by officials of the prison where Noriega is presently detained pending trial on various narcotics-related offenses. Noriega, asserting violations of the Sixth Amendment, the Fourth Amendment, Title III of the Omnibus Cr...
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AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came for non-jury trial before the Honorable William M. Hoeveler, United States District Court Judge, on November 7, 1990. After hearing the witnesses’ testimony, considering all exhibits in evidence, and reviewing all stipulated facts, the Court makes its findings of fact and enters its conclusions of law. FINDINGS OF FACT ...
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MEMORANDUM Plaintiff, Roger Zaczek, a Virginia State prisoner proceeding pro se, submitted this complaint under 42 U.S.C. § 1983. Plaintiff alleged, inter alia, that he was falsely arrested, falsely imprisoned, and maliciously prosecuted for an incident that occurred on May 31, 1988. Jurisdiction is appropriate pursuant to 28 U.S.C. § 1343(a)(3). By Order entered March 14, 1991, the Court...
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MEMORANDUM OPINION AND ORDER This case is a class action in which it is alleged that defendants discriminated against blacks in promotions within the Illinois State Police (“ISP”). Plaintiffs are black troopers, special agents, sergeants, and special agent sergeants employed by ISP. Four categories of promotions are involved in this case: (a) trooper to sergeant; (b) sergeant to master se...
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OPINION This case is before the Court on plaintiffs’ motion for a preliminary injunction. The underlying complaint is an action brought by 23 Michigan County Medical Care Facilities on their own behalf and on behalf of all similarly situated Michigan County Medical Care Facilities (facilities). 1 Plaintiffs filed this complaint to challenge the actions taken by the Michigan Dep...
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OPINION AND ORDER Defendant Gustavo Aguirre-Parra (“Aguirre-Parra”) moves for the suppression of any evidence seized during and as a result of his arrest on August 2, 1990, on the ground that the search and seizure violated his constitutional rights, claiming there was no probable cause to arrest him, he did not consent to the agents’ entry into his apartment and there were not exigent circumstanc...
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ORDER This matter is before the court on various motions. For the reasons I explain below, (1) all motions for summary judgment are denied; 1 (2) defendant North Valley Bank’s (“NVB”) motion to strike plaintiff’s jury demand is granted; (3) plaintiff’s motion to withdraw admissions is granted and sanctions are imposed; (4) defendant NVB’s motion for sanctions is denied, and def...
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MEMORANDUM OPINION AND ORDER In this action based upon the Securities Exchange Act of 1934 and the civil RICO statute, various defendants move under Rules 9(b) and 12(b)(6), Fed.R.Civ.P., to dismiss plaintiffs’ second amended complaint. BACKGROUND The amended complaint alleges that plaintiffs invested as limited partners in E.F. Hutton Southwest Properties II (the “Partnership” ...
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OPINION This case involves a dispute between plaintiffs, members of Painters’ Local No. 277 (herein “Union”) in Atlantic City, and the Union over certain conduct of the Union in 1980 and 1981. Defendants have moved for dismissal of the complaint pursuant to Rule 12(b), Fed.R.Civ.Pro., or in the alternative, summary judgment pursuant to Rule 56, Fed.R.Civ.Pro., principally on grounds of co...
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ORDER GRANTING IN PART AND DENYING' IN PART MOTIONS TO DISMISS This matter comes before the court on defendant Don Pagano’s motion to dismiss, filed December 17, 1990, and the remaining defendants’ motion for partial dismissal, filed December 17, 1990. Jurisdiction is based upon 28 U.S.C.A. § 1331 (West Supp. 1990). For the reasons stated below, the motions are GRANTED IN PART AND DENIED ...
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OPINION AND ORDER Photographer Roy Schatt (“Schatt”) brings this action 1 for damages and injunc-tive relief against defendants Curtis Management Group, Inc. (“Curtis”); the James Dean Foundation Trust (the “Foundation”); Advanced Graphics, Inc. (“Advanced”); Culture Shock Ltd. (“Culture”); and At-a-Boy based upon claims of copyright infringement, a violation of 15 U.S.C. § 112...
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MEMORANDUM This is the first attempt to seek post conviction relief in the so-called roofers’ case which I tried in 1987. Mr. Williams has petitioned this court to vacate his judgment of conviction and sentence. Defendant argues that he was denied effective assistance of counsel, that prosecutorial misconduct deprived him of a fair trial, that various jury instructions by the trial court were in e...
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MEMORANDUM ORDER Plaintiff-Appellant, Union Bank of the Middle East, Ltd. (“Union Bank”), appeals from an order of the United States Bankruptcy Court, Eastern District of New York, (Holland, J.), dated February 20, 1990, denying in its entirety Union Bank’s claim to have the $954,306.81 debt of Defendant-Appellee, Jatinder Kumar Luthra (“Luthra”), declared nondischargeable pursuant to 11 ...
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This case is before this court on appeal from the bankruptcy court, Honorable Robert F. Hershner, Jr., presiding. Jurisdiction is based on 28 U.S.C. § 158(a) (West Supp.1991). On appeal, the bankruptcy court’s findings of fact are not to be set aside unless clearly erroneous, but questions of law may be examined freely. In re Rainwater, 124 B.R. 133, 135 (M.D.Ga.1991). After examinin...
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ORDER Before the court is the motion of defendants, Chicago Tribune Company, Charles Brumback, John Sloan and Vincent Rior-dan, for sanctions against the plaintiff, Octavia Harriston, pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. For the following reasons, the motion is denied. As noted previously by this court, “the proceedings in this action have been protracted and, to say the least, conte...
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OPINION AND ORDER This cause is before the Court on cross motions for summary judgment. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. *484 Background Plaintiff, Dana Corporation (Dana), has brought this action against defendant, United States of America (hereinafter referred to as the IRS), seeking the refund of penalties imposed on it pursuant to 26 U.S...
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OPINION The Internal Revenue Service of the United States claims that the plaintiff in this case is a tax protestor. The plaintiff says that he is not. Nevertheless, in the years 1980 to 1982 and 1984 to 1987, plaintiff Boyd Richard Brewer, Sr. did not file tax returns. Despite being employed for many years, he claims that the United States tax laws are not applicable to him. This decisio...
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ORDER Theodore Cohen, a party-in-interest in this bankruptcy case, has filed a motion for leave to appeal a discovery order entered by Bankruptcy Judge Ronald Barliant. The disputed order stems from a petition for fees submitted by Much Shelist Freed Denenberg Ament & Eiger, P.C. (“Much Shelist”), counsel for the creditors. Claiming that the fee petition is excessive, Cohen seeks to obtai...
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MEMORANDUM AND ORDER Presently before the court are the parties’ cross motions for summary judgment and Woodrow W. Krewson’s motion to compel arbitration. For the reasons stated summary judgment is entered in favor of State Farm and against Krewson and Krewson’s motion to compel arbitration is denied. Background This case involves two related matters. State Farm v. Kre...
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ORDER This social security action comes to the court in usual fashion as cross-motions for summary judgment. Plaintiff Maurice Curtis asks that the court review a decision by the Secretary of Health and Human Services (“Secretary”) denying his application for Supplemental Security Income (“SSI”). Curtis requests that the court reverse the Secretary’s decision or, in the alternative, remand the ...
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MEMORANDUM AND ORDER The United States initiated this action under 21 U.S.C. § 881(a)(7) seeking the forfeiture of certain real property located on Bear Hill Road in Cumberland, Rhode Island. On January 6, 1990, the record owner of the property, Michael J. Czarnecki, was arrested on the property and charged with violating federal drug statutes. Five days later, Drug Enforcement Administration (DE...
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OPINION AND ORDER The government, plaintiff in this forfeiture action, moves to dismiss Emma J. Smith’s claim for lack of standing.1 For *91the reasons set forth below, the court grants the government’s motion. Background The defendant-in-rem car (“the car”) is owned by claimant Citibank and was leased through Sheffield Commercial Credit corporation to claimant Smith in August 1986. From August ...
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MEMORANDUM Plaintiffs Scott Yenzer and Haverfield Corporation have filed a motion for a preliminary injunction to prevent defendant Agrotors, Inc. from allegedly infringing on a patent owned by Yenzer and licensed to Haverfield. The motion has been exhaustively briefed, and on April 4, 1991 a hearing, which took the form of oral argument, was held on the issues presented by the motion. ...
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Sitting by Designation OPINION Before the court is the motion of defendant, Henry D. Knight, to withdraw his plea of guilty pursuant to Rule 32(d). 1 *282 I. FACTS AND PROCEDURE Defendant was charged initially in a superseding information with the crimes of murder in the second degree, possessing an unlicensed firearm during commission of a crime of violence, assault in the third de...
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MEMORANDUM OPINION AND ORDER Central States, Southeast and Southwest Areas Pension Fund and its Trustees (“Pension Fund,” treated as a collective noun taking singular verbs) sued Minneapolis Van & Warehouse Company (“Minneapolis Van”), a now-dissolved Minnesota corporation, and its former sole stockholder Erwin Bruesehoff (“Bruesehoff”) to collect past due interim withdrawal liability pay...
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MEMORANDUM OPINION This case involves Lorenzo Terrell’s charge that he was unlawfully arrested and searched by IRS agents on March 27, 1990. The arrest was ostensibly based upon a state-issued capias for failure to pay $60 in court costs in 1982. Plaintiff, who works for the IRS claims the arrest was a pretext to search for illegal drugs. Defendants, IRS employees who either conducted the searc...
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MEMORANDUM OPINION AND ORDER Defendants LeRoy Martin and the City of Chicago have moved for summary judgment on all claims in the amended verified complaint of plaintiffs Kathleen Moore and James Serio. For the reasons stated below, defendants’ motion must be granted in part and denied in part. I. BACKGROUND FACTS The parties do not dispute the following facts. Plaintiffs Kathle...
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MEMORANDUM OF DECISION AND ORDER The Federal Deposit Insurance Corporation (hereinafter FDIC) moves pursuant to Federal Rule of Civil Procedure 25(c) that it be substituted for Maine National Bank (hereinafter MNB) with respect to all claims in this litigation for damages or restitution against MNB. On January 6, 1991, MNB was declared insolvent and the FDIC was appointed receiver of MNB pursua...
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*463 MEMORANDUM AND ORDER Plaintiff Dr. Usha Vakharia (“Vakha-ria”), a 45-year old woman born in Bombay, India, and a physician specializing in anesthesiology, claims that her privileges as a member of the medical staff of Swedish Covenant Hospital (“the Hospital”) were restricted and ultimately terminated on discriminatory grounds. In a four-count complaint filed against the Hos...
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ORDER Presently pending before this court is an appeal filed by Wolf Creek Collieries Company from a Memorandum of Decision of the Bankruptcy Court for the Northern District of Ohio, Case No. 686-00506, Matter of GEX Kentucky, Inc., 103 B.R. 863 (Bkrtcy.N.D.Ohio 1988). In the case below, the bankruptcy court held that Wolf Creek’s advancement of funds to the appel-lee debtor GE...
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MEMORANDUM OPINION Plaintiffs in this case contend that the 1986 Land and Resource Management Plan for the Ouachita National Forest (“1986 LRMP”) and the Plan as amended in March of 1990 (“Amended LRMP” or “1990 LRMP”) violate the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., ...
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MEMORANDUM AND ORDER This action is before the Court on the plaintiffs second motion for summary judgment on the fifth claim for relief of the second amended complaint. Defendants, Morton Buildings, Inc., Jefferson Trust and Savings Bank, Kepple & Company, Jim Cochran, Health and Welfare Plan for Employees of Trustees of Morton Buldings, Inc., Voluntary Employee Benefit Association, (coll...
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MEMORANDUM OPINION AND ORDER This is an appeal under Bankruptcy Rule 8001(a) from an order of Chief Bankruptcy Judge Robert J. Kressel, dated August 1, 1990, which withdrew reference of the case from the Interstate Commerce Commission (ICC) and granted summary judgment to the plaintiff. The appeal was timely filed and is now before this court under a de novo standard of review....
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MEMORANDUM OPINION This action was filed on October 31,1990, by Marilyn and Dan King against Consolidated Freightways Corporation and Gary Belote. This is a Title VII action; 42 U.S.C. § 2000e et seq., in which plaintiff, Marilyn King, asserts she was sexually harassed at work. Plaintiffs also assert pendent state law claims, i.e., assault, battery, intentional infli...
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MEMORANDUM OPINION AND ORDER These related cases involve several bankruptcy court rulings permitting the trustee for Blinder, Robinson & Co., Inc., Glenn E. Keller, Jr. (“Trustee”), to conduct examinations under Bankruptcy Rule 2004. In No. 90-K-1863, Intercontinental Enterprises, Inc., the parent corporation and a creditor *270 of Blinder, Robinson, appeals the bankruptcy co...
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ORDER The defendants have moved to vacate the clerk’s certificate of entry of default against Bach-Simpson Ltd. or in the alternative to expand the time in which it may answer the complaint. The motion to vacate will be granted because the defendants’ rule 12(b) motion alters the time period in which the defendants are required to respond to the complaint. On February 15, 1991, Brocksopp Engineeri...
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OPINION Plaintiffs are fourteen foreign seamen who filed this action seeking to recover back wages and penalties pursuant to 46 U.S.C. § 10313 as well as compensatory and punitive damages for common law claims of blacklisting, outrageous conduct, breach of the duty of good faith and fair dealing, duress, intentional infliction of emotional distress and fraud. In addition, plaintiff Edwin ...
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MEMORANDUM OPINION AND ORDER Plaintiff chiropractors and enrollees in health maintenance organizations (HMOs) brought this action against the Secretary of Health and Human Services for declaratory and other relief under Part B of the Medicare program. Before the court are the motions of the Secretary to dismiss for lack of subject matter jurisdiction and for failure to state a claim, and of pla...
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MEMORANDUM OPINION AND ORDER Atlantis Express, Inc. (Atlantis), brought actions for recovery of undercharges against two ICC licensed brokers, Unicorn Transportation Systems, Inc. (Unicorn), and Standard Transportation Services, Inc. (Standard). The cases were brought in state court and removed to this court, on the basis of federal jurisdiction pursuant to 28 U.S.C. § 1337(a). The partie...
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MEMORANDUM OF DECISION AND ORDER ON DEFENDANT GRUNTAL’S MOTION IN LIMINE Defendant Gruntal & Co., Inc. (hereinafter Gruntal) moves to exclude all evidence regarding consequential damages which may be submitted by Plaintiff Rosemary Reid at trial. This motion in limine presents the question of whether the phrase “other appropriate equitable relief” contained in 29 U.S.C. section...
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MEMORANDUM OPINION A nonjury trial was held in the above captioned case. Jurisdiction was based on 28 U.S.C. section 1332; the parties were completely diverse and the amount in con*854troversy exceeded $50,000. The plaintiffs’ claim was one for redhibition, stemming from the purchase by the plaintiffs of a residence located at 208 Fairfax Place, New Orleans, Louisiana. Suit was originally filed i...
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MEMORANDUM OF DECISION AND ORDER ON MOTIONS FOR RECONSIDERATION OF ORDERS GRANTING SUBSTITUTION OF PARTIES Defendants move for reconsideration of two orders issued by the Court on March 12, 1991 which permitted: (1) the Federal Deposit Insurance Corporation (hereinafter FDIC) to substitute for Maine Savings Bank (hereinafter MSB) as the plaintiff in the pending claim seeking declaratory judgment ...
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MEMORANDUM OF DECISION AND ORDER This civil rights action alleges that Pe-nobscot County Jail officials violated a female federal pretrial detainee’s constitutional rights by housing her with a male *667 transsexual for two periods in 1989. She seeks declaratory and injunctive relief and damages. The defendants, three officials of the Penobscot County Jail, have moved for summary judgment pur...
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OPINION AND ORDER This matter comes before the Court for factfinding and final resolution of claims by Plaintiffs Karen Wardwell, on behalf of herself and as next friend to her minor children Stormy and Misty Wardwell, and Pauline Carter, as next friend to her minor children Adam and Amy Carter, arising out of an automobile accident on July 13, 1988. Plaintiffs’ claims, which were tried before ...
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OPINION On or about January 28, 1991, this court determined that defendant retaliated against plaintiff for filing an EEOC charge and awarded plaintiff front and back pay in the amount of $63,678.00. This cause is now before the court on plaintiff’s motion for attorneys’ fees. Plaintiff’s counsel, Ms. Barbara Clark and Mr. Bennie Jones, have requested attorneys’ fees and costs in the amount o...
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*796ORDER On this date came on to be considered the Motion of Abel H. Hernandez, filed February 21, 1991, to assign this case to a specific district judge. Although Mr. Hernandez, the Plaintiff, does not give any reasons for the requested reassignment, the Court believes that the motion is actually one for recusal pursuant to 28 U.S.C. § 455(a). I. OVERVIEW In his aptly styled “Motion,” Mr. Hernan...
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ORDER REVERSING DECISION AND REMANDING CASE TO BANKRUPTCY COURT Appellant Terry Adams appeals from the bankruptcy court’s June 19, 1990, Order Denying Appellant’s Motion for New Trial or to Amend Judgment in which the court held that a debt owed to appellant by appel-lee Karen Marie Zentz is not a non-dis-chargeable debt under either 11 U.S.C. § 523(a)(5) or 11 U.S.C. § 523(a)(6). A. Standar...
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ORDER AND REASONS In this class action suit arising from an explosion in the catalytic cracking unit at Shell Oil Company’s refinery in Norco, Louisiana, the plaintiffs orally moved for a protective order to exclude Shell’s designated corporate representative, Frank Abatte, from the deposition of the plaintiff, Richard E. Hodges. In an expedited hearing the Court orally granted the plaintiffs’ mo...
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MEMORANDUM OPINION This case is before the court pursuant to the joint motion to dismiss filed by defendants Dahmm and City of Elkins, Arkansas. Defendant, Dahmm, is a city policeman for the City of Elkins. It is difficult to ascertain whether defendants’ motion tests the subject-matter jurisdiction of this court under Rule 12(b)(1), Fed.R.Civ.P., or whether it is defendants’ contention that plai...
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RULING ON PLAINTIFF’S MOTION TO DISQUALIFY COUNSEL Plaintiff, MMR/Wallace, (“MMR”), commenced the underlying lawsuit on February 8, 1989 alleging, inter alia, that defendant, Thames Associates, (“Thames”), had breached the terms of its construction contract with plaintiff. MMR has now moved to disqualify Thames’ counsel Matthew Forstadt and the firm, Schatz & Schatz, Ribicoff &...
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MEMORANDUM OF DECISION AND ORDER This securities fraud action is back before the Court on Plaintiffs’ motion for *528class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. As discussed below, the Court grants the motion in part. I. Background Plaintiffs bring this action against The One Bancorp (a bank holding company), individual directors and officers of The One Bancor...
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OPINION AND ORDER On January 17,1991, defendants W. John Mitchell II, a/k/a Jack Mitchell, and Gary Brouillette moved to suppress statements made by them to Environmental Protection Agency (“EPA”) investigators on July 10, 1990, on the grounds that their Fifth Amendment rights against self-incrimination were violated. The government opposed the motions. Oral argument was held on March 22, 1991....
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ORDER This cause is before the court on the motion of the court-appointed guardian ad litem for fees and expenses rendered in this case for a minor defendant. The guardian asks the court to tax these fees against plaintiff Allstate Insurance Company, Inc. and defendants Edward P. and Connie C. Jones. For the reasons that follow, the court concludes that the motion should be granted and that the g...
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ORDER REQUIRING ESTABLISHMENT OF ERISA JURISDICTION This matter comes before the court sua sponte. Having reviewed the record and the law, the court enters the following order for the reasons set forth hereinafter. BACKGROUND On March 28, 1991, the Plaintiff commenced the above styled action in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach ...
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*863 OPINION In this case of alleged sexual harassment, plaintiff contends that defendants violated Title VII, 42 U.S.C. § 2000e, et seq., and RICO, 18 U.S.C. § 1961, et seq. She also asserts various state law claims. Presently pending before this court is defendants’ motion for summary judgment on all claims. 1 FACTS The court and the part...
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MEMORANDUM OPINION AND ORDER In this diversity action, plaintiff is a corpor rate sales representative which entered into a written contract with defendant, a manufacturer and importer of apparel. Defendant terminated the contract in a manner which plaintiff contends violated its terms. Plaintiff moves under Rule 56, Fed.R.Civ.P., for partial summary judgment on the issue of liability. Defendant...
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ORDER On this date the Court considered the Motion to Reconsider, filed on February 5, 1991, by Timothy Heup, Scott Gesell, Glenn Seeley, Jim Smith, and Robert Torres (the “Defendants”). 1 In this Motion Defendants request that the Court vacate its Order of January 31, 1991 (the “Order”), in which the Court determined that it lacked subject matter jurisdiction in this case and ...
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MEMORANDUM BACKGROUND Petitioner Cruz is a Mariel Cuban who arrived in the United States in 1980. Because of his criminal record before his departure from Cuba he was detained upon arrival in this Country. While detained in the United States Prison at Atlanta, he was prosecuted for and convicted of assault in *127September 1982 and received a five (5) year sentence. His record of institutional vio...
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MEMORANDUM OPINION The matter presently before the court is an appeal from the bankruptcy court’s order and memorandum opinion entered in this case on June 22, 1990. All concerned parties have filed legal memoranda, and they have agreed to waive oral argument in the case. Accordingly, this matter is ripe for resolution, but before turning to an analysis of the various assignments of error...
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Plaintiffs have moved this court to reconsider elements of its decision of November 30, 1990. In that decision, this court sustained most of the challenged provisions in the New York State Conference Pension and Retirement Fund’s (“Fund”) 1979 stipulation form. Truckmen’s & Warehousemen’s Ass’n of Rochester v. New York State Teamster’s Conference Pension & Retirement Fund, 751 F.Supp. 351 (W.D.N.Y...
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ORDER GRANTING THE EEOC’S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION The motion of plaintiff Equal Employment Opportunity Commission (“EEOC”) for a temporary restraining order and preliminary injunction came on for hearing before this court on May 13, 1991. Douglas J. Farmer, Esq. appeared for the EEOC; Ann V. Burns and Celia Jacoby, Deputy Attorneys General, appeared for...
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OPINION AND ORDER Plaintiff Remington Rand Corporation moves, pursuant to Rule 42(b), for a separate trial on the issue of whether or not defendants in this case are bound by the award in a separate action in New Jersey District Court involving this plaintiff and different defendants, plaintiff claiming them to be agents of these defendants. *771The defendants here object to the separate trial of...
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MEMORANDUM OPINION This matter is before the court on the plaintiff’s motion to compel production of “all pleadings, briefs, transcripts, interrogatory answers or other discovery” generated in Basic Books, et al. v. Kinko’s Graphics Corporation, 758 F.Supp. 1522 (S.D.N. Y.1991), a case that was filed against the defendant in this action in the Southern District of New York. For the following reas...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW In essence, this Court is required to decide whether a reasonable person, prior to thé availability of commercial tests to detect the presence of the Human Immunodeficiency virus (“HIV” virus) 1 in blood, would refuse surgery consisting of five coronary artery bypass graft (CABG) procedures and face an imminent heart attack in order to avoid the minimal...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter is before the court for a decision following trial on the merits. After carefully considering the evidence and argument of counsel, the court now renders its findings of fact and conclusions of law in accordance with Fed.R.Civ.P. 52(a). FINDINGS OF FACT 1. On July 16, 1985, the owner of Gene's Pawn Shop, in Baton Rouge, had in his place of busine...
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MEMORANDUM OPINION AND ORDER Jean Smith brought this medical malpractice action following the death of her husband in June 1989. She sues under diversity jurisdiction as trustee for the next of kin of her deceased husband. Defendants are Steffan Helgaas, M.D., and Spectrum Emergency Care, Inc. (Spectrum). Before the court is Spectrum’s motion for summary judgment. I. Plaintiff alleges that on June...
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MEMORANDUM OPINION This case is before the court with the consent of the parties for all purposes pursuant to 28 U.S.C. § 636(c). At issue is the defendants’ motion to dismiss or in the alternative for substitution of parties. For the reasons stated below, the defendants’ motion is denied in part and granted in part. Furthermore, the plaintiff shall have a reasonable time in which to effect sub...
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MEMORANDUM OPINION AND ORDER Plaintiff Granada Hospital Group, Inc. (Granada) brought this action against defendant The Saint Cloud Hospital (Hospital) for breach of contract. Diversity jurisdiction is alleged. The parties dispute the meaning of the terms in their contract regarding contract termination. The Hospital counterclaimed for breach of contract concerning an unrelated matter in the same...
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MEMORANDUM OPINION The above-captioned actions are brought by plaintiffs Hanahan, Shoehigh and Miller, members of the United Brotherhood of Carpenters and Joiners (UBC) as derivative suits against various officers of the union. 1 Both suits are brought under 29 U.S.C. § 501(b), which authorizes members of a union, after presenting a formal request to sue to the union or its boa...
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765 F.Supp. 756 (1991) William KRIEGER, Plaintiff, v. The TRANE COMPANY, et al., Defendants. Civ. A. No. 90-1231-LFO. United States District Court, District of Columbia. May 22, 1991. John J. Boyd, Jr., Earl W. MacFarlane, Smith, Somerville & Chase, Baltimore, Md., Paul D. Murphy, Cheverly, Md., for plaintiff. *757 Rachel C. Evans, James A. DeVita, Asst. Corp. Counsel, Washington, D.C., for d...
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MEMORANDUM OPINION AND ORDER Came on to be heard (a) the motion to remand filed by defendant, Bill G. Elms, and (b) the issue, raised sua sponte by the court, of the propriety of the intervention of Federal Deposit Insurance Corporation, receiver for MBank Fort Worth, N.A., (“FDIC”), in this action. This action presents another instance of questionable use by Federal Deposit In...
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ORDER Plaintiff filed this case seeking to recover insurance proceeds pursuant to the death of Signe J. Cutler. Ms. Cutler, a servicewoman, was killed while riding in a vehicle operated by her husband, Marcus L. Cutler, also a serviceman. Mr. Cutler was later convicted of drunken driving and manslaughter under the Uniform Code of Military Justice. Regardless, Mr. Cutler received $50,000 in insuran...
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765 F. Supp. 513 (1991) UNITED STATES of America, Plaintiff, v. David PARDUE, Jack Pardue, Michel Pardue, Defendants. Cr. Nos. 90-50012-01, 90-50012-02 and 90-50012-03. United States District Court, W.D. Arkansas, Fayetteville Division. May 13, 1991. *514 J. Michael Fitzhugh, William Cromwell U.S. Atty., Fort Smith, Ark., for U.S. Phillip Moon, Fayetteville, Ark., for David Pardue. John Wesley Ha...
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MEMORANDUM DECISION AND ORDER This sex and/or pregnancy discrimination case is before the Court for a decision on the merits following a bench trial on the issue of liability only. After hearing testimony, reviewing exhibits, and examining the credible evidence of record, the Court enters judgment in favor of the defendant, Management Recruiters of O’Hare (“MRO"), d/b/a Office Mates-5 ("O...
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SUPPLEMENTAL ORDER # 57 Defendant Occidental Chemical Corporation (“OCC”) has moved, pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, to compel discovery from plaintiff United States of America (“United States”) concerning any information, whether docu*560mentary or testimonial, that relates to the issue of whether the United States Army (“Army”) dumped hazardous substances at the ...
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MEMORANDUM OPINION This case comes before the court on the parties’ cross-motions for summary judgment. The controversy here involves plaintiff hospital’s 1984 claim for Medicare reimbursement for interest incurred as a result of borrowing $14,675,000.00 for a capital project without using the $3,480,575.00 fund designated for spending on capital projects. The court finds that the ho...
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MEMORANDUM AND ORDER The plaintiff, Fidelity Federal Bank (“the Bank”), a California citizen, brought this action against defendants, Larken Motel Company (“Larken”), a Pennsylvania limited partnership, Kenneth S. Stein (“Stein”), a resident of Pennsylvania, and Larry Coleman (“Coleman”), a New Jersey resident, seeking payment on a promissory note and related documents. The asserted basis...
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ORDER GRANTING PLAINTIFF’S MOTION TO REMAND Pursuant to 28 U.S.C. § 1447, plaintiff Venkaiah Yedla, a Michigan resident, has filed a motion to remand this employment discrimination suit to the Michigan Circuit Court for the County of Oakland. Also pursuant to § 1447, plaintiff requests costs and attorney fees for the expenses incurred in filing and defending this motion. Plaintiff’s complaint...
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This 42 U.S.C. § 1983 civil rights action with pendent state claims of negligence has arisen in the aftermath of the unspeakable crimes committed by serial killer Gary Heidnik (“Heidnik”). Plaintiff Perkins, mother of decedent, Sarah Lindsay, asserts deprivation of due process, unequal protection of the law, and inadequate police investigation proximately caused the death of her daughter, a men...
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MEMORANDUM OPINION Plaintiffs Joseph P. Connors, Sr., Donald E. Pierce, Jr., William Miller, Thomas H. Saggau, and Paul R. Dean, as trustees of the United Mine Workers of America (“UMWA”) 1950 Pension Plan and the United Mine Workers of America 1974 Pension Plan, initiated this action against defendants Hi-Heat Coal Company, Inc. (“Hi-Heat”) and Shannon Coleman (“Shannon”) and Dennis Cole...
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MEMORANDUM Plaintiff Cushman & Wakefield, Inc. moves to sever defendant Glen Eagle Square, Inc. and to proceed against the remaining defendants. Fed.R,Civ.P. 42(b). 1 On February 13, 1991 Glen Eagle filed a chapter 11 petition, which automatically stayed this action. 11 U.S.C. § 362(a). I. According to the complaint, defendants Catherine A. Backos, Glen Eagle Square, ...
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OPINION Plaintiffs are fourteen foreign seamen who filed this action seeking to recover back wages and penalties pursuant to 46 U.S.C. § 10313 as well as compensatory and punitive damages for common law claims of blacklisting, outrageous conduct, breach of the duty of good faith and fair dealing, duress, intentional infliction of emotional distress and fraud. In addition, plaintiff Edwin ...
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OPINION A public library has enacted a regulation which is admittedly aimed at barring a particular homeless person from its premises because his presence and appearance are considered offensive to others. The danger in excluding anyone from a public building because their appearance or hygiene is obnoxious to others is self-evident. The danger becomes insidious if the conditions complained of ...
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MEMORANDUM OPINION Wire Cloth Enterprises appeals from an order by the Bankruptcy Court entered September 16, 1986, allowing Reed Smith Shaw & McClay’s (Reed Smith) claim and ordering Wire Cloth to pay 75 percent of the allowed amount. For the reasons stated hereafter, the order of the Bankruptcy Court shall be affirmed. 1. Facts1 Reed Smith filed a claim to recover expenses incurred through its ...
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MEMORANDUM OPINION Petitioner, a state prisoner who was sentenced while a fugitive, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that the Fourteenth Amendment to the United States Constitution requires a defendant’s presence for the imposition of a valid sentence. The petition is dismissed for failure to state a claim of constitutional violation. After a jury trial in t...
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Powertex, Inc. moves to hold Insta-Bulk, Inc., in contempt of an injunction filed in this court on June 17, 1983. Because the matter is urgent to both parties, a summary disposition is in order. Powertex alleges that Insta-Bulk has violated the injunction by making sales of its products in violation of Powertex’s patent on the products. This matter originated in the court in 1982. A settlement agr...
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OPINION This is an action brought by plaintiffs against defendants for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692 et seq. (“FDCPA” or “the Act”). On January 3, 1991, the court disposed of several issues in this case on summary judgment. Beattie v. D.M. Collections, Inc., 754 F.Supp. 383 (D.Del.1991). A jury trial is scheduled fo...
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ORDER ON MOTION OP THE AMERICAN RESORT AND RESIDENTIAL DEVELOPMENT ASSOCIATION TO INTERVENE, OR, IN THE ALTERNATIVE, TO APPEAR AS AMICUS CURIAE Plaintiffs, RESORT TIMESHARE RESALES, INC., and LAWRENCE COHEN (collectively “RTR”) have sued to challenge the constitutionality of Section 475.01(1)(c), Florida Statutes, which, pursuant to an amendment effective October 1, 1989 (the “Amendment”)...
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765 F. Supp. 198 (1991) Carol GALLO, Plaintiff, v. JOHN POWELL CHEVROLET, INC., Defendant. No. CV-90-0937. United States District Court, M.D. Pennsylvania. May 24, 1991. *199 *200 John M. Humphrey, Williamsport, Pa., for plaintiff. John E. Donovan, Fisher & Phillips, Atlanta, Ga., for defendant. MEMORANDUM McCLURE, District Judge. I. BACKGROUND Plaintiff Carol Gallo filed this Title VII act...
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OPINION The matters before the court are: *6611) the motion of plaintiff, Rolex Employees Retirement Trust (Rolex), Philip Schmidt, Trustee, for an order certifying this action as a class action (#21); and 2) the motion of plaintiff, Scott J. More-land, for an order certifying this action as a class action (#22). In each case, the plaintiff alleges that defendants, Mentor Graphics Corporation (Me...
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MEMORANDUM-DECISION AND ORDER After a protracted course of litigation, including review by the Supreme Court of the United States, this case is before the court for the fourth time. The court assumes familiarity with this case and will summarize only those facts and proceedings necessary to an understanding of the issues raised on this remand. In 1982 American Future Systems, Inc. (“AFS”)1 and a ...
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DECISION AND ORDER Now before this Court is the motion of defendant Louis W. Sullivan, M.D., the Secretary of Health and Human Services (“Secretary”), for a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Plaintiff Kenneth Barber (“plaintiff”) filed this lawsuit pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (“Act”), seeking review of the Secretary’s fi...
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OPINION Each of these two consolidated petitions seeks an order, pursuant to 9 U.S.C. § 4, compelling arbitration on an alleged voyage charter. Ward Marine, a broker, allegedly agreed to the two charters on behalf of the respondent. The case hinges on whether Ward Marine had authority (or failing that, apparent authority) to do so. No written charter parties were ever signed, but petition...
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ORDER This matter is before the court on defendants Turner, King, Pate and Workman’s motion for summary judgment on plaintiff’s complaint. 1 Plaintiff brought this action on May 2, 1989 seeking damages and injunctive relief under 42 U.S.C. §§ 1983, 1985 and 1988 for violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, and seeking damages...
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OPINION Plaintiffs filed for summary judgment on the issues which remain in this case after several years of litigation. At the request of the court, defendants have filed a cross-motion for summary judgment so that all remaining legal issues may be finally resolved. By a Memorandum Opinion and Order dated January 3, 1991, the court granted plaintiffs’ summary judgment motion in part and held the...
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MEMORANDUM I. BACKGROUND This action arises out of a Note, mortgage and personal guaranties related to a loan made in February 1973 by the Small Business Administration (“SBA”) and the First National Bank of Carbondale to R & D Investments Inc. d/b/a Edwards Brothers Packing Co. (“Edwards Brothers”) in the amount of six hundred and fifty thousand dollars. On February 23, 1990 the United States in...
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ORDER This matter is before the court after a consolidated hearing on both parties’ motions for preliminary injunction. Plaintiff/counterclaim defendant Energy Four, Inc. and defendant/eounterclaim plaintiff Dornier Medical Systems, Inc., each ask the court to enjoin the other from making false and misleading statements that allegedly violate the Lanham Act, 15 U.S.C. § 1116(a), and the G...
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ORDER In the instant action, defendants Robert Manning and National Indemnity Company (“NIC”) have moved for summary judgment as to plaintiff Anthony Brown’s complaint alleging assault and the intentional infliction of emotional distress stemming from statements allegedly made by defendant Manning to plaintiff Brown. Having reviewed the relevant authority, the briefs filed by the parties,...
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MEMORANDUM AND ORDER This is an action to declare void a Rhode Island statute requiring the future payment of annual cost-of-living adjustments to totally disabled workers’ compensation recipients injured prior to the effective date of the statute and to enjoin the pertinent state officials from enforcing that requirement. The theory on which the plaintiffs seek relief is that the statute is uncon...
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MEMORANDUM AND ORDER DENYING MOTION TO REMAND This case involves a claim of age and sex discrimination in violation of Michigan’s Elliott-Larsen Civil Rights Act, Mich.Stat. Ann. § 3.548(101) et seq. [M.C.L.A. § 37.-2101 et seq.] (Callaghan 1990). The complaint, filed on October 12, 1990 in the Wayne County Circuit Court, alleged that plaintiff Deraid Van Camp (Van Camp), an employee of defendant...
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OPINION AND ORDER This matter comes before the court on defendants’ motion for the entry of summary judgment dismissing all seven counts of plaintiff’s complaint. I heard oral argument on February 25, 1991 and reserved decision. For the reasons outlined herein, defendants’ motion is GRANTED. Plaintiff, Ronald Fregara (“Fregara”), instituted this action by filing a seven count complai...
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OPINION AND ORDER Defendant Mercedes-Benz Credit Corporation (“MBCC”) moves, pursuant to Bankruptcy Rule 8003, and 28 U.S.C. § 158(a) and (c) (West Supp.1990), for leave to appeal from an order of the Bankruptcy Court of the District of Vermont denying a motion to dismiss. The motion is denied. On April 28, 1989, debtor filed an adversary proceeding against MBCC, in the United States Bankruptcy C...
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ORDER This matter is before the court on the following motions: 1. Defendants’ motion to consolidate Powell v. National Football League and McNeil v. National Football League pursuant to Federal Rule of Civil Procedure 42(a); 2. Defendants’ motion in McNeil for a protective order; 3. Defendants’ appeal in McNeil of an order of Mag...
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ORDER ON DEFENDANT’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ RESPONSE TO EXPERT INTERROGATORIES (# 22) In the motion to strike a portion of the plaintiffs’ answers to the so-called “expert interrogatories,” defendant does not contend that the answers do not adequately provide its attorneys with the material to which it is entitled pursuant to Rule 26(b)(4)(A)(i), Fed.R.Civ.P. Cf. Williams v. McNa...
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MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS (# 20) INTRODUCTION This case presents rather convoluted questions as to the applicability of the attorney-client privilege and the protections of Rule 26(b)(3), Fed.R.Civ.P., in the situation in which an insurance company hires an attorney to defend its insured against claims brought against the insured and *536then lat...
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*1225 MEMORANDUM OPINION AND ORDER GRANTING IN PART, AND DENYING IN PART, FOR SUMMARY JUDGMENT Jurisdiction is proper based on diversity of citizenship. Plaintiff filed a motion for summary judgment March 6, 1991. Defendants Riley-Meggs Industries, Inc. and Ron Foyt filed a response April 2, 1991. Plaintiff then filed a reply April 17, 1991. The court heard oral argument May 1, 1...
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ORDER AND REASONS This matter is a diversity action for personal injury and property damages arising out of the explosion and fire of a railroad tank car carrying the chemical butadiene. In addition to compensatory damages, the plaintiffs assert claims for punitive or exemplary damages pursuant to Louisiana Civil Code article 2315.3, which provides: In addition to general and special...
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MEMORANDUM DECISION AND ORDER This litigation arises out of a dispute between two court reporters concerning work that one reporter subcontracted with the other to perform. The dispute culminated in a letter being sent by the defendant to the Federation of Shorthand Reporters claiming that the plaintiff has a “practice of modifying transcripts” and that he “refus[es] to pay for the agreed...
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765 F.Supp. 738 (1991) MANAGEMENT SCIENCE AMERICA, INC., Plaintiff, v. NCR CORPORATION, Defendant. Civ. A. 1:88-CV-1274-JOF. United States District Court, N.D. Georgia, Atlanta Division. March 25, 1991. Charles E. Campbell, James David Dantzler, Jr., Virginia Boyd Peterson, Hicks, Maloof & Campbell, Atlanta, Ga., for plaintiff. Celeste McCollough, John L. Taylor, Jr., Vincent, Chorey, Taylor ...
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MEMORANDUM Speculation about the private lives of public figures has been a popular pastime in this country for as long as there have been newspapers, but it is a rare occurrence when a story which originated as an item of malicious gossip in the early 1800’s becomes the basis of a lawsuit nearly 200 years later. The public figure in this story is Thomas Jefferson, and the starting p...
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*45 MEMORANDUM AND ORDER Plaintiffs bring this action pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, et seq., contending that in approving the Atlantic Terminal Project (Project), a mixed-use development project in Brooklyn, defendants failed adequately to consider the Project’s impact on low and moderate income residents in violation of the Housing and ...
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MEMORANDUM AND ORDER Plaintiff seeks a declaratory judgment that its videotape performance system does not violate defendants’ copyright. Defendants counterclaim for copyright infringement, alleging that plaintiff’s system infringes on their exclusive right to publicly perform their motion pictures. The system, which plaintiff installs and operates, allows a hotel to offer its guests the ...
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ORDER AND REASONS The subject of this Order and Reasons is the establishment of a trial plan. I. BACKGROUND The plaintiffs filed this suit for a class action against the defendants, Shell Oil Company and Brown & Root U.S.A., Inc., claiming actual and punitive damages from the May 5, 1988 explosion in the catalytic cracking unit at the Shell Oil Refinery in Norco, Louisiana. The actual damages all...
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*764MEMORANDUM AND ORDER Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted in New York Supreme Court, Queens County, of manslaughter in the first degree, attempted manslaughter in the first degree, assault in the first degree, two counts of criminal possession of a weapon in the second degree, unlawful imprisonment in the first degree and endangering the welfa...
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ORDER AND JUDGMENT This case is before the Court on the Motion of the United States for Summary Judgment on Plaintiffs’ Complaint and Co-Defendants’ Cross-Claims, filed on February 4, 1991. On March 5, 1991, the Waste Haulers filed a response in opposition. Also pending is Plaintiffs’ Cross-Motion for Summary Judgment Against Defendant United States for Order That the Discretionary Function Exc...
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OPINION Currently before the court is the application of plaintiff Driscoll Potatoes, Inc. (“Driscoll”) for a preliminary injunction pursuant to Fed.R.Civ.P. 65. 1 Driscoll seeks a preliminary injunction directing defendants N.A. Produce, Inc. (“N.A. Produce”) and Nestor Balocos, also known as Nestor Baloco, (“Balocos”) (collectively, “Defendants”), to comply with the statutory...
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OPINION AND ORDER ACCEPTING MAGISTRATE’S REPORT AND RECOMMENDATION AND ORDERING PLAINTIFFS TO COMPLY WITH DEPARTMENT OF LABOR SUBPOENAS Presently before the Court is the May 31, 1990 Report and Recommendation of Magistrate Judge Virginia M. Morgan wherein she recommends that the Court dismiss the Plaintiffs’ claim for declaratory and injunc-tive relief and grant the Defendant Secretary’s counte...
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ORDER Before the court is the motion of defendant, American Medical Association (“AMA”), for summary judgment on count I of plaintiff Madora Bond’s complaint. For the following reasons, the motion is denied. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on...
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*1513 ORDER This matter is before the court on plaintiffs motion for partial summary judgment, defendants Fulton-DeKalb Hospital Authority and J.W. Pinkston, Jr.’s motion-for summary judgment, defendant Dr. Corey M. Slovis’ motion for summary judgment, and defendant Slovis’ motion for leave to file an amended answer. Plaintiff brings this action under 42 U.S.C. § 1983, alleging t...
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765 F.Supp. 211 (1991) HORN'S MOTOR EXPRESS, INC. and Mark Services, Inc., Plaintiffs, v. HARRISBURG PAPER COMPANY, Defendant. Civ. A. No. 1:CV-90-1031. United States District Court, M.D. Pennsylvania. May 28, 1991. *212 Joseph L. Steinfeld, Jr., Robert B. Walker, John T. Siegler, Sims, Walker & Steinfeld, P.C., Washington, D.C., Dwight L. Koerber, Jr., Kriner, Koerber & Kirk, Clearfield,...
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MEMORANDUM AND ORDER The question presented in this case is whether the Fair Labor Standards Act of 1938 (“the FLSA”), 29 U.S.C. §§ 201 et seq., requires defendants to pay overtime compensation to plaintiffs for each hour spent “on-call” from December 1986 to the present. This action was brought by Gregory Berry, Philip Marcus, Dennis McAllis-ter, and Francis Oravetz, current a...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of plaintiff United States Fidelity and Guaranty Company (USF & G) for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant T.K. Stanley, Inc. (Stanley) has responded to the motion and the court has considered the memoranda of authorities together with attachments submitted by the ...
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OPINION AND ORDER Plaintiff brings this action pursuant to 42 U.S.C. § 1983. In an order dated November 9, 1990, I granted plaintiff leave to proceed in forma pauperis against defendant and John Doe on his claim that the failure of defendant and John Doe to provide plaintiff with a timely hearing, as required by Wis.Admin.Code § DOC 303.-76(3), violated plaintiffs due process rights. Presently bef...
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OPINION AND ORDER This tort action, brought both under diversity jurisdiction and the Suits in Admiralty Act, 46 U.S.C. App. §§ 741-745 (see *1176 complaint, 113, 4, 19) is now before us for resolution of several pending motions. The relevant undisputed facts, as obtained from the myriad of documents on file, are as follows: Plaintiffs Carmelo Morales-Melén-dez and Ali...
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MEMORANDUM OPINION AND ORDER Plaintiffs National Organization for Women (“NOW”) and two women’s health centers brought this action against various antiabortion activists, antiabortion organizations, and a pathology testing laboratory alleging that defendants conspired to drive women’s health centers that perform abortions out of business through a pattern of concerted, unlawful activity i...
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MEMORANDUM OPINION The Verbena United Methodist Church (“the Church”), its pastor, Delbert Freeman, and his daughter, Julia Freeman, have brought this action against the Chil-ton County Board of Education (“the Board” or “School Board”), challenging the Board’s refusal to allow the Church to rent the Verbena High School auditorium to conduct a “baccalaureate service” for graduating senior...
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ORDER Presently before us is plaintiffs SMA Life Assurance Company’s (SMA) Motion for an Order to Protect or Effectuate the Judgment (docket entry 9). As shown by the record, this action was first filed on July 26,1990 (docket entry 1) and judgment by default was entered in favor of plaintiff on November 26, 1990 (docket entry 6). However, it now appears that while defendant Antonio Sánchez-Pica (...
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OPINION AND ORDER Plaintiff Pamela Preston asserts that she was shown in the motion picture “Sea of Love” without her consent, in violation of her rights under New York law. Defendant Martin Bregman Productions, Inc. is a producer and defendant MCA-Universal City Studios, Inc. is the owner and a producer of that motion picture. They move pursuant to Fed.R.Civ.P. 56(b) for summary judgment...
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MEMORANDUM OPINION Currently pending before this Court is Defendant and Third-Party Plaintiff United States of America’s (“Government”) Motion to Dismiss, or in the Alternative, for Summary Judgment, on all claims asserted against it in the above-captioned actions. Also pending is Plaintiff and Third-Party Defendant Price A. Baum (“Baum”) Motion to Dismiss Counts III and IV of the third-p...
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MEMORANDUM OPINION This matter came before the court on defendant’s motion for summary judgment. In this suit, the plaintiff, Sandor Petrovics, seeks damages pursuant to the federal Examination and Treatment for Emergency Medical Conditions and Women in Active Labor Act, part of the Consolidated Omnibus Budget Reconciliation Act, 42 U.S.C. § 1395dd (Supp.1990) [COBRA]. Mr. Pe-trovics asse...
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MEMORANDUM I. Introduction This action arises pursuant to Section 6672 of the Internal Revenue Code (26 U.S.C. § 6672), which imposes penalties for failure of responsible persons to collect and pay over taxes to the United States. Plaintiff, Dean A. Cook, filed a complaint against the United States of America, to recover an amount paid in partial satisfaction of a § 6672 asse...
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ORDER AND OPINION This is an action for violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b promulgated thereunder, as well as pendent state law claims for fraud, rescission, and breach of contract and fiduciary duties. The parties have cross-moved for summary judgment. For the reasons set forth below, the cross-motion of defendants Comstock Gold ...
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765 F. Supp. 1393 (1991) Jose Ramon DUENAS, Plaintiff, v. James J. NAGLE, James P. Murphy, Marvin Prieve, and Kyle Davidson, Defendants. No. 91-C-0024-C. United States District Court, W.D. Wisconsin. May 6, 1991. *1394 *1395 James P. McLinden, Gonzalez & Assoc., Milwaukee, Wis., for plaintiff. Eileen W. Pray, Asst. Atty. Gen., Madison, Wis., for defendants. OPINION AND ORDER CRABB, Chief Jud...
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OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR BOND PENDING EXTRADITION HEARING I. INTRODUCTION This is an extradition action. The Canadian government, through the U.S. Attorney’s office, is pursuing the extradition of Defendant Derrick Leon Hills, a/k/a Stacey Shelby, 1 under the terms of the Treaty on Extradition between the United States and Canada. Shelby has been charged by Canadian ...
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ORDER This case is before the Court on the United States’ Motion to Dismiss the Eighth Cause of Action or, in the Alternative, to Strike Plaintiffs’ Claim and for Partial Summary Judgment, filed on February 4, 1991. The plaintiffs filed a response in opposition on March 5, 1991. On April 22, 1991, the Government filed a notice of supplemental authority in support of its motion. Also ...
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765 F.Supp. 617 (1991) PLANNED PARENTHOOD ASSOCIATION OF SAN MATEO COUNTY, Plaintiff, v. HOLY ANGELS CATHOLIC CHURCH, Northern California Operation Rescue, James Robinson, Dorothy Ann Connolly, Charles Metzger, Nancy Murray, and Does 1 through 100, Defendants. No. C-91-0580 SAW. United States District Court, N.D. California. May 29, 1991. *618 McCutchen, Doyle, Brown & Enersen, William D. Kis...
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MEMORANDUM OPINION Plaintiff Jonathan McClendon is an inmate at the State Correctional Institution (SCI) at Cresson, Pennsylvania. He and his wife Crystal bring this civil rights action under 42 U.S.C. § 1983 against Detective Sergeant William Turner of the Erie Police Department. Defendant has not yet been served because a Magistrate’s Report and Recommendation (“MRR” or “The Report”), f...
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OPINION This diversity case stems from loan transactions between plaintiff Merrill Lynch Private Capital, Inc. (“Merrill Lynch”) and defendant Faisal H. Abou Khadra1 (“Abou Khadra”) that went awry. Merrill Lynch commenced suit against Abou Khadra to recover on a demand promissory note for a $1.5 million loan, and Abou Khadra, along with his sole proprietorship called Orbit Establishment (“Orbit”)...
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RULING ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT On April 24, 1989, the United States filed a verified complaint of forfeiture alleging that the defendant property was used or intended to be used to facilitate the distribution of illegal drugs in violation of 21 U.S.C. § 881(a)(7). 1 Lydia Rivera and the Connecticut Housing Finance Authority (“CHFA”) filed claims. On March 21,1990, purs...
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ORDER This case is before the Court on cross motions to compel discovery. On November 30, 1987, Defendant Shaw Industries, Inc., acquired The Carpet and Rug Division of West Point Pepperell. This age discrimination suit was brought by former employees of West Point Pep-perel who contend that they were not hired by Defendant after the acquisition because of their age. Both parties to the dispute h...
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OPINION AND ORDER Plaintiff commenced this action pro se under Section 205(g) and Section 1631(c)(3) of the Social Security Act (the “Act”), as amended, 42 U.S.C. §§ 405(g) and 1383(c)(3) *917 challenging a final determination of the Secretary of Health and Human Services (the “Secretary”), which found that the amount of plaintiffs retirement insurance benefits had been properly computed by i...
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OPINION In February 1987, the M/V TUXPAN mysteriously disappeared with her crew of twenty-seven and cargo worth $22 million. She had departed from Bremen, Germany, on February 16, 1987, to travel across the North Atlantic for her destination, Vera Cruz, Mexico. However, sometime between February 24 and February 28, the ship disappeared leaving no wreckage, debris, or survivors. The owner ...
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OPINION DISMISSING STATE-LAW CLAIMS AGAINST MDNR This hazardous waste cleanup case brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., is presently being tried before the court. On April 30, eight days before the beginning of trial, the Michigan Department of Natural Resources (“MDNR”) moved to dismiss the ...
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MEMORANDUM OPINION This matter comes before the court on cross-motions for summary judgment. The plaintiffs, adult residents and registered voters of Alcorn County, Mississippi, allege that the defendants, the Alcorn County Board of Supervisors and its five elected members, violated their right to due process as guaranteed by the fourteenth amendment of the United States Constitu*898tion. Specifi...
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MEMORANDUM AND ORDER Before the Court is Plaintiff’s application for an order confirming an arbitration award and Defendants’ motion to vacate the arbitration award or for alternative relief. After reviewing the moving papers, the record, and the applicable law, and after hearing oral argument, the court finds it appropriate to deny Plaintiff’s application and to grant Defendants’ motion ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW A two-day court trial was held beginning on March 22, 1991 to resolve this dispute. The parties are citizens of different states and the matter in controversy exceeds the sum or value of $50,000 exclusive of interest and costs. Therefore, this court has subject matter jurisdiction over this matter pursuant to diversity. 28 U.S.C. § 1332. FINDIN...
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MEMORANDUM This case arises out of the unfortunate death of Devora Johnson, the daughter of plaintiffs Eleanor and Franklin Johnson. On March 20, 1986, the decedent leaped from the platform in the lower level of the Metro Center station into the path of an oncoming Red Line subway car, the train struck her, and she died soon after. Although an Order of January 27, 1988 originally entered ...
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RULING ON PENDING MOTIONS Plaintiff Dennis J. Johnson is the former chairman and chief executive officer of defendant Electrolux Corporation (“Electro-lux”). This case began originally as two separate lawsuits in Connecticut Superior Court. The first consisted of plaintiffs allegations that he was terminated in violation of his Employment Agreement of October 30, 1987, see Affi...
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MEMORANDUM OPINION AND ORDER The Court today will decide several motions arising from this matter. First, the Court will grant in part the motion of defendant Government Employees Insurance Company (“GEICO”) for summary judgment and find that plaintiff La Tonya Washington is not entitled to bring a tort claim based upon GEICO’s alleged bad faith denial of her insurance claim. Second, the ...
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765 F. Supp. 570 (1991) WORDS & DATA, INC., Plaintiff, v. GTE COMMUNICATIONS SERVICES, INC. and US Telecom, Inc., as partners of and d/b/a US Sprint Communications Company, Defendants. No. 89-0175-CV-W-9. United States District Court, W.D. Missouri, W.D. May 23, 1991. *571 Gerald M. Kraai, Husch & Eppenberger, William A. Rudy, Litman, McMahon & Brown, Kansas City, Mo., for plaintiff. ...
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765 F. Supp. 881 (1991) LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff, v. TRIANGLE INDUSTRIES, INC. (now Trian Holdings, Inc.) and Triangle PWC, Inc., Defendants and Third-Party Plaintiffs, v. WAUSAU INSURANCE COMPANIES and Employers Insurance of Wausau, New Jersey Property-Liability Guaranty Association, on Behalf of Ideal Mutual Insurance Company, in liquidation, and Zurich-American Insurance Com...
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MEMORANDUM DECISION: DENYING DEFENDANT’S MOTION TO DISMISS; GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS; AND DENYING PLAINTIFF’S MOTION TO AMEND THE JUDGMENT INTRODUCTION Plaintiff has brought suit against the United States to enjoin the Internal Revenue Service from assessing a tax deficiency against him. He claims that the intended assessment is barred by the statute ...
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ORDER Before the court is the motion of Outboard Marine Corporation (“OMC”) to compel the United States Environmental Protection Agency (“EPA”) to disclose information relating to oversight costs in connection with confidential business information (“CBI”) of Black & Veatch, an Alternative Remedial Contract Support (“ARCS”) contractor employed by the EPA. In essence, OMC argues that the E...
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ORDER AND OPINION This case arises from events surrounding the sale of an asset by defendant VHA Enterprises, Inc. (“Enterprises”) to defendant Aetna Life Insurance Co. (“Aetna”). Plaintiff J. Richard Ryan (“Ryan”), a minority shareholder, seeks to bring a derivative suit on behalf of Enterprises, and, simultaneously, a class action against Enterprises and other defendants. Defendants now...
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OPINION AND ORDER This matter is before the Court pursuant to the motion filed by the defendant on May 1, 1989 for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff, David A. Hum-phreys, initiated this action in the Court of Common Pleas of Belmont County, Ohio on January 29, 1988. The action was entirely removed to this Court by virtue of the provisi...
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MEMORANDUM OPINION AND ORDER Defendants Communications Workers of America (“CWA”), Morton Bahr (CWA President), James E. Booe (CWA Secretary-Treasurer), and James E. Irvine (CWA Vice-President) (collectively, “Union”) have moved for summary judgment1 on the complaint filed by the plaintiffs, all of whom are members of both CWA and CWA Local 4250. The two-count complaint alleges that the Union vio...
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NUNC PRO TUNC JUDGMENT The Final Judgment (instrument # 131) entered on March 20, 1991 is WITHDRAWN and the following is substituted in its place. Pending before the Court are the defendants’ motions for partial summary judgment. Having considered the motions, the responses thereto, the record on file, and the applicable law, it is the opinion of the Court that the motions should be ...
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MEMORANDUM-DECISION AND ORDER Background On March 7, 1990, a federal grand jury formally indicted Scott Willette (“Willette”) with transporting stolen goods across state lines. This indictment charged that from about January 1, 1988, through December 14, 1988, Willette transported, in interstate commerce, knives Willette knew to be stolen from the Camillus Cutlery Company (“Camillus Cutlery...
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MEMORANDUM AND ORDER Defendant, Elwyn Institute (Elwyn) has filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment. For the reasons stated herein, I will grant the motion in part and deny the motion in part. I. FACTUAL ALLEGATIONS According to the complaint, plaintiff, Daphne Butler, comm...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the motion of third-party defendant Kirkpatrick & Lockhart (“K & L”) to dismiss the third-party complaint. A hearing was held on February 21, 1991. The court had considered the briefs, papers, and oral arguments submitted by counsel and finds and rules as follows. BACKGROUND On October 27, 1989, RAF Financial Corpor...
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CONSENT JUDGMENT WHEREAS, plaintiff commenced this action asserting copyright, Lanham Act and state law claims against defendants Omni Publications International, Ltd., (“Omni”) and Kan Photography Incorporated and Kan Nakai (“Kan”); and WHEREAS, by Opinion and Order dated July 16, 1990, 741 F.Supp. 1107, this Court granted in part and denied in part defendants’ motion for summary judgment an...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ STATE LAW CLAIM FOR NEGLIGENT MISREPRESENTATION AND DENYING DEFENDANTS’ MOTION TO STRIKE PARAGRAPHS 29 AND 38 OF PLAINTIFFS’ FIRST AMENDED COMPLAINT Defendants move to dismiss count III and to strike paragraphs 29 and 38 of the first amended complaint. Because count III of the complaint states a valid claim for negligent misrepresent...
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ORDER Now before the Court are two separate motions by defendant Maza for the dismissal of count four of the second superseding indictment (D-534, 579). This count charges defendant with having engaged in a continuing criminal enterprise [CCE] in violation of 21 U.S.C. § 848. An evidentia-ry hearing was held on April 15, 1991, at which the relevant factual background was adduced by proffer. No sub...
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CONSENT JUDGMENT This cause, having come before the court for entry of final judgment with the consent of plaintiff-counterdefendant, Plasticolor Molded Products, Inc. (“Plasticolor”) and defendant-counterclaimant, Ford Motor Company (“Ford”), the court having been advised in the premises, it is hereby ORDERED, ADJUDGED and DECREED: 1. This court has jurisdiction over the parties and the subj...
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ORDER Before the court are the cross motions of plaintiff Terre Haute Industries (“Terre Haute”) and defendant First National Bank in Dolton (“National”). National moves for summary judgment on Count IV and V of Terre Haute’s Second Amended Complaint. Terre Haute moves for summary judgment on Count IV only. For the reasons discussed below, summary judgment is granted in favor of National ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDINGS OF FACT I. NATURE OF THE ACTION AND THE PARTIES INVOLVED 1. This is an action by General Foods Corporation (“GF”) for a declaratory judgment that five patents — United States Patents 4,260,639; 3,806,619; 3,969,196; *122 4,247,570; and 4,348,422 — owned by its li-censor Studiengesellschaft Kohle mbH (“SGK”), are inval...
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ORDER AND OPINION This is an action alleging violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the New York Human Rights Law (“Human Rights Law”), Executive Law § 290 et seq. Defendant Standard & Poor’s Corporation has now moved, pursuant to Fed.R.Civ.P. 12(c), for judgment on the pleadings, or, in the alternative, pursuant to Fed.R.Civ.P. 56, for parti...
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MEMORANDUM ORDER Defendant W.R. Grace & Co.-Conn. (erroneously named in the Complaint as “W.R. Grace & Co.” and referred to in this opinion simply as “Grace”) has filed a timely Notice of Removal (“Notice”) from the Circuit Court of Lake County, Illinois of this action brought by its ex-employee Curtis Rodkey (“Rodkey”). Although Grace’s removal was indeed timely — Notice ¶ 2 reflects ser...
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MEMORANDUM OPINION AND ORDER The issues presented in this action arise from a twenty-nine day strike in 1985 by defendant Air Line Pilots Association, International (“ALPA” or “the union”) against defendant United Airlines, Inc. (“United”). Plaintiffs are 103 pilots who were hired by United to replace striking pilots. Plaintiffs seek to enjoin United and ALPA from implementing a provision...
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MEMORANDUM OPINION The court has for consideration the motion of Joe Alexander Holland and Marcia C. Holland, plaintiffs in the above-entitled case, to remand the case to the Circuit Court of Etowah County, Alabama, from whence it was removed. The original complaint contained, and still contains, three counts or theories of liability. Count One charges “fraud and misrepresentation”, invok...
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MEMORANDUM AND ORDER Pending before the Court are Motions for Summary Judgment addressing all five Counts of Plaintiffs’ Complaint. Having considered the entire record and the oral arguments of counsel, the Court concludes that Defendants are entitled to Summary Judgment as to Counts I, II, III, IV, and V. Background On December 15, 1972, the United States entered into a combined water service ...
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BACKGROUND This action was brought in March, 1988, by thirteen former employees of Dresser-Rand Company to collect unpaid pension benefits allegedly due. Dresser-Rand and its predecessor companies owned and operated the Worthington Compressor Plant in Buffalo, New York. Each plaintiff began his or her employment at the plant as a union member, either with the United Steel Workers of Ameri...
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ORDER This matter is before the Court upon cross-motions for summary judgment filed by plaintiffs Carol Weaver et ah, and by defendants Joseph L. Steger and Jill Parris (the “University Defendants”) and District 925/SEIU (“District 925”). 1 (Doc. Nos. 32, 34, 38, 40, 41, 42). Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court does hereby set forth its Findings of Fact, Opi...
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ORDER This is an action brought by a group of migrant farm workers against the owners of a Kankakee County, Illinois, farm where those workers performed seasonal agricultural work from 1983 to 1988. The complaint is in four counts. Count One seeks relief under the Migrant And Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801 — 1872 (1985 & Supp.1991) (“AWPA”). Count Two is a ...
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OPINION INTRODUCTION The past decade has witnessed a rapidly growing concern regarding the ethical conduct of lawyers. More and more citizens are lodging complaints alleging misconduct by attorneys, and state bar associations are becoming increasingly active in investigating and addressing such complaints. 1 Even with these efforts, the public remains critical of existing ...
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ORDER Before the court is an appeal by McCormick Road Associates (“McCormick”) from an order of the Bankruptcy Court which dismissed its Chapter 11 bankruptcy petition. For the reasons discussed below, the Bankruptcy Court’s decision is affirmed. FACTS McCormick Road Associates (“McCormick”) is an Illinois general partnership formed in January 1984. In July 1984, McCormick acqui...
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MEMORANDUM OPINION AND ORDER MEMORANDUM OPINION AND ORDER This Court ordinarily deals with its sentencing decisions — whether imposed under *946 the Sentencing Guidelines (“Guidelines”) or for pre-Guidelines offenses — orally during the course of its sentencing proceedings. That less formalized treatment usually seems appropriate given the fact that, for the most part, judicial determinatio...
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MEMORANDUM OPINION AND ORDER This is an appeal and cross-appeal from a bankruptcy court judgment holding that a certain debt was barred from discharge pursuant to 11 U.S.C. § 523(a)(2)(A), and that the same debt was not barred from discharge under 11 U.S.C. § 523(a)(6). See Goldberg Securities, Inc. v. Scarlata (In re Scarlata), 112 B.R. 279 (Bankr.N.D.Ill.1990). For the reason...
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ORDER This Supplemental Security Income (“SSI”) case presents a novel question of law and regulatory interpretation. Be*971cause the defendant’s interpretation of the relevant administrative regulations presents difficulties under the equal treatment mandate of the Fifth Amendment’s due process clause, the court rejects the defendant’s proffered reading of the regulations and instead adopts the p...
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OPINION AND ORDER This case is brought pursuant to 42 U.S.C. § 1983, and concerns a dispute arising from the defendants’ regulatory actions relative to real property formerly owned by the plaintiffs. The convoluted procedural and factual history of this case is set out at *1187 length in this Court’s prior opinions. See Weissman v. Fruchtman, 700 F.Supp. 746 (S.D.N...
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OPINION Currently before the court are the objections of the plaintiffs (the “Plaintiffs”), excluding Michael Malone and Thomas Malone (the “Malones”), to a Report and Recommendation (the “Report and Recommendation”) of United States Magistrate Judge Ronald J. Hedges, filed 1 February 1991. Plaintiffs ask that the court reject the Report and Recommendation and retain jurisdiction of a dispute ove...
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OPINION ON DISMISSAL 1. Introduction. Sunbelt National Bank removed this garnishment suit to federal court asserting that the issues remaining are core bankruptcy proceedings and that this court has exclusive jurisdiction. The bankruptcy court had adjudicated several bankruptcy-related disputes between the parties and then remanded the remainder of the case to state court. On...
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MEMORANDUM AND ORDER Jerry Harding was treated for mesotheli-oma-induced pleural pain in April, 1988 in New York. He subsequently received treatment at New York’s Memorial/Sloan Kettering Cancer Institute. Harding died from malignant mesothelioma in October, 1988. He was 56 years old. For approximately 20 years, from 1940 to 1960, Jerry Harding lived in Canyon, Texas. In 1960, he moved to Liberal...
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765 F.Supp. 950 (1991) Paul HICKOMBOTTOM, Plaintiff, v. Robert McGUIRE, Thomas Tansey, James Kierse, William Murphy and James O'Connell, Defendants. No. 89 C 1452. United States District Court, N.D. Illinois, E.D. May 31, 1991. *951 Paul Hickombottom, pro se. Richard Grossman, Dannen, Crane, Heyman & Simon, Chicago, Ill., for plaintiff. Diane Pezanoski, John F. McGuire, City of Chicago Dept. ...
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OPINION Plaintiffs, the Lawyers Alliance for Nuclear Arms Control-Philadelphia Chapter, (LANAC) and the Natural Resources Defense Council, (NRDC), brought this action under the Freedom of Information Act, 5 U.S.C. § 552, (FOIA), to compel the defendant, Department of Energy, (DOE), to release specified data on past nuclear-weapons explosions by the United States and the Soviet Union. Thes...
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RULING ON DEPENDANTS’ MOTION FOR CERTIFICATION BACKGROUND Plaintiff Yngve Ulvedal commenced this products liability action against defendants Heidelberg Eastern, Inc. and Heidelberg Druckmaschinen, A.G. (“Heidelberg”) seeking damages for injuries sustained allegedly as a result of the defective and unreasonably dangerous condition of an offset press manufactured and distributed by the defendants....
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765 F. Supp. 1066 (1991) Gene THOMPSON, Plaintiff, v. The CITY OF CLIO, et al., Defendants. Civ. A. No. 90-T-908-N. United States District Court, M.D. Alabama, N.D. May 2, 1991. *1067 Bruce Maddox, Paul R. Knighten, Montgomery, Ala., for plaintiff. H.E. Nix, Jr., Alex Holtsford, Montgomery, Ala., for defendants. ORDER MYRON H. THOMPSON, Chief Judge. Plaintiff Gene Thompson, a member of Clio, Ala...
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*645ORDER This is a ease alleging, first, that Defendants Southern Railway Company and Norfolk Southern Corporation failed to provide Plaintiff with a safe workplace in violation of the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq.; second, that these same Defendants were negligent, resulting in Plaintiff’s injury; and, finally, that all Defendants libeled Plaintiff. Jurisdict...
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ORDER This matter is before the Court upon an Order to show cause why this action should not be dismissed for lack of jurisdiction, (Doc. No. 15). In lieu of demonstrating that it sold its shares of Penn Central stock after September 19, 1990 and before the February 19, 1991 amendment of a Penn Central self-tender offer to a price per share of $24, plaintiff Sogevalor S.A. (“So-gevalor”) moved to ...
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MEMORANDUM AND ORDER Plaintiff, Julius E. Hammie, who is currently incarcerated at the Philadelphia Industrial Correctional Institute, filed this pro se action under the Freedom of Information Act, 5 U.S.C. § 552, seeking an order from this court requiring the defendant, Social Security Administration, (“SSA”), to release certain of plaintiff’s medical records. Now before the c...
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OPINION ON DENIAL OF PARTIAL SUMMARY JUDGMENT Robert Mooney brought a respresenta-tive action against his former employer, Arabian American Oil Company (Aramco), for violations under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). Of the 166 individuals who chose to opt into the suit, 133 filed their consents after the ADEA statute of limitat...
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RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S MOTION TO STRIKE Plaintiff, Per F. Larsen d/b/a THE DINGHY PLACE, commenced this action against defendant, Ray-Edward Ortega d/b/a THE DINGHY DOCK, alleging that defendant willfully copied plaintiff’s service mark, trademark and trade name, and engaged in unfair competition and trade practices. Plaintiff has filed a motion for summa...
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This an action for malpractice against a Virginia accountant and his accounting firm. Defendants move pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure to dismiss the action for lack of personal jurisdiction. For the reasons set forth below, defendants’ motion is granted. BACKGROUND The facts underlying this motion are not in dispute. Defendant James M. Bridges (“Bridg...
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MEMORANDUM OPINION This case, arising under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 *624 (“§ 504”), is before the court on defendant’s motion to strike portions of plaintiff’s first amended complaint (“the complaint”). FACTS The facts of the case were stated at length in the memorandum opinion denying defendant's motion for summary judgment. C...
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ORDER This is an action seeking to set aside two transfers of ownership of certain stocks and securities as based upon fraud and undue influence. Plaintiffs seek rescission of the ownership transfers, the return of the stocks and securities to their deceased father’s estate, and reimbursement for any accumulated dividends relating to the stocks and securities. Plaintiffs also seek recovery of atto...
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ORDER On the eve of trial, defendants Hayward and Krause move to dismiss Count Four of the indictment.1 Count Four charges that defendants, aiding and abetting each other and others, used fire to commit the offense of Conspiracy Against Rights (18 U.S.C. § 241) in violation of 18 U.S.C. § 844(h)(1). As grounds for their motion to dismiss, defendants assert that the indictment is multiplicitous in...
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MEMORANDUM OF DECISION The plaintiffs are inmates at the Community Correctional Center in Cheshire, Connecticut. They bring this action pro se and *261in forma pauperis pursuant to 42 U.S.C. § 1983. Plaintiffs’ entire claim consists of the following statements: “denial of excess [sic] to the courts”; “denial of civil rights”; “denial of proper health and safety care”; and, “racial prejudice.” For ...
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OPINION AND ORDER INTRODUCTION The defendants in the captioned matter have moved to dismiss plaintiffs first amended complaint. The plaintiff has alleged numerous causes of action in the following counts: (1) violation of the plaintiff’s constitutional rights (42 U.S.C.A. § 1983 (West 1981)); (2) violation of the Sherman Antitrust Act, 15 U.S.C.A. §§ 1 et seq. (West 1973 &...
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MEMORANDUM Plaintiffs are several local unions of the National Postal Mail Handlers Union and several officers from one of those locals (“Locals”). They seek to restrain the implementation of a contract governing the relationship between the United States Postal Service (the “Service”) and employees represented by the National Postal Mail Handlers Union (“National”) for the period commencing Nove...
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The Cosmetic, Toiletry and Fragrance Association (CTFA) and Chemical Specialties Manufacturers Association (CSMA) (collectively the “Associations”) move under Federal Rule of Civil Procedure 24(a)(2) or 24(b)(2) to intervene in this action as defendants. The motion is denied. This action was brought by the Natural Resources Defense Council, Inc. (“NRDC”) as a citizens suit for an order requiring N...
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RULING ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION Plaintiff Visiting Nurse and Home Care, Inc. (“VNA”) brings this trademark infringement action against defendants Stratford Visiting Nurse Association, Inc. (“Stratford”), and The Southern New England Telephone Company (“SNET”) seeking an injunction against defendants’ further unauthorized use of VNA’s stylized trademark, to which plaintiff c...
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ORDER Sun Dun Inc. of Washington, a company engaged in the distribution of soft drinks in the Washington, D.C. metropolitan area, filed this petition pursuant to Fed.R.Crim. Proc. 6(e)(3)(C)(i) for disclosure of certain transcripts of grand jury testimony from the grand jury investigation of the soft drink industry in the Mid-Atlantic region. This petition arises from a civil action filed...
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MEMORANDUM AND ORDER This action is brought pursuant to 42 U.S.C. § 1983. Plaintiff is a female police officer who, at the time of the events underlying this suit, was employed by the New York City Police Department (“the Department”), and was assigned to work in a division known as the Manhattan Traffic Area (“Manhattan Traffic”) commencing in June 1983. Defendant Captain Roge (“Roge”) was the...
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MEMORANDUM OPINION AND ORDER Plaintiff, Dale S. Rice, has brought this three-count diversity action against Nova Biomedical Corporation (“NOVA”) and Robert Christopher, an employee of NOVA, who is Rice’s former supervisor. Rice alleges retaliatory discharge in Count I and defamation in Count II with both NOVA and Christopher as defendants. Count III seeks recovery only from Christopher on...
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OPINION Introduction More than eighty years after the founding of its predecessor company, the Jeannette Corporation (sometimes hereafter “Jeannette”) suffered an economic decline and bankruptcy in late 1982 from which it never recovered. Plaintiff, James Moody, Trustee of the bankruptcy estate, instituted this action to recover in excess of $12 million from the participants of a...
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ORDER RE PLAINTIFFS MOTION TO DISQUALIFY CHIEF JUDGE MANUEL L. REAL Before the Court is Plaintiff Yagman’s motion pursuant to 28 U.S.C. §§ 144 and 455 to disqualify Judge Real. The Court has considered the motion, and the declaration and memorandum filed in support thereof. The Court has also considered Yagman’s statements on the record during a telephone conference on February 28, 1991, Yagman’s...
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ORDER This tax refund suit is before the Court on cross-motions for summary judgment under Fed.R.Civ.P. 56. On May 14, 1979, the IRS discovered an error in plaintiffs’ timely-filed tax return for the 1978 tax year. The IRS adjusted plaintiffs’ tax owing (line 35 of the return) from $4,388.00 to $11,500.32 and erroneously allowed plaintiffs credits of $11,614.00, refunding to plaintiffs $113.6...
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MEMORANDUM AND ORDER The defendant bank has moved to recover its costs and attorney’s fees incurred in prosecuting a motion for partial summary judgment which resulted in the dismissal of the plaintiff’s claim under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. The motion is made pursuant to Fed.R.Civ.P. rule 11, 29 U.S.C. § 1132(g)(1) and 28 U.S.C. § 1927. The de...
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765 F. Supp. 628 (1991) REPUBLIC WESTERN INSURANCE COMPANY, an Arizona Corporation dba Oxford Property and Casualty Insurance Company, Plaintiff, v. INTERNATIONAL INSURANCE COMPANY, et al., Defendants. No. C 91-20138 JW. United States District Court, N.D. California. May 29, 1991. John N. Frye, Sam Zaif, Laura Jackson, Kornblum, Ferry & Frye, San Francisco, Cal., for First State Ins. Co. Rand...
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MEMORANDUM OPINION AND ORDER Petitioners Milton Fine and Edward A. Perlow 1 move pursuant to Section 10 of *826 the Federal Arbitration Act, 9 U.S.C. § 10, to vacate an arbitration award issued on March 6, 1989. Respondent Bear, Stearns & Co., Inc., (“Bear Stearns”), cross-moves for summary judgment confirming the award and for sanctions. For the reasons that follo...
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MEMORANDUM The Amended Complaint alleges libel and intentional infliction of emotional distress. Jurisdiction is based on diversity of citizenship. Plaintiffs are Eric Foretich, an oral surgeon, and his parents, Vincent and Doris Foretich. Defendants are a publishing company, one of its editors, and a freelance writer. 1 By the end of three rounds of motions to dismiss, the Court had dismisse...
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RULING ON DEFENDANT’S MOTION TO DISMISS SECOND OFFENDER INFORMATION Defendant has filed a motion to dismiss a Second Offender Information, claiming that the United States Attorney failed to timely file the Information as required by 21 U.S.C. Section 851. For the reasons set forth below, the defendant’s motion will be denied. FACTS On September 5, 1990 defendant was charged in a three count supers...
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Plaintiff Lisa Bolden, a citizen of New Jersey, brings this defamation action against defendant Morgan Stanley & Co., Inc. (“Morgan Stanley”), a Delaware corporation with its principal place of business in New York, and two of its employees, defendants Elaine LaRoche (“LaRoche”) and David Blair (“Blair”) for damages in the amount of $2,000,000. Defendant Morgan Stanley has interposed...
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OPINION & ORDER This opinion emanates from the voluntary settlement in the action commenced by the 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”) embodied in the voluntary consent order entered March 14, 1989 (the “Consent Decree”). The remedial provisions in the Cons...
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RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiff, Barton Craig, commenced this action against defendants, New Haven police officer Anthony Krzeminski, police chief William F. Farrell and the City of New Haven pursuant to 42 U.S.C. § 1983, alleging various violations of plaintiff’s constitutional rights. In addition, plaintiff claims that defendant Krzeminski acted negligently in inve...
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ORDER This civil rights case, which was originally brought before this court in 1986, has slowly wended its way through the federal court system and, after several years, remains at the pleading stage. When the case was in its infancy, this court denied the defendants’ motion to dismiss. Shortly thereafter, the case was reassigned to Judge Zagel. Plaintiff Ollie Belle Ross then filed an amended...
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RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, Barry Glasser, commenced this action against defendant, Group W Satellite Communications, Inc. Plaintiff’s complaint alleges that defendant unlawfully terminated his employment in violation of the Age Discrimination in Employment Act. 29 U.S.C. § 621 et seq. Defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56, claiming t...
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ORDER This case involves a dispute between a dealer of Nissan motor vehicles, McKay Nissan, Ltd. (“McKay”), and its distributor, Nissan Motor Corporation in U.S.A. (“Nissan”). McKay alleges that Nissan has violated § 6 of the Illinois Motor Vehicle Franchise Act, Ill.Rev.Stat. ch. 121V2, para. 756, by failing to provide full compensation for certain warranty services provided by McKay. 1 Spec...
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OPINION AND ORDER This is an action commenced on December 13, 1990 by plaintiff pro se, seeking relief under 42 U.S.C. § 1981, 1983, 1985 and 1986 and under the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964. The complaint alleges that during criminal proceedings against him in 1984 and 1985 in Supreme Court for the State of New York, Bronx County, based on an al...
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MEMORANDUM OF DECISION The plaintiff is an inmate at the Connecticut Correctional Institution in Enfield. He brings this action pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Plaintiff claims that defendants violated state and federal law in the course of his criminal proceedings and conspired to cause his death and the genocide of Afro Americans. He seeks declaratory and in-junctive ...
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MEMORANDUM Currently pending before the Court are motions to dismiss the counterclaims pur *1241 suant to Fed.R.Civ.P. 12(b)(1) and (6) filed by the United States of America and the State of Maryland. (Paper Nos. 39, 47). These motions have been fully briefed and supplemental authorities have been filed. After hearing arguments on the motions to dismiss and carefully reviewin...
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RULING Before the court are Cross Motions for Summary Judgment filed by plaintiff David Hodge and defendants Texaco U.S.A. (Texaco), American Drug Screen, Inc. (ADS), Laboratory Specialists, Inc. (LSI), and Consolidated American Insurance Company (Consolidated). 1 ADS has also filed a Motion to Dismiss pursuant to rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure. On Sept...
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RULING ON NOMINAL DEFENDANTS’ AROCHEM INTERNATIONAL AND AROCHEM CORPORATION MOTION FOR PRELIMINARY INJUNCTION BACKGROUND BACKGROUND These consolidated cases involve disputes among individual directors, shareholders and officers of AroChem International, Inc. and Arochem Corporation (collectively “AroChem”), AroChem owns, leases, and operates certain refining and petrochemical processing facil...
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ORDER This matter comes before me on the objections of Meridian Leasing, Inc. to an order of Bankruptcy Judge Thomas Twar-dowski. I.FACTS Sylvia and Franklin Trenge, debtors-in-possession, (“debtors”) filed their voluntary Chapter 11 bankruptcy petition on September 27, 1990. The Trenges are in the business of real estate sales and development. On November 29, 1990, the debtors ...
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RULING ON DEFENDANT BORREL-LI’S MOTION TO DISMISS BACKGROUND This case originally involved fourteen defendants charged in a superseding indictment filed on June 21, 1990, with having operated the Schettino cocaine trafficking ring in Connecticut, which distributed cocaine during 1989 and 1990. On April 12, 1991, this Court conducted a hearing on pending motions filed by the remaining three defenda...
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ORDER This action is before the court on appeal from the Bankruptcy Court’s ruling on the issue of the appropriate amount of fees to be paid to the trustee. The parties have filed briefs and the court has heard oral arguments. The matter is now ripe for disposition. I. The bankruptcy proceeding began when Morgan Legg filed a voluntary chapter 11 petition in October of 1981. Cynt...
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ORDER A criminal complaint was filed against defendant Miguel Rivas on April 12, 1991 charging him with possessing with the intent to distribute approximately 8000 grams of a mixture containing cocaine, in violation of 21 U.S.C. § 841(a)(1). A detention hearing was held before a magistrate-judge on April 16, 1991. At that hearing, defendant Rivas was ordered detained under 18 U.S.C. § 3142(f) on g...
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765 F.Supp. 162 (1991) Darlene ANTHES, Plaintiff, v. TRANSWORLD SYSTEMS, INC., Defendant. Civ. A. No. 90-257-JLL. United States District Court, D. Delaware. May 16, 1991. *163 *164 O. Randolph Bragg of UAW Legal Services Plan, Newark, Del., for plaintiff. Lawrence S. Drexler and William D. Sullivan of Elzufon, Austin & Drexler, Wilmington, Del., for defendant. MEMORANDUM OPINION LATCHUM, Sen...
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RULING ON DEFENDANT SIMON’S MOTION TO DISMISS Plaintiffs, William J. Bouton and John S. Mix, commenced this action against defendants, Robert G. Thompson and James F. Simon. Plaintiffs allege violations by defendant Thompson of the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., (“ERISA”) (Count One), and of the Racketeer Influenced and Corruption Organizatio...
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765 F.Supp. 1129 (1991) BLACK AND DECKER, INC. and Black and Decker (U.S.), Inc. and CIC Int'l Corp. v. HOOVER SERVICE CENTER and The Hoover Company. Civ. No. H-87-851(WWE). United States District Court, D. Connecticut. April 3, 1991. *1130 *1131 *1132 Deborah J. Blood, Day, Berry & Howard, Hartford, Conn., Don Harness, Gordon Harris (pro hac vice), Herness, Dickey & Pierce, Troy, Mich., ...
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RULING ON HARRIS’S MARCH 8, 1991 MOTION FOR PROTECTIVE ORDER BACKGROUND The Court presumes familiarity with the complex procedural and factual background of these consolidated cases. The Court will briefly capsulize only those facts relevant to this Motion. FACTS On September 6, 1990, this Court ruled on various discovery motions (“September Ruling”), including two protective orders sought by AroC...
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RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BACKGROUND Plaintiff, United States of America, commenced this action in rem against the defendant property at 11 Stephen Street, Derby, Connecticut. Plaintiff alleges that this parcel of property is subject to forfeiture pursuant to 21 U.S.C. § 881(a)(7) because claimants, George and Sheila Parkington, have used the premises to facilitate the comm...
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MEMORANDUM I Facts On August 3, 1989, upon petitions of the United States, this court summoned jurors for the purpose of impaneling three United States grand juries pursuant to Fed.R. Crim.P. 6. The three grand juries were impaneled on October 5, 1989. On March 27, 1991, the government filed an Application to Extend Service of Grand Jury in each matter. Due to administrative error, the Ap...
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MEMORANDUM AND ORDER These consolidated cases come before the court on the motions (Doc. 29 in each case) of plaintiff Federal Deposit Insurance Corporation (FDIC), as Receiver of the Murdock State Bank (No. 89-2473) and the Mayfield State Bank (No. 89-2474), for summary judgment pursuant to Fed.R. Civ.P. 56(a). Defendant C. Bradley Noll opposes the FDIC’s motions. For the reasons stated below, th...
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MEMORANDUM OF DECISION ON PETITION FOR WRIT OF HABEAS CORPUS On December 13, 1990, petitioner was permitted to reopen this matter upon the *38exhaustion of his administrative remedies. The court found that petitioner had adequately exhausted his claim concerning whether his federal sentences should run concurrently. Accordingly, respondent was ordered to show cause as to why the relief requested s...
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RULING ON PENDING MOTIONS I. CROSS MOTIONS FOR SUMMARY JUDGMENT Plaintiff Kimberly A. Czepiel commenced this action against defendant, Chemical Bank, alleging that defendant’s repossession and resale of plaintiff’s automobile violated the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn.Gen.Stat. § 42-110a et seq.; Creditors’ Collection Practices Act (“CCPA”), Conn.Gen.Stat. § 36-243a et se...
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MEMORANDUM AND ORDER Defendant, The Board of County Commissioners of the County of Anderson, Kansas (the “County”), has filed a motion for summary judgment (Doc. 38) pursuant to F.R.Civ.P. 56. Plaintiffs have responded and oppose this motion. For the reasons stated below, defendant’s motion for summary judgment is granted. This case stems from the death of Tracy D. Ahring in a one-car motor vehicl...
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OPINION AND ORDER The government commenced this action pursuant to section 340(a) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1451(a), seeking an order revoking and setting aside the May 14, 1957, Order of the United States District Court for the Eastern District of Wisconsin admitting the defendant to United States citizenship and canceling his Certification of...
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RULING ON DEFENDANT’S MOTION FOR NEW TRIAL Defendant Celso Villeda has filed this motion for a new trial, pursuant to Fed.R. Crim.P. 33, following the return of a jury verdict which found him guilty on all six counts of an indictment. Defendant seeks a new trial based on the court’s responses to several written questions posed by the jury during the time of their deliberations. For the reasons set...
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RULING ON DEFENDANT BORRELLI’S MOTION TO SUPPRESS GOVERNMENT’S ELECTRONIC SURVEILLANCE BACKGROUND This case originally involved fourteen defendants charged in a superseding indictment filed on June 21, 1990, with having operated the Schettino trafficking ring in Connecticut, which distributed cocaine during 1989 and 1990. On April 12, 1991, this Court conducted a hearing on pending motions filed b...
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765 F.Supp. 498 (1991) Catherine A. GRIFFIN and Glenn Griffin, Plaintiffs, v. DANA POINT CONDOMINIUM ASSOCIATION, Defendant. No. 91 C 2731. United States District Court, N.D. Illinois, E.D. May 31, 1991. *499 Gary Rolfes, Mayer, Mayer, Lonergan & Rolfes, Clinton, Iowa, for plaintiffs. Gregory Bolduc, Hinshaw & Culbertson, Chicago, Illinois, for defendant. MEMORANDUM OPINION AND ORDER SHA...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiffs, Stanley E. Ash, Barbara Ash and Christopher Ash, bring this action under the Individuals with Disabilities Education Act (the Act), 1 as amended, 20 U.S.C. § 1401 et seq., alleging that the defendant, Lake Oswego School District No. 7J, has failed to provide a free, appropriate public education to Christopher Ash as required by federal law...
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MEMORANDUM AND ORDER This case is before the court on defendants’ motion (Doc. 59) for judgment of acquittal, Fed.R.Crim.P. 29, or for a new trial, Fed.R.Crim.P. 33. The motion is denied. On October 24, 1991, defendants James F. Stiner and Christine Louise Stiner were indicted on one count of tax evasion in violation of 26 U.S.C. § 7201, and defendant James F. Stiner was indicted on three cou...
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MEMORANDUM AND ORDER This matter is before the Court on plaintiffs motion to dismiss defendants’ counterclaim. The motion will be granted. FACTS In March of 1990 the trustees of the Automotive Employee Benefit Trust (the trust) terminated the employee benefit plan (the plan) which was providing medical benefits to more than 6,000 plan participants, as well as their dependents. A...
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MEMORANDUM AND ORDER On October 17, 1990, a federal grand jury sitting in the District of Maryland indicted defendants Arthur G. Lang, III (“Lang”) and Thomas C. Trexler (“Trexler”), charging them with one count of making a false statement within the jurisdiction of a federal agency, 18 U.S.C. § 1001, twelve counts of securities fraud, 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. § 240.10b-5, ...
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MEMORANDUM AND ORDER Port Jefferson Station Auto Collision Corp. (“PJS”), a New York corporation, seeks leave to appeal from an order of the Honorable Cecelia H. Goetz, United States Bankruptcy Judge, dated May 17, 1990, which enjoined PJS from proceeding with an action for declaratory relief in state court. That state action arose out of a dispute regarding a lease for real property exec...
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*668 MEMORANDUM AND ORDER The case comes before the court on the defendant’s motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The court denies defendant’s request for oral argument as it would not materially assist the court in deciding th...
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MEMORANDUM ORDER Defendant-Appellant William T. McSpe-don appeals from a September 13, 1990 order of Judge Howard Schwartzberg *369 which enjoined him from taking any action in connection with the prosecution of his state court action against Mr. Lovece. and declared that his state court action is in violation of the automatic stay provisions of 11 U.S.C. § 362(a). I.Factual Summary In ...
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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 January 24, 1990, in the adversary proceeding. In particular, the bankruptcy court entered judgment against defendant Pioneer Materials, Inc. (“Pioneer”) in the amount of $30,280.08 representing the value of debtor’s property taken by Pioneer within ninety days of the bankrup...
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*1093 MEMORANDUM AND ORDER On April 17, 1991, the jury returned a verdict finding Roger P. Leeseberg guilty of all four counts of wilful misapplication of bank funds in violation of 18 U.S.C. § 656. This case comes before the court upon the defendant’s motion for a new trial and upon the defendant’s motion for judgment of acquittal notwithstanding the verdict. The Government oppo...
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ORDER This matter came before the court on February 1, 1991, on cross-motions for summary judgment by St. Paul Fire and Marine Insurance Company (“St. Paul”) and the Federal Deposit Insurance Corporation (“FDIC”) pursuant to Federal Rule of Civil Procedure 56(b). *540 I. STANDARD OF REVIEW The Supreme Court has held that summary judgment is to be used as a tool to isola...
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RULING ON THIRD PARTY DEFENDANT ORAH NICHERIE’S MOTION TO DISMISS Third party plaintiff Guardian Life Insurance Company of America (“Guardian”) filed a third party complaint against third party defendants Orah Nicherie, Emmanuel E. Nicherie, Daniel Nicherie, and Innovative Planning, Inc. on or about June 25, 1990. The complaint alleges causes of action for subrogation, breach of contract ...
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The present action was filed on July 13, 1989, under the provisions of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq., and the Consolidated Omnibus Budget Reconeil- *1530 iation Act of 1985, 29 U.S.C. § 1161, et seq., as amended (“COBRA”), by H. Lynn Branch (“Branch”) in his capacity as administrator of the estate of Dwayne El...
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MEMORANDUM AND ORDER The case comes before the court on the individual motions to dismiss filed by the defendants. Plaintiffs are two Wichita physicians who were disciplined by the Kansas State Board of Healing Arts (“Board”) for misleading advertising regarding a procedure known as exodermology. Plaintiffs bring this action alleging the defendants in connection with their duties to the B...
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OPINION AND ORDER Plaintiffs are federal employees performing their duties in Puerto Rico. 1 Plaintiffs are all recipients of a Cost-of-Living Adjustment (COLA), a benefit paid to federal government employees stationed at locations outside the continental United States. The COLA in Puerto Rico adds 10% to some categories of federal government salaries. The COLA is exempt from t...
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ORDER RE SANCTIONS AGAINST STEPHEN YAGMAN I. Introduction This Court has issued three Orders to Show Cause re sanctions against Stephen Yagman, an attorney representing himself, based on papers he filed in connection with his motion to recuse Chief Judge Real in the matter of Stephen Yagman v. Republic Insurance, CV 91-423-R. Yagman, now represented by counsel, filed a response on April 11, 1991 ...
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ORDER This matter comes before the court upon the objections of the Secretary of Health and Human Services (“Secretary”) to Magistrate Judge Patrick J. McNulty’s report and recommendation dated December 31, 1990. The magistrate judge’s report and recommendation is subject to de novo review by this court. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). I. BACKGROUND The ...
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MEMORANDUM OF DECISION The plaintiff brings these actions pro se and in forma pauperis pursuant to 28 U.S.C. § 2254, 42 U.S.C. § 1981 et seq., 28 U.S.C. § 1332, and the Fourth, Eighth, and Fourteenth Amendments.1 He states that his transfer to an out-of-state prison was illegal and has resulted in his false imprisonment. Plaintiff seeks release, declaratory and injunctive relief, compensatory dama...
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MEMORANDUM AND ORDER The defendant has filed a motion (Doc. 25) to transfer venue in this case from the District of Kansas to the United States District Court for the District of Nebraska. The parties have filed a paper blizzard in support of and in opposition to the motion. However, we can dispose of the motion succinctly. It is denied. The ground for the motion for change of venue is simple. The...
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ORDER The above-captioned cases are representative of a host of securities fraud lawsuits filed in federal district courts against New England banks as a result of the woefully deteriorating real estate markets and recessionary economic conditions in the Northeast. Plaintiffs bring these actions seeking damages incurred as a result of defendants’ alleged violations of the Securities Excha...
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MEMORANDUM AND ORDER This is a declaratory judgment action filed by John L. Brown to determine coverage under a policy of disability insurance issued by the Equitable Life Assurance Society of the United States (Equitable). The sole issue presented by this case is whether Brown, the insured, may recover under a disability insurance policy issued by Equitable notwithstanding the fact that ...
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MEMORANDUM OPINION This unemployment discrimination action has been brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The plaintiff, a black male, alleges that he was denied reassignment to light duty work despite an injury to his back and was terminated because of his race as well as in retaliation for filing two charges ...
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765 F.Supp. 633 (1991) J.S. LINCOLN, et al., Plaintiffs, v. REPUBLIC ECOLOGY CORP., et al., Defendants. No. CV 89-4422-RJK. United States District Court, C.D. California. March 26, 1991. Irell & Manella, Gregory R. Smith, Henry Shields, Jr., Albert M. Cohen, Los Angeles, Cal., for plaintiffs. Cutler and Cutler, Paul R. Salerno, John Baldwin Hassler, Los Angeles, Cal., for defendants. MEMORAN...
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765 F. Supp. 263 (1991) VIRGIN ISLANDS BAR ASSOCIATION, ETHICS AND GRIEVANCE COMMITTEE, Petitioner, v. Monica BOYD-RICHARDS, Respondent. Civ. No. 1989-65. District Court, Virgin Islands, D. St. Thomas and St. John. May 28, 1991. *264 Rhys S. Hodge, St. Thomas, U.S. Virgin Islands, for petitioner. Monica Boyd-Richards, pro se. OPINION BROTMAN, Acting Chief Judge for the District Court of the Virg...
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OPINION This admiralty case concerns damages to a number of bales of cloth which were *1195 shipped from Africa to America inside a single shipping container aboard the S.S. Tana. The issue is whether it is the container or its contents which constitute the “package” for purposes of the liability limitation imposed by § 4(5) of the Carriage of Goods by Sea Act (“COGSA”), 46 U...
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755 F.Supp. 1330 (1991) Rosalie Lena YEATER and Rosalie Lena Yeater, as Executrix of the Estate of Robert Yeater, Plaintiff, v. ALLIED CHEMICAL COMPANY and Olin Corporation, Defendants. Civ. A. No. 88-00017-W(S). United States District Court, N.D. West Virginia. January 15, 1991. *1331 *1332 David A. Jividen and Donna Crow, Wheeling, W. Va., for plaintiff. Thomas J. Hurney, Jr., Charleston, W. Va...
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*742RULING ON DEFENDANT HARVEY RUBIN’S MOTION TO DISMISS FACTUAL BACKGROUND In 1985 the marriage of defendants Harvey Rubin and Carol Rubin was dissolved by judgment entered by the Superior Court for the Judicial District of Danbury, Connecticut. Custody of their only child, Rebecca, was granted to Carol Rubin, with liberal visitation rights to Harvey Rubin. Following the divorce, and during the ...
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MEMORANDUM AND ORDER The case comes before the court on the motion of Enron Gas Processing Company (“Enron”) to disqualify Stanley M. Ward (“Ward”) as counsel for Mid-America Processing, Inc. (“MAP”), Mid-America Contractors, Inc. (“MACI”), and Jimmy G. Hall. On the court’s notice, the motion was argued and the evidence presented on February 25, 1991. Having now reviewed the parties’ addi...
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ORDER Before the Court is the Motion to Dismiss filed on behalf of the defendant P.T. Krakatau Steel (“Krakatau”). Pursuant to request, a hearing was held on the Motion to Dismiss. Defendant Krakatau contends that it is not subject to the jurisdiction of this court by reason of lack of sufficient contacts with the state of Arkansas. Plaintiff contends that Krakatau is subject to the juris...
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ORDER This matter comes before the Court upon the motion of defendant, United States of America, for judgment notwithstanding the verdict (“JNOV”). The parties tried this case to a jury. On March 5, 1991, the jury returned a special verdict in favor of plaintiff, California Farm Bureau Federation. The United States then moved for JNOV pursuant to Fed.R.Civ.P. 50(b). The United States...
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MEMORANDUM OF DECISION Procedure Plaintiff commenced this action in the Connecticut Superior Court from which defendant removed it as authorized by 28 U.S.C. § 1441. Jurisdiction is grounded in 28 U.S.C. § 1331, as the case presents a federal question under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. The demonstrated necessi...
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MEMORANDUM AND ORDER This matter is before the Court on defendants’ motions for summary judgment granting judgment for defendants as a matter of law. The motions will be granted. FACTS This is an action brought by the Red Lake Band of Chippewa Indians (the Band) to quiet title to land in and around Baudette, Minnesota. The land at issue is referred to as Government Lots 3 and 4....
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MEMORANDUM AND ORDER The case comes before the court on the following motions: motions to review and set aside the magistrate judge’s order filed February 25, 1991, brought by defendants DBLKM (Dk. 348) and John E. Catón (Dk. 341); the plaintiff trustee’s motion to dismiss (Dk. 280) DBLKM’s amended counterclaim; and the third-party defendant Garden National Bank’s motion (Dk. 247) for entry of fi...
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RULING ON MOTION FOR SUMMARY JUDGMENT This action involves another case on a promissory note arising out of the failure of Capital Bank and Trust Company (CBT).1 The Federal Deposit Insurance Corporation (FDIC) filed his suit against Thomas J. Moran.2 Among the assets received by the FDIC from CBT were three secured promissory notes executed by Moran in favor of CBT. The FDIC contends that these ...
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ORDER ON MOTION TO DISMISS I. Introduction In this declaratory judgment action, plaintiffs seek the Court’s declaration that certain Oklahoma statutes relating to the oil and gas industry are unconstitutional. Presently at issue is defendants' motion to dismiss the action. For the reasons set forth below, the Court dismisses plaintiffs’ preemption claim and abstains from deci...
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MEMORANDUM SUPPLEMENTING ORDER DATED March 7, 1991 The above-captioned action came on for hearing on March 6, 1991 on the motion of defendant Minnesota Workers’ Compensation Assigned Risk Plan (“ARP”) for summary judgment and on the motion of the remaining defendants for dismissal or summary judgment. On March 7, 1991 the Court issued an order that, among other things, granted ARP’s motion for su...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on the Motion of Defendant Claiborne County Hospital for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Willie Ruth Kemp was terminated from her employment with Defendant Claiborne County Hospital for refusing to give a urine sample as a part of the Hospital’s mandatory drug testing of all its e...
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MEMORANDUM OPINION AND ORDER I. Plaintiffs filed suit against defendants for injuries allegedly arising out of defendant’s violation of various federal and state *94 laws. On March 14, 1991, this Court dismissed without prejudice plaintiffs’ pendent state law claims. Thus, plaintiffs’ complaint currently presents only federal questions. This matter is before the Court on defendants Hitach...
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MEMORANDUM AND ORDER Plaintiff, O.V. Marketing Associates, Inc. (“O.V.”), is the franchisor of “Olympia Village” sporting goods stores. Plaintiff filed this action alleging the defendant, Charles C. Carter, a franchisee, breached his franchise agreement. Plaintiff sought monetary damages and specific performance or injunctive relief on the restrictive covenant. Both sides filed dispositiv...
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MEMORANDUM The matter before the Court is one in which the named plaintiffs seek to remedy violations of federal law on behalf of a class of all Virginia residents eligible to receive food stamps, including those individuals who have applied for, attempted to apply for, or otherwise have requested food assistance, or in the future will request such assistance. The class does not include t...
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MEMORANDUM OPINION AND ORDER Before the Court are the Motion to Dismiss of Defendant Robert James Fox, filed May 6, 1991; and the Response of the United States, filed June 3, 1991. I. Facts. Defendant Robert J. Fox, a Canadian national, was arrested on October 9, 1990 for allegedly pretending to be a foreign diplomat when he was stopped for a traffic violation on North Plano Roa...
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OPINION I. INTRODUCTION Plaintiff Utu Utu Gwaitu Paiute Tribe (“Tribe”) filed this complaint for declaratory and injunctive relief under the Administrative Procedure Act (“APA”) to challenge the validity of 43 C.F.R. § 4.603(a). The Department of Interior (“Department”) promulgated rules, among them § 4.603, for the purpose of establishing “procedures for the submission and considera...
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Sitting by Designation OPINION Presently before the court is the motion of the Treasurer of the Virgin Islands Bar Association brought pursuant to 5 V.I.C. App. V R. 51(d) to suspend Thurston T. McKelvin, Esq. and Mark H. Bonner, Esq. from the practice of law in the Virgin Islands for failure to pay dues to the Virgin Islands Bar Association. I. FACTS AND PROCEDURE The Virgin Islands has an inte...
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MEMORANDUM OPINION On March 25, 1991, the petitioner filed this action wherein he seeks injunctive relief pursuant to § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j) pending the final disposition by the National Labor Relations Board of the underlying charges that the defendant has engaged in and is now engaging in acts and conduct in violation of §§ 8(a)(1) and (3) of the National...
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ORDER REMANDING CASE TO STATE COURT FOR LACK OF SUBJECT MATTER JURISDICTION This proceeding arises out of a marriage dissolution action wherein Plaintiffs ex-wife obtained an Income Withholding Order from the Minnesota Courts pursuant to an Order for Spousal Support. Plaintiff’s ex-wife served the Withholding Order on Plaintiffs employer, the Department of Veteran Affairs (“DVA”). DVA then commen...
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On May 24, 1991, a bench trial was held in the above-referenced case. Upon consideration of the evidence presented at trial *21and the pleadings in the ease, the Court issues the following findings of fact and conclusions of law. FINDINGS OF FACT The plaintiff, Ruth Charlotte Overholt, was injured in a motor vehicle collision which occurred in Riverdale, Maryland, on November 14, 1989. While stopp...
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MEMORANDUM OPINION Before the court for resolution is an application for the writ of habeas corpus filed by David Andrew Birdwell, pursuant to 28 U.S.C. § 2254. In his application, Birdwell attacks the validity of his Texas convictions for aggravated bank robbery and aggravated kidnapping. Statement of Facts In 1985, the applicant, Birdwell, pled guilty to federal bank robbery charges; and in 1...
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Order on Cross Motions for Summary Judgment In this action the plaintiffs charge the defendant school corporation with the unconstitutional distribution and dissemination of religious material in violation of the first and fourteenth amendments to the Constitution of the United States. The plaintiffs are elementary school students enrolled in the Rensselaer Central School Corporation,...
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MEMORANDUM AND ORDER This is a civil rights action arising out of plaintiffs arrest in October, 1986. Now before the court are a Motion to Dismiss filed by Defendant City of Boston (“City”) (Docket No. 17, filed January 24, 1991), with supporting memorandum (Docket No. 18, filed January 24, 1991), and Plaintiff John Cuddy’s Opposition and supporting memorandum (Docket Nos. 19 and 20, file...
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MEMORANDUM AND ORDER The plaintiffs have brought this action pursuant to the Education of the Handicapped Act (“the Act”), 20 U.S.C. § 1400 et seq. They seek a determination from this Court that the so-called “stay put” provision contained in 20 U.S.C. § 1415(e)(3) entitles their child to be enrolled in a regular public kindergarten class pending the completion of administrative appeals of th...
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MEMORANDUM OPINION Before the Court are the Omnibus Pretrial Motions of the defendant filed out of time on May 13, 1991. On May 22, 1991, a hearing was held on the defendant’s Omnibus Pre-trial Motions and a Motion for a 90-day continuance for trial. On May 23, 1991, the Court entered an Order continuing the trial from May 28, 1991, to June 3, 1991, and directing the Government to disclose to...
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MEMORANDUM AND ORDER Plaintiff, Monon Corporation, (“Monon”) has moved this court to disqualify defendant’s counsel, the law firm of Trexler, Bushnell, Giangiorgi & Blackstone, Ltd. (“Trexler Bushnell”). A hearing was held in open court in Lafayette, Indiana on December 21, 1990 in which both parties summarized their respective positions on this matter. I. Facts The mer...
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765 F. Supp. 1264 (1991) In the Matter of LUHR BROTHERS INC., as the Owner of M/V CHARLIE B, Praying for Exoneration from or Limitation of Liability v. Ira GAGNARD and Johnna B. Gagnard. Civ. A. No. 90-1747. United States District Court, W.D. Louisiana, Alexandria Division. May 14, 1991. *1265 Gregory S. Erwin, Bolen, Erwin, Johnson & Coleman, Alexandria, La., for plaintiff. John T. Bennett, ...
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775 F.Supp. 231 (1991) UNITED STATES of America, Plaintiff, v. Noah ROBINSON, Defendant. No. 89 CR 0908-31. United States District Court, N.D. Illinois, E.D. May 20, 1991. William R. Hogan, Jr., John F. Hartmann and Ross Silverman, for plaintiff. Robert Simone and Anita Rivkin-Carothers, for defendant. MEMORANDUM OPINION AND ORDER ASPEN, District Judge: On May 15, 1991, we conducted a supplement...
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MEMORANDUM AND OPINION This is a dispute about coverage under a liability insurance contract for the costs of defending and settling a complex business lawsuit after a three month trial in New York. Each side takes a position at the extreme. The insurance company declines to contribute to the costs of defense and settlement, even though the policy provided coverage for slander and the und...
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MEMORANDUM OPINION Presently before the Court are the Motions of Janet Williams and the Pittsburgh Press Company, Michael Bucsko and the Pittsburgh Post-Gazette, WPXI, Inc., and Westinghouse Broadcasting Company, Inc., t/d/b/a KDKA-TV, to quash subpoenas duces tecum requiring them to produce documents relating to the now completed criminal trial of United States v. Charles Porter, et al., C...
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MEMORANDUM AND ORDER This matter is before the Court on a summary judgment motion filed by defendants Dick D. Moore, George Lombardi, William Armontrout, Donald Cline, Richard Childs, Paul Delo, Michael Bowersox and Larry Scott.1 Plaintiff is an inmate incarcerated at the Missouri State Penitentiary (MSP). He filed this action pursuant to 42 U.S.C. § 1983, alleging deprivations of his liberty inte...
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MEMORANDUM OPINION This case is before the Court on a Motion for Summary Judgment by defendant, O.H. Materials Corp., (OHM), which contends that all claims asserted by plaintiff, Project Development Group, Inc. (PDG) are devoid of material issues of fact and should be decided in favor of OHM as a matter of law. FACTS In 1987, the Olin Chemical Corp. (Olin) decided to demolish it...
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MEMORANDUM OPINION AND ORDER The plaintiff, William Kohn, brought this three-count action under 42 U.S.C. § 1983, challenging the validity of certain sections of the Illinois Vehicles Code, and certain related sections of the Municipal Code of Chicago which authorize law enforcement agencies to seize and dispose of motor vehicles. Kohn filed suit on behalf of himself and all others simila...
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MEMORANDUM AND ORDER Litton’s motion for partial summary judgment is denied. Fed.R.Civ.P. 56. Lehman Brothers’ cross-motion for partial summary judgment is granted in part and denied in part. Fed.R.Civ.P. 56. Litton’s motion to strike the reply affidavit of Judith MacDonald is denied. Fed.R.Civ.P. 6(d), 56(e); Local Civil Rule 3(c)(2). Litton’s motion for the entry of final judgment is gr...
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Pending before the Court in the above-captioned case is plaintiff United States of America’s motion to strike certain defenses of the various defendants. This motion has I. FACTUAL BACKGROUND 1 AND PROCEDURAL HISTORY This case involves a 210 acre tract of land located near Cumberland, Maryland known as the Limestone Road Site. In 1982, the EPA tested the site and found high...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS CAME ON TO BE CONSIDERED defendant’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject-Matter Jurisdiction and the court, after considering the motion, the response thereto, and the pleadings of record, is of the opinion that this motion should be GRANTED. Plaintiff, Geraldine Marshall, commenced this suit for age and sex d...
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MEMORANDUM OPINION Plaintiffs have filed a Complaint alleging that the defendants conspired to discharge them from their respective employment positions for exercising their rights under the First and Fourteenth Amendments of the Constitution of the United States. Plaintiffs, Eugene Burns (Burns), John Mutsko (Mutsko), Roy Plummer (Plummer), and Louis Beaujon 1 (Beaujon) were D...
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MEMORANDUM OPINION On February 20, 1990, plaintiff filed her Complaint against defendant, Herion, Inc., alleging defendant discriminated against *1027 her by violating her rights under Title VII and the Equal Pay Act. 42 U.S.C. § 2000e-2(a)(1) and 29 U.S.C. § 206(d)(1). On September 18, 1990, following the close of discovery, defendant filed its Motion for Summary Judgment pursuant to Rule ...
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MEMORANDUM OPINION Allegheny International Credit Corporation (AICC), a debtor-in-possession in a case under chapter 11 of the Bankruptcy Code pending in the United States Bankruptcy Court for the Western District of Pennsylvania, sought a determination that AICC properly redeemed real estate from an Illinois tax sale (Count I of AICC’s Complaint at Adversary No. 88-425), or, in the alter...
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MEMORANDUM AND ORDER Michael C. Habicht, Robert Emmet Joyce, James Francis Melvin, James Michael Murphy, Jr., Michael Oliver McNaught, and Patrick Joseph Nee are charged in a nine count indictment alleging violations of 18 U.S.C. § 1962(c) and (d) (conspiracy to violate and substantive violation of the Racketeer Influenced and Corrupt Organizations Act or “RICO”), 18 U.S.C. § 1951 (conspi...
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ORDER OF CONTEMPT In an indictment handed down on February 20, 1990, Gilbert L. Dowdy and ten others were charged variously in twenty-seven counts with offenses related to the operation of a multi-faceted, long-term conspiracy to distribute drugs in Kansas City, Missouri. In Count One of the indictment the government also sought an order of forfeiture of certain parcels of real estate allegedly ac...
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MEMORANDUM AND ORDER This matter is before the court on the application of the Equal Employment Opportunity Commission (EEOC) for an order enforcing five subpoenas issued to respondents Grinnell Fire Protection Company (Grinnell), Mort Stepinski (Stepinski), and Gene Balog (Balog), both management employees of Grinnell, on September 25, 1990, pursuant to Section 710, Title VII of the Civil Righ...
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*1325MEMORANDUM AND ORDER This case was filed pro se originally under cause number SM90-54 and was later assigned S90-210. The complaint was filed on May 11, 1990, and purports to bring an action under 5 U.S.C. § 551 and 552(a) and Title 28 U.S.C. § 1361 and § 1391. There is also a general citation to Title 10 of the United States Code. This court is mandated to greatly indulge pro se plaintiffs. ...
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764 F.Supp. 574 (1991) Leland BOOGHER, Plaintiff, v. STIFEL, NICHOLAUS & CO., INC., Defendant. No. 90-2044-C-5. United States District Court, E.D. Missouri, E.D. June 5, 1991. Michael J. Hoare, St. Louis, Mo., for plaintiff. Larry M. Bauer, Paul W. LeBar, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for defendant. MEMORANDUM LIMBAUGH, District Judge. Plaintiff Leland Boogher, a s...
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MEMORANDUM AND ORDER This matter comes before the court on the motion of defendant Prudential Insurance Company of America (hereinafter “Prudential”) for summary judgment. A claim for employee benefits submitted by plaintiff A. Diana Bass (hereinafter “Bass”) was denied by Prudential. Prudential contends that its decision to deny benefits cannot be overturned unless it was arbitrary and c...
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765 F.Supp. 1112 (1991) UNITED STATES of America v. Rodger EDMONDS. Crim. No. 90-393-04 (CRR). United States District Court, District of Columbia. June 4, 1991. *1113 *1114 Patricia M. Haynes, Asst. U.S. Atty., and Jay B. Stephens, U.S. Atty., for U.S. Frederick A. Douglas and Natalie O. Ludaway of Leftwich, Moore & Douglas, Washington, D.C., for defendant. MEMORANDUM OPINION CHARLES R. RICH...
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MEMORANDUM AND ORDER Pending before the Court is Plaintiffs’ motion for summary judgment. Plaintiffs request the Court to deny Defendant debtors, Roy and Jillie Horridge, discharge in bankruptcy for failure to satisfactorily explain a material decline in assets prior to the filing of their petition. The Court has reviewed the pleadings and heard arguments of counsel. After careful consideration...
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MEMORANDUM OPINION, INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW John French (Mr. French), as guardian and next friend of his adopted son, David French (David), brings this action pursuant to the Education of the Handicapped Act (EHA), 20 U.S.C. § 1400, et seq. This action, particularly authorized by 20 U.S.C. § 1415, is brought to obtain review of the decision of the hearing officer...
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RULING In this admiralty case, the court reconsiders the vitality and applicability of its holding in Kelly v. T.L. James Co., 603 F.Supp. 390 (W.D.La.1985), that a child of an injured seaman possesses a cause of action under the general maritime law for loss of the seaman/parent’s consortium. Because subsequent jurisprudence has eroded the principles underlying Kelly, ...
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RULING Before the court is plaintiff’s motion to compel discovery. This action arose from an accident plaintiff suffered while working on a fixed drilling platform located on the outer continental shelf. Plaintiff seeks, among other items, production of photographs Conoco took of the actual site on the platform where he suffered his injury. Conoco claims that the photographs are privileged because...
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MEMORANDUM AND ORDER An attorney undertook to represent a client in a personal injury case on a contingent fee basis, and a law firm with whom he shared offices did almost all the work, as the client apparently understood it would be done. The client filed for bankruptcy before the litigation was settled, and after almost all the work was done. The trustee obtained approval for the attorney and...
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In an order issued by the court in the above styled case on August 11, 1989, 738 F.Supp. 344 (hereinafter referred to as Buckeye I), the court determined that defendant’s Pay and Progression System was a discriminatory employment practice that had a ongoing disparate impact on blacks employed at Buckeye Cellulose Corporation (Buckeye). On April 2, 1990, 733 F.Supp. 363, the court concluded the sec...
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OPINION Plaintiff Schmid, Inc. (“Schmid”) instituted this suit against defendants Edward Zucker, Zucker’s Gifts, Inc. (“ZGI”) and *120 Regalos De Colleceion (“Regalos”). The complaint alleges federal racketeering and state law tort and breach of contract claims in connection with Schmid’s agreement with W. Goebel Porzellanfabrik (“Goebel”) to be the exclusive United States di...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion to review the magistrate’s *26order of March 21, 1991, compelling production of certain computer manuals. Plaintiff, Catherine M. Smith, filed this action alleging her former employer, MCI Communications Corporation (MCI), defrauded its salespersons by failing to pay them proper commissions pursuant to written compensation ...
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ORDER ON MOTION This cause comes before the Court on Plaintiffs’ motion to compel arbitration pursuant to 9 U.S.C. § 4. I. BACKGROUND This controversy arises out of Defendant’s alleged mismanagement and misuse of a number of investment accounts resulting in losses for the Plaintiffs. On April 11, 1989, Plaintiffs filed a complaint with the American Arbitration Association (AAA) ...
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MEMORANDUM This is a class action brought on behalf of persons who purchased shares of the common stock of RAC Mortgage Investment Corporation (“RAC”) in an initial public offering (“IPO”) in February 1988, a *862 second public offering (“SPO”) in September 1988, and in the open market from the date of the IPO until June 26, 1989. The defendants are RAC and various officers a...
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MEMORANDUM OPINION This civil forfeiture case comes before the Court on a motion for return of a Pontiac GTO automobile. The Court must determine the validity of an administrative forfeiture of the vehicle which occurred after this Court had obtained in rem jurisdiction under the judicial forfeiture laws. I On November 3, 1987, a federal drug enforcement agent seized the 1965 Pontiac GTO ...
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765 F.Supp. 321 (1991) Patrick BERGERON v. QUALITY SHIPYARDS, INC., et al. Civ. A. No. 91-1519. United States District Court, E.D. Louisiana. June 4, 1991. *322 Barry J. Bourdreaux, Henderson, Hanemann & Morris, Houma, La., for plaintiff. William J. Larzelere, Jr., Leininger, Larzelere & Picou, Metairie, La., for defendants. ORDER AND REASONS MENTZ, District Judge. This matter came befor...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion to alter or amend judgment and/or to reconsider the court’s order of April 4, 1991, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Plaintiff filed this action pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et seq. (Count I) and Title VII of the Civil Rights Act of...
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MEMORANDUM Plaintiffs sue Arista Records, Inc. (“Aris-ta”) under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(a), (c) and (d) and for common law fraud, negligent misrepresentation, violation of the state consumer fraud statutes and breach of warranty. They move separately for class certification. BACKGROUND Plaintiffs sue Arista for its role in producing and mar...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. This action was originally filed in the District Court of Johnson County, Kansas, and subsequently removed to this court pursuant *1058 to 28 U.S.C. § 1441. Plaintiffs’ claims arise out of a ...
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Carl and Nancy Capasso were married in 1971 and divorced in 1985. During the time of their marriage, the couple accumulated substantial wealth through the operation of Naneo Construction Corp. (“NCC”), a contracting company owned by Carl Ca-passo which was the primary sewer contractor for the City of New York. Nancy Capasso alleges that Carl Capasso formed new corporations for the purpose ...
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MEMORANDUM OPINION AND ORDER Defendant Local 147, International Brotherhood of Painters and Allied Trades, AFL-CIO-CFL (“Local 147”) has moved for dismissal of the complaint filed against it by the Secretary of Labor, or, alternatively, for joinder of the International Brotherhood of Painters and Allied Trades, AFL-CIO (“International Union”), pursuant to Federal Rules of Civil Procedure ...
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765 F.Supp. 915 (1991) Phyllis MOSLEY, Plaintiff, v. Roland HAIRSTON, et al., Defendants. No. C-1-87-0968. United States District Court, S.D. Ohio. June 5, 1991. *916 Stephen Olden, Cincinnati, Ohio, for plaintiff. Alan Schwepe, Columbus, Ohio, Thomas Deye, Cincinnati, Ohio, for defendants. ORDER CARL B. RUBIN, District Judge. This matter is before the Court upon plaintiff's motion for attorney ...
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MEMORANDUM On June 6, 1990, Silas Onyema arrived at John F. Kennedy Airport (“JFK”) on Nigerian Airlines Flight 850. Review of Mr. Onyema’s documents and the search of his luggage at the Customs area, as well as a brief questioning by the attending Customs Inspector, revealed facts sufficient to arouse a reasonable suspicion that Mr. Onyema was attempting to import narcotics into the United Sta...
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Sitting by Designation 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; and FRANK A. KAUFMAN, Judge of the United States District Court for the District of Maryland, Sitting by Designation; and ISHMAEL A....
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OPINION AND ORDER Plaintiff Carol Percuoco brought this action on April 24, 1990, in Supreme Court of the State of New York, New York County, charging defendants Hampton House Condominium, Board of Managers of Hampton House Condominium and Goodstein Management Inc. with negligent management and operation of the premises at 404 East 79th Street, New York, resulting in the rape of plaintiff therein ...
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MEMORANDUM OPINION AND ORDER In this action plaintiffs assert claims under the federal securities laws, the civil RICO statute, and common law claims under principles of ancillary and pendent jurisdiction. Certain defendants move to dismiss the complaint as to them under Rules 9(b) and 12(b)(6), Fed.R.Civ.P. Background Plaintiff Mabon, Nugent & Co. (“Ma-bon”) is a New York l...
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OPINION AND ORDER The matter before the court is the objections of defendants to the Findings and Recommendations of the Honorable George E. Juba,. United States Magistrate Judge, filed on April 18, 1991. BACKGROUND The plaintiff, Administrative Service Co., filed this diversity action seeking to collect on a promissory note. Plaintiff alleges that it is the holder of the note; that it acquired th...
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ORDER Before the Court is the government’s Motion to perform psychological/psychiatric examinations upon the Defendant. For the reasons set forth below, this Motion is granted. BACKGROUND On December 19, 1990, a federal grand jury issued a ten count indictment against the Defendant Michael E. Banks (“Banks”). This indictment alleges that Banks, in his capacity as executive director of the Peoria C...
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MEMORANDUM OPINION AND ORDER Before me are defendant Lenwood Randolph Johnson’s (Johnson) two motions to dismiss the indictment. Johnson is charged in four counts of possessing with intent to deliver, and distributing cocaine base in violation of 21 U.S.C. § 841(a)(1). His challenge to the indictment stems from the significantly higher penalties imposed for cocaine base offenses compared to cocai...
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OPINION AND ORDER This is an action alleging age discrimination and retaliatory discharge in violation of the Age Discrimination in Employment Act (“ADEA”), as amended, 29 U.S.C. § 621 et seq. Defendant moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing plaintiff's age discrimination claim in Count 1 of the amended complaint. For the reasons set fort...
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MEMORANDUM AND ORDER Plaintiff David Davis, a white male, has applied for admission to and has been rejected from the City University of New York (“CUNY”) Law School at Queens College every year since 1983 when the school opened. He initiated this lawsuit in 1985 against various officials of the law school, the City University of New York, and the State University of New York in their ind...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion for judgment on the pleadings. Plaintiff Mark W. Ely filed this action as guardian of the persons of Juanita M. Southard and Charles E. Southard and conservator of their individual estates, seeking to set aside the conveyance by the Southards to defendants Howard J. Smith and Viola I. Smith of real property located...
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OPINION This matter is before the court on a petition for habeas corpus filed by Dr. Yechiel Heilbronn, pursuant to 28 U.S.C. § 2241. Petitioner is challenging the certification of extraditability issued by Magistrate Judge Hugh W. Brenneman, Jr. on May 9, 1991. I. Petitioner is an Israeli citizen and a permanent resident of the United States. During 1986 and 1987, petitioner served as dire...
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OPINION Plaintiffs Lou Mango (“Mango”), Denis Hurley, Diane Ziccardi, Diana Mascioni-Shanahan, Kaaryn Johnson, Michael Bra-chule, Bobbie Richardson, Thomas Tolan, Lillian Bianco-Pereira, Don Arata, Marilyn Coles, Lee Booker and Vincent Galella (collectively referred to as “Mango”) have moved for an award of attorney’s fees in the underlying action, pursuant to Section 102 of the Labor-Man...
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MEMORANDUM OPINION AND ORDER In 1988, plaintiffs Abraham Egert and Christine Kraft-Egert brought an ERISA action against defendant Connecticut General Life Insurance Company, challenging the carrier’s decision that plaintiff’s in vitro fertilization (IVF) was not covered under the plan. Petitioners Steven Saltzman and Terence Flynn, counsel for the plaintiffs, seek attorneys fees, and cos...
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OPINION This is a shareholder derivative action brought by shareholder plaintiffs Burton R. Abrams, Richard N. Abrams, Rodney A. Abrams and Brian K. Abrams (collectively, the “Plaintiffs”) against defendants Paul O. Koether (“P. Koether”), Natalie I. Koether (“N. Koether”), David B. Blanchard (“Blanchard”), Henry H. Porter (“Porter”), John Galuchie, Jr. (“Galuchie”), Myron Gelbach, Jr. (“...
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT CIGNA’S MOTION FOR SUMMARY JUDGMENT, MOTION TO DISMISS AND MOTION FOR PLAINTIFF TO PROVIDE A RICO CASE STATEMENT THIS MATTER is before the Court on defendant’s, Connecticut General Life Insurance Company of North America (“CIG-NA”), Motion for Summary Judgment, file dated September 26, 1990, 1 Motion to Dismiss, file dated December...
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*1188 MEMORANDUM The pending action concerns this court's review of an arbitration award rendered pursuant to a collective bargaining agreement between plaintiff, Stroehmann Bakeries, Inc., and defendant, International Brotherhood of Teamsters, Local Union No. 776 (the “Union”). Each party has filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff seeks to vac...
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MEMORANDUM AND ORDER Presently before the Court are Pension Benefit Guaranty Corporation’s (“PBGC”) Motion for Withdrawal of Reference, Quaker City Gear Works, Inc. d/b/a Quaker Gear’s (“Quaker”) response and Cross-Motion for Re-Referral and PBGC’s reply. For the following reasons, PBGC’s Motion is DENIED and Quaker’s Cross-Motion is GRANTED in part and DENIED in part. I. FACTS ...
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DECISION AND ORDER On March 23, 1990, the plaintiffs, Carl M. Jersild and Marilyn J. Jersild, filed this tort action alleging securities fraud, statutory fraud, and common law fraud by the defendants, George E. Aker and John J. Kalfahs. Federal jurisdiction is based upon diversity of citizenship, see 28 U.S.C. § 1332(a)(1). The defendants have filed a motion for summary judgmen...
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OPINION AND ORDER On the evening of July 10, 1972, Samuel Charles, a black male, was stabbed to death in the vicinity of 45th Street and Broadway. On June 14, 1984, petitioner Warren Schur-man, who is white, was indicted for the murder and was subsequently convicted after trial and sentenced to an indeterminate prison term of from 25 years to life. He appealed his conviction to the Appellate Di...
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MEMORANDUM AND ORDER High on drugs, William Aguanno and a companion attempted a robbery. Their quarry resisted. In a frenzy of stabbings, Aguanno and his prey were repeatedly wounded. A stab to the heart killed the victim. The two criminals fled, Aguanno covered with his own blood mingled with deceased’s. Tried separately on essentially the same evidence, Aguanno was convicted of common-law murder...
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MEMORANDUM OPINION AND ORDER Aritha Parks (“Parks”) seeks judicial review of a final decision of Secretary of Health and Human Services Louis Sullivan (“Secretary”) denying Parks’ claim for social security disability insurance benefits, disabled widow’s benefits and supplemental security income (“SSI”) under the Social Security Act (“Act”), 42 U.S.C. §§ 402(d), 416(1), 423(d) and 1383. 1 Each...
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OPINION AND ORDER Plaintiff Manufacturers Hanover Trust Company (“MHT”) moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment against all defendants and also moves for dismissal of defendant B.B. Andersen’s counterclaims. At oral argument on May 13, 1991, the Court granted summary judgment to MHT for the reasons stated below. 1 2For the *...
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OPINION I. Defendant Michigan State Industries (“MSI”) is a bureau of the Michigan Department of Corrections and is responsible for operating a number of factories in the prisons of this state. Plaintiff Charles J. Holt is employed by MSI as a production supervisor. He alleges that MSI discriminates against minorities in its selection of employees for promotion to higher-level po ...
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MEMORANDUM AND ORDER Presently before this Court are plaintiff’s Motion for Partial Summary Judgment, defendant’s Motion to Dismiss, or, in the Alternative, for Summary Judgment, and two Motions to Strike filed by the plaintiff. Plaintiff has brought this action alleging sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and handicap discriminat...
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OPINION AND ORDER The Court has before it the parties cross-motions for summary judgment. This is an action to recover an increase in insurance benefits pursuant to the Employee Retirement Income Security Act (“ERISA”). Federal jurisdiction is invoked pursuant to 29 U.S.C. § 1002, and 28 U.S.C. § 1331. Plaintiff, Eileen Carazo, is the beneficiary of defendant Jefferson Pilot Life In *5 sura...
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MEMORANDUM OPINION AND ORDER Defendants Harlan Johnson, George Mc-Lachlan, and Anthony J. DiCola are law *1413 yers. They used to practice law in the firm of Johnson, McLachlan & DiCola, a general partnership. Hughes, a former client of the law firm, has sued the firm and its partners for professional negligence, breach of fiduciary duty, and breach of contract. He invokes th...
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765 F.Supp. 1083 (1991) MIAMI HEART INSTITUTE, INC., a not-for-profit Florida corporation, Plaintiff, v. HEERY ARCHITECTS AND ENGINEERS, INC., f/k/a Heery & Heery Architects and Engineers, Inc., a foreign corporation, Defendant. No. 88-1714-CIV-DAVIS. United States District Court, S.D. Florida. June 7, 1991. Kelly Drye & Warren, Miami, Fla., for plaintiff; Robert W. Wells, Ignacio E. Sanc...
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MEMORANDUM OPINION AND ORDER GRANTING MOTION TO LIFT STAY; GRANTING IN PART AND DENYING IN PART MOTION TO AMEND; GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS The above captioned matter came on for hearing on February 19, 1991, before the Honorable Rudi M. Brewster. Upon consideration of plaintiffs’ Motion to Lift Stay of Proceedings, plaintiffs’ Motion to Amend, and defendants’ ...
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OPINION AND ORDER The Court has before it various motions, including defendants’ motion for summary judgment, plaintiffs’ motion for partial summary judgment, and defendants’ motion for summary judgment based on absolute legislative immunity. In addition, the plaintiffs have filed a motion to amend the complaint, based on the Supreme Court’s holding in Rutan v. Republican Party of Illinois, —...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiff Baxter International Inc. and Baxter Healthcare Corporation commenced this action for patent infringement against Cobe in December 1989. Baxter alleged that four of its patents were being infringing by Cobe. Cobe answered the complaint by stating that the four Baxter patents and an additional patent by Baxter were invalid and unenforceabl...
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ORDER Defendant, Burlington Northern Railroad Company, seeks an order compelling plaintiff, John L. Ross, to produce a certain witness for deposition. The witness was originally designated by plaintiff as a testifying expert witness, but he has now been labelled a consulting expert witness. Defendant claims that it should be permitted to take the deposition of this witness because he was once name...
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OPINION AND ORDER The Court has before it the parties cross-motions for summary judgment. This is a civil rights action for damages and injunctive relief based upon claims of political discrimination. Federal jurisdiction is invoked pursuant to 42 U.S.C. § 1983. Both plaintiffs further invoke this Court’s pendent jurisdiction over alleged violations of Puerto Rico’s Constitution and local...
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OPINION This is a declaratory judgment action by National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) against Freeport-McMoRan, Inc. (“Freeport”). Before the court is Freeport’s motion to stay or dismiss this declaratory judgment action in light of a pending Texas state court action filed by Freeport. Freeport also moves the court to stay discovery pending resolution...
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FINAL SUMMARY JUDGMENT Pending before the Court is the Scott Defendants’ Motion for Summary Judgment or To Dismiss for Failure to State a Claim (Instr. #41), filed on January 16, 1990. For the reasons set forth herein, this Court hereby GRANTS the Defendants’ Motion for Summary Judgment as to the Federal securities fraud issues and DISMISSES the remaining pendent state law claims WITHOUT ...
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OPINION AND ORDER Plaintiffs are suppliers of “durable medical equipment.” They receive reimbursement for the equipment they sell or lease through Part B of the Medicare Program. Part B of the Medicare program is a government sponsored and funded insurance plan. The Secretary of Health and Human Services (the “Secretary”) is ultimately responsible for the implementation *50 o...
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ORDER ON REVIEW OF MAGISTRATE JUDGE’S DISCOVERY ORDER This proceeding is a state prisoner’s petition for writ of habeas corpus. It has been referred to a magistrate judge for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and the local rules of this Court. On May 6, 1991, the magistrate judge granted, to a limited extent only, petitioner’s application for protective order and...
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MEMORANDUM OPINION George King, Jr., was injured while working with a machine he claims was manufactured, at least in part, by each of the defendants. He contends that the machine was defective, and that its defects caused his injuries. He is suing the defendants to recover for those injuries. Although Mr. King filed suit in Cook County Circuit Court, one of the defendants, Fanuc Ltd., removed ...
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MEMORANDUM AND ORDER In this action under 42 U.S.C. § 1983, plaintiff Eddie Griffin, a prisoner at the State Correctional Institution, Graterford, claims that the defendants placed him in disciplinary custody for possession and consumption of contraband-intoxicants in violation of due process of law. The parties have filed cross-motions for summary judgment. Appointed counsel filed a supplement...
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This action for trademark infringement and unfair competition involves a manufacturer’s request to control the rebuilding and resale of its trademarked presses. The defendant has filed a counterclaim for tor-tious interference with actual and prospective contracts. Following a bench trial, the court dismisses with prejudice both parties’ claims for the reasons assigned. 1 I Pl...
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OPINION AND ORDER Robert Mace petitions for a writ of habe-as corpus. He claims that revocation of his probation violated his Fifth Amendment right against self-incrimination, his due process right to fair notice of his probation conditions and his First Amendment right against coerced speech. We grant the petition for habeas corpus on the ground that the revocation of probation was a violation...
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Plaintiffs Edith Kelly and Robert Todd move to remand this action to state court for lack of subject matter jurisdiction, and move to strike an affirmative defense of defendant State Farm Mutual Automobile Insurance Company (State Farm). State Farm resists both motions, and the motions are submitted. I. Subject Matter Jurisdiction Plaintiffs originally brought suit in the Iowa Distric...
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MEMORANDUM AND ORDER This case is now before the court upon the motion of defendants to modify a prior order of this court dated April 13, 1989 by enlarging the designated operating capacities at four housing units in the state prison system. The court has issued a tentative order in reaction to the instant motion and solicited reaction from members of the plaintiffs’ class. Two hearings ...
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OPINION AND ORDER Plaintiff, the Association of Significantly Impacted Neighbors (“ASIN”), sues under the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and applicable federal regulations, seeking an injunction forbidding defendants from constructing an underground sewage retention basin o...
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MEMORANDUM OPINION AND ORDER Defendants Rocco Ernest Infelise, Salvatore DeLaurentis, Robert Bellavia and Harry Aleman are currently being detained at the Metropolitan Correctional Center pend *961 ing their trial on racketeering charges. The government moved to have these defendants detained as soon as they were indicted in February, 1990. Magistrate Judge Rosemond granted the government’s m...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff Allstate Insurance Company’s Motion for Summary Judgment was scheduled to be heard on April 25, 1991. After a review of the briefs, this court considered it appropriate to submit the motion on the pleadings pursuant to Local Rule 220-1, and now GRANTS the motion. INTRODUCTION Allstate Insurance Company (“Allstate”)...
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*1425 MEMORANDUM AND ORDER This matter is before the court on defendants’ motion for partial summary judgment in this civil rights action brought by plaintiff following his termination from employment as an Assistant City Attorney in August 1988. In a motion accompanying his memorandum in opposition to defendants’ partial summary judgment motion, plaintiff also seeks partial summ...
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OPINION This case arose after the tragic death of Senator John Heinz on April 4, 1991 created a vacancy in Pennsylvania’s representation in the United States Senate. The pro se plaintiff, John S. Trinsey, Jr., seeks a determination pursuant to 42 U.S.C. *1340 § 1983 1 that 25 Pa.Stat.Ann. § 2776 violates the Seventeenth Amendment to the United States Con...
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RULING ON MOTION TO SUPPRESS PHYSICAL EVIDENCE BACKGROUND On January 4, 1991, a federal grand jury sitting in New Haven, Connecticut returned a twelve-count indictment against nine individuals.1 Michael Tracy (“defendant”) was charged in count one of that indictment with conspiracy to possess with intent to distribute cocaine and to distribute cocaine. 21 U.S.C. §§ 846 and 841(a)(1). Several attem...
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*168 MEMORANDUM AND ORDER John Hicks filed his fourth amended complaint against Resolution Trust Corporation (“RTC”), as receiver for Clyde Federal Savings and Loan Association (“Clyde Federal”), and against several former members of the Clyde Federal board of directors, in both their individual and official capacities. The complaint alleges claims under 42 U.S.C. §§ 1985(3) and ...
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MEMORANDUM AND ORDER This matter is before the court on renewed cross-motions for summary judgment. In this action brought pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., plaintiff hospital seeks reimbursement from defendant employee benefit plan for $157,439.67 in medical services rendered from November 12, 1986, to his discharge from the hosp...
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MEMORANDUM OPINION AND ORDER The debtor, Specialty Plastic (“Specialty”), filed for protection under chapter 11 of the Bankruptcy Code on December 3, 1982. (Bankruptcy No. 82-3833). The Bankruptcy Court adopted a Plan of Reorganization on October 7, 1983. After the Bankruptcy Court adopted the Reorganization Plan, the Committee of Unsecured Creditors (“Committee”) filed an Adversary Proce...
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MEMORANDUM AND ORDER This matter is before the court on two motions of defendant-counterclaimant Kansas Power and Light Company for the award of sanctions. This case was tried to a jury during a five-week period which began on November 6, 1990, and ended on December 12, 1990. The jury reached a verdict on December 17, 1990, in favor of Green on its breach of contract claim and awarded plaintiff G...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion for costs, stay of proceedings and an accelerated discovery schedule in this action, removed by defendant from state court, involving a “slip and fall” by plaintiff at defendant’s Wal-Mart store in Lawrence, Kansas. In its motion, defendant contends that it is entitled to a stay of proceedings and payment of costs pursuant ...
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MEMORANDUM OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT THIS MATTER is before this Court upon defendant’s, United States of America, Motion for Summary Judgment. The Court has considered all pleadings and exhibits, heard oral argument, and is otherwise fully advised in the matters presented by defendant’s motion. For the reasons that follow, defendant’s motion is DENIED. I. Plaintiffs ha...
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OPINION Plaintiff Binode Das (Das) seeks damages from the defendants Royal Jordanian Airlines (Jordanian) and Bengal Travel Service (Bengal) for breach of contract and negligence based on the refusal of Jordanian to honor his two tickets for passage to Calcutta, India, purchased through Bengal. The action was originally instituted in the Civil Court of New York, Bronx County, but removed by J...
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OPINION AND ORDER This is an action by plaintiff Ruben Padilla (“Padilla”) to recover damages for personal injuries sustained by him on about October 19, 1987, while a passenger aboard defendant Olympic Airways (“Olympic” or “O.A.”) Flight 411 en route from Athens, Greece, to New York City. Plaintiff seeks damages for lost earnings together with relief for past and future pain and suffering. Al...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendants Raymond J. Lundin and Patty Bottorff to dismiss this action in which plaintiffs allege that their civil rights were violated by defendant law enforcement officers. Because the court finds that oral argument would not be of material assistance in resolving the issues raised in defendants’ motion, plaintiff’s request f...
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OPINION This declaratory judgment action was brought by United Sweetener, USA, Inc. (“United Sweetener”) and Holland Sweetener Co., Vof (“Holland Sweetener”), seeking among other relief a declaration of the invalidity of two patents for sweetening compositions, U.S. Patent No. 3,492,131 (“the ’131 patent”) and U.S. Patent No. 3,780,189 (“the ’189 patent”). These two patents are the proper...
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MEMORANDUM AND ORDER This matter is before the court on cross-motions for summary judgment. On November 27, 1990, plaintiff filed this action, pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a(g), seeking an order amending the record of his service in the United States Army, compensatory damages in the amount of $100,000.00, and litigation costs. Because the court has determined that oral argu...
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ORDER Plaintiff, Vera M. English, filed this diversity action against defendant, General Electric Company (GE), in 1987 alleging common law causes of action for wrongful discharge in violation of public policy and intentional infliction of emotional distress. The action was initially dismissed by an order affirmed by a per curiam decision of the United States Court of Appeals for the Four...
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766 F.Supp. 754 (1991) CONSOLIDATED GRAIN AND BARGE COMPANY, et al., Plaintiffs, v. AMERICAN BARGE AND TOWING COMPANY, et al., Defendants. No. 89-0853A(6). United States District Court, E.D. Missouri, E.D. June 12, 1991. James W. Herron, St. Louis, Mo., for plaintiffs. Frank S. Thackston, Jr., Lake, Tindall, Hunger & Thackston, Greenville, Miss., Gary D. McConnell, Peper, Martin, Jensen, Maic...
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MEMORANDUM-DECISION AND ORDER On November 7, 1990 the plaintiffs, Omni Group Farms, Inc., (“Omni”), Cayuga Meadows Inc. (“Meadows”) and Michael O’Neill (“O’Neill”), filed a complaint against defendant County of Cayuga (“County”) alleging that the defendant passed legislation which interfered with certain existing and possible future contract rights of the plaintiffs. Plaintiffs’ first cau...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on Plaintiffs motion, filed March 13, 1991, for summary judgment on his claim and the counterclaim of Defendants Smith and Gardner-Smith Associates. I. FACTUAL AND PROCEDURAL BACKGROUND. The record in this matter indicates that Plaintiff was the President of Home Quarters Warehouse, Inc. In late 1986, Home Quarters desired to open a ...
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OPINION Currently before the court is the appeal of plaintiff from a discovery order (the “Order”) of United States Magistrate *260 Judge Ronald J. Hedges, filed 31 January 1991. 1 For the reasons set forth below, the Order is reversed. Facts and Procedural History This is a product liability action brought by plaintiff against defendants Shiley, Inc....
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MEMORANDUM ORDER On August 9, 1988, Eugene and Regina Doemling filed a voluntary Chapter 11 bankruptcy petition. Approximately five months after the Doemlings filed their petition, Regina Doemling was injured when an automobile driven by James Gillespie struck her. Although the exact circumstances surrounding the accident are not in the record, Mrs. Doemling was apparently a pedestrian. T...
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766 F.Supp. 1407 (1991) UNITED STATES of America, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants. Civ. A. No. 90-0126-R. United States District Court, W.D. Virginia, Roanoke Division. June 14, 1991. Dick Thornburgh, Atty. Gen., James P. Turner, Acting Asst. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., E. Montgomery Tucker, Asst. U.S. Atty., John P. Alderman, U.S. Atty., Roanok...
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MEMORANDUM OPINION This matter is before the court on Kermit Smith’s habeas corpus petition filed pursuant to 28 U.S.C. § 2254 (1990). Both parties have briefed the petition and have filed supplemental briefs on various issues which have become relevant during its pendency. The matter is now ripe for ruling. I. Facts A full recital of the underlying facts can be located ...
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MEMORANDUM OF DECISION These are consolidated appeals from an order of the bankruptcy court dismissing the Chapter 11 bankruptcy case of debtor Mechanical Maintenance, Inc. At issue is whether that court incorrectly interpreted section 1112(b) of the Bankruptcy Code and, if it did, whether the dismissal was consequently improper. Jurisdiction is based on 28 U.S.C. § 158(a). This court wil...
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OPINION AND ORDER Introduction Before the Court are two motions for summary judgment arising out of a dispute over rights to interests in the renewal term of copyrights to the musical compositions of the late country music singer, Hank Williams, Sr. (“Williams, Sr.”). The complaint of the plaintiff, the alleged illegitimate daughter of Williams, Sr., asserts two claims. First, sh...
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MEMORANDUM OPINION AND ORDER Edward Jones (“Jones”) has sued Du-Page County Sheriff Richard Doria (“Doria”) and Deputy Chief of DuPage County Sheriff’s Department John Smith (“Smith”) in both their individual and official capacities under 42 U.S.C. § 1983 (“Section 1983”). Jones’ Complaint seeks damages, injunctive relief and reinstatement based on defendants’ alleged violations of his Fourteen...
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ORDER THIS MATTER is before the Court on Plaintiff’s notice of appeal, filed March 4, 1991, from an Order entered by United States Bankruptcy Court Judge Marvin R. Wooten on February 15, 1991. The record on appeal was thereafter completed, and the appeal was docketed by the District Court Clerk on April 15,1991. Plaintiff, on April 30, 1991, filed its brief. On May 16, 1991, Defendant filed its...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on Plaintiffs motion, filed May 2, 1991, for summary judgment. Plaintiff, on that same date, filed a brief and affidavit in support of the motion. On May 16, 1991, Defendant filed a memorandum in opposition to the motion, but did not file an affidavit in support of its position. Plaintiff, on May 24, 1991, filed a reply memo...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Defendant Wayne’s Motion for Separate Trials, Defendant’s Objections to Proposed Findings and Recommendations of United States Magistrate Judge, and Plaintiff’s Objection to Recommendations of the United States Magistrate Judge. Frohmader’s First Claim for Relief asserts one federal claim under 42 U.S.C. § 1983 agains...
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MEMORANDUM AND ORDER This matter is before the court on the objection and appeal of the magistrate’s order of April 26, 1991 filed by defendants .Connaught Laboratories, Inc. and Con-naught Laboratories, Ltd. Doc. 146. A motion to stay the magistrate’s order (Doc. 145) has been referred to the magistrate in accordance with D.Kan. Rule 604(d). The motion to stay has been granted by the magistrate....
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MEMORANDUM AND ORDER This matter is before the court on cross motions for summary judgment.* The action is brought for the refund of taxes paid for the 1980 tax year. Jurisdiction lies in this court under 28 U.S.C. § 1346(a)(1). I. Background Plaintiff Robert E. Brooks was an employee of Energy Reserves Group, Inc. (“Energy Reserves”) from 1977 until 1986. Energy Reserves was formerly known as *9...
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ORDER GRANTING MOTION TO ALTER OR AMEND JUDGMENT, VACATING PRIOR ORDER, AND GRANTING MOTIONS TO DISMISS This matter comes before the court on plaintiff’s motion to alter or amend judgment, filed December 31, 1990. Jurisdiction is based upon 28 U.S.C.A. § 1331 (West Supp.1990). For the reasons below, the motion to alter or amend judgment is hereby GRANTED. We hereby VACATE our prior order....
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on Plaintiff’s motion, filed January 24, 1991, for summary judgment in its favor on the complaint and on Defendant’s counterclaims. On April 17, 1991, Plaintiff filed a response to the motion. After having considered the arguments made in the motions and the supporting affidavits and exhibits thereto, the Court believes Plai...
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ORDER THIS MATTER is before the Court on Defendant’s motion, filed November 20, 1990, for an Order that this case is final pursuant to Rule 68 or in the alternative setting aside the Rule 68 Offer and Acceptance of Judgment; Defendant’s motion, filed November 20, 1990, for Attorney Fees; and Plaintiff’s motion, filed April 12, 1991, for Attorney Fees. I. FACTUAL AND PROCEDURAL BACKGROUND. Plainti...
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MEMORANDUM AND ORDER The issues in this case concern a charge of discrimination in the setting of a college faculty. The plaintiff, an Assistant Professor at the State University of New York at Farmingdale, contends that he was denied promotion because of his Indian national origin and because he is a male. BACKGROUND This action alleging employment discrimination, was brought c...
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MEMORANDUM AND ORDER These consolidated cases are before the Court on cross motions for partial summary judgment. The dispute arose when Fleet National Bank (“Fleet”) accelerated the maturity date of an $18 million commercial loan issued to Anthony Liuzzo (“Liuzzo”) for use in connection with several nursing homes he owns. Shortly after receiving the notice to accelerate, Liuzzo filed an ...
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MEMORANDUM OPINION This matter is before the court upon both plaintiffs’ and defendants’ motions for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiffs moved for partial summary judgment on the issue of vicarious liability against Dallas Carrier Corporation (DCC) for the conduct of defendant Raymond Smith (Smith). The defendants’ Rule 56 motion ...
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OPINION The matter before the court is the motion (# 166) of defendant Embee EP Plating (Embee) for partial summary judgment against the wrongful death claims of plaintiff Edwina Marie Cruse, Personal Representative of the Estate of Russell Leroy Cruse. BACKGROUND This case arises from a helicopter crash that occurred on January 16, 1986. The pilot of the helicopter, Russell Leroy Cruse, died as a...
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ORDER THIS MATTER comes before the court on plaintiffs Motion to Recuse, filed April 12, 1991. For the reasons stated below, the Motion is denied. Plaintiff TVCN seeks recusal pursuant to 28 U.S.C. § 455. Plaintiff contends that disqualification is mandated by the personal friendship between Chief Judge Finesilver and William Daniels, a principal of Daniels & Associates. Further, a m...
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DECISION AND ORDER INTRODUCTION Now before this Court is defendant The Crosby Group, Inc.'s (“Crosby”) motion to dismiss the Complaint pursuant to Fed.R. Civ.P. 12(b)(6) or in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56 (“motion”) as to it. 1 Plaintiffs Michael Witter and Mary Witter (collectively “plaintiffs”) have filed an opposition to Crosby’s moti...
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MEMORANDUM DECISION AND ORDER The defendant’s motion for reasonable litigation costs came on for hearing April 1, 1991. At that time, the defendant’s motion for reasonable litigation costs was taken under submission. Having considered all pleadings, declarations and the written and oral arguments of counsel and law in support thereof, the court hereby grants the defendant’s motion fo...
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MEMORANDUM — DECISION AND ORDER Background Plaintiff, Davis Acoustical Corporation (“Davis”), is seeking to recover for damage to a shipment of pine wood, which allegedly occurred while that wood was being shipped via defendant, Carolina Freight Carriers Corporation (“Carolina Freight”), an interstate common carrier. In connection with that shipment Davis and Carolina Freight entered into a bil...
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ORDER Plaintiff Kirchoffner brought this action under the Federal Tort Claims Act to recover for personal injuries and property damage that she claims she suffered when her vehicle was struck by a vehicle driven by defendant Teddy D. Clutter, an employee of the United States. The matter is before the court on the United States’ motion for summary judgment.1 The United States contends that Clutter ...
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ORDER John-Tyronne Martin, now an inmate at Pontiac Correctional Center, has again filed a 42 U.S.C. § 1983 suit with this court challenging the procedures of the Department of Corrections and the conditions of his confinement at the Stateville Correctional Center. The court was first introduced to Martin in Martin v. Davies, 694 F.Supp. 528 (N.D.Ill.1988), aff'd, 91...
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765 F.Supp. 656 (1991) Eldon D. ANTHONY, et al., Plaintiffs, v. UNITED STATES of America, Defendant. No. 90-C-1416. United States District Court, D. Colorado, Civil Division. May 29, 1991. Darold Killmer, Feiger, Collison & Killmer, Denver, Colo., for plaintiffs. William G. Pharo, Asst. U.S. Atty., Denver, Colo., for defendant. MEMORANDUM OPINION AND ORDER CARRIGAN, District Judge. Plaintiff...
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ORDER DENYING PRELIMINARY INJUNCTION THIS CAUSE has come before the Court upon Plaintiffs’ Motion for Preliminary Injunction against Defendants Guy Gannett Publishing Company, et al. (“Gannett”). Plaintiffs, Rainbow Broadcasting Company, et al. (“Rainbow”), seek the entry of a preliminary injunction to prevent the Defendants from leasing shared television antenna space on the Gannett Bith...
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MEMORANDUM OPINION This is a handicap discrimination action under § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 (the “Act”). Plaintiff, a former civilian employee of the Navy, alleges that the government violated the Act by terminating her employment and failing to offer reasonable accommodation for her handicapping condition, Chronic Fatigue Immune Dysfunction Syndrome (“CFIDS...
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*1231 MEMORANDUM OPINION AND ORDER 1 This action has been brought by the United States against John G. Kitsos (“John”) and Alice Kitsos (“Alice”)—collectively “Kitsoses”—and Universal Bible Church of Bolingbrook (“Church”) in this tax deficiency action based on the Tax-Court-adjudicated income tax liabilities of John covering a number of his taxable years. In part the Uni...
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765 F.Supp. 291 (1991) KNIGHT MEDICAL, INC., Plaintiff, v. NIHON KOHDEN AMERICA, INC., Defendant. No. C-90-486-D. United States District Court, M.D. North Carolina, Durham Division. April 12, 1991. William R. Shell, Wilmington, N.C., for plaintiff. Reginald B. Gillespie, Jr., Durham, N.C., Michael J. Maloney, Ellen Rabiner, Los Angeles, Cal., for defendant. ORDER ERWIN, Chief Judge. This matter ...
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MEMORANDUM AND ORDER This is a dispute regarding the priority of coverage between two automobile insurance policies. The parties seek a declaratory judgment as to which policy provides primary coverage and the primary duty to defend and which policy provides only secondary or excess coverage. The parties have filed cross-motions for summary judgment. FACTUAL BACKGROUND The dispute arises as the re...
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ORDER AND REASONS This matter came before the Court on the motion of defendant, Henry Joseph, to dismiss Count VII of the indictment due to a violation of Title 18, United States Code, Section 3282. After reviewing the motion, memoranda of counsel, the record and the law, the Court denies the motion for the reasons set forth below. Discussion Count VII of the indictment alle...
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*364 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This cause is before the Court upon plaintiff Margie Reed Harper’s (“Harper”) request under 26 U.S.C. § 7429 (1988) for judicial review of an April, 1990, transferee jeopardy assessment made against her by the Internal Revenue Service (“IRS”) for unpaid federal income taxes of her former husband Rodney W. Reed. The Court conduc...
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REASONS FOR JUDGMENT 1 This matter is before the Court on Motion of Plaintiff, Resolution Trust Corporation as Receiver for Delta Savings and Loan Association, F.A. (hereafter “Receiver”) for Summary Judgment against defendants, Cathy F. Kemp, Duncan S. Kemp, III, Pat Lee Daye, Jere M. Daye, Ferol Fitzmorris Rogers, and Phyllis Breeland George in solido for nine sixteen...
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OPINION In what has unfortunately become an all too common situation for defendant Trans World Airlines, Inc. (“TWA”), this action presents an attempt by yet another group of its creditors to force TWA’s compliance with its financial obligations. See infra note 1. Once again, success by the plaintiff on the ultimate merits of this action will imperil TWA’s already precarious vi...
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Appellants, who are shrimp fishermen, were charged in a two-count indictment with unlawful possession of an endangered species, a Kemp’s Ridley Sea Turtle, in violation of 16 U.S.C. §§ 1538(a)(1)(D) and 1540(b)(1) and 18 U.S.C. § 2, and failure to use a Turtle Excluder Device in violation of 16 U.S.C. §§ 1538(a)(1)(G) and 1540(b)(1). Each appellant pled guilty to Count 1 of the indictment in retur...
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ORDER I. INTRODUCTION On April 10, 1991, this Court heard oral argument on the following motions: plaintiff's motion for leave to amend the complaint; defendant’s motion to amend the original answer, add affirmative defenses and counterclaims, and for an extension of time for discovery; defendant’s motion to compel joinder of a necessary party; and lastly, plaintiff’s motion for appo...
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Petitioner, Big Deal, Inc. (Big Deal), the owner of the F/V BIG DEAL, seeks exoneration from or limitation of liability pursuant to 46 U.S.C.App. § 185 and the applicable admiralty rule. 1 Claimant, Ronald Lin-ley Pouchie (Pouchie), raising the bar of limitations, seeks dismissal of that quest for relief. 46 U.S.C.App. § 185 provides, in pertinent part, that “[t]he vessel owner,...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiffs Robert M. Weber (“Robert”) and John W. Weber (“John”) bring this action against defendants Village of Hanover Park (the “Village”), Commander Gary Altergot (“Altergot”), Thomas P. Chesters (“Chesters”), and other unknown officers and police chiefs pursuant to 42 U.S.C. § 1983 and the common law of Illinois. Plaintiffs’ fifteen-c...
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MEMORANDUM OPINION I. INTRODUCTION. The plaintiffs are black citizens who instituted this suit alleging that their constitutional rights were violated, and that they are entitled to compensatory and punitive damages, and attorney’s fees under the provisions of 42 U.S.C. Sections 1983, 1985, 1986 and 1988. Plaintiffs also claim relief under Louisiana tort law. Plaintiffs are Euge...
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This matter is before the Court on the motion of putative claimant Erika Hamburg to vacate entry of default. Defendant United States of America [the “Government”] has opposed and requested that the Court to strike the claim and answer filed on behalf of Ms. Hamburg, and to enter default judgment as to said claimant. The Government has further suggested that sanctions are in order. This matter was ...
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OPINION The matter before the court is the Amended F.R.C.P. Rule 12 Motions Against the Third Amended Complaint on Behalf of Defendants State of Oregon and Mary Wendy Roberts (# 15). BACKGROUND Plaintiff, Dyad Construction, Inc. (Dyad), is a non-union contractor who contracted with the City of Portland to construct a sewer. During the construction of the sewer, Dyad used a four-day, ten-hou...
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*944MEMORANDUM AND ORDER This matter is before the court on the defendant’s motion to affirm the decision of the Secretary (Doc. 10) and the plaintiff's motion to reverse 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. Plaintiff filed an application for disability benefits under Title II. Tr. 115-18. The claim was den...
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765 F.Supp. 674 (1991) Marvin G. and Dora WHITHAM, Plaintiffs, v. UNITED STATES of America, Defendant. Civ. A. No. 88-1490-T. United States District Court, D. Kansas. May 17, 1991. *675 MEMORANDUM AND ORDER THEIS, District Judge. This matter is before the court on the motion of defendant for summary judgment (Doc. 10). The action is brought by the heirs of Steven H. Whitham, under the Federal T...
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OPINION AND ORDER Union Indemnity Insurance Company (“Union”) commenced this diversity action on February 8, 1985. Since July 1985, Union has been in liquidation proceedings in state court; for much of that time, this action has been on this Court’s suspense docket. This matter having become active in September 1990, defendants now move the Court to dismiss this case on abstention grounds...
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OPINION AND ORDER This is an action asserting a claim for $20,000 arising from the loss of plaintiffs baggage during the course of his journey from New York City to Lagos, Nigeria. Defendant has now moved for summary judgment, seeking an order limiting its liability to $20 per kilogram of lost baggage pursuant to the Convention for the Unification of Certain Rules Relating to Intern...
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MEMORANDUM Defendants in this antitrust case are the nation’s leading producers of soda ash. Together, they comprise the “American Natural Soda Ash Corporation” (ANSAC), an export trade association registered with the Federal Trade Commission (FTC) under the Webb-Pomerene Act, 15 U.S.C. § 61 et seq. Plaintiff International Raw Materials (IRM) is a Pennsylvania corporation that ...
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OPINION This is an action relating to 48 limited partnerships. Plaintiff Ramos invested in one of these — Woburn Mall Associates. Plaintiff Rabin invested in another — South-roads Mall Limited Partnership. The complaint purports to name a plaintiff class and a defendant class. The plaintiff class consists of persons who purchased limited partnership interests in any of the 48 partnerships...
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MEMORANDUM AND ORDER Now before this Court is plaintiffs Fallowfield Development Corp. (“Fallowfield”) and E.J. Callaghan & Co.’s (“Callaghan”) *336 Motion for Reconsideration of this Court’s Memorandum and Order dated April 23, 1990, and defendants Leonard M. Strunk and Betty R. Strunk’s (the “Strunks”) response thereto. For the reasons stated below, plaintiffs’ motion will ...
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ORDER Plaintiff submits a revised petition for attorney’s fees incurred in defense of an appeal. I grant the petition in the amount of $7985.97. BACKGROUND Plaintiff brought this action against the United States for wrongful levy by the Internal Revenue Service (IRS). I entered judgment for plaintiff and granted plaintiff’s petition for attorney’s fees pursuant to 26 U.S.C. § 74...
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*966 MEMORANDUM OPINION Stephen Reid is a child in need of special educational services. His parents, believing that his school district 1 was not adequately providing for Stephen, obtained services they considered appropriate at their own expense, and then initiated administrative proceedings in order to force the school district to pay for them. Although they were successful in the admini...
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MEMORANDUM OF OPINION AND ORDER Defendant moved for permission to introduce certain evidence notwithstanding the provisions of Fed.R.Evid. 412. Defendant’s Motion Pursuant to Rule 412 of the Federal Rules of Evidence, filed November 9, 1990 (Pleading No. 25). The proffered evidence consists of cross examination of the prosecuting witness, an alleged statutory rape victim (hereinafter “com...
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MEMORANDUM AND ORDER Plaintiff Runstadler Studios, Inc. Runstadler), owner of the copyright on a sculpture known as “Spiral Motion,” brought suit against defendants MCM Limited Partnership (Merrill Chase) and Jeph Bilsky (Bilsky) claiming copyright infringement. The complaint also alleges deceptive trade practices by the defendants and claims liability under the Illinois Deceptive Trade P...
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OPINION Plaintiffs Jennifer Loper (“Loper”) and William Kaye (“Kaye”), who are New York City residents, and the class they represent have moved pursuant to Rule 56, Fed.R. Civ.P. for summary judgment upon their 42 U.S.C. § 1983 complaint against defendants New York City Police Department (the “City”) and its Commissioner Lee P. Brown (“Brown”). The City has cross moved for summary judgmen...
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ORDER AND REASONS This matter is before the Court on the motion of the defendant, Brown & Root U.S.A., Inc., for summary judgment on the plaintiffs’ claim of strict liability. Having reviewed the briefs and exhibits submitted by counsel, and the applicable law, the Court GRANTS the motion for the reason that there is no evidence by which a jury could properly find Brown & Root strictly liable.1 T...
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MEMORANDUM OPINION AND ORDER The plaintiff pension trust and its present trustees (“the Fund”) ask us to declare the “Lady Baltimore Amendment” to the Employee Retirement Income Security Act of 1974 (“ERISA”), Pub.L. 99-514, Title XVIII, § 1852(i) codified at 29 U.S.C. § 1461(h)(1) (“Amendment”) unconstitutional and to vacate the arbitrator’s restoration of attorneys’ fees, costs and liquidated d...
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*30MEMORANDUM AND ORDER Plaintiff Patricia Trotta seeks judicial review of a final decision of the Secretary of Health and Human Services (the “Secretary”) regarding interim assistance benefits she received from the Commonwealth of Massachusetts while her application for Supplemental Security Income (“SSI”) was pending with the Social Security Administration (“SSA”). The Secretary found that the ...
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MEMORANDUM OPINION AND ORDER Jerzy Lutkowski (“Jerzy”) and his wife Elizabeth (“Elizabeth”) — collectively “Lut-kowskis” — have brought a five-count Complaint against High Energy Sports, claiming damages as a result of injuries that Jerzy assertedly sustained in Burlington, Wisconsin while operating a hang-glider manufactured and distributed by High Energy Sports. Based on its initial review of t...
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765 F. Supp. 954 (1991) UNITED STATES of America, Plaintiff, v. Kenny BINGHAM, et al., Defendants. No. 89 CR 909. United States District Court, N.D. Illinois, E.D. June 12, 1991. *955 Debra Gubin, Chicago, Ill., for Kenny Bingham. Robert Gevirtz, Northbrook, Ill., for Johnny Brown. Thomas Huyck, Chicago, Ill., for David Carter. Thomas R. Allen, Chicago, Ill., for Bruce Collins. Patrick Driscoll, ...
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765 F. Supp. 393 (1991) DETROIT POLICE OFFICERS ASSOCIATION, Plaintiff, v. Coleman YOUNG, et al., Defendants. William MORGAN, Brian Brunett, and Donald Prince, Individually and as Representatives of a Class, Plaintiffs, v. Coleman A. YOUNG, et al., Defendants. Civ. A. Nos. 74-71838, 75-71376. United States District Court, E.D. Michigan, S.D. June 10, 1991. Allan Sobel, Southfield, Mich., Nancy Je...
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*175 MEMORANDUM ORDER Plaintiffs three-count complaint names three defendants as participants in a scheme to defraud. One of the defendants, Donald Alloian, has filed a motion to dismiss. For the reasons stated herein, Alloian’s motion to dismiss is denied. I. FACTS The allegations contained in plaintiffs first amended complaint, which must be taken as true for purposes...
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OPINION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter is before the Court pursuant to the Joint Motion for Final Approval of Class Action Settlement under Federal Rule of Civil Procedure 23(e).1 Furthermore, before the Court there is a motion by plaintiffs for an award of attorney’s fees and expenses to class counsel and a motion by plaintiffs for an order to granting class repres...
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MEMORANDUM ORDER This is an action for conversion of property, and for violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Defendant Rene Norrell (“defendant”) has now moved to dismiss the amended complaint in this action, pursuant to Federal Rules of Civil Procedure 12(b)(6). For the reasons set forth below, defendant’s motion...
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MEMORANDUM AND ORDER THIS CAUSE IS before the court upon the motion of Claimant Security Marine Credit Corporation (“Security Marine”) for attorneys’ fees incurred in asserting its interest in property subjected to criminal forfeiture. I. Background On June 16, 1989, a superseding indictment issued against the defendant Leonel Martinez charging him with the illegal importation a...
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MEMORANDUM OPINION AND ORDER This Court’s May 31, 1991 memorandum opinion and order (the “Opinion”) 765 F.Supp. 498, issued sua sponte promptly after this action had been transferred to this District Court from the United States District Court for the Southern District of Iowa, addressed not only a potential subject matter jurisdictional problem — a question as to the sufficiency of the a...
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MEMORANDUM AND ORDER At issue is whether a corporate defendant with no Fifth Amendment privilege against self-incrimination may be compelled to provide additional deposition testimony as to information that can only be obtained from individual co-defendants, all of whom are corporate officers and employees who have asserted their Fifth Amendment privilege. The corporate defendant, Reliable Truc...
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OPINION AND ORDER This opinion emanates from the voluntary settlement in the action commenced by the 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 Consen...
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RULING ON MOTION TO DISMISS In this four-count class and derivative action 1 brought against the defendants Shawmut National Corp. (“Shawmut”), Joel B. Alvord (“Alvord”), 2 John P. Hamill (“Hamill”), 3 and Gunnar S. Overstrom (“Overstrom”) 4 for violations of the federal securities and common law, the plaintiffs allege that, in reports dissemina...
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FINAL ORDER GRANTING INJUNCTIVE RELIEF This cause comes before the court following a hearing on a motion for preliminary injunction. The plaintiffs, the Cuban Museum of Arts and Culture, Inc. (“Cuban Museum” or “Museum”) and several of its directors, seek an injunction preventing the City of Miami from evicting the Cuban Museum from the premises that it has leased from the City for over n...
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OPINION AND DECISION Plaintiff Battle Fowler, as Receiver and Liquidating Trustee of Brignoli, Curley & Roberts Associates (“BCR”), has filed suit to recover certain sums paid by BCR to defendants. The Receiver moved for an order pursuant to Rule 56 Fed.R.Civ.P. granting plaintiff summary judgment on three of the four Claims for Relief. For the reasons appearing hereinafter and pursuant t...
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MEMORANDUM OPINION AND ORDER Plaintiff filed this action under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), seeking review of the final decision of the Secretary of Health and Human Services (“Secretary”) establishing her date of birth in March, 1929 instead of June 5, 1926 as claimed by plaintiff. The parties cross-move for judgment on the pleadings pursuant to Fed.R...
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OPINION AND ORDER This matter is before the Court pursuant to the motion of Defendants Powell and Walker for the Court to declare a mistrial. The motion comes as a result of the inadvertent inclusion of a copy of written transcripts of the videotaped testimony of Government Witnesses Brenda Givens, Joyce Crawford and Halima Isa in the items taken back with the jury to the deliberation room.1 The t...
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ORDER ON MOTION TO DETERMINE SUFFICIENCY OF PRIVILEGE CLAIM (# 16) After hearing, it is ORDERED that the Motion To Determine Privilege Claim (# 16) be, and the same hereby is, ALLOWED. I rule that the defendant John Sax, who brings counterclaims against the plaintiff, has waived the right to invoke the attorney-client privilege with respect to discussions he had with his attorney regarding the sub...
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OPINION Defendants seek summary judgment dismissing plaintiff’s claims. The motion is granted in part and denied in part. BACKGROUND Plaintiff is a resident of the Castle Hill Houses, a housing project in the Bronx administered by the New York City Housing Authority. She lives in an apartment with her twenty-two-year-old daughter who is unemployed and supported by public assista...
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FACTS AND ALLEGATIONS Defendants list thirty-four (34) disputed material facts. Defendants’ response brief at 2-24. Although the court will not specifically address the materiality of each factual issue disputed by the defendant, the more prominent factual disputes will be covered below. Grand Trunk, the plaintiff in this matter, initiated negotiations for a new collective bargaining agreement wit...
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ORDER ON DEFENDANT’S MOTION TO DETERMINE SUFFICIENCY OF PRIVILEGE CLAIM AND TO ORDER DEPOSITIONS RESUMED (# 68) Reference is made to my Order On Motion To Determine Sufficiency Of Privilege Claim (#37) entered March 15, 1991. 542 FRD 136 In that Order, I ruled that the defendant John Sax, who brought counterclaims against the plaintiff, had waived the right to invoke the attorney-client privilege ...
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MEMORANDUM OPINION AND ORDER The plaintiff, Deborah Johnson, who was born in 1952, filed a complaint in 1988, alleging that between 1955 and 1968 her father, William Johnson, sexually abused her. She requests damages under several tort theories for injuries sustained as a result of her father’s alleged abuse and of her mother’s failure to protect her from *663 such alleged ab...
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ORDER Plaintiff, a clerk-typist in the Virginia Beach General District Court, has brought this suit pursuant to 42 U.S.C. § 1983, to redress alleged violations of her constitutional rights. Defendants have filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, and an Objection to Discovery and Motion for Protec...
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ORDER Defendant Orlando Tellez appeared before the Court for a resentencing following a Judgment and Mandate from the United States Circuit Court for the Eleventh Circuit, which directed this Court to vacate the sentence previously imposed on October 31, 1989, consistent with the dictates of United States v. Smith, 907 F.2d 133 (11th Cir.1990). By way of brief history, on September 10, 1988, the ...
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DECISION AND ORDER Britton Duane McKenzie, currently incarcerated at the Kettle Morraine Correctional Institution, seeks redress under 42 U.S.C. § 1983, from the Department of Corrections for the State of Wisconsin and officers thereof, as well as from several officers and employees of the Oshkosh State Correctional Institution [Oshkosh], where he had been incarcerated prior to January 26, 1990. M...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is a land condemnation case involving the United States Government’s exercise of its power of eminent domain in order to construct and enlarge a U.S. Custom’s cargo inspection facility for the Ambassador Bridge U.S. Border Station. 1 Specifically, the government seeks to acquire title to approximately 1.11 acres of land owned by James E. Rya...
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OPINION AND ORDER Defendants Century Power Corporation (“Century Power”) (previously known as “Alamito Company”), Catalyst Energy Corporation (“Catalyst”), Tucson Electric Power Company (“Tepco”) and San Diego Gas & Electric Company (“San Diego G & E”) move jointly for a stay of discovery pending the Court’s decision on their outstanding motions to dismiss. Defendants also move for a protective o...
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ORDER THIS CAUSE comes on for consideration of plaintiff’s Motion to Exclude Exhibits of Defendant Schaub and Compel (Dkt.113) and defendant Schaub’s response to the motion. (Dkt.116) For the reasons set forth below, the Magistrate Judge grants the motion to compel and denies the motion to exclude exhibits without prejudice. I Plaintiff, James J. Richardson (Richardson), states that defendant Scha...
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ORDER AWARDING ATTORNEY FEES This medical malpractice case has been remanded to state court. Plaintiffs move for an award of attorney fees pursuant to 28 U.S.C. Section 1447(c). As amended in November 1988, § 1447(c) provides: “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” This order is...
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OPINION AND ORDER In the early hours of Saturday, October 27, 1984, at a grassy area behind a fence at the dead end of East Gate in Copiague, a twenty-three year-old man was shot and killed by a Suffolk County police officer. The facts leading up to the encounter in the grassy area are virtually undisputed. The occurrences in the grassy area, however, are controverted and the versions are...
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OPINION The plaintiff, Annell Saucier, filed the instant declaratory judgment action pursuant to 28 U.S.C. §§ 2201 and 2202 and Federal Rule of Civil Procedure 57 seeking a declaration that she was not required to submit to an examination under oath regarding her claim for fire insurance proceeds. The defendant, United States Fidelity and Guaranty Company [USF & G], now moves for summary ...
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MEMORANDUM OPINION Plaintiff 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 (“the Secretary”) denying his application for a period of disability and disability insurance benefits, 42 U.S.C. §§ 416(i) and 423, and for supplemental security income benefits, 42 U.S.C. § 1381a. Plaintiff...
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ORDER THIS CAUSE comes on for consideration of plaintiff’s Motion for Protective Order and to Disqualify Defendant’s Counsel filed on April 19, 1991 (Dkt. 31) and supporting affidavits filed by plaintiff on May 6, 1991 (Dkts. 40-44), as well as a response to plaintiff’s Motion for Protective Order and to Disqualify Defendant’s Counsel filed by defendant on April 19, 1991 (Dkt. 34) and Memorandum ...
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*50 MEMORANDUM OPINION AND ORDER Plaintiff brings this action for age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., sex discrimination under Title VII of the Civil Rights Act of 1964, both age and sex discrimination under the New York’s Human Rights Law, Exec.Law § 296 et seq., for retaliation under these statutes, and for common...
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ORDER OF DISMISSAL Upon an independent review of the record, for the reasons stated in the report of United States Magistrate Judge Peter R. Palermo, and after consideration of Plaintiffs’ objections and Defendants’ response thereto, it is ORDERED and ADJUDGED that the Report and Recommendation of the Magistrate is Adopted as this Court’s Order and the Defendants’ motion to dismiss i...
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MEMORANDUM AND ORDER ON PRUDENTIAL’S AMENDED MOTION FOR PROTECTIVE ORDER (# 594) In the instant case, Prudential seeks damages from the defendants in connection with the use of various asbestos products in the construction of the Prudential Center in Boston. A critical issue is whether or not Prudential’s claims were filed within the statute of limitations, and this issue, in turn, depends on whe...
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782 F. Supp. 295 (1991) Marvin J. FOX, on behalf of himself and all others similarly situated, Plaintiffs, v. EQUIMARK CORPORATION, Alan S. Fellheimer, Judith E. Fellheimer, Claire W. Gargalli, Michael E. Jehle, and Robert C. Payment, Defendants. Civ. A. No. 90-1504. United States District Court, W.D. Pennsylvania. May 22, 1991. *296 Gene I. Mesh, Howard A. Specter, Gene Mesh & Associates, Ci...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This is an action brought by the United States on behalf of the U.S. Army Corps of Engineers (“Corps”) against Joseph A. Zanger, individually and doing business as Casa De Fruta, seeking injunctive and civil penalties for violations of the Clean Water *1032 Act, 33 U.S.C. § 1251 et seq. Specifically, defendants are charg...
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ORDER Before the Court is movant Johnson’s motion, pursuant to Federal Rule of Criminal Procedure 41(e), for the return of approximately $150,700.00 which officers of the Kansas City Missouri Police Department seized from him on April 24, 1991, at the Amtrak Station at 2200 Main Street in Kansas City, Missouri. The government urges the Court to deny the motion and to dismiss the case for lack of ...
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ORDER THIS CAUSE comes on for consideration of Defendant’s Motion To Compel (Dkt.8) and plaintiffs’ response thereto. (Dkt.ll) For the reasons set forth below, the Magistrate Judge grants the motion to compel. I This is an action for negligence and strict liability brought on November 2, 1990, as the result of an accident occurring on June 9, 1988 in which plaintiff was injured when the Lull High ...
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OPINION Defendant Thomas A. Martin and various defendants aligned in interest with him (“the Kinderhill Defendants”) have moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings in this and two related cases, Bruce v. Martin, 87 Civ. 7737 (RWS) (“Bruce I”)1 and Malone v. Martin, 90 Civ. 4651 (RWS), and for an injunction preventing plaintiffs’ counsel from several related actions. For th...
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765 F.Supp. 976 (1991) David L. HADLER, et al., Plaintiffs, v. UNION BANK AND TRUST COMPANY OF GREENSBURG, Defendant and Third Party Plaintiff, v. The NYHART COMPANY, INC., Third Party Defendant. No. IP 86-1127-C. United States District Court, S.D. Indiana, Indianapolis Division. May 30, 1991. *977 Timothy E. Hollingsworth, James P. Cavanaugh, III, Barton, Wade, Hartley & Hollingsworth, Indianapo...
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*38 OPINION AND ORDER In United States v. Monsanto, 924 F.2d 1186 (2d Cir.1991) {en banc) {“Monsanto IV”), the Second Circuit held that in the context of a criminal forfeiture proceeding the Fifth and Sixth Amendments require an adversary, post-restraint, pretrial hearing as to probable cause to continue the restraint of assets needed to retain counsel of choice. Less than six months late...
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OPINION AND ORDER INTRODUCTION Larry Kopp is before this Court for sentencing on his plea of guilty to two counts of a twelve count Indictment. Count 1 charges that from November 15, 1987 through January 31, 1988, in this District, Kopp conspired and agreed with Stuart Sherer to defraud the Ensign Bank FSB of up to $14 million and to obtain the money, funds, credits, assets and property of the Ens...
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MEMORANDUM, OPINION AND ORDER REGARDING TRUSTEE’S OBJECTION TO CLAIM OF EXEMPTION This matter comes before the Court upon the Chapter 7 trustee’s (Trustee) objection to the debtor’s claim of exemption and the response thereto filed by the debtor, Ginger Lea Marcus (Debtor). Briefs were filed, a hearing was held and oral argument was presented. The relevant facts are as follows: On December 20...
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ORDER Before the Court is the Plaintiffs Motion for Summary Reversal and the Defendant’s Motion for Summary Affirmance. For the reasons set forth below, the Plaintiff’s Motion for Summary Reversal is denied and the Defendant’s Motion for Summary Affirmance is granted. BACKGROUND The Plaintiff Charles W. Smith (“Smith”) filed for Supplemental Security Income on September 3, 1986,...
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ORDER RE MOTION TO WITHDRAW REFERENCE I. Introduction Defendant California Commerce Bank moves to withdraw the reference of the above-designated adversary proceeding to the Bankruptcy Court, so that this action will be conducted entirely before a District Court and not the Bankruptcy Court. The issue at the heart of this motion is one of first impression in the Ninth Circuit, namely,...
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ORDER ON MOTIONS TO DISMISS This cause comes before the Court on Defendants’ motions to dismiss Plaintiffs pro se complaint pursuant to 42 U.S.C. § 1983. I. BACKGROUND This controversy arises out of a discipline proceeding conducted by the Florida Bar, one of the Defendants. In that proceeding, the Plaintiff alleged that Defendant Clougher and two other attorneys colluded to pay a $500 bribe in or...
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MEMORANDUM AND ORDER The United States of America moves for partial summary judgment on its claim for the appointment of a receiver. In addition, the United States moves to dismiss defendant’s counterclaims and to strike its jury demand. Third-Party Defendant, York Associates, Inc. (“York”), moves to dismiss the third-party complaint. Defendant Berk & Berk (“Berk”) opposes the motions. Th...
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MEMORANDUM OPINION AND ORDER In this action founded upon diversity of citizenship, 28 U.S.C. § 1332, plaintiff Westinghouse Electric Corporation (“Westinghouse”), a Pennsylvania corporation, brings this action against defendants New York City Transit Authority (“NYCTA”) and Metropolitan Transportation Authority (“MTA”) to recover damages and related relief arising out of a contract betwee...
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MEMORANDUM AND ORDER On September 7, 1989, plaintiff Clifford Lamaster (“Lamaster”) was fired from his position as director of the Apprentice and Trainee Program by the defendant in this action, the Chicago and Northeast Illinois District Council of Carpenters Apprentice and Trainee Program (“the Program”). In a three-count complaint brought against the Program, Lamaster charges that this...
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MEMORANDUM AND ORDER This medical malpractice action, filed in the United States District Court on the basis of diversity of citizenship, raises the issue of whether the plaintiff is bound by a New York State law, enacted in 1976 in response to the perceived crisis in the insurance industry, which precludes pleading a specific monetary amount of damages in a complaint in a medical malprac...
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AMENDED ORDER Before the Court are Petitioner’s Motion to Compel Arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4, Respondents’ Motion to dismiss Petitioner’s Motion, Petitioner’s Brief in Opposition to Respondents’ Motion to Dismiss, and Respondents’ Reply Brief to Petitioner’s Brief. As a result of Respondents’ alleged wrongful conduct, Petitioner commenced an arbitration pro...
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OPINION AND ORDER DENYING DEFENDANT FRANK IOLI’S MOTION FOR RECONSIDERATION OR REHEARING Presently before the Court is Defendant Frank Ioli’s Motion for Rehearing and/or Reconsideration of the Court’s February 26,1991 Opinion and Order Granting Plaintiffs’ Motion for Summary Judgment Against Him. Pursuant to Local Rule 17(m)(2), the Court hereby decides the same without a hearing. PR...
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OPINION AND ORDER Plaintiff used Ortho-Novum 1/50, an oral contraceptive manufactured by defendant, for approximately thirteen years. In 1986, she developed arterial thromboembolism resulting in the amputation of her left leg just below the knee. She filed suit alleging negligence, breach of warranty and conscious misrepresentation based on allegedly inadequate warnings and instructions t...
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DECISION AND ORDER Plaintiff Gary Randall and his daughter Maggie, a graduating senior at Letchworth Central High School, commenced this action pursuant to 42 U.S.C. § 1983 seeking principally to enjoin the Letchworth Central School District and its Superintendent, defendant Charles Pegan, from sponsoring, *794 promoting or “influencing” a religious baccalaureate service for ...
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MEMORANDUM OPINION AND ORDER Alice Kerrigan (“Kerrigan”), a claimant under the above-captioned estate, filed a claim for pension benefits under Section 502(a)(1)(B) of the Employee Retirement Income Security Act, 29 U.S.C. *1201 § 1132(a)(1)(B), in the Surrogate’s Court, New York County. The executrix of the estate, after attempting to settle this claim, proceeded under Secti...
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MEMORANDUM AND ORDER The above-referenced action was brought by plaintiff United Fence & Guard Rail Corporation (“United Fence”) against Royal Guard Fence Company (“Royal Guard”) and Typhoon Fence of Long Island (“Typhoon”), as well as certain of their employees, for damages and injunctive relief pursuant to the Racketeering Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964....
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MEMORANDUM OPINION AND ORDER Before the Court is the Motion to Withdraw the Reference of Defendant Team *1001 Bank, f/k/a Texas American Bank/Galleria, as Executor of the Estate of Doris Gano Wallace, and as Trustee, filed March 5, 1991; and the Response of Duke Salisbury, Trustee. Team Bank moves for withdrawal of the reference on the ground that it has a constitutional...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION In its second amended complaint, plaintiff Midwest Grinding Company, Inc. (“Midwest”) alleges that its former employee, defendant Joshua M. Spitz (“Spitz”), and the new corporation which Spitz allegedly helped to form and operate, defendant U.S. Grinding & Fabricating, Inc. (“U.S. Grinding”), violated the federal Racketeer Influenced and C...
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OPINION AND ORDER On August 6, 1990, this Court issued an opinion and order (“Opinion”), reported at 744 F.Supp. 474, familiarity with which is presumed, granting in part the motion of the City of New York (“the City”) for partial summary judgment against defendant Alcan Aluminum Corporation (“Alcan”). The Court determined that Alcan’s waste was disposed of at the City's landfills; that “...
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FINAL ORDER OF DISMISSAL OF ALL CASES THESE SIXTY CASES have come before the undersigned pursuant to Administrative Order 91-38, entered on May 10, 1991 by the Hon. James Lawrence King, Chief Judge, United States District Court for the Southern District of Florida. The cases were consolidated for the limited purpose of ruling on the defendants’ petition for removal. These cases were commenced on ...
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765 F. Supp. 852 (1991) Rose MONTAPERTO and Frank Montaperto, Plaintiffs, v. SPLIT ROCK RESORT a/k/a The Galleria and Vacation Charter, Ltd., Defendants. No. CV-90-387. United States District Court, M.D. Pennsylvania. June 20, 1991. *853 Louis Podel, Wapner, Newman & Associates, Philadelphia, Pa., for plaintiffs. James A. Swetz, Jane Roach, Cramer, Swetz & McManus, Stroudsburg, Pa., for d...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Pending before the Court are defendant David J. Shields’ Motion for Preservation and Production of Agents’ and Attorneys’ Notes and Draft Transcripts of All Title III Tapes and defendant Pasquale F. DeLeo’s Motion for Preservation and Production of Notes of Agents and Attorneys. For the reasons set forth below, the motions are granted in part and d...
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765 F. Supp. 611 (1991) McCORMICK-MORGAN, INC., a California Corporation, Plaintiff and Counterdefendant, v. TELEDYNE INDUSTRIES, INC., a California Corporation, Defendant and Counterclaimant. No. C 89-4338 SC. United States District Court, N.D. California. April 19, 1991. *612 Thomas Smegal, Jr., Townsend & Townsend, San Francisco, Cal., for plaintiff and counterdefendant. James G. Hunter, J...
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ORDER In November 1990, this court reversed a decision by defendant Secretary of Health and Human Services denying plaintiff Wil *1513 lie A. Frazier’s application for disability insurance payments and supplemental security income under the Social Security Act, 42 U.S.C.A. § 301 et seq., and remanded the case to the Secretary for an award of benefits. The cause is ...
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ORDER On May 29, 1991 all defendants in this cause came on for resentencing in light of *350the Fifth Circuit’s opinion, 923 F.2d 369, issued as mandate February 21, 1991. While this Court’s calculation of the various sentencing guideline ranges and rulings on objections to the presentence investigation report were in all things affirmed as to each defendant, the Circuit remanded this cause for re...
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MEMORANDUM Plaintiffs, a class comprised of faculty members who enjoyed tenure at the Community College of Baltimore (“CCB”), have brought this action under 42 U.S.C. § 1983 challenging the abrogation of tenure which *281 occurred after the State of Maryland took over the college, now called the New Community College of Baltimore (“NCCB”). Plaintiffs contend that defendants ...
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MEMORANDUM OPINION AND ORDER In this action for copyright infringement with common law claims appended, defendant moves under Rule 12(b)(6) to dismiss the complaint, or in the alternative for partial summary judgment under Rule 56 limiting the amount of plaintiffs’ damages. *67 Plaintiffs cross-move for summary judgment on the issue of liability. Background Plai...
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OPINION AND ORDER GRANTING SUMMARY JUDGMENT This matter is before the court on the motions for summary judgment filed by each of the remaining parties to this action: LaRonika M. Neal by her attorney ad litem W. Gary Fowler, Ronnie D. Neal by his next friend Sheila M. Stokes, Tanika Neal by her next friend Demetria Dean, and Taliaferro Neal, Administrator of the estate of Margie E. Neal. ...
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765 F. Supp. 1429 (1991) COOPER DEVELOPMENT COMPANY, Plaintiff, v. EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, and Transcontinental Insurance Company, Defendants. No. C 90-1330 SC. United States District Court, N.D. California. April 16, 1991. *1430 Paul A. Zevnik, Michel Y. Horton, Kaye, Scholer, Fierman, Hayes & Handler, Los Angeles, Cal. and Christopher H. Marraro and John G. Bickerma...
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MEMORANDUM AND ORDER Plaintiff Carol Pettit objects to this case’s removal from the state court in which she filed it. She is a citizen of Indiana, and the defendant is a Pennsylvania corporation with its principal place of business in Pennsylvania. The amount in controversy exceeds $50,000.00; the state court complaint seeks damages of $1,000,-000.00. Accordingly, federal jurisdiction ov...
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MEMORANDUM OPINION AND ORDER Plaintiff filed this suit against defendants alleging, inter alia, copyright infringement. Before the court is defendants’ motions to dismiss for lack of personal jurisdiction, for improper venue, and for failure to state a claim for copyright infringement. Alternatively, defendants move to transfer this action to the District of Massachusetts pursu...
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ORDER The squabble between these parties is fast approaching a downright feud. In the latest round, both parties, plaintiff Thomas Pasant (“Pasant”) and defendant Jackson National Life Insurance Company of America (“Jackson”) have filed motions for discovery sanctions. The court will not rehash the facts of this case as they were discussed in detail in Pasant v. Jackson Nat’l Life Ins. Co. of Amer...
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MEMORANDUM AND ORDER Petitioner Lazaro Dreke Peon seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1988), asserting that he is being held by the Immigration and Naturalization Service unlawfully. Respondent argues that since petitioner is incarcerated at the Federal Correctional Institute in Raybrook, New York, which is in the Northern District of New York, this court has no jurisdic...
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ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION THIS CAUSE has come before the Court upon Burger King Corporation’s (“BKC”) Motion for Preliminary Injunction. The action was commenced on August 20, 1990, by BKC for breach of the franchise agreement (“Agreement”) based on Defendants’ claimed failure to pay for certain royalties, advertising and promotional and training materials. An Amend...
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OPINION AND ORDER Milton J. Rúa, Jr. and his wife, Denise de Mauret de Rúa, (Rúa), Defendants-Appellants, seek review of a bankruptcy court judgment entered on May 15, 1989 in the case of In re Colonial Mortgage Bankers Inc., Debtor. Mr. Rúa was the president of the debtor corporation, a mortgage company. On December 30, 1987, Colonial filed for relief under Chapter 11 of the Bankruptcy Code. On ...
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MEMORANDUM OPINION AND ORDER Defendant National Railroad Passenger Corp., sued in its own name and as Amtrak Commuter Services Corp. (“Amtrak”), has moved for summary judgment on plaintiff George W. Thompson’s complaint. Thompson’s action alleges that Amtrak violated 45 U.S.C. §§ 51-60 (1988), commonly referred to as the Federal Employers’ Liability Act (“FELA”). Specifically, Thompson alleges ne...
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MEMORANDUM OPINION AND ORDER Came on to be considered the above-styled and numbered action. Having examined the record as a whole, the court has concluded that, for the reasons stated below, this action should be remanded to the state court from which it was removed. I. Background After commencing this action in state court on December 11, 1990, plaintiffs, James 0. Luckett ...
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MEMORANDUM OPINION AND ORDER After reviewing the parties’ suggestions relative to defendants’ motion to dismiss or in the alternative for summary judgment, the Court raised sua sponte the question of plaintiff’s standing to assert the claims of age discrimination which he has made in this case. For the reasons stated below, the case is dismissed because plaintiff lacks standing to assert the ...
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MEMORANDUM OPINION AND ORDER Plaintiff brings this action pursuant to section 205(g) of the Social Security Act, 42 *512 U.S.C. § 405(g) for review of a final decision of the Secretary of Health and Human Services denying her claim for wife’s benefits under sections 202(b)(1) and 216(b)(1) of Title II of the Act, 42 U.S.C. §§ 402(b)(1) and 416(b)(1). Both parties have moved for summary judgme...
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MEMORANDUM OPINION AND ORDER Pending before the Court is defendants’ motion to dismiss the above-captioned complaint. 1 On consideration of the motion, the opposition, the reply, the current law, *278 after a hearing in open court, and for the reasons outlined below, the motion is denied as to most claims. The pending motion for continuance is also denied, and the ...
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BACKGROUND In a decision and order dated May 21, 1990, the court held, among other things, that defendant National Fuel Gas Distribution Corporation (“National Fuel”) had raised a triable issue on the third-party defense it had asserted under § 107(b)(3) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607(b)(3). See 737 F.Supp...
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765 F. Supp. 904 (1991) Luciano MASSI, Plaintiff, v. BLUE CROSS & BLUE SHIELD MUTUAL OF OHIO, et al., Defendants. No. C87-3099. United States District Court, N.D. Ohio, E.D. May 22, 1991. *905 David A. Forrest, Jeffries & Monteleone, Cleveland, Ohio, for plaintiff. Michael J. Frantz, Carl H. Gluek, Thompson, Hine & Flory, Cleveland, Ohio, for defendants. ORDER BATTISTI, District Judg...
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*157 MEMORANDUM ORDER On May 17, 1991, a jury verdict of guilty on all counts was returned against the defendants in this case. On May 24, 1991, the Court granted defendant Michael Pier-vinanzi (“Piervinanzi”) an extension until July 1, 1991, to move for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c). Piervinanzi subsequently retained new counsel, Bettina Schein, Esq. (“Ms. Schein”),...
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MEMORANDUM This matter comes before the Court for a decision on the merits after being tried to the Court on the sole issue of liability. Plaintiff Pipefitters Local Union No. 562 is a labor organization and represents individuals employed in the pipefitting industry and related activities. The plaintiff alleges in this case that defendant and the'Union were parties to a collective bargaining agre...
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OPINION The following motions are pending: 1) the motion for summary judgment of defendant T & N pic (# 173); 2) the motion for partial summary judgment of defendant GAF Corporation (# 175); 3) the motion for partial summary judgment of defendant Owens-Corning Fiberglas (# 178); 4) the motion for partial summary judgment of defendant Georgia-Pacific Corporation (# 181); 5) the motion for partial ...
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MEMORANDUM AND ORDER This matter is presently before the Court on the motions of defendant Massbank for Savings (“Massbank”) for summary judgment. Massbank, the beneficiary of a letter of credit issued by plaintiff Eastland Bank (“Eastland”), requests entry of summary judgment not only on Eastland’s amended complaint for declaratory relief, but also on all four of its counterclaims seekin...
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Sitting by Designation OPINION This action arises out of plaintiff Cherie Lempert’s purchase of a house and the half-acre lot on which it is built, Parcel Number 31 of Estate Fish Bay on the island of St. John (the “property” or “31 Fish Bay”). Lempert bought the property from defendant Gerald Singer through his broker, defendant Joan Sparling. Defendant Kevin D’Amour was Lempert’s attorney for ...
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765 F.Supp. 1048 (1991) McGUIRE, CORNWELL & BLAKEY, Cornwell & Blakey, G. Robert Blakey, F. Kelly Smith and Greg A. Walker, Petitioners, v. Guy GRIDER, Respondent. Civ. A. No. 91-B-540. United States District Court, D. Colorado. June 18, 1991. *1049 Robert S. Treece, Scott T. Erickson, Hall & Evans, Denver, Colo., for petitioners. Guy Grider, Daniel J. Gamino, Daniel J. Gamino & A...
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MEMORANDUM OF DECISION AND ORDER DENYING MOTION TO VACATE SENTENCE Now before the Court is Petitioner’s motion, pursuant to 28 U.S.C. § 2255, to vacate the sentence imposed upon him in this Court for his conviction on a charge of manufacturing methamphetamines. Petitioner claims that he was denied due process and effective assistance of counsel at his sentencing, and that the Court improperly levi...
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ORDER This cause is before the court on Plaintiffs’ motion to vacate or modify an arbitration award before the New York Stock Exchange (NYSE). The arbitration panel awarded $16,000 in damages and $4,000 in forum fees to Plaintiffs without explanation. This has led to sharp dispute between the parties. Plaintiffs contend that the award ignores the statutory damages formulas provided for their clai...
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MEMORANDUM In 1986, plaintiff T.H.S. Northstar Associates (“Northstar”) purchased the North-star Center (“the Center”) in downtown Minneapolis. Northstar alleges that the Center is contaminated by asbestos and has brought suit against defendant W.R. Grace & Co. — Conn. (“Grace”), 1 a former manufacturer of asbestos-containing products that were applied to portions of the Center...
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OPINION AND ORDER Petitioner moves the court to require the United States Parole Commission and the Bureau of Prisons (BOP) to calculate his sentence as per a prior order of this court dated October 15, 1989. Upon review of the materials submitted in this case, it is apparent to us that a recent Supreme Court holding requires us to modify petitioner’s sentence. Since we are modifying petitioner’s ...
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MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND FOR ENTRY OF FINAL JUDGMENT This matter is before the Court on Plaintiff’s Motion for Summary Judgment and for Entry of Final Judgment on the principal claims of Plaintiff against Defendants herein, filed on March 27, 1991 (Docket No. 12), as supported by materials of evidentia-ry quality filed on the same date as the ...
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MEMORANDUM This case is before the Court on the defendants’, Carlyle Real Estate Limited Partnership-XIII, JMB Realty Corporation, Neil G. Bluhm, and Judd D. Malkin (“Carlyle”), 1 motion for summary judgment pursuant to Fed.R.Civ.P. 56(c). The plaintiff, O’Connell Management Company, Inc. (“O’Connell”), commenced this action against the defendants for the alleged wrongful termi...
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MEMORANDUM OPINION This matter is before the Court for a decision on the merits after a non-jury trial. The parties have filed proposed findings of fact and conclusions of law. Based on the evidence and testimony presented at trial and the post-trial memoranda submitted, the Court now adopts this memorandum opinion as its findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52. FINDING...
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ORDER TO DEFENDANT JAMES F. DO-NOGHOE TO APPEAR BEFORE THE COURT FOR DISCLOSURE OF ASSETS IN RESPECT TO ENFORCEABILITY OF JUDGMENT ENTERED HEREIN ON MARCH 30, 1989 (Docket No. 28) AND EXECUTION THEREON ENTERED ON AUGUST 14, 1990 (Docket No. 30) This file comes to the Court on regular calendar review and the Court has noted it as a case in which efforts are made by Plaintiff to obtain disclosure...
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MEMORANDUM OF DECISION AND ORDER ON COUNTERCLAIM PLAINTIFF NEW MAINE NATIONAL BANK’S MOTION FOR SUMMARY JUDGMENT Plaintiffs’/Counterclaim Defendants’ (hereinafter Counterclaim Defendants) claims against the Federal Deposit Insurance Corporation (hereinafter FDIC) have been dismissed pursuant to the directives on jurisdiction contained in 12 U.S.C. section 1821(d)(3), (5), (6), and (13)(D)...
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MEMORANDUM ORDER Plaintiff appeals from the order of United States Magistrate Judge Benson dated the 31st day of January, 1991 granting defendants’ Motion for Leave to Amend Answer. Plaintiff, Perfect Plastics Industries Inc., is engaged in the business of manufacturing plastic, molded automobile accessories. Defendants, Cars and Concepts, Inc. and Spoilers Plus, Inc., produce and se...
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ORDER George Abbott, an inmate at the New Hampshire State Prison, brings this habeas corpus petition alleging that his constitutional rights were violated by the insanity defense jury instruction given at his murder trial. Authority to review the instant petition is founded on 28 U.S.C. §§ 2241(a) and 2254. On October 23, 1990, the court found that Abbott had set forth a cause of act...
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MEMORANDUM OPINION AND ORDER Plaintiffs filed this eight-count complaint against defendants alleging that defendant Boulevard Bancorp Inc. (“Boulevard”) committed various violations of: (1) §§ 11 and 12(2) of the Securities Act of 1933 (“SA”), 15 U.S.C. § 77k (which prohibits, inter alia, the making of material misstatements and omissions in registration statements) and 15 U.S.C. § 77i(2) (which ...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the parties’ cross-appeals from the memorandum and accompanying order of the United States Bankruptcy Court for the District of Nebraska 1 dated August 22, 1990. 117 B.R. 975. The appeals have been consolidated by order of this court. For the reasons stated below the court finds that the findings and conclusions of the bankruptcy...
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MEMORANDUM OF DECISION Defendant Calvin Lee Tidswell pled guilty on January 16, 1991 to both parts of a two-count indictment charging: (1) distribution and possession with intent to distribute cocaine, in violation of 21 U.S.C. sections 841(a)(1) and 841(b)(1); and (2) possession of a firearm by a convicted felon, in violation of 18 U.S.C. sections 922(g) and 924(e)(1). Defendant now objects to...
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*159 OPINION AND ORDER A class of private plaintiffs and the Equal Employment Opportunity Commission (“EEOC”) brought two civil rights actions in 1973 against the Newspaper and Mail Deliverers’ Union of New York and Vicinity (“NMDU” or “Union”) and more than fifty publishers and news distributors within the Union’s jurisdiction. Roth suits charged that the Union, with the acquies...
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OPINION AND ORDER This matter is now before us upon plaintiff, McCain Foods Ltd.’s (McCain), Motion to Compel Arbitration dated January 15, 1991. Defendant, Puerto Rico Supplies, Inc. (PRS) opposed McCain’s motion on March 21, 1991. After careful review of the entire record, we grant plaintiff’s Motion. We find that the pertinent facts are as follows. The parties entered into a Distribution A...
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MEMORANDUM OPINION AND ORDER Hearing was held June 13, 1991, on defendants the Procter & Gamble Company, Procter & Gamble Distributing Company and Procter & Gamble Paper Products Company’s (P & G) motions for (1) summary judgment on plaintiff McNeil-PPC, Inc.’s (McNeil-PPC) complaint alleging patent infringement and (2) leave to file a request for reexamination of the patent in suit in th...
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MEMORANDUM AND ORDER By order to show cause, plaintiffs seek a temporary restraining order barring defendants from proceeding with the current timetable for candidate petitioning for qual *75 ification for the party primary ballots for the New York City Council election until such time as the United States Department of Justice or a three-judge court of the United States Dist...
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MEMORANDUM AND ORDER Before the Court are plaintiffs Gulf Chemical & Metallurgical Corporation and Cheminter Corporation (“Gulf” and “Chem-inter,” respectively, or “Plaintiffs,” collectively), and defendant Insurance Company of North America’s (“INA”) Cross Motions for Summary Judgment. For the reasons that follow, INA’s motion is GRANTED; Plaintiffs’ motion is DENIED. Background ...
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*522 MEMORANDUM OPINION Defendants move pursuant to Fed.R. Civ.P. 12(b)(1) and 12(b)(6), to dismiss plaintiffs’ amended complaint, and for other relief. For the reasons stated below, the court grants the motions in part and denies them in part. Background 1 Plaintiffs Annette Streeter and Ivette Ellis 2 are women who were terminated in early 1988 from...
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ORDER Order re Partial Summary Judgment; order re Motion-in-Limine (use of regulations); order re jury instruction on qualified immunity. INTRODUCTION This civil rights action arises under 42 U.S.C. § 1983. Plaintiff alleges that defendant used excessive force against her while she was incarcerated. Specifically, plaintiff alleges that defendant, Lt. Robert Ayers, used unnecessa...
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MEMORANDUM ORDER On or about September 13, 1990, in the Western District of Pennsylvania, a Federal Grand Jury returned a one-count Indictment against the above-named defendants. Therein, it is specifically charged that from on or around August 12, 1990, and continuing thereafter to on or about August 16, 1990, the defendants did knowingly, intentionally and unlawfully conspire together and wit...
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MEMORANDUM OPINION Plaintiff, Darrell D. Lingle, filed this civil action seeking damages from defendants, Robert J. Coll, Jr., Howard McQuillan, Robert Duke, and the City of Pittsburgh, for deprivation of civil rights secured to him under the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution and pursuant to 42 U.S.C. § 1983, and for pendant state law claims including...
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MEMORANDUM OPINION Plaintiff, National Indemnity Company, has moved this Court to grant summary judgment in its favor pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. 1 In interpreting Rule 56(c), the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) has ruled that: “The plain language ......
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MEMORANDUM OPINION Gallatin National Bank (Gallatin) appeals the order of the United States Bankruptcy Court for the Western District of Pennsylvania denying Gallatin’s Motion for Relief from Automatic Stay, and invalidating Gal- *661 latin’s lien on property in the estate. 105 B.R. 297. The facts at issue are not in dispute. On or about August 20, 1986, John J. Locko-vi...
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MEMORANDUM AND ORDER (AMENDED) I. BACKGROUND Western World Insurance Co. (“Western”) filed this action for declaratory relief on November 5, 1990 seeking declarations that it owes no duties of defense or indemnity to any defendant with respect to two liability insurance policies it issued to defendants Clifford and Dora Dana (“the Da-nas”) for property located in Collinsville, Califo...
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MEMORANDUM AND ORDER Defendant’s motion to dismiss plaintiff’s complaint is granted in part and denied in part. Fed.R.Civ.P. 12(b)(6). *537 BACKGROUND In April 1982, Jordache Enterprises, Inc., [“Jordache”] a New York corporation with its principal place of business in New York, engaged David Bergstein, a Pennsylvania domiciliary, to be its sales representative in Weste...
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OPINION AND ORDER This is an action to recover under a guaranty executed by defendants in favor of plaintiffs and others. The principal obligor on the underlying loan having defaulted on its obligation, plaintiff now moves the Court for summary judgment compelling the performance of the guarantor’s obligations under the guaranty. BACKGROUND The principal facts in this matter are not disputed. Thi...
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MEMORANDUM OPINION Before the Court is the Motion of the defendant, Mohammed Mustakeem, (Mus-takeem) for release on bail. Mustakeem was convicted of the crime of conspiracy to possess with the intent to distribute in excess of 500 grams of cocaine in violation of 21 U.S.C.A. § 846.1 During trial, the Government adduced evidence to prove, inter alia, that Mustakeem was arrested on August 16, 1990, ...
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MEMORANDUM OPINION Presently before this Court is a motion by defendant, J & J Enterprises, Inc. (J & J), to Stay Litigation Pending Arbitration. This case arises out of the activities of five (5) joint venture general partnerships established between 1974 and 1981 for the drilling, production and marketing of natural gas. Each of the joint ventures was made up of three co-venturers:...
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OPINION AND ORDER Plaintiff Liberty Mutual Insurance Company (“Liberty Mutual”) seeks attorneys’ fees in this case, which arises under the Packers and Stockyards Act, as amended and supplemented, 7 U.S.C. § 181 et seq. The facts of the case are set forth in this Court’s Opinion and Order of February 12, 1991. Liberty Mutual Ins. Co. v. Bankers Trust Co. et al., 758 F...
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MEMORANDUM OPINION This case has been reassigned to this member of the Court for disposition. The matter presently before the Court is the plaintiff’s Motion to remand to the Court of Common Pleas of Beaver County, Pennsylvania, pursuant to 28 U.S.Code, § 1447(c) an action to quiet title brought by the plaintiff against four individual defendants and two apparent corporate defendants...
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*1038 AMENDED ORDER DISMISSING INDIVIDUAL DEFENDANTS AND STAYING PROCEEDINGS 1 INTRODUCTION Plaintiff Zogbi filed the present action in the Superior Court of the State of California for the County of Los Angeles on March 9, 1988. On February 20, 1991, defendants Liebig and Jacobson (sued as “Jacobsen”) were served with the summons and complaint. Also, on February 20,...
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MEMORANDUM DECISION This bankruptcy appeal presents the issue whether the bankruptcy court has the authority to enjoin enforcement of the State of Maine’s environmental laws, even temporarily, when they burden a debtor’s reorganization efforts. Here, the bankruptcy court ordered the State to withhold its denial of an air emission license to a debtor while the debtor appealed the denial of...
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MEMORANDUM OPINION AND ORDER In this action arising under the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq., defendant moves under the Federal Arbitration Act, 9 U.S.C. §§ 1, 4 to stay the action and compel arbitration; or, in the alternative, to dismiss the complaint for failure to allege fraud with the particularity required by Rule 9(b), Fed.R.Civ.P., and to direct the joind...
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FINAL ORDER DISMISSING CASE THIS CAUSE has come before the Court upon several matters. Defendants Doctors’ Hospital of Hollywood, Inc. (“the Hospital”) and its administrator, Alan Weinstein (“Weinstein”) have joined together in moving to dismiss the plaintiffs’ complaint. Defendants Sandra Chadwick (“Chadwick”) assistant hospital administrator, and Dr. Gerald Hoffman (“Hoffman”) have...
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MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ RESPONSE TO THE COURT’S ORDER TO SHOW CAUSE OF MARCH 8, 1991 (Docket No. 7) This matter is now before the Court on the Court’s review of Defendant’s Response (Docket No. 9), filed on March 27, 1991, to this Court’s Order to Show Cause (Docket No. 7), entered herein on March 8, 1991. In their Response, Defendants take the position that the co...
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OPINION AND ORDER Plaintiff Hershfang, on behalf of a purported class of similarly situated shareholders, claims that newspaper reports and dividend announcements were part of a scheme devised by defendants Citicorp, John S. Reed, Citicorp’s Chairman, and Thomas Jones, Citicorp’s Executive Vice President, to inflate the price of Citicorp stock, in violation of § 10(b) of the Securities Ex...
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ORDER SUPPLEMENTING DECISION ANNOUNCED FROM THE BENCH The above captioned case is now before the court on Defendant’s Motion for Summary Judgment. The court heard oral ar*1063guments and ruled at a hearing on June 7, 1991. The court believes a written explanation of its bench ruling will be useful and so files this memorandum opinion. BACKGROUND This case revolves around the Utah state workers’ c...
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ORDER This cause is before the Court on the following: Dkt. 46 Motion for Summary Judgment of Defendant, Alderman Dkt. 47 Motion for Summary Judgment of Defendant, Alderman, in his capacity as property appraiser for Hillsborough County Dkt. 56 Motion for Summary Judgment of Defendant, Hillsborough County Civil Service Board Dkt. 64 Motion for Leave to File Motion for Summary Judgment of...
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MEMORANDUM OPINION On January 15, 1991, the United States Bankruptcy Court for the District of Delaware entered an order permitting the Trustee of the bankrupt Delaware and Hudson Railway Company (“D & H Railway”) to assume D & H Railway’s contracts with the State of New York and assign them to D & H Corporation (“DHC”), 1 which subsequently purchased D & H Railway’s assets and...
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MEMORANDUM OPINION This action was brought by Anita Kay Hargett against her former employer, Delta Automotive, Inc., claiming a violation of the Pregnancy Discrimination Act which is an amendment to the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e(k), 2000e-2(a)(l). She straightforwardly claims that Delta discharged her because of her pregnancy. Her theory is one of disparate treatment an...
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MEMORANDUM This action was commenced by Henry Blohm under 42 U.S.C. § 405(g) seeking judicial review of the Secretary’s decision that he is not entitled to four additional quarters of Social Security Disability Insurance coverage. This court had initially remanded the case because the AU had improperly focused on the plaintiff’s supposed motive in filing amended tax returns so as to establish a pe...
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ORDER ON MOTION FOR PRELIMINARY INJUNCTION This cause is before the Court on the following: Dkt. 17 Motion for Preliminary Injunction Dkt. 18 Memorandum in Support of PI Dkt. 28 Affidavits in Support of PI *1575 Dkt. 29 Supplemental Memorandum in Support of PI Dkt. 30 Compilation of Affidavits and Exhibits in Support of PI Dkt. 32 Affidavit in Suppor...
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OPINION This matter is before the Court on plaintiff Oleson’s Food Stores (“Oleson’s”) complaint requesting that a preliminary injunction be entered staying arbitration of the underlying grievance in this matter scheduled for June 26, 1991. FACTS Plaintiff Oleson’s is a grocery retailer with stores in Petoskey, Traverse City, Charlevoix, Cadillac and Manistee, Michigan. Oleson’s employees are rep...
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ORDER RE MOTION TO DISMISS SECOND AMENDED CONSOLIDATED COMPLAINT I. Introduction This matter is presently before the court on defendants’ motion to dismiss plaintiffs’ Second Amended Consolidated Class Action Complaint (“Complaint”), filed on November 2, 1990. Plaintiffs’ Complaint is a class action 1 on behalf of those who bought the stock of Adobe Systems, I...
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765 F. Supp. 402 (1991) KELSEY-HAYES COMPANY, a Delaware Corporation, Plaintiff, v. Ali MALEKI, Defendant. No. 90-72355. United States District Court, E.D. Michigan, S.D. June 24, 1991. *403 Richard E. Rassel, Leonard M. Niehoff, Butzel Long Gust Klein & Van Zile, Detroit, Mich., for plaintiff. James K. Robinson, Gerard Mantese, Honigman Miller Schwartz & Cohn, Detroit, Mich., for defenda...
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MEMORANDUM AND ORDER The case comes before the court on a number of motions. Plaintiffs move to remand the case pursuant to 28 U.S.C. § 1447(c) and for attorney’s fees. (Dk. 7). The Federal Deposit Insurance Corporation (“FDIC”) moves to dismiss and/or strike the amended third-party petition of Turón State Bank (Dk. 15, 20, 21). Turón State Bank (“TSB”) moves for summary judgment against ...
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MEMORANDUM AND ORDER H.K. Enterprises, Inc., an Ohio corporation, brought this action arising out of an insurance contract dispute against three English defendants: Royal International Holdings, Ltd., R.A.S. Finance, and Abel Abu Namous. H.K. Enterprises filed its complaint in the Cuyahoga County Court of Common Pleas, and Royal International removed the case to this Court on the basis of...
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MEMORANDUM AND ORDER This is an action for trademark infringement and unfair competition. The same parties and the same issues are the subject of an earlier filed lawsuit in the Central District of California entitled Peregrine Industries, Inc. v. The Peregrine Corporation, Civil Action No. SA CV 91-21 GLT (RNRX). Plaintiff The Peregrine Corporation filed a motion to enjoin defendants Peregri...
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MEMORANDUM OPINION AND ORDER This matter comes before the court on defendant’s objection to the amount of restitution listed in defendant’s presentence report. On March 26, 1991, defendant pleaded guilty to one count of an eleven-count indictment. The indictment charged defendant with two schemes to defraud and to obtain money, by means of false and fraudulent pretenses, from two separate car d...
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MEMORANDUM OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE The Court has before it two separate motions to intervene as of right pursuant to Fed.R.Civ.P. 24(a)(2), or in the alternative, for permissive intervention under Fed. R.Civ.P. 24(b)(2), filed by five Federal Bureau of Investigation (“FBI”) agents seeking to become plaintiff-intervenors in the above-captioned case. After careful ...
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OPINION AND ORDER The Court has before it the defendant’s Opposition to the Magistrate’s Report and Recommendation which recommends that the defendant’s Motion to Suppress be denied. After a thorough review of the record in this case, we decline to adopt the Report and Recommendation, and grant defendant’s motion to suppress. *17 Defendant’s objections to the Report and Reco...
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ORDER THIS CAUSE has come before the Court upon the motion to dismiss the complaint and for summary judgment filed by defendant Nicholas Navarro (“Navarro”). Fed. R.Civ.P. 12(b), 56. On the same date, a motion to dismiss the complaint and for summary judgment was filed on behalf of defendants Ron Cacciatorre, Robert Deak, Douglas S. Brown, Jamie D. Huff, Roger Lekutis and Tom Eastwood. Fed.R.Ci...
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APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA This cause is before the Court on appeal from the Final Judgment of the Bankruptcy Court entered in this adversary proceeding in favor of appellees. Chief Bankruptcy Judge Alexander L. Paskay entered Final Judgment on April 17, 1990 upon the Findings of Fact, Conclusions of Law and Memorandum Opinion dated April 4, ...
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ORDER Pending before the Court in this asbestos diversity suit is defendant W.R. Grace & Co. — Conn.’s Motion to Dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The complaint sounds in strict product liability, breaches of warranty and negligence. Plaintiff has responded and the parties have filed a round of replies. Defendant has also...
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OPINION AND ORDER Defendant Alejandro Diaz-Bastardo was convicted of all five counts of an indictment charging him with violation of 8 U.S.C. § 1324(a)(1)(A).1 On August 7, 1990, a sentencing hearing was held at which time defendant was sentenced to a five-year term of imprisonment and a three-year term of supervised release. While his conviction was affirmed by the United States Court of Appeals ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This action was brought by the plaintiffs Agri Export Cooperative and Bankers Trust Company to enforce payment on a letter of credit issued by Universal Savings Association. The case was tried to the Court on March 26, 1991. The following Findings of Fact and Conclusions of Law are made pursuant to Fed.R.Civ.P. 52. Findings of Fact 1. ...
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MEMORANDUM AND ORDER The plaintiff Daniel Wrona (“Wrona”), a resident of Massachusetts, brings this action seeking review of the August 29, 1989 denial by an Administrative Law Judge of his request for supplemental security care and disability insurance benefits. The Appeal Council of the Social Security Administration, in a letter dated December 26, 1989, refused any further review of Wrona’s app...
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MEMORANDUM OPINION AND ORDER Before me is plaintiff’s motion for summary judgment to recover damages suffered when the defendant destroyed plaintiff’s goods during shipment. The issues are fully briefed. Since liability is not contested, the dispute is over the proper measure of damages. Because this case is very similar to an earlier matter, (Eastman *1485 Kodak Co. v. Westway Motor Freig...
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MEMORANDUM OPINION Antoinette Blevins Johnson appeared on June 12, 1991, to answer a petition to revoke her five-year probationary sentence. The basic facts relevant to the issue before the court are undisputed. Where they lead is the real question. Pertinent Facts Johnson was indicted on April 30, 1987. The indictment contained thirty counts charging Johnson with forging endorsements on ...
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ORDER STATEMENT OF THE CASE This is an appeal from an Order of the United States Bankruptcy Court for the Eastern District of North Carolina denying the creditor Appellant’s objection to the confirmation of debtor Appellees’ Chapter 13 Plan (hereinafter, the “Plan”) and motion to dismiss said Plan. Appellant has filed a brief asking that the Bankruptcy Judge’s November 20, 1990, Order Regarding Co...
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MEMORANDUM OPINION Plaintiffs sue defendant Harold W. Buirkle for defamation and for tortious interference with a contract and with a business relationship. At the close of plaintiffs’ presentation of their case to the jury, the court directed a verdict for defendant. BACKGROUND This case is a skirmish in the battle between plaintiff William R. Harris and Mr. Edwin E. Wells, Jr....
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OPINION AND ORDER Defendants move to dismiss this case on the ground of forum non conveniens. Alternatively, third-party defendant Kien Hung Shipping moves to dismiss for lack of personal jurisdiction. On July 31, 1990 the court referred this case to Magistrate Judge Lee for a report and recommendation on all substantive motions. Magistrate Judge Lee issued her recommended decision orally...
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MEMORANDUM OPINION Plaintiff, Randa Coal Company (“Ran-da”), appeals to this court from the United States Bankruptcy Court for the Western District of Virginia. This court has appellate jurisdiction over this action pursuant to 28 U.S.C.A. § 158. PROCEDURAL AND FACTUAL BACKGROUND On November 25, 1983, Randa filed a petition for Chapter 11 relief in bankruptcy court. At the time ...
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ORDER I. Introduction Plaintiffs move this Court to facilitate notice to a proposed class of opt-in plaintiffs by approving the form of the Age Discrimination in Employment Act (“ADEA”) plaintiffs’ notice of their ADEA claim, authorizing the mailing of the notice to members of Subclass C, and ordering defendants to produce the names and addresses of Subclass C members so that notice may be sent. ...
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ORDER This matter is before the Court on appeal from the United States Bankruptcy Court for the Central District of Illinois, the Honorable William V. Altenberger presiding. The bankruptcy court determined that certain tax penalties owed to the United States by the debtor were dischargeable under his Chapter 7 bankruptcy petition. For the reasons set forth below, this decision is affirmed. BA...
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MEMORANDUM AND ORDER By Memorandum and Order dated February 25, 1991, this Court refused to limit plaintiffs claim for maintenance to the amount specified in the collective bargaining agreement negotiated by his union. Because, however, there was no evidence in the record regarding plaintiff’s actual expenditures for food and lodging, it directed the plaintiff to submit an affidavit docum...
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MEMORANDUM OPINION Presently before this Court is Debtor and Appellee Swann Limited Partnership’s (“Swann”) Motion to Dismiss Notice of Appeal. A response and reply have been filed. The issues have been fully briefed. No hearing is deemed necessary. Local Rule 105.6 (D.Md.). I. On July 2, 1990, Swann, a Maryland limited partnership located in Baltimore, Maryland, filed a volunta...
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OPINION Plaintiff the Securities and Exchange Commission (“SEC”) commenced this action on March 14, 1990 seeking to enjoin violations of federal securities laws as against the captioned defendants. On March 23-26 and 29, 1990, I conducted a preliminary injunction hearing. Among the defendants named were Richard Sands, Robert Beck, and Ventura (“the Ventura defendants”). Injunctive relief ...
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*351 MEMORANDUM OPINION Plaintiff initiated this action by filing a Complaint in the Court of Common Pleas of Blair County, Pennsylvania, on or about September 9, 1986. Defendant, Beverly Enterprises, Inc., then removed the action to this Court. Plaintiff, a licensed practical nurse, alleges in her Complaint that she was wrongfully discharged by her employer, defendant, in t...
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MEMORANDUM I. Background: This is an action arising under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (the “FTCA”), and this court has jurisdiction under the provisions of 28 U.S.C. § 1346(b). Plaintiffs, Donald J. MacDonald and Mary G. MacDonald, his wife, filed a three-count complaint against the United States of America acting through its agency, ...
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OPINION The United States Lines, Inc. and United States Lines (S.A.) Inc. Reorganization Trust (the “Trust”) has moved to transfer certain personal injury and wrongful death actions presently pending against debtors United States Lines, Inc. and United States Lines (S.A.) Inc. (collectively, “USL”) in the State Courts of New York to this Court, pursuant to 28 U.S.C. § 157(b)(5). For the f...
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MEMORANDUM AND ORDER Paddy Kalish filed this qui tam action in the name of the United States of America (the Government) against the defendants on April 17, 1991. 31 U.S.C. § 3730(b)(1). As required by the applicable statute, the complaint was filed in camera and has remained under seal since it was filed. 31 U.S.C. § 3730(b)(2). The Government has moved ex parte for an extension of time duri...
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MEMORANDUM DECISION AND ORDER This matter is before the court for a decision on the merits following a bench trial. The following Findings of Fact and Conclusions of Law are entered pursuant to Federal Rule of Civil Procedure 52(a), after having examined the entire record and after having determined the credibility of witnesses. Findings of Fact On February 21, 1989, after s...
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MEMORANDUM AND ORDER Plaintiff Pearl Thomas Mitchell, a black female, brings this action for sex and race discrimination under Title VII, 42 U.S.C. § 2000e et seq., against her former employer, Peralta Community College District (“Peralta”), and for violations of the Civil Rights Act, 42 U.S.C. §§ 1981 and 1983, against two members of Peralta’s Board of Trustees, Amey Stone and...
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OPINION The First Amendment and public employees. Does the First Amendment mean that the state, as an employer, must sit idly by while a public employee, motivated by jealousy and a difference of professional opinion, acts to undermine his supervisor and his employer? No! Verdict is directed in favor of Defendants. This court is aware, of course, that a verdict should be directed only i...
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MEMORANDUM OPINION This case has been transferred to this member of the Court for disposition. Presently pending are Motions for Summary Judgment filed by the defendants. On or about November 30,1987, Plaintiff commenced an action against defendants in the Court of Common Pleas of Allegheny County at GD-20670 wherein she seeks compensatory damages, punitive damages and attorneys’ fees and costs. T...
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OPINION The plaintiff, Otto Karl Schwab, filed a complaint pursuant to 42 U.S.C. § 1983 against three Delaware State troopers in their individual capacity. 1 The complaint contains allegations of four civil rights violations: false arrest, excessive force during the course of the arrest, an illegal search and seizure of property following the arrest and malicious prosecution. I...
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OPINION AND ORDER This matter is before the Court pursuant to the Substitute Motion of Defendants Amateur Softball Association (“ASA”), et al., for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure. By way of background, the instant case was filed in the Franklin County Court of Common Pleas on August 28, 1990. The Complaint and Action For Declaratory Judgment was cou...
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MEMORANDUM OPINION I. INTRODUCTION On June 25,1985, a Pontiac Fiero collided with a 1983 Chevrolet Camaro driven by Sharon Krutz (“Krutz”). Krutz allegedly suffered injuries in the accident that require compensation greater than the $25,-000 insurance proceeds available from the combined limits of the insurance policies held by the driver and owner of the Pontiac Fiero. Krutz, with h...
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OPINION A question of sovereign immunity. This cause comes before the Court upon remand from the Seventh Circuit. The circuit court vacated our prior decision denying the United States’ motion for a preliminary injunction of a parallel state *257court proceeding and remanded with instructions to determine “whether sovereign immunity precludes the government’s intervention in the state court suit....
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MEMORANDUM OPINION AND ORDER Defendants Pasquale Marcy and Fred Roti have filed several motions to dismiss, which we address in the following order: (1) the motion to dismiss Counts I and II; (2) the motion to dismiss racketeering acts 2(EHH) and 3, and Counts VIII, IX, X, XI, and XIII; and (3) the motion to dismiss Count III. For the reasons set forth below, all three motions are denied. I. ...
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ORDER THIS CAUSE has come before the Court upon the defendants’ motion for judgment on the pleadings, or, in the alternative, for summary judgment. The plaintiff has filed a timely response to this motion. Defendant Resolution Trust Corporation (“RTC”) has also moved to amend its affirmative defenses. This motion has not been responded to. FACTS The plaintiff, Steven C. Owe...
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765 F.Supp. 887 (1991) PORT ALLEN MARINE SERVICES, INC., et al. v. Joseph Scott CHOTIN, et al. Civ. A. No. 89-436-B. United States District Court, M.D. Louisiana. June 19, 1991. *888 Frank S. Craig, III, Trial Atty., Breazeale, Sachse & Wilson, Baton Rouge, La., James R. Chastain, Jr., for plaintiffs. Phelps, Dunbar, Marks, Claverie & Sims, Baton Rouge, La., Docia L. Dalby, Trial Atty., E...
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MEMORANDUM This is a Freedom of Information Act (“FOIA”) case raising novel issues under 5 U.S.C. § 552(b)(7)(C) and (7)(D). Plaintiff Robert Grady Johnson, a state death row inmate, seeks possibly exonerating information from the Federal Bureau of Investigation relating to his involvement in a 1984 bank robbery in Gerónimo, Oklahoma. In 1985, plaintiff was found guilty in Oklahoma s...
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MEMORANDUM OPINION AND ORDER I. Introduction This matter is before the Court on (1) the motion of the defendant, Florida Properties Marketing Group, Inc. (“FPM”), to dismiss, or in the alternative for transfer, or in the alternative for stay, and (2) FPM’s motion to transfer under 28 U.S.C. § 1404(a). Before addressing the motions, it is necessary to discuss briefly the pleadings in the present ca...
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MEMORANDUM AND ORDER Plaintiff, Mark Herrmann, filed a motion for summary judgment with this court; the defendants, E.W. Wylie Corporation (Wylie) and First Trust Company of North Dakota (trustee) responded with a cross motion for summary judgment. Herrmann gave notice on April 7, 1989, that he would voluntarily terminate employment. On April 10, 1989, Wylie terminated Hermann. While...
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MEMORANDUM AND ORDER This is a diversity case in which plaintiff Ticor Title Insurance Company (Ticor) seeks a declaration that it is not liable under a title insurance policy to defendants University Creek, Inc. and Creek Plaza, Inc., d/b/a University Creek Associates (collectively: University Creek), and that it did not violate the Florida Unfair Insurance Trade Practices Act, Fla.Stat....
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*1479 ORDER GRANTING DEFENDANT MIDLAND’S MOTION FOR SUMMARY JUDGMENT RE COBRA CONTINUATION COVERAGE INTRODUCTION This case involves an employee who was severely injured and rendered a quadriplegic in a non-work related accident. Plaintiffs employer, defendant Assured Content Restoration (“Assured”), had obtained group medical insurance for its employees through defendant Res...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, DENYING DEFENDANT’S MOTION FOR SANCTIONS, DENYING PLAINTIFF’S MOTION FOR SANCTIONS, AND DISMISSING PLAINTIFF’S MOTIONS IN LIMINE AS MOOT Plaintiff Gentry P. Transou filed his complaint against defendant Electronic Data Systems (“EDS”) February 6, 1990, se...
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OPINION A nimble attempt to bootstrap state court actions into federal cases by way of the bankruptcy court. Defendants Grefco, Inc. and General Refractories Co. (Grefco) removed these six actions (which we have consolidated for decision) to this Court and ask that we transfer them to the United States Bankruptcy Court for the Southern District of New York. We must refuse the in...
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MEMORANDUM AND ORDER This is a diversity case in which plaintiff seeks damages for breach of contract and wrongful discharge. Plaintiff filed his complaint in a Michigan state court on April 3, 1990. Defendant removed the case to this Court on June 14, 1990 under 28 U.S.C.A. §§ 1332(a), 1441(a) (West Supp. 1990), and filed an answer to the complaint on June 19, 1990. On July 12, 1990, plai...
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OPINION I. INTRODUCTION This is yet another segment of the labyrinth of litigation surrounding a final rule issued by the Department of Transportation and the Maritime Administration (“MARAD”) allowing four very large crude tankers (“VLCCs”) to repay construction-differential subsidies (CDS) in exchange for the right to operate in the domestic trade on a permanent basis 1 ...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S 5 APRIL 1991 MOTION FOR SUMMARY JUDGMENT FACTS The essential facts are not in dispute. The plaintiff’s decedent ingested a quantity of drugs which resulted in his death. Plaintiff made a claim, through the decedent’s ERISA plan, against the defendant insurance company based on the accidental death of her decedent. The defendant denied the clai...
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OPINION Plaintiff Marilyn Revis filed a complaint asserting that defendant, Slocomb Industries, Inc., (a) denied her a promotion on the basis of her race, (b) discharged her in retaliation for filing a discrimination complaint with the Philadelphia Branch Office of the Equal Employment Opportunity Commission (“EEOC”), and (c) subjected her to racial harassment in the course of her employm...
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MEMORANDUM OPINION Presently before the Court in this action for damages for alleged exposure to asbestos is the Motion of Garlock, Inc., for summary judgment based on lack of product identification. The plaintiffs seeks damages for injuries allegedly caused by the plaintiff-husband’s exposure to asbestos-containing products manufactured and sold by Garlock, Inc., as well as others. Garlock asser...
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OPINION Defendant Alta Tecnología Medica S.A. (“Altec-2”) has moved pursuant to Rule 12(b)(2), Fed.R.Civ.P., for an order dismissing the complaint in this RICO action for *80 lack of personal jurisdiction. For the reasons set forth below, the motion is denied. The Parties Plaintiff Diego Herbstein (“Herbstein”), a medical doctor, is a citizen of Argentina but cur...
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MEMORANDUM OPINION Plaintiff, Betty Curry, instituted this asbestos action individually and as Administratrix for the Estate of Gerald E. Curry, on or about January 25, 1985, against the railroad defendants Conrail and Penn Central pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60. Plaintiff also included as defendants various asbestos manufacturer and/or supplier defe...
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MEMORANDUM ORDER This is an action to recover $354,506.85 (plus additionally accruing late charges) from National Business Systems, Inc., a Delaware corporation (“NBS/Delaware”), arising from NBS/Delaware’s default under an equipment lease, and from National Business Systems, Inc., a Canadian corporation (“NBS/Canada”), as guarantor of NBS/Delaware’s obligations. NBS/Canada has now moved ...
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MEMORANDUM AND ORDER BP America, the defendant and third-party plaintiff in this case, has moved to compel the deposition of Byron Krantz. Krantz had some involvement, as well as a financial interest, in the transactions at issue in this securities fraud case, and he and his law firm represent all of the plaintiffs and the third-party defendant. Krantz resisted BP’s attempts to depose him...
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OPINION AND ORDER This motion for summary judgment raises one issue: whether the defendant is barred from raising the liability limitation of the Warsaw Convention (“the Convention”) under Article 9 of the Convention because the two air waybills accepted by defendant do not comply precisely with the requirements of Article 8. Plaintiffs motion to bar defendant’s Affirmative Defense based ...
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OPINION AND ORDER Plaintiff R.R. Donnelley & Sons Company (“Donnelley”) seeks injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure, enjoining defendant James E. Fagan, Jr. (“Fagan”), a former employee of Donnelley, “from working, nationwide, for any competitor of Donnelley’s in the financial and legal printing business,” for the period of six months from the issua...
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MEMORANDUM AND ORDER The defendant, a citizen of Panama who has lived in this country for two years, moves to suppress crack cocaine seized from his bag by officers interdicting passengers on interstate buses which pause at the local bus station. Gerald Crispino, an Immigration and Naturalization Service Special Agent attached to the Metropolitan Police Department’s Narcotics Interdiction Unit, op...
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ORDER This cause is before the Court on the Charter Crude Oil Company’s (hereinafter “Charter” or “CCOC”) appeal from the December 29, 1986 and November 23, 1988 rulings of the United States Bankruptcy Court for the Middle District of Florida, filed March 20, 1989. Petróleos Mexicanos (hereinafter “Pemex”) filed a response on March 31, 1989; Charter then filed a reply brief on April 24, 1...
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*489 ORDER THIS CAUSE has come before the Court upon Jeanne Smith’s appeal from an order of the United States Bankruptcy Court for the Southern District of Florida. The parties have fully briefed the issues in this case, and the Court heard oral argument on Friday, May 3, 1991. The appeal is now ripe for disposition. I. BACKGROUND The genesis of this dispute was a scam....
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OPINION On March 8, 1991 defendant Nelson Navarro, a/k/a Neno Sanchez-Medina, was arrested by agents of the Drug Enforcement Administration (“DEA”). Navarro was indicted on April 5, 1991 and charged with use of a firearm in furtherance of a drug trafficking crime, conspiracy to possess and possession with intent to distribute a Schedule I controlled substance, namely, one kilogram and more of a...
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OPINION AND ORDER These are cross-motions for summary judgment by defendant, the Immigration and Naturalization Service (“INS”), and by plaintiff, Jesus Ferreira Paulino, a prison inmate in the custody of the New York State Department of Correctional Services on the issue of whether INS has violated plaintiff’s due process rights by not conducting a deportation hearing pursuant to 8 U.S.C...
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OPINION Plaintiff David Geshwind (“Geshwind”) moves pursuant to Rule 60(b) of the Federal Rules of Civil Procedure to vacate and set aside the Findings of Fact and Conclusions of Law of this Court dated April 12, 1990, 734 F.Supp. 644, on the basis of new evidence, withheld evidence and fraud by the defendants and third-party defendants, and for the Court to find summarily for the plaintiff on the...
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MEMORANDUM AND ORDER In the above-referenced action, a federal indictment charged defendants with numerous violations, including federal tax evasion, stemming from a gasoline bootlegging operation uncovered pursuant to a joint state-federal task force investigation. Defendants previously pled guilty to an extensive state indictment culled from the same investigation, and they now seek to dismiss ...
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ORDER Plaintiff filed this action in the Iowa District Court for Muscatine County; de*727fendant timely removed it to this court claiming the amount in controversy “could reasonably exceed the sum or value of $50,-000.” Plaintiff objects to removal on the ground that he seeks judgment in an amount less than the $50,000 jurisdictional amount. The original petition, filed March 28, 1991, did not sta...
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MEMORANDUM AND ORDER The parties have submitted to the Court a legion of proposed modifications to the settlement plans approved by the court of appeals in Little Rock School District v. Pulaski County Special School District No. 1, 921 F.2d 1371 (8th Cir.1990). Taken as a whole, the parties have fashioned a set of plans remarkably different from those approved by the Eighth Ci...
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MEMORANDUM OPINION AND ORDER The plaintiffs, Seymour and Ethel Gale, have brought this action pursuant to § 7422 of the Internal Revenue Code of 1986, 26 U.S.C. § 7422, seeking recovery of taxes erroneously assessed and collected. The United States moves to dismiss the *1306 plaintiffs’ complaint. Because an answer to the complaint has already been filed, and the pleadings ar...
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DECISION AND ORDERS RE CROSS MOTIONS FOR SUMMARY JUDGMENT On April 8, 1991 the court heard the parties’ respective Motions for Summary Judgment. Upon due consideration of the written and oral arguments of the parties and the record herein, the court grants summary judgment for the United States and denies summary judgment for Toyota of Visalia, Inc. (hereinafter referred to as Toyota) for...
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MEMORANDUM OPINION AND ORDER This matter is before the Court via Plaintiffs’ Motion for Summary Judgment and Plaintiffs’ Motion in Limine. Having carefully considered the papers presented, the Court is prepared to issue its ruling herein. On February 12, 1990, the Trustees of the United Mine Workers of America 1950 Pension Plan, 1950 Benefit Plan and Trust, 1974 Pension Plan, and 197...
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OPINION Defendants are charged in a thirty count indictment with conspiracy under 18 U.S.C. § 241 (“Conspiracy to deprive others of Constitutional Rights”) and twenty-nine counts of involuntary servitude under 18 U.S.C. § 1584 (“Sale into Involuntary Servitude”). 1 The government contends that defendants, all members of the “Ecclesia Athletic Association,” entered into a conspi...
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MEMORANDUM OPINION AND ORDER On September 5, 1990, Plaintiff Rodney D. Roush (Mr. Roush) filed his complaint against the Defendants alleging that they improperly suggested his wages pursuant to W.Va.Code, § 48A-1-1, et seq. (West *1346 Virginia Enforcement of Family Obligations Act). The named Defendants include Judith Annette Roush (Mrs. Roush), Mr. Rou...
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MEMORANDUM OPINION AND ORDER Plaintiff Pearlie Clark seeks review of the final decision of the Secretary of Health and Human Services. The Secretary found that Clark was not disabled during the relevant period and has denied disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. On October 25, 1988, Clark filed an application for disabi...
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MEMORANDUM OPINION AND ORDER This cause is before the Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on Plaintiff’s Motion for Summary Judgment. Defendants have filed a Cross-Motion for Summary Judgment. All parties have responded to the Motions. The Court, having considered the Motions and Responses, together with memoranda of authorities and attachments thereto, now...
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MEMORANDUM OPINION AND ORDER This case was originally filed in the Circuit Court of Cook County, but was removed to this court pursuant to 28 U.S.C. § 1441 because the complaint asserts a claim under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”). The complaint includes three counts: RICO conspiracy pursuant to 18 U.S.C. § 1962(d), ret...
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*357MEMORANDUM AND ORDER This matter is before the court on plaintiffs’ motion to review Magistrate Judge Rushfelt’s May 6, 1991, Memorandum and Order. In his order of May 6, 1991, Magistrate Judge Rushfelt ruled that plaintiffs must depose Earl King, an officer and director of the defendant corporations, in Vancouver, British Columbia. In so holding, Magistrate Judge Rushfelt noted that King had...
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MEMORANDUM AND ORDER Plaintiff, Robert A. Aronson, initiated a request under the Freedom of Information Act (“FOIA”) to obtain Internal Revenue Service (“IRS”) records pertaining to those individuals with undistributed income tax refunds. Thereafter, frustrated by the IRS’s lack of response to his request, Aron-son filed suit to compel release of the materials. The IRS, which withheld the...
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MEMORANDUM AND ORDER This is a case filed by the Boston Police Superior Officers Federation (“Federation”) and William T. Broderick (“Broderick”), the Federation’s president, against the City of Boston (“City”) and various officials employed by the Boston Police Department (“BPD”). 1 The Federation is the union which represents all uniformed personnel of the BPD employed in the...
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MEMORANDUM OPINION In this case a truck hauler alleges a scheme by a truck broker and its lender to divert monies collected from shippers to pay off the truck broker’s business loan rather than remitting those funds to the haulers. Plaintiff Delta Pride Catfish, Inc. (Delta Pride) sued Marine Midland Business Loans, Inc. (Marine Midland), alleging that Marine Midland seized $31,500 belong...
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MEMORANDUM This action arises out of the sale, resale, and eventual crash of an Agusta A109 helicopter. Defendant Costruzioni Aeronautiche Giovanni Agusta S.p.A. (“CAGA”) is the Italian manufacturer of the helicopter, and defendant Agusta Aviation Corporation (“AAC”) 1 is its subsidiary responsible for marketing, distribution and support of CAGA products in North America. AAC s...
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*1546 AMENDED OPINION On May 15, 1991, in a continuation of a hearing held on April 24, 1991, further argument was received regarding the constitutionality of the non-disclosure provisions of the Federal Victims’ Protection and Rights Act, 18 U.S.C. § 3509. At the initial hearing and in the opinion which followed, I reserved ruling on defendants’ challenges to the Act based upon their First (...
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MEMORANDUM AND ORDER The plaintiff Towns of Walpole and Norfolk (“the Towns”) filed this suit to challenge the issuance by the U.S. Army Corps of Engineers of permit no. 199000033 pursuant to § 404 of the Clean Water Act, 33 U.S.C. § 1344; § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403; and the regulations promulgated thereunder. The permit in question approved various ...
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ORDER Pending before the Court is Defendant’s Motion for Partial Summary Judgment. For the reasons stated below, said Motion is denied, but the Court certifies this issue *1362 for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). I.FINDINGS OF FACT A. Proceedings to Date in the Litigation 1. This lawsuit is brought by certain former management empl...
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765 F. Supp. 1418 (1991) Betty WHITE, Plaintiff, v. CATERPILLAR, INC., Defendant. No. 91-0535-CV-W-8. United States District Court, W.D. Missouri, W.D. June 26, 1991. *1419 Samuel K. Cullan, Von Erdmannsdorf & Mowry, Kansas City, Mo., for plaintiff. Paul Scott Kelly, Jr., Gage & Tucker, Kansas City, Mo., for defendant. ORDER STEVENS, District Judge. Plaintiff brought this action on June ...
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OPINION & ORDER By Opinion & Order dated May 17, 769 F. Supp. 1236, we denied defendant G.V. Licensing, Inc.’s (“Licensing”) preliminary injunction application, and reserved decision both on plaintiff’s motion for summary judgment on its claim for a declaratory judgment establishing the exclusivity of its licenses, and on defendants’ motion pursuant to Fed.R.Civ.P. 12(b)(6) which (1) soug...
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MEMORANDUM and ORDER I. INTRODUCTION Before the court are cross-motions for summary judgment. Plaintiff Delaware County Memorial Hospital (“DCMH”) filed a complaint for declaratory relief and money allegedly due under the health costs reimbursement .program established under Title XVIII of the Social Security Act (“Medicare”). 42 U.S.C. § 1395 et seq. In 1979-80, p...
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MEMORANDUM OPINION AND ORDER Rosetta Porter has filed this appeal from an order of the bankruptcy court, finding in favor of Mid-Penn Consumer Discount Co. and Mid-Penn National Company. Porter originally filed an adversary action against Mid-Penn alleging, inter alia, various violations of the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq. The bankruptcy court found that Mid-Penn co...
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ORDER Before this Court are defendants’ motion for summary judgment and plaintiffs’ motion for summary judgment. Plaintiffs challenge the propriety of the defendants’ procedure for determining Medicaid reimbursement rates for long-term care facili *1414 ties in the State of Missouri and the adequacy of the established rates. For the following reasons, defendants’ motion for s...
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ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND A PERMANENT INJUNCTION AND DENYING DEFENDANTS’ COUNTER MOTION TO DISMISS THE CASE AS MOOT I. Introduction This lawsuit seeks to compel preparation of a federal Environmental Impact Statement (“EIS”) for the Hawaii Geothermal Energy Project (the “Project”) and to enjoin any further federal participation in the Project ...
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ORDER Before this Court is the motion to dismiss of defendants Pan-American Life Insurance Company (“Pan-American”) and National Insurance Services, Inc. (“National”). Defendant Babel-Peak Agency, Inc. (“Babel-Peak”) moves separately to dismiss and joins in Pan-American and National’s suggestions in support. For the following reasons, Pan-American and National’s motion to dismiss will be ...
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MEMORANDUM Plaintiff originally filed the above-captioned action in the Philadelphia Court of Common Pleas, alleging that she sustained serious injuries when she slipped and fell in a bathtub in the Red Carpet Inn in Davenport, Florida. Plaintiff further alleged, in Count I of her Complaint, that the management of the Red Carpet Inn was negligent in failing to provide adequate safety devices in...
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OPINION AND ORDER [T]he principal failing occurred in the sailing, And the Bellman, perplexed and distressed, Said he had hoped, at least, when the wind blew due East, That the ship would not travel due West! 1 *401 The helmsman of the doomed M/Y Wishing Star (the “Wishing Star”) certainly can share the sentiments of Lewis Carroll...
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OPINION In this case, a manufacturer is charged with failing to warn that the use of its vaccine might lead to serious consequences. Before me is the supplemental motion of defendant Merck & Co., Inc., for summary judgment and to exclude expert testimony. 1 Plaintiffs Lisa Marie Mazur and her parents, Anthony and Edna Mazur, claim that Lisa contracted subacute sclerosing panenc...
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765 F. Supp. 583 (1991) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. DELIGHT WHOLESALE COMPANY, Defendant. No. 90-0022-CV-W-5. United States District Court, W.D. Missouri, W.D. June 13, 1991. *584 *585 *586 John H. Edmonds, Gail D. Cober, Karen Khan, Detroit, Mich., and Aileen S. Castellani, Asst. U.S. Atty., Kansas City, Mo., for plaintiff. Roland B. Miller, III, Jack D. Rowe, Lathrop,...
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MEMORANDUM OPINION AND ORDER This matter is before the court regarding jurisdiction issues raised by the United States in its Prehearing Memorandum and in a prior Motion to Dismiss. In addition, the plaintiffs filed a Motion in Limine concerning the implication of the doctrine of law of the case to preclude consideration of these issues because they were raised in an earlier appeal to the...
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MEMORANDUM AND ORDER Presently before the Court are the Supplemental Memoranda filed pursuant to this Court’s Order of April 4, 1991 and the Defendant’s Motion to Dismiss the Amended Complaint. The original complaint filed comprised counts relating to the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), bad faith and punitive damages under the MVFRL, and tortious interference ...
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ORDER The above-styled motion is before the court on cross-motions for summary judgment. In this proceeding, plaintiff, RJR Nabisco, Inc. (“RJR”), seeks to recover a portion of the interest payment it paid to the defendant, the Internal Revenue Service (“IRS”), on a tax deficiency and penalty. All of the facts have been stipulated to and both parties have filed motions for summary ju...
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DECISION AND ORDER INTRODUCTION Plaintiff, Carlos Kellogg, brought a seaman’s personal injury action against the United States for injuries sustained when a line struck and seriously injured his left hand during a buoy retrieval operation while on board the U.S.N.S. Bartlett. After a non-jury trial, the court makes the following findings of fact and conclusions of law: FINDINGS OF FACT 1. The U....
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ORDER This matter is before the court on plaintiffs’ motion for summary judgment against the United States Secretary of Agriculture, the Acting Administrator of the Farmers Home Administration, the *1477 Minnesota State Director of the Farmers Home Administration, the District Director for the Farmers Home Administration (the “Federal Defendants”) and Paddington Investors (“P...
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MEMORANDUM AND ORDER Petitioner was found guilty of strangling a woman after breaking into her apartment. The evidence consisted of what were said to be three of his fingerprints at the scene and testimony that he had been observed near the apartment about the time of the crime. The first trial resulted in a hung jury. At the second, the judge three times instructed the jury that if it had a reaso...
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MEMORANDUM AND ORDER This case is brought by a public interest organization, the Humane Society of the United States, and various coalitions of homeowner/citizens, against the United States Secretary of the Interior and the Director of the Fish and Wildlife Service (“FWS” or “the Service”) to prevent the implementation of defendants’ decision to permit limited public deer hunting on a nat...
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OPINION AND ORDER This is an action brought by a prisoner under 42 U.S.C. § 1983 alleging due process and equal protection violations stemming from disciplinary proceedings invoked against him while he was an inmate at the Sing Sing Correctional Facility in 1984. Plaintiff moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for partial summary judgment on his claims against ...
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ORDER Plaintiffs are Anderson Chemical Company, Inc., its subsidiary corporations and its stockholders (“Anderson Chemical”). Defendants are Portals Holdings PLC of the United Kingdom and its United States subsidiaries, Portals Water Treatment, Inc. and Wright Chemical Company (“Portals”). Anderson Chemical, its subsidiaries and stockholders, are citizens of different states from def...
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MEMORANDUM OPINION AND ORDER Plaintiff has filed this suit against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. (FTCA), alleging negligence of medical personnel at Great Lakes Naval Hospital in Great Lakes, Illinois during the course of her obstetrical care and the delivery of her child on June 26, 1986. A bench trial was conducted from Fe...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This cause is before the Court pursuant to Count I of Plaintiff’s complaint. Before the Court are motions for summary judgment to determine whether state or federal law governs the interpretation of insurance contracts governing 42 U.S.C. § 9601 et seq., CERCLA insurance risks. The Court has considered the motions for summary judgment, memor...
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MEMORANDUM OPINION AND ORDER On March 19, 1991, Defendant American Colloid Company filed with this Court motions to dismiss or for judgment on the pleadings in two separate cases: Ivan Stedillie v. American Colloid Company, CIV.91-5015; and Monte Talkington v. American Colloid Company, CIV.91-5014, 767 F.Supp. 1495. Plaintiffs, both of whom are represented by the sam...
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ORDER This cause is before the Court on Plaintiff’s motion for summary judgement and Defendant's response and counter motion for summary judgement. Summary judgement may be granted if the moving party shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgement as a matter of law. Fed.R.Civ.P. 56(c). Both parties agree that there are no genuine i...
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MEMORANDUM OPINION AND ORDER In this diversity action, plaintiff Daniel E. Heffernan seeks indemnification from defendants Pacific Dunlop GNB Corporation (“Pacific”) and GNB Incorporated (“GNB”) for expenses Heffernan incurred in defending a lawsuit. Both defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). *914 BACKGROUND On a motion to dismiss, ...
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ORDER AND OPINION GRANTING SUMMARY JUDGMENT FOR PLAINTIFFS Plaintiffs in these two cases, the Associated Builders and Contractors (“ABC”) and the Chamber of Commerce of the United States (“Chamber”), challenge resolutions passed by the cities of San Bruno and South San Francisco (“Cities”) and an ordinance passed by Contra Costa County (“County”). The Building and Construction Trades Coun...
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MEMORANDUM AND ORDER I. BACKGROUND Plaintiffs are California recipients of Aid to Families with Dependent Children (“AFDC”) who need child care in order to participate in educational or training activities likely to provide them opportunities to secure employment and remove themselves from the welfare rolls. Defendants include the California Department of Social Services (“DSS”), the...
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MEMORANDUM AND ORDER The motions before the Court in this matter concern plaintiff’s request for leave *1130 of the Court to file a supplemental complaint, pursuant to Federal Rule of Civil Procedure 15(d). Plaintiff Elmer “Gerónimo” Pratt, a former leader of the Black Panther Party, filed his original complaint for damages and injunctive relief on September 12, 1989. That co...
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ORDER This cause is before the Court on the motion for summary judgment of Defendants Double D Management Company, Inc. and Double D Properties, Inc. (collectively “Double D”), the cross-motion for summary judgment of Constitution State Insurance Company (“Constitution State”), Double D’s motion for partial summary judgment, and the responses thereto. The central issue involved is ne...
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MEMORANDUM OPINION This matter came on for trial before this Court, sitting without a jury, July 18, 19, 20, 21, 25, 26, 27, and 28, 1988. Plaintiff, Marine Transport Lines, Inc., seeks a declaratory judgment as to the liability of Marine Transport Lines (hereinafter MTL) to pay double wage penalties pursuant to 46 U.S.C. Sec. 10313(g) to the International Organization of Masters, Mates and Pilot...
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MEMORANDUM AND ORDER On November 13, 1990, plaintiff General American Life Insurance Company (“General American”) brought this action seeking rescission of a business overhead expense disability insurance contract and damages against defendant Gurcharan S. Rana. Plaintiff alleges: (1) that defendant misrepresented and concealed material facts from plaintiff, and (2) that defendant is not ...
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ORDER On May 8, 1991, this Court heard plaintiffs’ motions for summary adjudication of claims and involuntary dismissal of defen *634 dant’s counterclaim, and defendant’s motion for summary adjudication of claim. Daniel C. Rooney appeared on behalf of plaintiffs Wayne and Judie Johnson, Dennis C. Beougher appeared on behalf of defendant City of Pleasanton. Having considered t...
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ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge’s Report and Recommendation. IT IS ORDERED that Judgment be entered denying and dismissi...
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ORDER This cause is before the Court on Count II of Plaintiff’s petition for declaratory relief. Before the Court are Plaintiff’s first and second motions for summary judgment against Double D Management Co., Inc., and Double D Properties, Inc. (“Double D”), Defendant Double D’s motions for summary judgment on “Damages,” “Crop Dusting,” and the “Pollution Exclusion,” and Defendant Double ...
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This case concerns the rights of creditors of a corporation to seek compensation from *995 participants in the sale of the corporation when the debt assumed by that corporation as a result of the sale renders it unable to meet its financial obligations. Certain defendants move to dismiss the complaint as to them. TLC Pattern, Inc. (“TLC Pattern”) was a designer and manufacturer of home sewing...
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On February 25, 1991, the Resolution Trust Corporation (the “RTC”), as receiver of Nassau Savings and Loan Association, F.A. (“Nassau Savings”), brought a declaratory judgment action, No. 91 Civ. 1361 (RLC), against Angelo Aponte, the Commissioner of the Division of Housing and Community Renewal of the State of New York (the “DHCR”); Robert Abrams, the Attorney General of the State of New York *63...
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MEMORANDUM OPINION The plaintiff, Edward L. Jolly, alleging that the defendant, Northern Telecom, Inc. (“NTI”), discriminated against him on the *482 basis of race, instituted this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I) and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (Count II). 1 Jolly contends t...
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MEMORANDUM AND ORDER Plaintiffs bring this class action against defendant Lucky Stores, Inc. (“Lucky”) alleging employment discrimination on the basis of sex and race. The parties are now before the court on defendant’s motion to dismiss the pendent state law class claims under the Fair Employment and Housing Act, arguing that Cal.Gov’t Code § 12965(b) precludes such claims where comparable fed...
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ORDER The plaintiff, Demann Washington, is a prisoner in the Illinois Department of Corrections. Originally, Mr. Washington brought this case pursuant to 42 U.S.C. § 1983, claiming that the defendants, correction officials, violated his constitutional rights in the course of disciplinary proceedings on October 22, 1987 which resulted in the plaintiff’s loss of good time credits. On November 8, 19...
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OPINION Respondent Lorrain Esme Osman (“Osman”) has moved for an order (1) certifying to the Supreme Court of Hong Kong that discovery conducted in the United States pursuant to certain Letters of Request issued in Hong Kong was conducted in violation of United States law, and (2) directing the United States Attorney and the Attorney General of Hong Kong to return the improperly obtained materials...
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ORDER Petitioner Jose Dominguez seeks credit toward his term of imprisonment for time he characterizes as “time spent in constructive custody.” Essentially, he is requesting credit for time he spent released on bond. Petitioner argues that he should receive credit for this time as it was served under “highly restrictive bail requirements.” For the reasons stated below, the court denies petitioner’...
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OPINION AND ORDER Defendants, Hyland Therapeutics Division, Travenol Laboratories, Inc., now known as Baxter Healthcare Corp. (“Baxter”), Armour Pharmaceutical Co., Inc. (“Armour”), and Miles Laboratories, Inc. (“Miles”), move to dismiss the present action for forum non conveniens. Subject to the conditions stated below, the motion is granted, and this suit is dismissed without...
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OPINION AND ORDER Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for dismissal of the complaint for failure to state a claim upon which relief may be granted. Plaintiff Carlos Cruz (“Cruz”), an inmate at Rikers Island, brings this pro se action pursuant to 42 U.S.C. § 1983 (1982) on the ground that defendants violated his constitutional rights by refusing to...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This is a civil forfeiture action brought by the United States against the Defendant real estate, comprised of a single family home and adjacent structure on a parcel of land at 3229 S.W. 23rd Street, Miami, Florida, along with all appurtenances and improvements to the property. This forfeiture complaint, brought by Plaintiff pursuant to Title 21, United ...
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MEMORANDUM BACKGROUND: Plaintiffs filed this action to recover for alleged ERISA 1 and RICO 2 violations committed in connection with the administration of an employee benefit plan established to provide health care coverage for the employees of members of the West Branch Manufacturing Association (“WBMA”). The ten plaintiffs 3 are employers who purch...
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OPINION AND ORDER The Bank of New York (“BNY”), as garnishee, was served in K/S Norman Agathe v. Sea Trade & Construction Ltd., et al., 90 Civ. 7119 with a Writ of Attachment, pursuant to Rule B of the Supplemental Admiralty Rules, and the Summons and Complaint in this action on October 19, 1990, and a Supplemental Writ of Attachment on November 1, 1990. In Compania Fortu...
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ORDER This order concerns personal jurisdiction and venue. The individual defendants in this case, Charles and Lisa Duckworth, argue that this Court does not have personal jurisdiction over them, and they ask the Court to dismiss the complaint. The Court DENIES this motion. In the alternative, the defendants argue that it would be more convenient to litigate this matter in Nashville, Tenn...
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OPINION This action presents a challenge to New York’s Medicaid reimbursement rates as they are applied to private psychiatric hospitals located within the state. 1. FACTS Medicaid is a federal/state program through which the federal government offers financial assistance to enable needy individuals to obtain health care. 42 U.S.C. § 1396 et seq. (1988). See gen...
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MEMORANDUM OPINION I. INTRODUCTION. On June 29, 1990, 750 F.Supp. 845, the Court issued its Memorandum Opinion and Judgment Entry granting plaintiffs’ motion for summary judgment on their claim that for purposes of determining food stamp allocations, the Secretary of Agriculture and the state and county defendants have improperly treated the utilities reimbursement check that plainti...
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MEMORANDUM OPINION AND ORDER Clyde Ahmad Winters (“Winters”) has filed and pursued, on his own, a race discrimination action 1 against his former employer Iowa State University (“University”), charging it with having retaliated against him for bringing an earlier Equal Employment Opportunity Commission (“EEOC”) charge against University back in the late 1970s. Each side has now...
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MEMORANDUM AND ORDER This matter is before the Court on defendant Village of New Haven’s (Village) motion to dismiss. This motion is well taken, and the Court concludes that the mandatory contract clauses set forth in the 1982 interim rule governing procurement actions taken by recipients of Environmental Protection Agency funds under the Clean Water Act are not incorporated into the cont...
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MEMORANDUM OPINION AND ORDER On March 19, 1991, Defendant American Colloid Company filed with this Court motions to dismiss or for judgment on the pleadings in two separate cases: Ivan Stedillie v. American Colloid Company, CIV.91-5015, 767 F.Supp. 1502; and Monte Talkington v. American Colloid Company, CIV.91-5014. Plaintiffs, both of whom are represented by the sam...
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*1443 MEMORANDUM AND ORDER Patricia Norman (Norman) filed suit against Dr. Donald Levy, Tyra Cosmetics, Inc., and Lynn Jahncke (collectively, Tyra), claiming, inter alia, that she was the victim of sex discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq. Tyra moved to dismiss Norman’s Title VII claim for lack of subject matter jurisdiction, o...
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ORDER This cause is before the Court on the Application for Leave to Appeal, filed on May 26,1988, by Charlie Davis d/b/a Houl-ihan Production Company (“Davis”). The Application is properly before this Court pursuant to 28 U.S.C. § 158(a). The Court has carefully considered the Application, and the Response to Application for Leave to Appeal, filed on June 8, 1988, by Martin Seidler, Trustee (“...
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MEMORANDUM I. BACKGROUND Plaintiffs commenced this action on July 10, 1987. On January 21, 1988, plaintiffs filed a second amended complaint alleging securities fraud, RICO (Racketeer Influenced and Corrupt Organizations Act) violations and a violation of the Pennsylvania Banking Code. On November 13, 1990, all of the defendants filed motions for summary judgment. This action arises out of the pur...
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MEMORANDUM Defendants Equibank, William M. Dens-more and John A. Kincaid, Jr. move for summary judgment. 1 Fed.R.Civ.P. 56(c). I. The amended complaint sets forth violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, together with pendent state law counts for breach of contract, interference with prospective contractual relation...
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ORDER Plaintiff Selma Geder alleges that defendants have denied him meaningful access to the courts in violation of 42 U.S.C. § 1983. Defendants have moved to dismiss the case under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons stated herein, defendants’ motion to dismiss is granted. FACTS Plaintiff Selma Geder is a pro se litigant who ...
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ORDER NEWCOMER, District Judge, Sitting By Designation. This is an action for declaratory, injunctive and monetary relief by Plaintiffs, Weight-Rite Golf Corporation and Weight-Rite Leisure UK Ltd., against the United States Golf Association (“USGA”). 1 The action arises out of the USGA’s determination that a shoe manufactured and distributed by the Plaintiffs does not conf...
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MEMORANDUM OPINION The plaintiffs in this action have alleged several violations of the Securities Exchange Act of 1934 (“1934 Act”), 15 U.S.C. § 78a et seq., and the Rules promulgated thereunder, and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., by the defendants. Defendants Laborers’ International Union of North America ...
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MEMORANDUM Plaintiff alleges that defendant improperly denied coverage under a fire and extended risk policy for contamination of plaintiff’s inventory caused by invisible ethyl acetate vapors. Plaintiff contends that because the policy insures against smoke damage, defendant has breached its contract and acted in bad faith by denying coverage. Defendant contends that the chemical vapors ...
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*374FINDINGS OF FACT AND CONCLUSIONS OF LAW On January 16 and 17, 1991, the court conducted a joint trial and evidentiary hearing in these consolidated cases concerning both the motion to remove confidentiality in the products liability action (C89-274) and trial of the copyright infringement action (C91-003). Witnesses testified and exhibits were received in evidence, after which the parties res...
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MEMORANDUM The plaintiff, Richard Nazay, Sr., a retired employee of Bethlehem Steel Corporation (Bethlehem), brought this action under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., to recover for the partial denial of hospitalization benefits under Bethlehem’s health insurance plan for retirees. The action had been filed before a Pennsylvania District Justi...
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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, Leavenworth, Kansas, is serving an aggregated sentence of 15-to-45 years imposed by the Superior Court for the District of Columbia in 1979. Petitioner was committed to the custody of the United States Attorney General i...
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MEMORANDUM AND ORDER In the above-referenced action, pro se plaintiff Thomas Powers (“plaintiff” or “Powers”) asserts claims against defendant Sara Karen (“defendant” or “Karen”) for violations of his constitutional rights pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, as well as 18 U.S.C. §§ 241, 242, 872, 1621, 1623, 2383, and 2384. Currently before the Court are defendant’s ...
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MEMORANDUM AND ORDER This case is now before the court on defendant Federal Deposit Insurance Corporation’s (“FDIC”) Motion to Dismiss (Doc. 31), pursuant to Fed.R.Civ.P. 12(b)(6) for failure of plaintiffs complaint to state a claim upon which relief can be granted. Plaintiff has responded and opposes the motion. For the reasons stated below, defendant FDIC’s motion is granted. I. FACTUAL BACKGRO...
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*667ORDER This order concerns plaintiffs and defendants’ objections to the report and recommendation submitted by the magistrate judge on March 28, 1991. For the reasons stated herein, the court adopts the report and recommendation in its entirety. FACTS This litigation presents a dispute over the interpretation of a sales representative agreement. In the 1970s, plaintiff Precision Devices Corpora...
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MEMORANDUM DECISION UNDER FED.R.CRIM.P. 23(C) TRIAL WITHOUT JURY On August 20, 1990 defendant Angelo Milicia, a pharmacist, pleaded guilty to 16 counts of a 17-count superseding indictment charging conspiracy, possession with intent to distribute and distribution of controlled substances, filing false tax returns, and aiding and abetting. 21 U.S.C. §§ 846, 841(a)(1), 26 U.S.C. § 7206(1), ...
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*1205 MEMORANDUM This case is before the Court on the defendants’, ILGWU National Retirement Fund and certain of its trustees (collectively the “Pension Fund” or “Fund”), motions for summary judgment, and the plaintiff’s, Malden Mills Industries, Inc. (“Malden” or “Employer”), motion for summary judgment pursuant to Fed.R.Civ.P. 56(c). Plaintiff brought this action against the Pe...
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MEMORANDUM AND ORDER On January 9, 1991, plaintiff, HCFS Business Equipment Corporation (HCFS), sued defendant, LDI Financial Services Corp. (LDI), in this court, asserting a claim against LDI for $1,083,708.43. On February 28, 1991, LDI filed an answer and also a third party complaint against Financial News Network, Inc. (FNN), claiming indemnification from FNN if LDI was liable to HCFS....
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MEMORANDUM OPINION AND ORDER The United States, pursuant to Federal Rule of Criminal Procedure 24(c), has moved to replace a juror with an alternate. Defendant Noah Robinson and his co-defendants (collectively, “Robinson”) 1 have filed a memorandum in opposition. For the reasons set forth below, we grant the government’s motion. I. Factual Background Government witness Carolyn Harris noti...
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OPINION INTRODUCTION This is one of three related actions involving the contracts which govern the relationship between The Coca-Cola Company (the “Company”) and certain of its bottlers (the “bottlers”). This action, which for convenience will be referred to as the “Elizabethtown” case, arises out of contractual disputes between the Company and the bottlers involving the s...
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MEMORANDUM I. BACKGROUND Plaintiffs Tudor Development Group, Inc. (“Tudor”), Sidney Cohen, Dorothy Cohen and Marc Cohen, collectively trading as Green Hill Associates (“GH Associates”), initially filed this action against United States Fidelity & Guaranty Corporation *494 (USF & G). 1 USF & G was the performance bond surety for certain phases of a real estate ...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Before the court is the motion for summary judgment of defendant Merrell Dow Pharmaceutical Inc. (formerly RichardsonMerrell, Inc.). ' Plaintiffs Ronnie and Evonne Mackey Lee sue on behalf of their minor child, Michael Lee, to recover damages for birth defects that allegedly resulted from Mrs. Lee’s ingestion of the anti-nausea prescr...
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MEMORANDUM I. BACKGROUND Plaintiff Paul Stolarik was injured while he was operating a panel saw at his place of employment, Contempri Homes. He filed this products liability action against the manufacturer of the saw, Hendrick Manufacturing Corporation (“Hendrick”) and the manufacturer of a side blade guard with which the saw came equipped, HIT Products, Inc. (“HIT”). Following a bifurcated...
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MEMORANDUM AND ORDER This case comes before the court on the motion (Doc. 175) of defendants Gene P. Graham, Jr. (Graham), and Graham & Graham, P.C. (law firm), for summary judgment pursuant to Fed.R.Civ.P. 56(b). Plaintiff Brown Mackie College has responded (Doc. 182), opposes defendants’ motion, and moves the court for partial summary judgment pursuant to Fed.R.Civ.P. 56(a). Defendants’...
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MEMORANDUM AND ORDER The only issue remaining to be resolved in this insurance dispute is the amount of statutory attorneys’ fees plaintiff Boyd Motors, Inc., is entitled to recover from defendant Employers Insurance of Wausau. On April 11, 1991, plaintiff filed a Motion for Allowance of Attorneys’ Fees (Doc. 154). Defendant has responded and contests the reasonableness of plaintiff’s request (Do...
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MEMORANDUM AND ORDER This is a mortgage foreclosure action which is now before the court upon cross-motions for summary judgment. The main issue raised in the motions is whether the plaintiff is barred by the statute of limitations from proceeding with this action. There is no material factual dispute. Plaintiff, acting through the Farmers Home Administration (FmHA), made a loan of $65,000.00...
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MEMORANDUM AND ORDER This matter is before the court on defendant Moody’s Investors Service, Inc.’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b). Moody’s asserts this court does not have personal jurisdiction over it because no provision of the Kansas long arm statute applies to the facts of this case, and the exercise of personal jurisdiction over Moody’s in this case would be contra...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs’ motion for reconsideration of the court’s Memorandum and Order of May 23, 1991. In their motion to reconsider, plaintiffs do not contest the court’s holding that Busby, Inc. was a “merchant,” and thus, Purchase Contract 1118 was within the “merchants’ exception” to the statute of frauds, namely K.S.A. 84-2-201(2). In their moti...
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OPINION The matter before the court is the motion (# 56) of defendants, Les Schwab Tire Centers of Oregon, Inc., dba Les Schwab Tire Centers (Les Schwab/Oregon), and Les Schwab Warehouse Center, Inc. (Les Schwab/Warehouse), for partial summary judgment against plaintiffs, David Johnson and Joseph Mann. Plaintiffs state two claims for relief: 1) Les Schwab/Oregon was negligent in mounting a 7.00-15...
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MEMORANDUM I. FACTUAL SUMMARY Plaintiff Dep Corporation (“Dep”) is a manufacturer of personal care products, including hair care, skin care, oral hygiene, and health related products. Dep adopted and began using the mark “L.A. LOOKS” for use in connection with hair products in September, 1987. Dep filed an application for U.S. trademark registration of the mark on January 15,198...
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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 42 U.S.C. § 1983 in January 1988, while an inmate in the custody of the Kansas Department of Corrections, alleging his constitutional rights were violated while he was a resident of the Larned State Security Hospital. Plaintiff specifically cla...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion for summary judgment (Doc. 52). Plaintiff has requested oral argument on the motion, but the court has determined that oral argument would not assist the court in reaching its decision, and the request is therefore denied. D.Kan. 206(d). The defendant moves for summary judgment on the assertion that plaintiff’s cla...
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OPINION The matters before the court are: 1) Non-party Bogle & Gates’ motion to quash or, in the alternative, for a protective order (# 340); 2) Dorsey & Whitney’s motion to quash and, in the alternative, to modify and for a protective order (# 343); and 3) Beijing Ever Bright Ind. Co.’s motion for a protective order (# 345). BACKGROUND On January 11, 1991, this c...
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OPINION The matter before the court is the motion (# 6) of defendants, Wimar Tahoe Corporation (Wimar) and William J. Yung, to dismiss this action pursuant to Fed.R.Civ.P. 12(b) on the grounds of improper venue, lack of personal jurisdiction, and insufficiency of service of process. FACTS This is an action for trademark infringement, alleging violations of the Lanham Act, 15 U.S...
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RULING ON PLAINTIFF’S MOTION TO AMEND AND REMAND On February 27, 1990, plaintiff filed this suit in the 19th Judicial District Court for the Parish of East Baton Rouge seeking damages “in products liability” for injuries allegedly caused by a defective intravenous catheter manufactured and sold by defendants. Defendants timely removed this action to this Court, asserting the Court has subject mat...
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767 F.Supp. 989 (1991) Steve WALDERMEYER, Plaintiff, v. ITT CONSUMER FINANCIAL CORP. and Tom Roth, Defendants. No. 90-2103-C-5. United States District Court, E.D. Missouri, E.D. May 6, 1991. *990 Marylou Calzaretta, Richard L. Geissal & Associates, St. Louis, Mo., and Daniel J. McMichael, McMichael & Logan, Chesterfield, Mo., for plaintiff. Terry L. Potter and John B. Renick, McMahon Berg...
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MEMORANDUM AND ORDER This matter is before the court on defendant’s motion to vacate conviction upon a *1110 writ of audita querela; defendant's motion to vacate conviction was argued to the court on June 19, 1991. The United States of America (hereinafter referred to as “the government”) opposes defendant’s motion. On April 28,1983, defendant, pursuant to a p...
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OPINION OPINION This suit involves an attempt by the plaintiff to recover amounts which it has paid to the Internal Revenue Service after certain deductions it took for tax years 1982, 1983, and 1984 were disallowed. The case presents the classic debt/equity question. The case is presently before the court on cross-motions for summary judgment. The facts are largely undisputed. ...
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MEMORANDUM AND ORDER This matter comes before the court on the motion of plaintiff Westchester Fire Insurance Company (hereinafter “West-chester”) for summary judgment. West-chester contends that there is no coverage under a comprehensive general liability policy (hereinafter “CGL policy”) that it issued to the defendant City of Pittsburg, Kansas (hereinafter “the City”) for any claims as...
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MEMORANDUM AND ORDER This matter comes before the court on the motion of defendant Thomas B. Ruth (hereinafter “Ruth”) to vacate, set aside or correct his sentence. The files and records in this case disclose that Ruth, after conferring with his attorney, Robert E. Jenkins (hereinafter “Jenkins”), entered pleas of guilty on November, 30, 1989, to conspiring to distribute cocaine (Count I)...
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MEMORANDUM AND ORDER This case comes before the court on defendants’ Motion for Partial Summary Judgment (Doc. 63) and defendants’ Motion for Summary Judgment (Doc. 92). Fed.R. Civ.P. 56(b). Both motions are now at issue. Taken as one, the motions are granted in part and denied in part. Plaintiff, Dr. Patricia Schloesser, brought this employment discrimination action, claiming that, ...
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MEMORANDUM AND ORDER This case concerns the alleged environmental contamination of a property in North Andover, Massachusetts, owned and developed by plaintiffs. Over a period of years, defendant corporations engaged in the storage and/or transfer of chemical solvents on a site adjacent to plaintiffs’ property. A commercial condominium was created on plaintiffs’ property in the fall of 19...
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Sitting by Designation MEMORANDUM AND ORDER Presently before the court is a motion to dismiss filed by appellee John Odato Water Service (hereinafter “appellee”) and an untimely *362opposition and an unopposed motion for leave to post property bond filed by appellant John Patrick (hereinafter “appellant”). For the following reasons, the court will deny appellee’s motion to dismiss with leave to ...
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MEMORANDUM AND ORDER This case comes before the court upon the Board of County Commissioners of Saline County, Kansas’ (County) appeal from the decision of the bankruptcy court. This is the second appeal during this bankruptcy case. In the first appeal, In re Knights Athletic Goods, Inc., 98 B.R. 553 (D.Kan.1989), Judge Kelly reversed the decision of the bankruptcy court. The b...
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MEMORANDUM AND ORDER This matter is before the court on numerous pretrial motions filed by defendant Harold L. Pottorf (“defendant Pottorf”). Defendant Pottorf is a tax protestor who has been charged with four counts of willfully failing to file federal income tax returns for calendar years 1984, 1985, 1986 and 1987 in violation of 26 U.S.C. § 7203. Oral argument was heard on June 10, 199...
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ORDER The matter before the court is a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. Petitioner, a prisoner from the District of Columbia, is currently serving his sentence at United States Penitentiary, Leavenworth, Kansas (USPL). Petitioner claims he is being wrongfully held by federal authorities because his transfer from a District of Columbia prison to USPL was no...
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MEMORANDUM AND ORDER Defendants have filed a motion for summary judgment (Doc. 40) pursuant to Fed. R.Civ.P. 56(b). Because oral argument would not be of material assistance to the resolution of the motion, plaintiffs request for oral argument (Doc. 56) is denied. D.Kan.Rule 206(d). For the reasons stated below, defendants’ motion for summary judgment is granted in part and denied in part...
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MEMORANDUM OPINION AND ORDER Plaintiff Bret Klein (Klein) objects to the Chief Magistrate Judge’s recommendation that Klein’s 42 U.S.C. § 1983 action be dismissed for failure to state a claim on which relief can be granted. After de novo review, I accept the recommendation in part, reject it in part, and refer the ease back to the Chief Magistrate Judge for further proceedings. Klein...
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MEMORANDUM I. This is an action for forfeiture in rem brought by the United States under the Gambling Devices Act of 1962, 15 U.S.C. §§ 1171-1178, against two quarter fall machines and $431.21 in United States currency. The machines and currency were seized pursuant to a seizure warrant from Brewer’s Exxon in Bradley County, Tennessee, on October 26, 1989. John Brewer, proprietor of Brewer’...
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MEMORANDUM AND ORDER In this case, plaintiff Reese Exploration, Inc. (“Reese”) alleges that defendant Williams Natural Gas Company (“WNG”) negligently permitted injected gas from its gas storage field in Anderson County, Kansas to escape into the oil-producing zone beneath Reese’s oil leases, precluding Reese from successfully recovering oil by waterflooding the leases. In terms of relief...
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TABLE OF CONTENTS I. INTRODUCTION. 732 II. HISTORY and PROCEDURAL BACKGROUND. 734 A. Asbestos; Scientific Developments and Knowledge. 734 1. History of Asbestos Use. 735 2. Discovery of Health Hazards Associated with Asbestos. 737 3. Current Asbestos Studies and Medical Knowledge. 739 B. Johns-Manville Corporation. 742 C. Proof of Industry Knowledge of He...
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MEMORANDUM AND ORDER This matter comes before the court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, an inmate at the Kansas Correctional Institute, Lansing, Kansas, was convicted in 1985 in the District Court of Thomas County, Kansas, of two counts of felony murder, two counts of aggravated kidnapping, one count of aggravated battery on a law enforcem...
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MEMORANDUM ORDER This cause is before this Court on a Motion by the third-party defendants, Hancock Bank of Mississippi (hereinafter “Hancock Bank”), Charles Eastland (hereinafter “Eastland”), and Martha Peterman (hereinafter “Peterman”), to Dismiss the Third Party Complaint of the defendant, Laurie Boswell (hereinafter “Boswell”) pursuant to Fed.R.Civ.P. 12(b)(6). Facts The pla...
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MEMORANDUM AND ORDER This matter is before the court on motions for reconsideration filed by defendants and by plaintiffs Marianne Crowley and Levetta Sneathen. On March 20, 1991, the court issued a memorandum and order granting defendants’ motion to amend answer and granting in part and denying in *1002 part plaintiffs’ motion to strike affirmative defenses. Both sides now o...
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MEMORANDUM AND ORDER By Order dated November 29, 1990, the National Credit Union Administration Board (the “NCUAB”) appointed itself conservator of the United Independent Federal Credit Union (the “Credit Union”), located in Valley Stream, New York, pursuant to 12 U.S.C. § 1786(h)(1) (“The Board may, ex parte without notice, appoint itself as conservator and immediately take possession and contro...
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MEMORANDUM This action was initiated pursuant to the Education of the Handicapped Act (“EHA”), 20 U.S.C. § 1400, et seq. (1990), by plaintiff, the Norton School Committee (“Norton”) against the Massachusetts Department of Education, Steven P. and Nancy H. (collectively “defendants”). Steven P. is the child whose special needs are at issue. Nancy H. is his mother. Norton’s compl...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion for class action certification of her claim under the Kansas Consumer Protection Act.1 Plaintiff seeks both injunc-tive relief and damages. This action arises out of the defendants’ sale of contact lenses to plaintiff Susan Skeet (“Skeet”). Jurisdiction is predicated upon diversity of citizenship. The primary issue in this ...
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MEMORANDUM AND ORDER This case has a long and troubled history. The resolution of the pending motions should move it closer to a conclusion. The following motions are presently pending: (1) intervenor Crowntuft Manufacturing Corporation, Inc.’s motion for summary judgment (Doc. # 175); (2) intervenor Milco Industries, Inc.’s motion for summary judgment (Doc. # 296); and (3) defendant J.C....
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MEMORANDUM AND ORDER This matter comes before the court on the motion of plaintiff Zack Pfeiffer (hereinafter “Pfeiffer”) for a protective order quashing the notice of defendant Eagle Manufacturing Company (hereinafter “Eagle Manufacturing”) to depose Paul Crowley (hereinafter “Crowley”) on July 15, 1991, in Norwood, Massachusetts. Crowley is an engineer. Defendant plans to elicit testimony from ...
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*1437 MEMORANDUM AND ORDER This case involves a denial of admission to the University of Kansas Medical School (KUMS). Plaintiff alleges that he is a victim of reverse discrimination and of an unconstitutionally capricious interview system. Plaintiff also seeks to add a claim of discrimination on the basis of a physical disability. The main issue in this case is whether defendant...
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OPINION AND ORDER This action is brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), to remedy alleged sex discrimination. Specifically, plaintiff Rebecca T. Halbrook (“Halbrook”) contends that defendant Reichhold Chemicals, Inc. (“Reichhold”) discriminatorily denied her a promotion to the position of General Couns...
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OPINION Appellee Merrimac Corp. (“Merrimac”) has moved to dismiss this bankruptcy appeal as premature. For the following reasons, the motion is granted. The Parties The primary debtor in the underlying bankruptcy proceeding is Marróse Corporation (“Marróse”). Merrimac, a Massachusetts Corporation, is an affiliate of Mar-rose. Merrimac filed for bankruptcy along with Marróse on August 25, 1989. ...
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*192 MEMORANDUM OPINION AND ORDER This matter is before the court on the Motion for Summary Judgment, filed March 18, 1991, by the defendant, Amoco Oil Company (hereinafter referred to as “Amoco”). For the reasons set forth herein, the Motion for Summary Judgment is hereby DENIED. Background The plaintiff, John Gomez (hereinafter referred to as “Gomez”), a Mexican-A...
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MEMORANDUM This action is before the Court on the Defendant’s Motion to Withdraw the Reference of this action to the bankruptcy court. The Defendant also has asked that the Court rule on its request for a jury trial. BACKGROUND The Complaint alleges that National Enterprises, Inc. (“NEI”) and The Koger Partnership (“Koger”) are parties to a lease agreement, dated June 28, 1990, ...
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MEMORANDUM AND ORDER This is an action brought by three former employees of the State of Kansas pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Kansas Age Discrimination in Employment Act (KADEA), K.S.A. 44-1111 et seq. The plaintiffs were employed in the Department of Administration and all contend that they were terminated from their employmen...
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ORDER Earl Raymond MacPherson Jr. appeals the decision of the United States Bankruptcy Court for the Middle District of Florida, Orlando Division, denying him a discharge from his debts. In re MacPherson, 101 B.R. 324 (Bankr.M.D.Fla.1989). The court granted his wife, Cynthia Ann MacPher-son, a discharge. Sid and Evalee Shaheen cross-appeal the bankruptcy court’s decision regarding Mrs. MacPhe...
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OPINION AND ORDER Plaintiff Seiden Associates, a New York executive recruiting firm, sues for a portion of its fee allegedly earned by causing William N. Sick, Jr. to be hired as chief executive officer of American National Can Company (“Can”), a Delaware Corporation with its principal place of business in Chicago. In an earlier opinion published at 754 F.Supp. 37, I denied defendants’ mo...
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT BORRE-RO’S MOTION TO SUPPRESS EVIDENCE I. INTRODUCTION Defendant Nilsson Borrero is charged, along with his co-Defendant, Richard Loero, with two counts of drug possession, aiding and abetting and conspiracy with intent to distribute cocaine arising out of a search at Detroit Metropolitan Airport on June 5, 1990, of luggage they were car...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the Motion for Summary Judgment, filed August 8, 1990, by the plaintiff, Post Tribune Publishing, Inc. (hereinafter referred to as “Post Tribune”). The following motions are also before the court: The Motion for Entry of Judgment by Default, filed August 22, 1990, by the Post Tribune; the Motion for Leave to File Counterclaim...
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DECISION AND ORDER INTRODUCTION Now before this Court are the motions of defendants John Sweeney (“Sweeney”), president of Service Employees International Union (“International”), and Thomas Beatty (“Beatty”), president of Local 200-C of the International (“Local 200-C”), for summary judgment pursuant to Fed.R. Civ.P. 56. 1 Additionally, Beatty moves for sanctions against ...
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ENTRY ON DEFENDANTS’ REQUESTS FOR PROTECTIVE ORDERS AND PLAINTIFFS’ REQUEST FOR SANCTIONS The defendants have moved this court for two protective orders to prevent the plaintiffs from taking the trial depositions of Mr. James Bateman, a former employee of the defendant, Sears, Roebuck and Company, and of Dr. Lewis Kinkead, one of the plaintiff, Burl Spangler’s, attending physicians. The defendant...
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MEMORANDUM OPINION In the course of an antitrust suit brought by radiologists against defendant complaining about the manner in which defendant compensated radiologists for their services, at least two radiologists testified to having taken actions that defendant contends may constitute Medicare fraud or abuse on the part of radiologists.- The testimony was given freely, without any confidentiali...
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MEMORANDUM DECISION AND ORDER Claimants Baer & Baer, Efficient Management Service, Inc. and 137-41 South Fifth Avenue, Inc. (“the Baer Claimants”), move by order to show cause pursuant to Rule 12 of the Rules for Admiralty and Maritime Claims of the Eastern District of New York for the summary release of three of the defendant bank accounts from arrest and attachment. The Government oppos...
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MEMORANDUM OPINION Plaintiff Dallas Musick (“Musick”) initiated this personal injury action by alleging jurisdiction in this court under 28 U.S.C.A. § 1346(b) (West 1976), the statute that gives federal courts subject matter jurisdiction over suits based on the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671-2680 (West 1965 and Supp.1991) (“the FTCA”). The United States of America (“the government...
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MEMORANDUM OPINION AND ORDER Plaintiffs commenced this action against Irene Ibarra, Executive Director of the Colorado Department of Social Services (CDSS), seeking declaratory and injunctive relief under 42 U.S.C. § 1983. Alleging that they are similar to the plaintiffs in Miller v. Ibarra, 746 F.Supp. 19 (D.Colo.1990), the instant plaintiffs challenge the defendant’s denial or termination of th...
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MEMORANDUM Plaintiff, Johnathan Lee X, a Virginia State prisoner proceeding pro se and in forma pauperis, filed this Bivens type complaint 1 on April 2, 1990. Plaintiff alleged that the defendants denied him access to the courts in violation of the First and Fourteenth Amendments. 2 Specifically, he asserted that the defendants failed to docket and file a notice of appeal submitted by...
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OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Presently before the Court is the Defendant’s Motion for Summary Judgment. This motion was brought before the Court for hearing on May 14, 1991, at which time the Court heard the arguments of counsel for both parties. At the May 14, 1991 hearing, the Court specifically requested the parties to file supplemental briefs addr...
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OPINION These actions are two consolidated cases brought against The Coca-Cola Company, a Delaware corporation (hereinafter “the Company”) by certain independently-owned Coca-Cola bottlers (referred to collectively *675 hereinafter as “plaintiffs” or “the bottlers”). These actions, which for ease of reference will be referred to as the “diet Coke cases,” were origin...
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MEMORANDUM OPINION AND ORDER *223 X Corporation (X) 1 moved to intervene in a federal grand jury proceeding, moved to quash subpoenas duces tecum served on its in-house counsel and its former assistant counsel, and sought a protective order to preclude questioning these attorneys regarding communications allegedly subject to the corporation’s attorney-client privilege. After considering bri...
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MEMORANDUM OPINION AND ORDER When the City of Chicago (“City”) is the debtor to a contract obligation, can the contract creditor assign that account receivable without the City’s consent? The assignee here, Kent Meters, Inc. (“Me*243ters”) argues yes; the City, the account debtor, argues no. We find in favor of Meters; however, material questions of fact exist which prevent us from entering summa...
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OPINION Defendant Thom Rock Realty Company (“Thom Rock”) has moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment dismissing the complaint of plaintiff Storwal International, Inc. (“Storwal”) in this diversity action for damages arising from an alleged breach of contract. For the reasons set forth below, the motion is denied. The Parties Storwal is a Canadian corpor...
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OPINION AND ORDER Seatriumph Marine Corporation (“Seatriumph”) moves to dismiss the third-party complaint for lack of personal jurisdiction. Plaintiff United Rope Distributors is a Delaware Corporation with its principal place of business in Minnesota. Defendant and third-party plaintiff Kim-Sail, Ltd. ("Kim-Sail”) is a Cayman Islands corporation with its principal place of business in Ne...
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OPINION AND ORDER In a single motion, defendants Black, Davis, Joseph, Kissick, Klein and Wright move to dismiss the claims against them pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted, 1 and defendant McHale moves to dismiss Counts I and II of the complaint on the same grounds....
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MEMORANDUM ORDER This matter is before the court on the motions to dismiss filed by the Secretary of Education of the United States, the Higher Education Assistance Foundation, Inc., and each of the defendant banks named in the *542 plaintiffs’ amended complaint. 1 I. The plaintiffs, Timothy Wayne Tipton, Lyle Breece, George W. Leeson, Jr., and John Wilburn,...
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MEMORANDUM OPINION AND ORDER This case challenges, from a variety of environmental and regulatory standpoints, the proposed building of “Columbus Center” (the “Project”), a 2.1 million square foot mixed-use redevelopment project involving retail, office, cinema, residential and parking garage space near Columbus Circle in Manhattan. Presently before the Court are defendants’ joint motion ...
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MEMORANDUM AND ORDER This suit under the Freedom of Information Act (“FOIA”) arises out of a request by plaintiff Christine M. Sibille for notes prepared by certain officers of defendant Federal Reserve Bank of New York (“Bank”). On this motion, plaintiff seeks to compel the production of an index of the requested documents, pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.19...
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MEMORANDUM AND ORDER I. INTRODUCTION Before the Court are plaintiffs’ objections to the November 21, 1990 Report and *1168 Recommendation Regarding Defendants’ Motions to Dismiss (“Magistrate’s Report”) issued by Magistrate Michael A. Ponsor. 1 The Magistrate’s Report examined the Consolidated Amended Class Action Complaint (September 18, 1990) (“complaint”) f...
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MEMORANDUM AND ORDER On June 7, 1991, Kevin Lewis and Donna Mitchell were charged by information with one count of knowing and intentional unlawful possession with intent to distribute approximately four ounces of cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). The affidavit of Officer Pike, attached to the information, indicates that the defendants were...
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MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT AND DEFENDANT’S MOTION TO DISMISS Plaintiffs’ Complaint alleges that Chad Swan, the youngest son of Frank and Linda Swan, was seriously injured in the early evening of January 20, 1989 when the car in which he was a passenger crashed into a utility pole in Auburn, Maine. Adam Jordan, a seventeen-year-old r...
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MEMORANDUM OPINION AND ORDER Plaintiff American Agriculture Movement, Inc. (“AAM”) is a national organization which represents and advocates the interests of American farmers. The other named plaintiffs are individual members of AAM and a corporation wholly-owned by another individual AAM member. Plaintiffs sued the Chicago Board of Trade (“CBOT”), twenty-one individual members of the Boa...
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MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT This case deals with a work stoppage begun by the United Transportation Union (UTU) against Springfield Terminal (ST) in November 1987. Invoking the protection of the Federal Railroad Safety Act (FRSA), 45 U.S.C. § 441, the UTU asserts that the work stoppage was prompted by hazardous conditions existing on ST’s railroads. ST mainta...
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MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO WITHDRAW REFERENCE Plaintiff in this adversary proceeding in bankruptcy filed her complaint in the bankruptcy court on October 5, 1990 alleging six grounds for relief. Count VI alleged a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). Defendants filed a motion to dismiss the complaint on January 11, 1991. The m...
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MEMORANDUM OPINION This matter is before the Court on motions of Plaintiff American Telephone and Telegraph (“AT & T”) and Third-Party Defendants, the Chesapeake and Potomac Telephone Companies (“C & P”) to dismiss the counterclaim and third party complaint *1338 filed by Defendant Eastern Pay Phones, Inc. (“Eastern”). I. FACTS Eastern Pay Phones is a private pay te...
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MEMORANDUM OPINION This matter is before the Court on the defendants’ motion for summary judgment, pursuant to Fed.R.Civ.Proc. 56(b). The motion for summary judgment on Count One, which alleges a violation of the Equal Protection Clause of the Fourteenth Amendment, is DENIED for the reasons discussed below. The motion for summary judgment on the remaining counts is GRANTED. Factual Backgroun...
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MEMORANDUM OPINION AND ORDER Defendant Eileen Latkowski, a Chicago police officer, has moved for summary judgment on plaintiffs Marlon and Indya Kirkman’s Fourth Amendment vehicle search claims alleged in Count II of plaintiffs’ amended complaint. Under Federal Rules of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on ...
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OPINION AND ORDER Petitioner Grinnell Housing Development Fund Corp. (“Grinnell”) brings this petition to vacate two arbitration awards dated July 27, 1989 and November 14, 1989 in favor of respondent Local 32B-32J, Service Employees International Union, AFL-CIO (“the Union”). Presently pending before the Court are petitioner’s motion to vacate the awards and respondent’s cross-motion to ...
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MEMORANDUM OPINION AND ORDER This action concerns claims by the plaintiff, Carousel Nut Products, Inc. (“Carousel”), resulting from losses, late delivery of, and damage to various shipments of products Carousel had consigned to the defen*143dant, Milan Express Co., Inc. (“Milan”), for transport to out-of-state customers. In the complaint, Carousel alleges that it suffered losses on five separate ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court for resolution following a bench trial on June 10 and 12, 1991 of the plaintiffs’ claim of deprivation of equal protection of the laws under the Fourteenth Amendment of the United States Constitution. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, and on the basis of all the evidence admitted at trial, sti...
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MEMORANDUM OPINION This action pursuant to the Medicare program, Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq., to review the final decision of the Secretary of the Department of Health and Human Services [“Secretary”], is before the Court on cross motions for summary judgment. Fed.R. Civ.P. 56. Jurisdiction is proper pursuant to 42 U.S.C. § 1395oo (f). Plain...
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ORDER On November 5, 1990, Magistrate/Judge Charles K. McCotter, Jr., held an evidentiary hearing in the above-captioned case. On December 18, 1990, Magistrate/Judge McCotter filed his Memorandum and Recommendation in which he recommended that the court grant defendant Koenig’s motion for sanctions and award to defendant Taco Bell expenses in the amount of $150.00 incurred on behalf of defendant K...
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Order and Reasons These consolidated civil actions are before the Court on the plaintiff’s motions to strike affirmative defenses of prescription [and] laches [Record Document Nos. 106 and 156]. The Court earlier took the motions under submission without oral argument and now GRANTS IN PART and DENIES IN PART both motions. I. The RTC is asserting a host of Louisiana state-law cl...
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ORDER AND REASONS This civil action is before the Court on the defendant’s motion to dismiss [Record Document No. 5]. By Minute Entry of May 14, 1991, the Court took the motion under submission without oral argument. The Court now GRANTS the motion. A local computer printer distributor, Ore-man Sales, Inc. (Oreman), is suing one of its former suppliers, Matsushita Electric Corporatio...
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MEMORANDUM This matter is before the Court on defendant’s motion to dismiss or alternatively for summary judgment, and plaintiff’s partial cross-motion for summary judgment. The matter has been fully briefed and is ripe for disposition. Jurisdiction is premised on 42 U.S.C. §§ 1983 and 1988. Background The plaintiff, Christopher Glaseo, a twenty-three year old resident of Virginia, has br...
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OPINION This action was originally filed in Wayne County Circuit Court. Defendant removed this case to this Court contending that the Employee Retirement Income Security Act of 1974 (“ERISA”), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq., preempts plaintiff’s employment claims against defendant. Since removal, defendant has filed a motion to dismiss and for summary judgment with regard ...
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MEMORANDUM AND ORDER In the above-referenced action, Southold Development Corp., (“debtor”), currently moves the Court to modify its second amended bankruptcy plan, pursuant to 11 U.S.C. § 1127(b). Suffolk County (“the County”) opposes that motion and argues, inter alia, that this Court lacks the requisite subject matter jurisdiction over the proposed modification issue. For the reasons state...
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OPINION I. Factual Background This case arises out of a dispute between a franchisor, Doctor’s Associates, Inc., (“DAI”) as well as the various other named defendants, and franchisees David and Diane McKinnon. (These defendants will be referred to collectively as DAI in this opinion). DAI is a franchisor of Subway submarine sandwich shops. DAI had been sued by the Michigan Attorney G...
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OPINION AND ORDER This is an action claiming compensation for damages allegedly suffered by plaintiffs as a result of an accident which occurred in defendant Delta Airlines, Inc.’s aircraft. On August 4, 1988, plaintiffs, Milagros Rodríguez Pardo and her son, Vladimir Beauchamp Rodriguez, were paying passengers on Delta flight 179 from San Juan to Miami. After landing in Miami, as the aircraft ...
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MEMORANDUM OPINION Background. This is a case of the proverbial tail wagging the dog, or more particularly, of the pendent claims tail wagging the federal claim dog. This situation is, at the least, undesirable, for the limited jurisdiction of the federal courts should not be squandered. Nor should federal courts, beguiled *746 by claims of litigating economy, intrud...
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MEMORANDUM On September 13, 1984, the plaintiff filed this action against the defendant for in-junctive relief and civil penalties for alleged violations of the Clean Water Act, 33 U.S.C. § 1311 et seq. Specifically, the plaintiff alleged that the defendant was violating the terms and provisions of its National Pollutant Discharge Elimination System Permit issued for the defendant’s municipal sewa...
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MEMORANDUM OPINION AND ORDER Before the Court are Defendants City of Dallas and R.E. Bardin’s Motion to Reconsider, Motion to Alter or Amend and Alternatively for New Trial, filed April 11, 1991; Defendants’ Motion to Amend and Make Additional Findings by the Court, filed April 11, 1991; Defendants’ Supplement to Motion to Reconsider, Motion to Alter or Amend and Alternatively for New Tri...
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OPINION AND ORDER By memorandum and order dated June 21, 1990 we dismissed the complaint in this action pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a cognizable claim under § 1983. Kopec v. Coughlin, (S.D.N.Y.1990) 767 F.Supp. 463. Familiarity with that opinion is presumed. On June 28 final judgment was entered. On January 2, 1991 the Second Circuit vacated this judgment, and remanded t...
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OPINION This matter came before the Court for trial without a jury on the issue of liability *764 only. The Court now rules as follows. To the extent the following findings of fact constitute conclusions of law, the Court adopts them as such; to the extent the following conclusions of law constitute findings as fact, the Court adopts them as such. This is a general avera...
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*648MEMORANDUM OPINION AND ORDER Pursuant to the Court’s Order entered April 25, 1991, a hearing was held on May 10, 1991 to determine whether sanctions should be imposed upon Defendants’ lead attorney in this case, a Texas Assistant Attorney General (the “Assistant AG”). For the reasons stated below, the Court finds a pattern of misconduct on the part of the Assistant AG that merits sanctions. O...
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MEMORANDUM OPINION AND ORDER Robert Pulliam (“Pulliam”) seeks judicial review of a final decision of Secretary of Health and Human Services Louis Sullivan (“Secretary”) denying Pulliam’s claim for supplemental security income (“SSI”) under the Social Security Act (“Act”), 42 U.S.C. §§ 1381a and 1382(a). 1 Both parties have filed motions for summary judgment pursuant to Fed.R.Civ.P. (“Rule”) 5...
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MEMORANDUM OPINION AND ORDER Brandon Thompson (“Thompson”), a minor, through Debra Christopher (“Christopher”), his mother, filed this action against Pizza Hut of America, Inc. (“Pizza Hut”). Plaintiff Thompson seeks damages for injuries he suffered while in útero allegedly caused by the defendant’s negligent acts. Pizza Hut has moved for summary judgment under Fed.R.Civ.P. 56....
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OPINION AND ORDER Defendants in these companion cases each moved to dismiss plaintiffs’ lender liability actions. The motions were consolidated, converted to motions for summary judgment, and heard by the Court on April 1,1991. Both motions are hereby GRANTED. I. BACKGROUND Plaintiffs (hereafter often denominated collectively as “Sure-Snap”) are a reorganized Chapter 11 debtor, ...
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ORDER The above-captioned complaint alleges that on December 20, 1988, “without provocation and without the consent of the plaintiff,” Dolores Velten, a co-worker, viciously struck plaintiff on the left arm. As a result, plaintiff claims, she suffered “bruising, medical expenses, pain and suffering, lost wages, mental anguish and loss of future income,” as well as lost her employment with...
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OPINION AND ORDER This is a civil action brought by plaintiff, Eduardo Ferrer Bolivar, against Herbert L. Pocklington. Plaintiff alleges, inter alia, that Hatteras International, Division of Genmar Industries, failed to renew a dealership agreement with all or one of three corporations, Villa Marina Yacht Sales, Inc., Villa Marina Yacht Harbour, Inc., and San Juan Bay Marina, Inc. (“Villa Marina”...
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MEMORANDUM OPINION AND ORDER This action comes before the court as an appeal from an order entered by the United States Bankruptcy Court, Northern District of Texas, Fort Worth Division, the Honorable Massie Tillman presiding. The court, having reviewed the briefs of appellant, Texas Commerce Bank National Association ("TCBNA”) and appellees, Dr. Seymour Licht (“Licht”) and the Official U...
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OPINION AND ORDER This is an action to collect sums allegedly owed in connection with furs purchased at two auctions in Vantaa, Finland. Plaintiff Finnish Fur Sales Co., Ltd. (“FFS”), asserts its claim of failure to pay for and clear 2,469 fox pelts against defendants Juliette Shulof Furs, Inc. (“JSF”), and George Shulof. Plaintiff Okobank Osuuspankkien Keskuspankki Oy (“Okobank”) asserts...
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Frank Jackson is before this court for sentencing pursuant to his plea of guilty to possession with intent to distribute cocaine base or “crack.” Based on information that developed between the time of his guilty plea and this sentencing proceeding, Jackson now challenges the application of the statute providing enhanced penalties for offenses involving cocaine base on constitutional grounds as v...
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MEMORANDUM OPINION AND ORDER This is an appeal from a final order of the United States Bankruptcy Court of the Northern District of Texas, Dallas Division in an action brought under the United States Bankruptcy Code. The Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 158(a). The present appeal, a matter of first impression in this District, concerns the bankruptcy cou...
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ORDER AND REASONS The Court addresses here the motion of the defendant, Trailer Marine Transport Corporation (TMT), for relief under Federal Rule of Civil Procedure 60(b) from two judgments entered in this matter. Specifically, TMT seeks to have the Court vacate the judgments of March 22, 1990 and November 9, 1990 and re-renter a final and appealable judgment disposing of all claims. After reviewi...
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ORDER I. Summary Judgment The plaintiff, Harold R. Crawford (“Crawford”), brought this suit for $69,-074.07 in damages in Ware County Superi- or Court alleging that the defendant, Government Employees Insurance Company (“GEICO”), failed to honor its fire insurance contract with him after a fire occurred in a rental dwelling owned by Crawford and purportedly covered by a GEICO policy....
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MEMORANDUM AND ORDER This breach of contract action is presently before the Court upon defendant Cunard Line Limited’s motion for summary judgment. This Memorandum and Order issued pursuant to Fed.R.Civ.P. 78 resolves this motion. Because we hold that the complaint in this case is barred by the applicable time limitation for such a suit, we will grant defendant’s motion for summary judgme...
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OPINION This case requires the Court to determine whether Louisiana’s ban on the importation of hazardous waste from foreign countries violates the United States Constitution. Chemical Waste Management, Inc. (ChemWaste) has filed this action seeking declaratory relief against the defendant, Paul H. Templet, Ph.D., Secretary of the Louisiana Department of Environmental Quality (LDEQ),...
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ORDER Appellant, attorneys for the creditors’ committee, filed this appeal from the bankruptcy court’s denial of its petition for supplemental attorney’s fees. In re Parks Jaggers Aerospace Co., 100 B.R. 594 (Bankr.M.D.Fla.1989). Appellee does not oppose the appeal. Appellant claims the bankruptcy court made a legal error in denying its request for attorney’s fees for work done after the Chap...
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*1149 FINAL AMENDED OPINION (this opinion reflects all amendments thereof to date) Plaintiff Sause Brothers Ocean Towing (SBOT) is an Oregon corporation with its principal place of business in the State of Oregon. At the time of the casualty, SBOT was registered to do business in the State of Washington. SBOT filed this maritime claim for exoneration from or limitation of li...
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MEMORANDUM I. PROCEDURAL HISTORY This is a contract action based on diversity jurisdiction. Plaintiff Keeler-Hoff Supply Company, Inc. (“Keeler-Hoff”) filed a complaint on March 20, 1990 in the Court of Common Pleas of Lycoming County. Subsequently, the defendant, Allen-Bradley Company, Inc. (“Allen-Bradley”), removed the case to the United States District Court for the Middle District of Pen...
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OPINION AND ORDER Plaintiff Regina Dickerson filed the instant action on May 30, 1989, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. §§ 1981 and 1983. 1 Plaintiff claims that defendant, the State of New Jersey Department of Human Services (“DHS”), created a racially hostile work environment which made plaintiff’s continued employment intolera...
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MEMORANDUM OPINION Introduction This is a disappointed bidder’s challenge to a contract award made by the Washington Metropolitan Area Transit Authority (“WMATA”). It raises the infrequently litigated issue of whether an unsuccessful bidder has standing to challenge the contract award of an interstate agency created by interstate compact. Plaintiff, the unsuccessful bidder, charg...
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OPINION AND ORDER Sony Corporation of America (Sony) moves to dismiss this diversity action, or in the alternative to stay the proceedings during the pendency of a state court action filed by Sony against the plaintiffs in Florida. We agree that the present action should be stayed on abstention grounds in deference to the pending Florida state court action and accordingly GRANT the motion...
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ORDER ON DEFENDANT’S MOTION FOR LEAVE TO TAKE DEPOSITIONS PURSUANT TO RULE 15 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE AND MOTION FOR EXPENSES TO CONDUCT DEPOSITIONS After hearing, and upon review of the relevant pleadings, including the memoran-da filed by all parties, it is hereby ordered as follows: 1. The Defendant’s Motion for Taking Depositions Pursuant to Rule 15 of the Federal Rules of C...
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MEMORANDUM OF DECISION Plaintiff Anni Waterflow has been disabled for the past six years, during which time she has received Social Security Disability Income (SSDI) and Supplemental Security Income (SSI). She has developed a Plan to Achieve Self Support (PASS), however, which has been approved by the Social Security Administration (SSA). As the name suggests, a PASS is intended to help r...
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MEMORANDUM BACKGROUND Plaintiff Tobyhanna Conservation Association (“Tobyhanna”) filed this action against the Country Place Waste Treatment Company (“Country Place”) under *741 the Federal Water Pollution Control Act Amendments (the “Clean Water Act”). 1 Country Place operates a waste treatment facility in Monroe County, Pennsylvania 2 under a National Pollution Discharge Elimination S...
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AMENDED OPINION Plaintiff, a debtor in bankruptcy, brings this adversary action seeking his release from state custody for a probation violation. I find the state in violation of the automatic stay of the Bankruptcy Code and direct plaintiff’s release from custody. FACTUAL BACKGROUND On May 29, 1990, plaintiff, Scott Hucke, pleaded guilty to first degree rape. Mult-nomah County Circuit Court Judge...
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MEMORANDUM BACKGROUND Plaintiff Frank George McAleese, an inmate at the Pennsylvania State Correctional Institution at Rockview (“SCI-Rock-view”), filed this section 1983 action alleging violations of his Eighth and Fourteenth Amendment rights by the administrative and medical staff at Rockview. He also alleges negligence and strict liability claims against drug and pharmaceutical companies w...
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ORDER This is a case of guaranty agreements. Continental Bank, N.A. (“Continental”) seeks to enforce these agreements against defendants Sheldon Modansky, Aaron Mo-dansky, and Ajayem Investors Corporation (“Modanskys”) in order to recover approximately $9,765,575, together with costs. The facts alleged by the parties follow the usual pattern: Continental extended loans, in the form o...
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MEMORANDUM AND ORDER Plaintiff Alden T. Whitfield, hired by defendant Forest Electric Corporation (“For*1351est Electric”) to be its President’s chauffeur, claims that he was discriminated against on the basis of his race. On April 5, 1990, Whitfield filed charges with the Equal Employment Opportunity Commission (“EEOC”) and the New York State Division of Human Rights (“NYSDHR”). The EEOC issued W...
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RULING ON MOTION FOR SUMMARY JUDGMENT Bruce Haggard originally filed this suit in state court seeking to recover additional pension benefits from his former employer, Condere Corporation, formally S & A Truck Tire Sales and Service Corporation (S & A), a wholly owned subsidiary of Pirelli Armstrong Tire Company (Pirelli). 1 The plaintiff contends the defendants are liable to hi...
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ORDER This case was brought by John Heller against North Carolina National Bank Corporation (NCNB), Hugh L. McColl, Jr. and James H. Hance, Jr., alleging violations of Section 10(b), Rule 10b-5 and Section 20 of the Securities Exchange Act of 1934, 15 U.S.C. § 78a, et seq. The complaint also includes a count for common law negligent misrepresentation based on pendent jurisdicti...
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*521 OPINION Defendant Federal Deposit Insurance Corporation (“FDIC”) and intervenor Joint Venture Asset Acquisition (“JVAA”) have each moved for summary judgment dismissing the claims of plaintiff Melvyn Krauss (“Krauss”) and upholding their claims against Krauss. JVAA has also moved in the alternative for permission to amend its claims against Krauss and to assert a cross-claim...
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OPINION Plaintiff and counterclaim defendant Northwestern National Insurance Company (“Northwestern”) has moved pursuant to Rule 56, Fed.R.Civ.P. for summary judgment dismissing the First Amended Counterclaim (the “counterclaim”) of defendants and counterclaim plaintiffs Raymond Cos-grove (“Cosgrove”), William Curran (“Cur-ran”), James M. McCabe (“McCabe”), John J. Muller (“Muller”), and ...
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*552 MEMORANDUM OPINION AND ORDER Plaintiff brings this action pursuant to the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§ 1346(b), 2680 et seq. (1988). Plaintiff was sentenced to serve an aggregate of nine years for interstate transportation of stolen money and use of the mails in a scheme to defraud. He was paroled on May 5,1982 and placed in a parole category requiring a high level ...
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OPINION Defendant Compagnie National Air France (“Air France”) has moved pursuant to Rules 12(b)(6) and 56, Fed.R.Civ.P., for summary judgment dismissing the claims of Regina Darby (“Darby”) in this wrongful death action. Defendant Sisal-Hotel Turismo, S.A. (“Sisal”) has moved pursuant to Rule 12(b)(2), Fed.R.Civ.P., to dismiss the complaint for lack of in personam jurisdiction...
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ORDER Business Communications, Inc. (“BCI”), the debtor in this Chapter 11 bankruptcy, initiated an adversary proceeding against its accountants, Martin B. Freeman, James E. Scanlon, and John B. Keefe — individually and as partners in the accounting firm of Freeman, Scanlon & Keefe. BCI accuses defendants of failing to provide certain accounting services and of committing various acts of ...
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MEMORANDUM Debtor Nelson Company (“Nelson”) contests the bankruptcy court’s determination that AmQuip Corporation (“AmQuip”) holds a secured claim, arguing that AmQuip’s interest is unsecured because the circumstances under which that interest was transferred make it avoidable under 11 U.S.C. § 547(b). Specifically, Nelson contends that it granted a preferential interest to AmQuip within ...
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OPINION Defendant Chemical Bank, New York Trust Company (“Chemical”) has moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment dismissing the diversity action of plaintiffs Simcoe & Erie General Insurance Company (“Simcoe”) and its subrogee, the Guarantee Insurance Company of North America (“Guarantee”). For the reasons set forth below, the motion is granted in part and denied in ...
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MEMORANDUM OPINION AND ORDER Introduction Plaintiffs Patricia Rogers, Gregory Rogers, Jr. and Marvin Rogers have brought this cause of action pursuant to 42 U.S.C. § 1983 on their own behalf and on behalf of all others similarly situated. The lawsuit, which also includes several pendent state law claims, challenges the policies and procedures employed by the defendants in the Tax...
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OPINION AND ORDER Before the Court is the motion of defendant Thomas E. Hoffmeister (“Hoffmeis-ter”) for an order, pursuant to Fed.R.Civ.P. 12(b)(2), dismissing the complaint as to him for lack of personal jurisdiction. For the reasons set forth below, Hoffmeister’s motion is granted. Facts Plaintiff Irving A. Siegel brought this diversity action against The Holson Company (“Holson”), and...
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MEMORANDUM OPINION AND ORDER I. FACTS Defendant Warshawsky & Company (“Warshawsky”) had a written paid sick-leave policy that required all employees to work at least one year before they were eligible for sick leave. Warshawsky discharged those first-year employees who required long-term sick leave. In January of 1986, a discharged Warshawsky employee filed a discrimination charge wi...
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MEMORANDUM I. BACKGROUND Plaintiff Joan M. Gramling filed this ERISA action1 to recover benefits which she alleges are owed to her as the beneficiary of her late husband, Gene Gramling,2 under a group life insurance plan (No. G-2424) issued by defendant Security Mutual Life Insurance Company of New York (“Security Mutual”). Gramling’s coverage under the plan3 was provided by his employer, Grit Pu...
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*102 SENTENCING OPINION Defendant Eric Giles (“Giles”) was convicted following a jury trial on June 13, 1991 on one count of laundering of a monetary instrument in violation of 18 U.S.C. § 1956(a)(3). For the reasons set forth below, Giles will be sentenced to a term of 18 months of imprisonment followed by a two year term of supervised release, subject to the sentencing hearing now set for J...
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MEMORANDUM OPINION AND ORDER Plaintiff alleges that defendant denied her promotion to Manager, Engineering *147and Technical Unit, at the United States Postal Service General Mail Facility in Detroit, because of her race and sex in violation of § 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16. A bench trial having been held, I find that defendant did not discrim...
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OPINION I. INTRODUCTION. On June 4, 1991, Carmelita Johnson was convicted of possession with intent to distribute 5 or more grams of cocaine base and of knowingly, intentionally and unlawfully making available for use a building for the purpose of storing, distributing or using a controlled substance. Co-defendant Tyrone Brawner, who has been convicted of a drug offense before this C...
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MEMORANDUM OPINION AND ORDER Salvatore Ziccarelli (“Ziccarelli”) was fired from his position as a prison guard because he testified on behalf of the defense at an Illinois death penalty hearing. Ziccarelli filed this civil rights lawsuit claiming he was fired because he exercised his first amendment right to testify at trial. Both parties move for summary judgment, and Ziccarelli moves fo...
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I. INTRODUCTION A diverse group including federal taxpayers, clergy, and the American Jewish Congress brought this suit on the grounds that the Adolescent Family Life Act (“AFLA”), on its face and as applied, violates the Establishment Clause of the First Amendment 1 by, inter alia, funding religious organizations to counsel adolescents on premarital sexual relations ...
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MEMORANDUM I. BACKGROUND This is a diversity action commenced by Plaintiffs on December 18, 1987. The complaint alleges that a dental resin curing light known as the “Heliomat” which is distributed and/or sold by the defendants and used in the dental practice of Plaintiff, Dr. Ronald W. Niklaus, caused eye damage to Dr. Niklaus. Plaintiffs assert claims in strict liability, breach of...
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ORDER AND OPINION This is an action brought pursuant to 42 U.S.C. § 1983 asserting, in essence, that plaintiff was transferred from one job to another in retaliation for public and private comments plaintiff made regarding purportedly unethical and illegal practices at the New York City Parking Violations Bureau. Plaintiff claims that his rights under the first amendment of the United Sta...
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OPINION AND ORDER Defendant was indicted for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). He moves to suppress evidence on the ground that the evidence was seized as a result of an unlawful arrest. We agree and accordingly GRANT the motion to suppress. FACTS On January 8, 1991, Sergeant Robert Miller of the Barre City Police Department noticed a vehicle wit...
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MEMORANDUM AND ORDER This matter is before the Court on cross motions for summary judgment, and on defendant’s motion to dismiss Count 1 of plaintiff’s complaint based upon the pleadings, pursuant to Fed.R.Civ.P. 12(c). The dispute concerns an $18 million commercial loan issued by Fleet National Bank (“Fleet”) to Anthony Liuzzo (“Liuzzo”), a nursing home operator, in 1988. Plaintiff here, Banco...
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ORDER The government brought this civil forfeiture action in rem against defendant $14,-500.00 in United States currency under 21 U.S.C. § 881(a)(6) (1988). Jennifer Marie Mase claimed the currency. The court held a non-jury trial on March 12, 1991, and ruled from the bench that the money came from an illegal source and that it was used or was intended to be used for an unlawful purpose; therefor...
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MEMORANDUM-DECISION AND ORDER This is a putative class action in which the plaintiffs, shareholders in Continental Information Systems, Inc. (“CIS”), allege that certain of the corporation’s officers, directors, and an accounting firm, made material misrepresentations and omissions in information provided to the investing public, in violation of Sections 10(b) and 20(a) of the Securities ...
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MEMORANDUM ORDER This cause is before this Court on the Plaintiffs Motion for Reinstatement. Summary of Case to date A jury trial was had on the above styled civil action on February 26, 1991, at the conclusion of which the jury awarded the plaintiff $246,000.00 as compensation for lost wages. The jury did not find that the defendant acted willfully and following a Motion filed by the pla...
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OPINION AND ORDER This action arises from the “discharge” of plaintiff, Michael J. Jones, from the employ of defendant, J.J. Security, Inc. (“J.J. Security”). Because I find that plaintiff was not “discharged,” but rather made himself ineligible for continued employment, I GRANT defendant’s motion for summary judgment. FACTS Plaintiff commenced employment as a safety officer for...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND OPINION Defendants are charged with conspiracy to distribute and possess with intent to distribute a Schedule I controlled substance (marijuana) in violation of 21 U.S.C. §§ 841(a)(1), 846 (1988). The defendants are also charged with intentionally manufacturing marijuana and intentionally possessing with intent to distribute marijuana. 21 U.S.C. § ...
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OPINION This is an action for declaratory and injunctive relief. Plaintiff, the Michigan Coalition of Radioactive Materials Users, Inc. (MICHRAD), is an association representing generators of low-level radioactive waste in Michigan. Defendant Griepentrog is director of the Nevada Department of Human Resources, Defendant Gregoire is director of the Washington Department of Ecology, and Def...
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In this action alleging sex discrimination and pendent state claims for intentional infliction of emotional distress and negligent employment, the court must determine whether the pendent claims are time-barred and must decide questions regarding admissibility of summary judgment proof and of summary judgment procedure. I Plaintiff Judy Brady (“Brady”) was formerly employed by defenda...
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OPINION Defendant Rosseel, N.Y. (“Rosseel”) has moved pursuant to Rule 12(b)(6), Fed.R.Civ. *515 P., to dismiss the complaint of plaintiffs Oriental Commercial & Shipping Co. (U.K.), Ltd. (“OC & S-UK”), Oriental Commercial & Shipping Co., Ltd., (“OC & S”) and Abdul Hamid Bokhari (“Bokhari”) (collectively, “Oriental”), or in the alternative, for summary judgment under Rule 56....
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The instant motion presents recurring questions concerning when leave to file a reply brief should be granted. I In support of a pending motion to stay discovery, defendant American Motorists Insurance Company (“AMICO”) requests leave pursuant to N.D.Tex.R. 5.1(f)1 to file a reply brief to the response of plaintiff Springs Industries, Inc. (“Springs”). An amended certificate of conference states t...
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MEMORANDUM OPINION I. INTRODUCTION In this memorandum opinion the Court addresses the issue of who bears the burden of proof when a defendant convicted of an offense involving greater than five kilograms of cocaine and facing enhanced punishment pursuant to Title 21 U.S.C. section 841(b)(1)(A) on account of prior convictions challenges one of the prior convictions on grounds that he was convicted...
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OPINION Introduction This is an action brought by plaintiffs Robert Moore (“Moore”) and Deborah Moore (collectively, the “Plaintiffs”) against Joseph F. DeBiase (“DeBiase”), John Gibney (“Gibney”), Joseph Cummins (“Cummins”), Louis Cippola (“Cippola”), Thomas DeNapoli (“DeNapoli”), Philip Ventriglia (“Ventriglia”), Patrick Robinson (“Robinson”), Cheryl O’Neill (“O’Neill”), the Bo...
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MEMORANDUM OPINION This suit is brought by Teresa Lynn Moore, a student at Tuscaloosa County High School, and by her father, Daniel *113 Moore, under 20 U.S.C.A. § 1232g, 20 U.S.C.A. § 1232g(b)(1)(H), 42 U.S.C.A. § 1983, and 42 U.S.C.A. § 1985. At issue is whether the plaintiff Teresa Lynn Moore has a property interest in membership in the Tuscaloosa County High School Beta Club. Plaintiffs’ ...
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*528 MEMORANDUM OPINION The IRS wants Emil and Judith Stavriot-is’ money. Lots of it. The bankruptcy court (the Stavriotis’ have filed for Chapter 11 protection) said the IRS asked for too much, too late. The IRS has turned to this court, hoping for a different result. Its hopes are misplaced. Background The Stavriotis’ filed their Chapter 11 bankruptcy petition on ...
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OPINION AND ORDER In an Opinion and Order dated May 14, 1991 the Court ruled that defendants Donald Oshinsky, Linda Pazzani, Anna L. Bolgier, Joel Machlis, Rose Dunn, Anthony Moscato, Sanford Aranow and Michael Frankel (collectively “the individual stenographers”) were entitled to qualified immunity on plaintiffs’ due process claim against them and dismissed that claim. See Mathis v. Bess, 763 F.S...
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OPINION S.L. Building Company (“S.L. Building”) has moved under Rule 56, Fed.R.Civ.P., for summary judgment dismissing the complaint by which plaintiff the United States of America (the “Government”) seeks to collect, by way of foreclosure of the property 601 West 26th Street, $1.2 million in unpaid taxes, which are owed by Claire Britt Freidus (“Britt”). The Government has cross-moved fo...
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OPINION AND ORDER In an opinion dated December 21, 1990 the Court denied a motion to dismiss for failure to prosecute brought by defendants AT & T Communications, Inc., Richard Moccia, Elizabeth Jane Brennan and Marian Anderson (collectively “AT & T”) and Telephone Traffic Union Local 222, May E. Kliesch, Thelma Currie and Eleanor Heines (collectively “the Union defendants”) and ordered plaintiff...
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ORDER This matter is before the Court upon Defendant/Third Party Plaintiff Electric Motor Systems, Inc.’s motion to remand and for costs and expenses, Third Party Defendant NN Investors Life Insurance Company’s memorandum in opposition thereto, and the original defendant’s reply memorandum. (Docs. 4, 6, 7). Procedural History/The Parties’ Claims On April 15, 1991, Third Part...
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MEMORANDUM OPINION AND ORDER Plaintiff Larry Sims brought this action against Jack Kemp, the Secretary of the United States Department of Housing and Urban Development (“HUD”), Lake County Housing Authority (the “Authority”) 1 , and Alon Jeffrey, the Executive Director of the Authority (“defendants”) claiming that defendants’ termination of Sims’ tenancy in Conventional Low-Income Public Hous...
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MEMORANDUM OPINION Plaintiff, Northeast Savings, F.A. (“Northeast”) initiated this action, alleging that defendants’ repudiation and abrogation of contractual promises to plaintiff constitute a breach of contract, a taking of plaintiff’s property without just compensation in violation of the fifth amendment of the Constitution, and a deprivation of plaintiff’s property without due process...
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MEMORANDUM OPINION AND ORDER VMS Realty Partners and Prudential Securities want an order requiring Equity Resources to submit to the Court communications to class members concerning the terms of the proposed Settlement Agreement. Equity Resources has sent and anticipates sending thousands of letters (“the *103Letters”) to class members in at least seven settling limited partnerships. Equity Resour...
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OPINION The defendants The Toronto-Dominion Bank (“TD Bank”), Provident National Bank (“Provident”), The Prudential Insurance Company of America (“Prudential”) and The Toronto-Dominion Bank Trust Company (“TD Trust”) have moved under Rule 56, Fed.R.Civ.P. for summary judgment dismissing the complaint of plaintiff New Bank of New England, N.A. (“NBNE”), one of four institutional lenders un...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on a products liability claim filed against American Honda Motor Co., Inc., Honda Motor Co., Ltd. and Honda R & D Co., Ltd. (hereinafter referred to as the Honda Defendants). The Honda Defendants have filed a motion for summary judgment. The Court being fully advised in the premises finds as follows: FACTUAL BACKGROUND ...
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MEMORANDUM OPINION AND ORDER Plaintiff Robert Nagle (“Nagle”) filed this action on August 6, 1990, alleging that his employment with defendant John Hancock Mutual Life Insurance Company was terminated in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA” or “the Act”) (“Count 1”) and the age discrimination provisions of the New York State Hum...
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770 F. Supp. 11 (1991) Elaine JOHNS, et al., Plaintiffs, v. A. Bruce ROZET, et al., Defendants. Civ. A. No. 91-130 (CRR). United States District Court, District of Columbia. July 15, 1991. *12 *13 Barbara Kaye Dougherty of Akin, Gump, Strauss, Hauer & Feld, Washington, D.C., for plaintiffs. Judith Bartnoff of Patton, Boggs & Blow, Washington, D.C., for defendants. OPINION CHARLES R. RICH...
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MEMORANDUM & ORDER Plaintiff Maruzen International Co., Ltd. (“Maruzen”) brings this action against, inter alia, defendants Hyman Products, Inc. (“Hyman”), Fascinations Toys Gifts Inc. (“Fascinations”), and Kay-Bee Toy Hobby Shops, Inc. (“Kay-Bee”) for violations of copyright, trademark, trade dress, unfair competition, and other rights in connection with a product known as the...
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OPINION AND ORDER This is an action for survivor’s benefits brought by the widow of a retired seaman in which she seeks declaratory and injunctive relief and damages for violations of the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001 et seq. Plaintiff moved for summary judgment on the complaint pursuant to Rule 56 of the Fede...
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ORDER THIS MATTER comes before the Court on Defendant’s Motion for Summary Judgment on Plaintiff’s First Claim for Relief. On February 25, 1991, the Court dismissed Plaintiff’s Second and Third Claims for Relief. The Court, having reviewed the Defendant’s motion regarding the single remaining claim, the Plaintiff’s response, the Defendant’s reply, the Defendant’s additional authority, the...
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ORDER This matter is before the court on the defendant’s, Robert Levine (“Levine”), Motion for Revocation of Magistrate’s Detention Order, filed on April 23, 1991. Levine requests review, pursuant to 18 U.S.C. § 3145(b), of a recent detention order entered by Magistrate Rodovich of the Northern District of Indiana. This court heard and considered argument and evidence at a hearing on the motion...
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MEMORANDUM AND ORDER This matter is before the court on the motion of attorney Marlys Marshall to settle and determine attorneys’ fees. Doc. 159. These consolidated personal injury actions were tried to a jury in February 1991. Marshall represents plaintiff Christopher Foster. On February 27, 1991 the jury returned a verdict finding plaintiff Clark 10% at fault and defendants 90% at fault...
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OPINION This is an action brought by plaintiff Princeton Economics Group, Inc. (“Princeton Economics”), a New Jersey corporation which provides economic consulting services, against defendant American Telephone & Telegraph Company (“AT & T”) for alleged violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq., and New Jersey statu...
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OPINION Plaintiff Lida, Inc. (“Lida”) commenced this action alleging copyright infringement, unfair competition, and deceptive and unfair acts and practices against defendants Texollini, Inc. (“Texollini”), B.B. Blu, Inc. (“B.B. Blu”), and John Does 2-40. Lida has moved, by Order to Show Cause, for preliminary injunctions against Texollini, B.B. Blu, and John Does 2-40. A hearing was cond...
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DECISION AND ORDER ON REMAND In 1988, Gary McKnight prevailed on his claim that the defendant, General Motors Corporation, unlawfully discharged him from his employment because of his race and in retaliation for his prior complaints of race discrimination. Mr. McKnight pressed his case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, which ...
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ORDER In this civil action, plaintiffs, purchasers of a piece of property formerly known as the New Hampshire Highway Hotel, sue seller New Hampshire Highway Hotel, Inc. (“NHHH”), and Goldberg-Zoino & Associates, Inc., a Massachusetts engineering firm which conducted an environmental site assessment before plaintiffs took title to the property. Plaintiffs’ complaint alleges breach of cont...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendant for summary judgment. (Doc. 62). This diversity action is a demand for a money judgment arising from a fidelity bond. Plaintiff claims that it incurred losses on certain loans, and that these losses are covered under the terms of a Savings and Loan Blanket Bond (“the Bond”) issued to plaintiff by defendant’s p...
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OPINION Plaintiffs Morgan Guaranty Trust Company of New York, Morgan Grenfell & Co., Limited, The Bank of Tokyo Limited, The Governor and Company of the Bank of Scotland and Orion Bank, Limited (collectively “Morgan Guaranty”) have moved pursuant to 28 U.S.C. § 1447(c) and Rule 11 of the Civil Rules of this court for costs and actual expenses, including attorneys’ fees, resulting from the...
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ORDER AND REASONS Before the Court is the plaintiff’s motion to remand and/or abstain. For the reasons that follow, the motion is GRANTED. On February 2, 1989 plaintiff filed a medical malpractice suit in state court. A medical review panel had previously determined that the defendant, Dr. Mark Cairns, was responsible for the plaintiff’s injuries. The defendant’s insurer, Continental...
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DECISION AND ORDER The United States initiated the instant civil forfeiture action against the defendant, certain real property commonly known as 1720 Island Court, Green Bay, Wisconsin, on June 22, 1990, by obtaining from this court a warrant for arrest in rem. The warrant was issued after the court was satisfied that one of the residents of the property, Roger Garrity, had utilized the property ...
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court in a non-jury trial on April 3 and 4, 1991, and the Court considered the evidence, the relevant law, and the parties’ requested findings and conclusions. This Memorandum Opinion and Order shall constitute the Courts’ findings of fact and conclusions of law. JURISDICTION The Court first finds that it has jurisdiction ...
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ORDER Plaintiff, who is currently confined at the Tipton Treatment Center in Tipton, Missouri, has filed pro se a civil rights action under the Civil Rights Act, 42 U.S.C. § 1983 (1976), seeking' relief for certain claimed violations of his federally protected rights. Although plaintiff did not submit a motion to proceed in forma pauperis and did not provide an affid...
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MEMORANDUM OPINION AND ORDER Plaintiff Karen Ann Klempka 1 brought this action against defendant G.D. Searle & Company (Searle) for personal injuries she alleges were caused by Searle’s Cu-7 intrauterine device (IUD) contraceptive. Diversity jurisdiction is alleged. The complaint includes claims of negligence, strict liability, fraud, misrepresentation, breach of express a...
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ORDER AND REASONS This motion to dismiss for lack of subject matter jurisdiction focuses on an issue never before decided by our Circuit. The motion is DENIED. I. A. The plaintiff in this case, Lawrence James, was appointed in state court to be the administrator of Ollie James’s estate. 1 Both parties agree that Ollie James was a participant in the Louisiana Labo...
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OPINION AND ORDER On March 29, 1991, the above-named plaintiffs moved for a new trial pursuant to Fed.R.Civ.P. 59. The defendant opposed the motion on April 9, 1991. On April 22, 1991, the plaintiffs filed a reply in support of their motion, and the defendant entered a surreply on May 6, 1991. Based on our consideration of the foregoing, the plaintiffs’ motion for a new trial is GRANTED. ...
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MEMORANDUM OPINION AND ORDER Before me is a motion to dismiss pro se plaintiff James Goodpaster’s (Goodpaster) complaint, filed by defendants the Supreme *918 Court of Colorado and the Colorado Supreme Court Grievance Committee (collectively Colorado Supreme Court). Goodpaster seeks a declaration that the portion of the Colorado attorney disciplinary rules requirin...
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*309 OPINION The issue before the Court in this, the most recent chapter of this antitrust case, is whether the Court should remove the restriction on information services imposed as part of the consent decree. Under a decision of the Court of Appeals, such removal is required if this Court is not able *310 to conclude from the evidence that the entry of the Regional...
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DECISION AND ORDER Plaintiff Syno Matthanasak, both in his own behalf and on behalf of and as representative payee of his daughter Chantala Matthanasak, brought this action pursuant to 42 U.S.C. § 1383(c)(3). He seeks an order reversing the final determination of the Secretary of Health and Human Services which denied him a waiver of recovery for overpayment of $4,853.73 in Supplemental Securit...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendant Air Logistics Corporation (“Air Logistics”) for summary judgment, and the motion in limine of defendant Minnesota Insurance Guaranty Association. The heirs of James Mason have filed this diversity action for damages under theories of negligence and strict liability. The decedent received fatal injuries while attempt...
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TABLE OF CONTENTS ORDER NO. 346 IN THE MATTER OF THE FIRST DISTRIBUTION OF SETTLEMENT AWARD I. INTRODUCTION. co rH O A. Procedural Background. cc r — I Cfr B. Factual t-rH O 1. The Case. c~ r-1 Cft *916 2.Plaintiffs’ Committee of Attorneys . 918 II. DISCUSSION. 920 A. Contingency Fee Contracts . 920 1. Applicable Law.920 2. The Facts.92...
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ORDER AND REASONS This Motion probes the reach of state unfair trade practices law. On March 9, 1990, plaintiff W.A. Offshore Equipment Co., Inc. sued defendant Parmatic Filter Corporation for damages for breach of contract. Plaintiff claims to have been a sales representative for defendant, selling various kinds of shipyard products. Plaintiff 1 contends that on Octo...
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MEMORANDUM AND ORDER Plaintiff, Central Dakota Radiologists, P.C. (CDR) commenced a declaratory judgment action against its liability insurers, Continental Casualty Company (CCC), and Great American Insurance Company (GAIC), seeking determination of the respective obligations of defendants with regard to an action filed against CDR and *324 other defendants by Effideen Ameera...
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MEMORANDUM AND ORDER The above-captioned case encompasses four separate actions 1 consolidated by stip *412 ulation pursuant to Fed.R.Civ.P. 42(a). The parties agree that the Amended Class Action Complaint filed in the Lucia and Bomireto cases is the operative complaint and that the parties are free to raise statute of limitations defenses bas...
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MEMORANDUM OPINION AND ORDER Plaintiff pro se Philip Boothe brings this action alleging defendant TRW Credit Data’s (“TRW”) violation of Sections 607(b) and 611 of the Fair Credit Reporting Act (“FCRA” or the “Act”), 15 U.S.C. §§ 1681e(b) and 1681i. The substance of Boothe’s complaint is that he was denied credit as the result of TRW’s having published an inaccurate credit prof...
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ORDER Defendant Helene Curtis, Inc. has moved pursuant to Federal Rule of Civil Procedure 37 for entry of an order compelling subpoena deponent Dr. Louis Baez and RHR International Company (“RHR”) to produce for examination and copying all records, documents and/or information relating to the employment-related counseling provided to plaintiff Rafiah Sullivan. Defendant’s motion must be granted to...
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ORDER BACKGROUND On April 2, 1990, plaintiff environmental organizations Sierra Club 1 , Wisconsin Forest Conservation Task Force 2 , and Wisconsin Audubon Council, Inc. 3 commenced this action, seeking judicial review of the United States Department of Agriculture — Forest Service’s decision denying their administrative appeal ...
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MEMORANDUM OPINION This cause is before the court on the trustees’ petition to vacate the arbitration award and to reinstate the civil action and on motions by defendants for confirmation of the arbitration award. Having considered the briefs and submissions of counsel, the record, 1 and the applicable law, the court finds that the plaintiffs’ motion is due to be granted. The c...
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762 F. Supp. 1525 (1991) In re BANK OF BOSTON CORPORATION SECURITIES LITIGATION. No. 89-2269-H. United States District Court, D. Massachusetts. May 1, 1991. *1526 *1527 *1528 Glen DeValerio, Berman, DeValerio and Pease, Thomas G. Shapiro, Shapiro, Grace & Haber, Boston, Mass., Stuart H. Savett, Kohn, Savett, Klein & Graf, P.C., Philadelphia, Pa., for plaintiff. Gerald F. Rath, Bingham, Da...
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ORDER This matter is before the court pursuant to 28 U.S.C. § 158(a) on the appeal of the Federal Deposit Insurance Corporation (“FDIC”) from an order of the United States Bankruptcy Court. 1990 WL 124052. The bankruptcy judge, the Honorable Thomas M. Moore, granted the summary judgment motion of the trustee and the Unsecured Creditors’ Committee and upheld their objections to the FDIC’s ...
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OPINION The matter before the court is the motion (#76) of plaintiff, Key Technology, Inc. (Key Technology), for an order compelling defendant, Simco/Ramic Corporation (Sim-co/Ramic), to respond to its Requests for Production No. 1, 3, 7 and 8 and Interrogatory No. 4. In its complaint, Key Technology claims that Simco/Ramic has infringed U.S. Patents No. 33,357 (patent ’357), 4,520,702 (patent ’70...
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MEMORANDUM OF DECISION AND ORDER (AMENDED) This matter was heard on February 22, 1991, on plaintiffs’ motion for summary judgment. The court requested supplemental briefing, which the parties supplied, and the matter was submitted on April 5, 1991. Plaintiffs are California residents who receive funds from the Aid to Families with Dependent Children (“AFDC”) program. See 42 U.S...
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ORDER REMANDING CASE TO BANKRUPTCY COURT Appellant Teachers Credit Union (Credit Union) appeals from the bankruptcy court’s June 13, 1990, Judgment and Memorandum Opinion and June 18, 1990, Order Denying Motion for New Trial wherein the court held that a debt owed to appellant by appel-lee Geneva Johnson is not a nondischargeable debt under 11 U.S.C. § 523(a)(2)(B). I. Issues ...
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OPINION Peter Gabriel John McMullen (“McMullen”) has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. §§ 1651 and 2241. McMullen claims that the Government’s attempt to extradite him pursuant to the Extradition Treaty between the United States of America and the United Kingdom of Great Britain and Northern Ireland, 28 U.S.T. 227, T.I.A.S. No. 8468 (effective Jan. 21...
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OPINION Plaintiff Marvin Gonzalez (“Gonzalez”) has moved pursuant to Rule 60(b)(2), Fed. R.Civ.P., and Rule 3(j) of the Civil Rules of the Southern District for reargument of the court’s opinion of February 13, 1991 granting in part and denying in part the summary judgment motion of the third-party defendant in the underlying action for personal injuries, General Thermoform-ing Corp. (“GTC”). Gon...
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ORDER ON MOTIONS This cause is before the court on a flurry of motions from the various Defendants to dismiss, strike and call for more definite statement. I. BACKGROUND Plaintiff was employed by Defendant, the City of Oldsmar, as an Administrative Assistant to the City Manager until he was discharged in September 1990 as the result of budget cuts initiated by Defendants and City Council Members ...
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OPINION The matters before the court are the motions of defendants, Gerald Stephen Rawlins and Peter Reed Rawlins: 1) for further discovery in support of their motions to dismiss the indictment on the grounds of selective prosecution or vindictive prosecution; 2) to dismiss Counts 1 and 2 of the indictment for failure to state an offense on the grounds that an asset held by a subsidiary of a savi...
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OPINION AND ORDER Defendant Stanley Brewer (“Brewer”) is charged with credit card fraud in violation of 18 U.S.C. § 1029(a)(1) and (2). He now moves (1) pursuant to Rules 8(a) and 12(b)(2) of the Federal Rules of Criminal Procedure to dismiss the indictment as duplicitous and (2) pursuant to Rule 12(b)(3) to suppress an out-of-court identification. For the reasons set forth below, defenda...
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ORDER Before the Court is a Motion by the Plaintiff for remand of this case to state court based upon the assertion that the *450 Price-Anderson Amendments Act of 1988, 42 U.S.C. § 2210(n)(2), which provides removal of cases such as this to United States District Courts, is unconstitutional. 1 This Court finds that the Act is constitutional and denies the Motion to...
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*948 MEMORANDUM OPINION This diversity motor vehicle accident case raises the issue, unresolved in Virginia, whether the “fireman’s rule” operates to bar recovery by a policeman when he is injured by the negligence of a person unrelated to risk to which he was responding. Plaintiff, a police officer, alleges he was injured when defendant’s negligently operated vehicle caused him ...
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ORDER THIS MATTER is before the Court on Defendant’s motions, filed May 3, 1991, for relief from judgment, to dismiss the complaint, to quash the return of service of the summons, and to stay proceedings to enforce a judgment and to issue a show cause order thereto. On May 29, 1991, Defendant filed a brief in support of the motions. Plaintiff, on June 17, 1991, filed a brief in opposition...
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OPINION AT & T Information Systems [hereinafter “AT & T”] hired Hayden Roofing Company to repair the roof on a plant located in Suffern, New York. A necessary part of the job consisted of the application of liquid asphalt. On May 20, 1989, plaintiff Michael Witt was standing atop a 37 ton liquid asphalt tanker manufactured by Liquid Asphalt Systems, Inc. and located on AT & T’s property, transfer...
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MEMORANDUM DECISION Plaintiff Odell B. Day (“Mrs. Day”) brings this employment discrimination ease under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988), and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-34 (1985), against Edward J. Derwinski, Secretary of Veterans Affairs. 1 The plaintiff, a black woman, was sixty-two years old when...
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OPINION Presently before the court are three motions — plaintiff’s appeal from the November 9, 1990 order of the Magistrate Judge, plaintiff's appeal from the December 27, 1990 order of the Magistrate Judge, and defendants’ motion for summary judgment. I. INTRODUCTION Plaintiff is a cardiothoraeic surgeon who was denied medical staff privileges at Our Lady of Lourdes Medical Cen...
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FINAL ORDER When this colorful jeweler’s block policy insurance case first came on for hearing before the Court, the parties both agreed that the matter was ripe for a summary judgment hearing rather than trial at that time and consented to proceed on the basis of a hearing on Plaintiffs’ motion for summary judgment. After hearing the arguments for summary judgment, reviewing the memoranda of...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER was tried before the undersigned on May 21, 1991 without a jury in Charlotte, North Carolina. The complaint alleges that Defendant discharged Plaintiff based on her gender and her status as a pregnant woman in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff was represented by Mr. Louis L. Lesesne, Jr....
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ORDER Before the Court are a Motion by the Plaintiffs for sanctions against Defendant Goodyear Tire and Rubber Company (“Goodyear”) (# 78) and Motions by Defendant Firestone Tire and Rubber Company (“Firestone”) and Goodyear for an order (# 114 and # 116) certifying an interlocutory appeal under 28 U.S.C. § 1292(b). This Court grants both of these Motions. JURISDICTION This product liability actio...
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ORDER THIS MATTER is before the Court on Defendant’s motion, filed May 15, 1991, to dismiss Plaintiff’s complaint for lack of personal jurisdiction. On June 17, 1991, Plaintiff filed a response in opposition to the motion. Both parties have filed briefs and affidavits in support of their respective positions. I. FACTUAL BACKGROUND. Plaintiff filed its complaint on April 3, 1991....
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MEMORANDUM OPINION AND ORDER Defendant Alpha 76, Inc. is a failed business formerly run by the Nigburs, the other defendants. While it was in its death throes, Alpha agreed with plaintiffs, its landlords, to sell some of its personal property and apply the proceeds to arrearages in rental payments due under its lease with plaintiffs. Interpleader Plaintiff Elwood Henderson, an auctioneer, sold th...
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OPINION The following motions are pending: 1) Defendant Jaime Covarrubias Bejara-no’s motion to suppress statements; 2) Bejarano’s motion to suppress cocaine, money, scales, paraphernalia, and other evidence; 3) Bejarano’s motion to suppress scrapings seized from secret compartment in vehicle; 4) Bejarano’s motion to suppress money and cocaine seized in search of vehicle and Bejarano; *7485) Bejar...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on defendant’s motion for reconsideration of a May 3, 1991 Memorandum Opinion and Order denying defendant’s motion for summary judgment. FACTS The following facts are a brief summary of the May 3, 1991 Opinion. On May 9, 1985, an involuntary bankruptcy proceeding was filed against the THA Corporation. The internal revenue service (“IRS”...
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ORDER Plaintiff, Margaret J. Ahmad, brought this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). Plaintiff contends that defendant, Loyal American Life Insurance Company (“Loyal American” or the “Company”), discriminated against her because of her pregnancy in withdrawing its offer ...
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ORDER AND REASONS The Court addresses here the motions filed by defendants, Phillips Petroleum Company, Phillips 66 Company (collectively Phillips), General American Transportation Corporation (GATC), Mitsui & Co., (U.S.A.), Inc. (Mitsui), and CSX Transportation, Inc. (CSXT) for summary judgment on the plaintiffs’ exemplary damages claims. 1 For the reasons set for below, the m...
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770 F.Supp. 562 (1991) PACIFICORP, doing business as Pacific Power & Light Company, an Oregon corporation, Plaintiff, v. PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation; Columbia Steel Casting Co., Inc., an Oregon corporation; and Public Utility Commission of Oregon, Defendants. COLUMBIA STEEL CASTING CO., INC., an Oregon corporation, Plaintiff, v. PORTLAND GENERAL ELECTRIC COMPANY, ...
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MEMORANDUM This matter is before the Court for a decision on the merits following trial to the Court. After consideration of the pleadings, the testimony and exhibits introduced at trial, the parties’ briefs, and the applicable law, the Court enters the following memorandum which it adopts as its findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Pr...
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MEMORANDUM OPINION AND ORDER Before the Court is Plaintiffs Kenneth Thrapp and Linda Thrapp's Emergency Motion to Remand, filed July 11, 1991. The Court held a conference on this motion on July 11, 1991. This is an asbestos case originally brought in Texas state court. Defendant National Gypsum Company is the only non-diverse party in the case. Because of Plaintiff Kenneth Thrapp’s extremely ...
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ORDER TO SHOW CAUSE On June 6,1989, the certified copy of the mandate of the United States Court of Appeals for the Eighth Circuit was filed reversing a grant of summary judgment to defendants in this medical malpractice case. The summary judgment had turned on whether plaintiff had complied with the procedures of Minn.Stat. § 145.682 requiring production of an affidavit of expert review ...
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MEMORANDUM OPINION AND ORDER This social security disability benefits appeal is before the court on the motion of plaintiff, Predrag Uskokovic, for $9,587.74 in attorneys’ fees and $1000 in costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. For the reasons set forth below, the court grants *389 Uskoko vic’s motion for fees but adjusts the sums reque...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This cause is before the Court on Defendant’s motion for summary judgment, filed April 24, 1991, and response thereto, filed May 20, 1991. The Complaint was filed on December 11, 1989, with an Amended Complaint filed February 12, 1990. This action is brought pursuant to § 623(a) and § 623(d) of the Age Discrimination Act. Plaintiff alleges that he was term...
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ORDER This action is before us on defendant Fernando Faccio-Laboy’s Motion to Suppress filed on February 25, 1991 which was opposed by the government on March 8, 1991. In his Report and Recommendation of April 25, 1991 (docket entry 84), the Magistrate recommended that items seized during the challenged “inventory” search be suppressed. The government appealed, and, upon review, we requested the t...
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MEMORANDUM * On October 25, 1990, a jury returned a verdict against the five defendants in this case on a seven-count indictment as follows: A. Quintín Burt (Burt) — Count I, conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Count II, possession or use of a machine gun in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c) and...
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OPINION This is a civil rights action under 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. Plaintiffs seek damages and injunctive and declaratory relief for the alleged denial of their constitutional rights by defendants. Specifically, plaintiffs claim that defendants have denied them their rights to freedom of expression, to freedom of association and to t...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER is before the Court on Plaintiffs renewed motion, filed May 15, 1991, for summary judgment. On June 13, 1991, Defendants filed a memorandum in opposition to the motion. Plaintiff, on June 27, 1991, filed a reply to Defendants’ memorandum. The dispute in this matter involves a loan made by a predecessor in interest of Plaintiff to Defendant...
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FINDINGS OF FACT 1. Plaintiff, Philip A. Garland, is a black male who filed a civil action for money damages, declaratory and injunctive relief against defendants, USAir, Inc., and the Air Line Pilots Association, based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. 2. Plaintiff Garland contends that USAir violat...
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OPINION These cases arise from a proxy contest for control of Baltimore Bancorp (the *921 “Bank”) between a group of dissident stockholders led by Edwin F. Hale (“Dissidents”) and the Bank’s current management (“Management”). Under the Bank’s existing bylaws six of its eighteen directors were to be elected at the annual stockholders meeting held in May. Dissidents fielded a s...
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MEMORANDUM AND ORDER This case is before the court on a motion to compel discovery filed by plaintiffs, Am-cast Industrial Corporation (“Amcast”) and Elkhart Products Corporation (“EPC”), and a motion for protective order in response thereto filed by defendant Detrex Corporation (“Detrex”). The plaintiffs’ motion seeks an order compelling Detrex to produce: 1) any facts relating to this action th...
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ORDER ON MOTION TO CERTIFY CLASS ACTION This cause is before the Court on Plaintiff’s motion to certify a class action, and the' Court having reviewed Plaintiff’s brief supporting class certification, and Defendant’s brief in opposition to Plaintiff’s motion to certify class action, as well as other memoranda filed by the parties, reserves ruling on the motion to certify the first and second prop...
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MEMORANDUM AND ORDER Plaintiff, alleging unfair discharge and termination of disability benefits, seeks a default judgment against defendant New York Telephone Company (Telco) on the ground that Telco failed to “answer” the amended complaint. On April 4,1989 Telco timely served its answer to the amended complaint upon the attorneys for plaintiff and co-defendant CWA. Plaintiff does not contest tha...
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*844 ORDER Before the court are Defendant J.L. Foti Construction Co., Inc.’s (“Foti”) motion to dismiss and Defendant Donley Inc.’s (“Donley”) motion for partial summary judgment. Plaintiff Donald W. Robinson alleges that Defendants Foti, Donley and N & C Construction Co. (“N & C”) failed to hire him due to his race and in retaliation for his past challenges to allegedly unlawful...
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OPINION This case presents a very unique situation involving the rights' to surplus cash accumulated by a multi-employer pension fund established by various financial institutions, including savings and loans, savings banks, and commercial banks. The novelty of this case is not limited to the legal issues before us. Indeed, in light of today’s economy, we had thought that terms surplus ca...
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ORDER Before the court is Defendant Burns International Security Services, Inc.’s (“Burns”) motion to dismiss or for summary judgment. The Plaintiff, Thomas Ungrady, brings this action against the Defendant for terminating his employment, allegedly in violation of state law. Specifically, the Plaintiff raises five claims of breach of employment contract (Counts IIV, VI), one claim of conv...
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ORDER ON APPEAL This case is before the Court on appeal from the United States Bankruptcy Court for the Middle District of Florida. In the prior proceedings, Chief Bankruptcy Judge Alexander L. Paskay awarded summary judgment to the debtor, B. Warren Smith 123 B.R. 423 (1990). The creditor, First Florida National Bank, appeals. I. BACKGROUND As the parties agreed at the October ...
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OPINION Keysor Century Corporation (“Keysor”), a Third-Party Defendant in this CERCLA action, has moved the Court to reconsider its previous Opinion denying Keysor’s motion for summary judgment. New Castle County, Stauffer Chemical Company and ICI Americas, Inc. (“Third-Party Plaintiffs”), Defendants and Third-Party Plaintiffs in the action, oppose a reconsideration of this Court’s previous dec...
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MEMORANDUM AND ORDER The three districts and Joshua intervenors 1 ask the Court to reconsider its order of June 21, 1991, 769 F.Supp. 1483, in which the Court declined to accept a multitude of proposed changes to the settlement plans approved by the Eighth Circuit in Little Rock School District v. Pulaski County Special School District No. 1, 921 F.2d 1371 (8th Cir.1990). With one exception...
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ORDER ON MOTIONS This cause is before the Court on Motions to Dismiss by all defendants, a Motion for More Definite Statement and Entry of RICO Order filed by Defendant John R. Crockett, Plaintiffs’ Motion to Strike, and Plaintiffs’ Suggestion for Oral Argument, as further described hereinafter. THE PARTIES Plaintiff California International Chemical Company (Cal. Chemical) is a...
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770 F. Supp. 366 (1991) In re W. Otis CULPEPPER, Petitioner. No. 88-0674. United States District Court, E.D. Michigan, S.D. July 15, 1991. John L. Christensen, Detroit, Mich., for petitioner. Charles K. Higle, Detroit, Mich., for respondent. Before DeMASCIO, NEWBLATT and ROSEN, District Judges, sitting as a three-judge panel pursuant to Eastern District of Michigan Local Rule A-7(c). MEMORANDUM ...
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ORDER OF CONTINUED PRETRIAL DETENTION Before the Court are Defendant Ibarra’s Motion to Amend the Detention Order, (Instr. #7), Defendant Guerrero’s Motion for Bond Reconsideration, (Instr. # 10), and Defendant Chambers’ Motion to Revoke the Magistrate’s Detention Order and for Release Upon the Combination of Reasonable Conditions, (Instr. # 5). The Court has considered these Motions jointly, f...
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OPINION AND ORDER Plaintiffs move to vacate the judgment entered herein and for a new trial (1) on the grounds of an alleged material concealment by Juror No. 1, and (2) on the grounds defendants exercised their peremptory challenges on the basis of race and ethnic background. Plaintiffs also move to reduce a lien imposed by this Court on April 29, 1991, against settlement funds received ...
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OPINION AND ORDER This is a civil action brought under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., arising out of defendants’ alleged failure to bargain in good faith with plaintiffs on the terms of a tribal-state Indian gaming compact. Defendants concede that the state has refused to bargain over certain gaming activities that it believes are not proper subjects of negotiatio...
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MEMORANDUM ORDER This matter is before the Court on the motion of defendant Communications Workers of America (CWA) for summary judgment. On consideration of the entire record, the Court grants the motion. This is an action alleging discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of ...
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MEMORANDUM OPINION On May 15, 1991, the plaintiff Securities and Exchange Commission (SEC) applied to this Court for an ex parte temporary restraining order enjoining defendants from committing federal securities violations and freezing defendants’ assets, among other things. The Court granted the requested temporary relief upon the SEC’s showing that there was a justifiable ba...
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MEMORANDUM OPINION This action originates from an alleged securities fraud perpetrated upon thousands of purchasers. Each purchaser is alleged to have suffered a relatively small loss, making it not economically feasible for each of them to bring an individual action. In other words, plaintiffs claim that this is a typical class action. Facts To curtail a decline in the price of its stock, defe...
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ORDER This cause is before the Court on Report and Recommendation by Magistrate George T. Swartz, issued on January 15, 1991, and Objections to Report and Recommendation by the State, filed on January 23, 1991. The Magistrate’s Report and Recommendation adopts certain facts contained in the record. These findings will not be disturbed, except to the extent that facts are noted as disputed in ...
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ORDER GRANTING DEFENDANT RUIZ’S MOTION TO SUPPRESS On March 14, 1991 an Evidentiary Hearing was held before this Court on defendant Jose Luiz Ruiz’s Motion to Suppress evidence seized from a bedroom in his residence. At the evidentiary hearing the government presented only two witnesses: Special Agents Michael Kane and Maria Price. The defendant presented two defense witnesses: his brothers, Mario...
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MEMORANDUM OPINION The government initiated this civil forfeiture action under the Controlled Substance Act, 21 U.S.C. § 881, alleging that defendant property was used to distribute or facilitate the distribution of heroin and cocaine. Having considered the evidence adduced at a bench trial and the entire record herein and having had an opportunity to examine the credibility of the witnes...
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*1285 MEMORANDUM OF DECISION INTRODUCTION These two consolidated suits test the scope of copyright protection for audiovisual games (video games). Nintendo of America, Inc. (“Nintendo”) markets and sells home video games hardware systems and compatible video game cartridges. The audio-visual portions of the game car *1286 tridges in suit are protected by registe...
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ORDER ON MOTION TO DISMISS This cause is before the court on Defendant’s motion to dismiss all Counts of the complaint and the response thereto. Defendant’s motion alleges: 1) Plaintiff’s action is barred by 28 U.S.C. Section 1342, the “Johnson Act”, 2) Plaintiff has failed to state a substantial federal question, 3) Plaintiff has failed to allege a protected property interest which must be prese...
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MEMORANDUM OPINION AND ORDER In this appeal, Charles R. Derrer challenges the Secretary’s termination of his Supplemental Security Income (SSI) benefits based on a finding that Derrer’s resources exceeded the statutory limit. Derrer contends that (1) the Secretary’s finding was not supported by substantial evidence, (2) the Secretary erred in not considering the applicability of regulations gover...
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DECISION AND ORDER On March 5, 1990, the plaintiff, Thomas Mahoney, filed this civil rights action against defendants Russell Kesery, a Milwaukee city police officer, and Mary Anne Smith, a Milwaukee county assistant district attorney. Mr. Mahoney charged that he was arrested without probable cause and maliciously prosecuted in violation of his constitutional rights and § 1 of the Civil Rights ...
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OPINION AND ORDER On January 17, 1991, the Panel issued an order to show cause why all pending federal district court actions not then in trial involving allegations of personal injury or wrongful death caused by asbestos should not be centralized in a single forum under 28 U.S.C. § 1407. Because of the difficulty in serving this order on the enormous number of parties in this docket, the...
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*1189 ORDER This matter comes before the Court on Motion for Summary Judgment by Defendants American Casualty Company of Reading, Pa. and Continental Casualty Co. (Defendants). In this lawsuit, Plaintiffs allege three counts against the Defendants and seek recovery: 1) for Defendants’ failure to give notice of refusal to renew the 1981 Policy; 2) under the 1984 Policy; and 3) for...
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MEMORANDUM OPINION AND ORDER The five petitioners are Chinese nationals who have applied for political asylum in the United States. These five aliens are currently in detention in the INS Detention Center in Aurora, Colorado. All have requested parole pending a final resolution of their status. The district director of the INS, Joseph Greene, has denied the parole requests. The petit...
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This is an action for actual and statutory damages brought by Plaintiffs Joseph and Deborah Smith against Defendant Financial Collection Agencies (“FCA”) alleging various violations of the Fair Debt Collections Practices Act (the “FDCPA”), 15 U.S.C. § 1692. Defendant has moved for partial summary judgment on the question of whether two letters sent to the Plaintiffs by the Defendant are in conf...
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MEMORANDUM AND ORDER The above-captioned case is before the Court upon defendant’s motion under Fed. R.Crim.P. 35, as that rule provided prior to the amendments effective November 1, 1987, to vacate his sentence on the ground that it was illegally imposed or to reduce sentence because of a change of circumstances. As the Rule provided, a court “may correct an illegal sentence at any time”...
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OPINION AND ORDER Plaintiffs Sutphin Pharmacy, Inc. (“Sutphin”), Columbus (“Columbus”) and 103rd Street Drug, Inc. (“103rd Drug”), and Empire State Pharmaceutical Society, Inc. (“Empire”) bring this action under 42 U.S.C. § 1983 for injunctive relief and damages against Cesar A. Perales, individually and as Commissioner of New York State Department of Social Services (the “Department”). Plaintiff...
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MEMORANDUM AND ORDER Only one motion of the several motions which were filed and briefed prior to the April 5, 1991 hearing remains to be ruled on. This Memorandum and Order will address that remaining motion. I. Background Sanders worked for Circle K Corporation as an assistant manager in one of the Phoenix stores. Sanders’ immediate supervisor was Richard Edmonds, a Circle K store manager. As al...
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MEMORANDUM & ORDER Plaintiff Hyosung (America), Inc. (“Hyosung”) commenced this action for recovery of losses occasioned by a misdelivery of goods never traced or recovered which were sent from Busan, Korea to the Dominican Republic on board a vessel owned by defendant American President Lines, Ltd. (“APL”). The parties now cross-move pursuant to Fed.R.Civ.P. 56. Additionally, APL request...
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MEMORANDUM OF DECISION AND ORDER This matter comes before the Court on Defendants’ Motion to Dismiss and Plaintiffs’ Cross-Motion for Summary Judgment. The Court need not reach Plaintiffs’ Motion for Summary Judgment. This Court is without subject matter jurisdiction over Plaintiffs’ claims and, therefore, will dismiss this case. Plaintiffs are a group of plaintiffs who have demanded jury tri...
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OPINION This is an appeal filed by South Chicago Disposal, Inc. ("South Chicago”) from an order dated July 9, 1990 (the “Order”) issued by the Honorable Burton R. Lifland, Chief Judge of the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) denying a motion of South Chicago to compel LTV Steel Company, Inc. (“LTV Steel”) to assume as an executor...
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FINAL ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This cause comes before the court on the defendant’s motion for summary judgment, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. In its motion for summary judgment, the defendant argues that the plaintiff’s action is time-barred and that the Department of Labor’s decision not to bring suit challenging union election ...
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OPINION Plaintiff has requested the court to reconsider its February 4, 1991 decision dismissing, inter alia, his claims pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Starr v. JCI Data Processing, Inc., 757 F.Supp. 390 (D.N.J.1991). Plaintiff takes issue with the court’s all-or-nothing treatment of the timeliness of his ERI...
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ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT, DENYING PETITIONER’S CROSS-MOTION FOR SUMMARY JUDGMENT, AND DENYING RESPONDENT’S MOTION TO STRIKE STATEMENTS This cause comes before the Court upon the respondent’s motion for summary judgment, the petitioner’s cross-motion for summary judgment, and the respondent’s motion to strike statements contained in the petitioner’s cross-moti...
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ORDER *397Presently before the court is plaintiffs motion for partial reconsideration1 of the court’s May 16, 1991, order, in which it granted portions of defendants’ motion for summary judgment. Background Plaintiff’s suit alleges that defendants manufactured asbestos fireproofing that was incorporated into plaintiff’s building between 1971 and 1972, that those products are hazardous and must b...
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OPINION AND ORDER Plaintiffs have moved for an order pursuant to Rule 28(b) of the Federal Rules of Civil Procedure directing that letters rogatory be issued to take document discovery and testimony of twelve individuals *46who are in large part employees of former defendants in this action. Defendant Leonard Smith does not contest the relevancy of the discovery request, but suggests delay until ...
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Plaintiff Alpex Computer Corporation (“Alpex”) moves for an order pursuant to Federal Rules of Evidence 408 precluding defendants Nintendo Company, Ltd. and Nintendo of America (“Nintendo”) from introducing any evidence concerning plaintiffs efforts to compromise disputed claims regarding the ’555 patent and the amounts involved in those efforts to compromise. For the reasons set forth below, t...
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MEMORANDUM OPINION This death penalty ease is before the Court for review of Robert Sawyer’s second petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the interest that the validity of his conviction be finally resolved, the Court permitted Sawyer to amend this second petition three times. The State filed responses to the petition and each amendment. After careful review of t...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS This cause comes before the Court upon motion of defendants to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), on several grounds: one, that plaintiff fails to plead adequate grounds for subject matter jurisdiction, specifically that the Administrative Procedure Act and the Clean Water Act prohibit pre-enforcement j...
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ORDER Plaintiff Walter Smith alleges that defendant John Doherty, a police officer, deprived him of his constitutional rights in violation of 42 U.S.C. § 1983. In addition, plaintiff asserts two state law claims against defendant, battery and malicious prosecution. Defendant has moved to dismiss these claims pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated herein, plaintiffs claims are di...
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FINAL ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT This cause is before the court upon the parties’ cross-motions for summary judgment. The plaintiffs filed this action seeking review of the February 23, 1990, Final Agency Action, which includes a civil penalty imposed against them by the National Oceanic and Atmospheric ...
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OPINION Defendant Shearson Lehman Hutton (“Shearson”) has moved under Rule 12(b)(6), Fed.R.Civ.P., to dismiss the complaint of plaintiff Roslyn Kozack (“Ko-*111zack”) for failure to state a claim upon which relief can be granted, or alternatively, for an order compelling arbitration of Kozaek’s claim under the Federal Arbitration Act, 9 U.S.C. §§ 1-208 (1990) (the “FAA”). Individual defendants Jo...
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MEMORANDUM ORDER This diversity action is brought by plaintiff for damages resulting from an alleged overpayment to its subcontractor in connection with the Marriott Marquis Hotel project. Plaintiff Morse/Diesel, Inc. (“Morse/Diesel”), alleges, in addition to its breach of contract claim, fraud and breach of the covenant of good faith and fair dealing. Defendant Fidelity and Deposit ...
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MEMORANDUM DECISION Plaintiff Curtis L. Wrenn (Wrenn), brings this action pursuant to 42 U.S.C. sections 2000e et. seq. (“Title VII”) and sections 1981 and 1983, alleging that defendants New York State Office of Mental Health (“OMH”) and Peggy O’Neill (“O’Neill”) denied him an appointment as Director for Administration at Pilgrim Psychiatric Center (“Pilgrim”) solely on the bas...
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ORDER Defendant Permalite Repromedia Corporation, d.b.a. Solvent Coating Company has moved the Court to dismiss with prejudice the Third, Fifth, Sixth, Seventh, Eighth and Ninth Causes of Action alleged in the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike portions of the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(f)....
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OPINION Plaintiff Citicorp International Trading Company, Inc. (“CITC”) has moved to dismiss the counterclaims and third party complaint of the pro se defendants Robert A. Zander (“Zander”) and his wife Karin Zander (“Karin Zander”) under the provisions of Rules 8, 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. Because both sides have submitted some material outside...
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MEMORANDUM OPINION Now before the Court is the Defendant’s Motion to Dismiss plaintiff’s claim of constructive discharge and the allegations found in paragraphs 10, 11, 12, 14 and 19 of her complaint which support the constructive discharge claim. The defendant moves to dismiss the claim and the allegations pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, alleging that t...
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OPINION AND ORDER Manufacturers Hanover Trust Company (“MHT”), a stock transfer agent for various publicly traded issuers, seeks to recover under Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), Rule 10b-5 of the Securities Exchange Commission, 17 C.F.R. § 240.10b-5, and a variety of common law theories, losses it sustained as a result of the defalcations of the assistant manager of...
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ORDER Pending before the court is a motion to intervene by the insurer of defendant Jarvis Construction Company, United States Fidelity and Guaranty Company (USF & G). Filing # 185. USF & G seeks to intervene for the limited purpose of submitting special interrogatories to the jury on the issue of damages. This litigation commenced with High Plains Cooperative Association suing Jarvis Constructio...
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MEMORANDUM PROCEDURAL BACKGROUND Plaintiffs, John E. Troné and Case Beer And Soda Outlet, Inc. d/b/a/ Beer World, (plaintiffs) filed a complaint with this court on March 28, 1991, requesting a declaratory judgment that a provision of the Pennsylvania Liquor Code, 47 P.S. § 4-436(f), is unconstitutional as applied to plaintiffs, and a preliminary and permanent injunction prohibiting t...
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OPINION AND ORDER These are four nonjury tax refund actions for the tax years 1966 through 1969. The parties have filed stipulations of partial dismissal for each case. 1 Currently before the Court are the parties’ cross-motions concerning the construction and enforcement of the stipulations for the tax years 1968 and 1969. BACKGROUND Plaintiffs ITT Corporation and its affiliated companie...
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MEMORANDUM OPINION AND ORDER In these consolidated actions, plaintiffs challenge a legislative environmental impact statement (“LEIS”) accompanying a statutorily mandated report conducted by defendants concerning the future management of the coastal plain of the Arctic National Wildlife Refuge (“ANWR”) in Alaska. Defendants and defendant-inter-venors filed a motion to dismiss the complain...
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Sitting by Designation OPINION The court has before it plaintiff’s motion and defendant’s cross-motion for summary judgment on the issue of insurance coverage. The insurance policy at issue was in effect at the time Hurricane Hugo struck St. Croix on September 17, 1989. Both parties agree that there are no material facts in dispute and that the court must make a legal determinatio...
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MEMORANDUM This cause is before the court on motion of defendants, Antilles Insurance, Inc. (“Antilles”), Alliance Brokerage Corp. (“Alliance Brokerage”), The Alliance Group (“Alliance Group”), and Herbert N. Zack (“Zack”) to reconsider, pursuant to Rule 72(a),1 an order of the Magistrate Judge severing the action and lifting a stay of the proceedings as to certain defendants. For the reasons stat...
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OPINION The matter before the court is the motion of plaintiffs for leave to file an amended complaint (# 639). BACKGROUND On May 8, 1991, this court ruled that there was no longer a claim m this case under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-47, 1991 WL 81838 (1972). The court stated as follows: In Portland Audubon Soc’y v. Lujan, 884 F.2d 1233, 1242 (9th Ci...
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Sitting by Designation 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; FRANK A. KAUFMAN, Judge of the United States District Court for the District of Maryland, Sittin...
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ORDER THIS CAUSE has come before the Court upon the defendant’s Notice of Removal. The plaintiff has filed a Response to the Notice asking the Court to remand the cause to the state court. The matter is now ripe for disposition. I. Background The plaintiff and the defendant entered into a charter agreement pursuant to which the defendant chartered three of the plaintiff’s vessel...
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ORDER On June 10,1991, a jury found defendant Kenneth Thomas Hayward guilty of violating 18 U.S.C. § 241, 42 U.S.C. § 3631(b), and 18 U.S.C. § 844(h)(1). Immediately after the verdict, the government moved to detain defendant Hayward pending sentencing. The court now grants the government’s motion. Under 18 U.S.C. § 3143(a)(2), a person who has been found guilty of a crime of violence and is ...
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MEMORANDUM OPINION AND ORDER Plaintiff, Action Air Freight, Inc. (“Action Air”), filed a complaint alleging violations of Pennsylvania’s Rules of Professional Conduct by counsel for defendant, Pilot Air Freight Corp. (“Pilot Air”). Action Air seeks injunctive relief pending an arbitration proceeding between the parties. Presently before this court is defendant’s motion to dismiss pursuant...
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MEMORANDUM AND ORDER Cross-defendants, Ranger Transportation, Inc., and Ted Cartwright, have moved to dismiss Count III of cross-plaintiff Joseph Shonk’s cross-claim. The parties filed memoranda in support of and opposition to this motion. Cross-defendants argued: 2. Counts I and II are directed against defendants CARTWRIGHT and RANGER TRANSPORTATION, INC., respectively. Count II alleges th...
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MEMORANDUM OPINION Plaintiff employees of the City of Aberdeen seek a declaration and order of this Court permanently enjoining the defendant City of Aberdeen (City) from enforcing the “Media Contacts” ordinance enacted by the Aberdeen City Commission. PACTS On September 18, 1989, the Aberdeen City Commissioners approved the following ordinance entitled “Media Contacts Policy # 07”: No em...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the magistrate’s report and recommendation (Filing No. 33), and the defendant’s objection to such report (Filing No. 34). The magistrate has recommended that defendants’ motion for writ of habeas corpus (Filing No. 32), construed as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, should be denied. ...
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MEMORANDUM ON PETITION FOR WRIT OF HABEAS CORPUS Michael Neal, an inmate at the Nebraska State Penitentiary, has submitted a petition for writ of habeas corpus under 28 U.S.C. § 2254. Magistrate Judge David L. Piester has recommended that the petition be denied. I agree that it must be. I have studied the entire file, consisting of records of proceedings before the District Court of ...
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ORDER CERTIFYING CLASS Plaintiffs seek certification of a class that would include “All persons who purchased Valley National Corporation common stock from June 30, 1988 through October 18, 1989 (the “Class Period”), and who suffered damages as a result thereof (the “Class”),” excluding defendants and related parties. Plaintiffs assert that the Class meets the four prerequisites to a class action ...
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MEMORANDUM AND ORDER United States Fidelity and Guaranty Company (“USF & G”) has filed a second motion seeking intervention in this action for the purpose of propounding interrogatories to the jury. Although the second motion clarifies a misinterpretation of its first motion, 137 F.R.D. 285, nevertheless, I have concluded to deny permissive intervention in this action. I am not unsympathetic to U...
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MEMORANDUM AND ORDER Defendant-Appellant Valley Fidelity Bank & Trust Company, as Trustee, and Intervenor-Appellants Connecticut Bank and Trust Company, N.A., Connecticut National Bank, Hibernia National Bank in Texas, Huntington National Bank, IBJ Schroder Bank & Trust Company, Maryland National Bank and Team Bank, appeal from the Memorandum Decision and Order of the Bankruptcy Court rep...
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MEMORANDUM Before the court is plaintiffs motion for a preliminary injunction. On February 8, 1991, a hearing was held to establish whether such an injunction should issue. The matter is now ripe for disposition. Background Plaintiff First Capital Insulation, Inc. is a firm specializing in the removal of asbestos-containing material from buildings and other structures. In November 1990, the...
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OPINION In this case, two claims involving the same accident were filed in separate forums. One suit was brought in federal court, and the other in state court. The state court claim was subsequently removed to federal court on the basis of diversity jurisdiction. Independently, both claims have complete diversity of citizenship. However, when the claims are consolidated and parties ...
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OPINION The plaintiff Joint Venture Asset Acquisition (“JVAA”), assignee of the promissory notes at issue (the “Notes”), executed by the individual defendants (the “Defendants”) in favor of First City Federal Savings Bank (the “Bank”), seeks judgment for the full amount of the Notes, all accrued interest, and legal fees and disbursements. Upon the following findings and conclusions reache...
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OPINION The matter before the court is the renewed motion (# 221) of defendant Omne-co, Inc. (Omneco) for summary judgment in its favor on the claims of the plaintiffs, Western Helicopter Services, Inc. and Edwina Marie Cruse, personal representative of the estate of Russell Leroy Cruse.1 This case arises from the crash of a helicopter that occurred on January 16, 1986. The pilot of the helicopte...
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MEMORANDUM OPINION AND ORDER I Plaintiff, a union of federal employees, brought this action to challenge the promulgation by defendant Office of Personnel Management (“OPM”) of a new program of examinations governing hiring for 112 career positions with the federal *10 government. 1 This program, named “Administrative Careers with America” (“ACWA”), consists of a competitive procedure in ...
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MEMORANDUM DECISION AND ORDER This matter is before the court for a decision on the merits following a bench trial. On November 25, 1987, the FDIC filed an action against defendants Y. Edgar Stanley, Robert Marcuccilli, Judith Stanley, David DeHart, Wayne Roe 1 , Dan Stanley, Gilbert Bierman, and John Boley. In this suit, the FDIC alleged that defendants, from March 1982 throug...
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ORDER Before the court are the objections of plaintiff Equal Employment Opportunity Commission (“EEOC”) and defendant Harris Chernin (“Chernin”) to Magistrate Judge Edward A. Bobrick’s report and recommendation that this court grant in part and deny in part Chernin’s summary judgment motion against EEOC. For the rea *921 sons discussed below, Chernin’s objections are sustaine...
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MEMORANDUM AND ORDER Plaintiff, PaineWebber Incorporated, has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff seeks summary judgment based on collateral estoppel. For the following reasons, plaintiff’s motion is granted in part, and denied in part. Plaintiff’s complaint against defendants Florian Ras, Thomas Thermos and Robert “Mickey...
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MEMORANDUM AND ORDER Defendants seek partial dismissal of this suit under the Clean Water Act (“CWA”). Plaintiffs oppose this, and also seek to amend three paragraphs of their complaint, which defendants oppose in part. For the reasons that follow, the defendants’ motion is GRANTED, and the plaintiffs’ motion is GRANTED in part; the parties shall have an additional opportunity to further ...
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MEMORANDUM OPINION AND ORDER I. Issues that are Immediately Before the Court William J. Doyle III, in his capacity as Inspector General of the Railroad Retirement Board (“Doyle”), has sought summary enforcement of a subpoena duces tecum directed to the “Keeper of Records” of “Burlington Northern Railroad Corporation” [sic]. The subpoena required the recipient to appear befor...
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MEMORANDUM OPINION This matter comes before the court on Cities Service Company’s motion for summary judgment and the Trustee for Energy Cooperative, Inc.’s cross motion for summary judgment. For the following reasons, summary judgment is granted for the plaintiff in part and for the defendant in part. BACKGROUND This motion arises in an ongoing series of cases brought by En...
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MEMORANDUM AND ORDER Before me is defendant’s Fed.R.Civ.P. 12(b)(1) and 12(b)(6) motion to dismiss plaintiff’s first amended complaint. Plaintiff’s complaint seeks to certify a class of all individuals and businesses that placed classified advertising in The New York Times since January 1,1975, and were fraudulently billed. Plaintiff asserts claims under the Racketeer Influenced and Corrupt Organi...
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ORDER Before the court is the petition of Walter Stewart (“Stewart”) for a writ of habeas corpus. For the following reasons, the petition is granted. FACTS Stewart is currently under a death sentence for two murders, an attempted murder, and other offenses committed during a February 10, 1980 armed robbery of the Empire Jewelry Store in Berwyn, Illinois. 1 On July 31,...
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OPINION Before the court is the motion of the plaintiffs, Public Interest Research Group of New Jersey (“NJPIRG”) and Friends of the Earth (“FOE”), for partial summary judgment on the issue of the liability of defendant Star Enterprise (“Star”) and for permanent injunctive relief. Also before the court is Star's cross-motion for summary judgment or, alternatively, a stay. For the reasons ...
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AMENDED OPINION AND ORDER Plaintiff Toyomenka Pacific Petroleum, Inc. (“Toyomenka”) is a California corporation. Defendant Hess Oil Virgin Islands Corp. (“Hess”) is a U.S. Virgin Islands corporation. Toyomenka brings this diversity action to recover demurrage for Hess’s delay in taking delivery of a cargo under a contract for the sale of crude oil. Both parties have moved for summary judgment. Bec...
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MEMORANDUM AND ORDER ON MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Having reviewed ■ Magistrate Judge David L. Piester’s report and recommendation of September 10, 1990, filing 28, the parties' briefs on the matter, and the relevant materials and opinions from the state courts, I find that I am in agreement with the magistrate judge’s well-reasoned and supported analysis. IT IS ORDERED that...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is an ERISA action brought by plaintiff John G. Lockrey (“Lockrey”) to recover additional benefits allegedly due to him pursuant to the Leavitt Tube Employees’ Profit Sharing Plan (the “Plan”). Plaintiff’s original complaint asserted claims for both breach of fiduciary duty and estoppel. In its Memorandum Opinion and Order of Septembe...
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MEMORANDUM OPINION This case is again before the court on Defendant’s motion for attorney’s fees as a result of the Fourth Circuit Court of Appeals’ February 2, 1990, 895 F.2d 147, decision interpreting North Carolina law as conferring an absolute privilege on Defendant’s letters to the President of the United States, with copies to a few other public officials, concerning Plaintiff’s fitness for ...
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MEMORANDUM Federal Kemper Insurance Company (“Kemper”) filed a declaratory judgment *265action seeking to limit its liability under an insurance policy issued to the defendant’s husband, George Sosdorf. As a member of the named insured’s family, Elizabeth Sosdorf alleges that she is entitled to uninsured motorist coverage for injuries sustained in an accident which occurred on December 20, 1985. ...
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MEMORANDUM This case is before the court on the motion of defendant, Fidelity and Deposit Company of Maryland (“Fidelity”), for summary judgment, partial summary judgment, judgment on the pleadings or partial *249 judgment on the pleadings, and for the sanctions of dismissal or evidentiary preclusion. Plaintiff, County of Dauphin (“the County”), instituted this action against...
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OMNIBUS ORDER Before the court is the Plaintiff’s, KREUZFELD A.G. (“KREUZFELD”), Motion for Class Certification (DE 47), Motion for Sanctions Against Bertil L. Carneham-mar for Failure to Comply with Discovery Order (DE 154), Motion to Compel Response of Defendant Bertil L. Carneham-mar to Deposition Question Together with Motion for Sanctions for Failure to Comply with Discovery Order (DE 170), ...
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ORDER This matter is before the court on the Office of Thrift Supervision’s (“OTS”) appeal of a bankruptcy court order entered by Judge A. Thomas Small on 18 December 1990. 122 B.R. 484. The matter has been fully briefed and a hearing was held on 11 July 1991. The court is now ready to rule. *451 I. Facts Firstcorp is a Delaware corporation authorized to do busi...
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FINAL ORDER DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION This cause comes before the Court following a hearing on the plaintiff’s motion for a temporary restraining order and preliminary injunction. The motion was filed with this Court on the afternoon of Tuesday, June 18, 1991, together with a complaint seeking declaratory relief and permanent injunctive relief. Due to the nature of th...
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MEMORANDUM AND ORDER This is a 42 U.S.C. § 1983 suit against defendants George I. Kirk, Jr., Robert S. Choquette, E.J. Petrarca, and the Town of South Kingstown. The individual defendants have moved for judgment notwithstanding the verdict or a new trial. The sole issue is whether or not, at the conclusion of the plaintiff’s case, on motions by Kirk, Choquette and Petrarca for directed verdicts pr...
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MEMORANDUM AND ORDER On May 14,1991, the plaintiffs, the Providence Journal and one of its reporters, Gerald M. Carbone, filed suit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to enjoin the defendant, the United States Department of the Army, from improperly withholding records relating to the Inspector General’s investigation of the Rhode Island National Guard. The sui...
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OPINION AND ORDER Joel and Carol Beane, prevailing intervenor claimants in this civil in rem forfeiture case, 21 U.S.C. § 881(a)(7) contend that the government was not “substantially justified” in seeking forfeiture of their two-thirds interest in certain real estate on which marijuana plants were being cultivated. Subsequent to the seizure and the filing of a complaint, the government di...
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MEMORANDUM OPINION BY ITS Order of June 19, 1991, this Court denied the defendant’s Motion to Suppress Statement. An evidentiary hearing in this matter was held on May 1, 1991, at which time the Court ordered the parties to submit supplementary briefs on the issue of whether the interrogation of the defendant was custodial for the purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1...
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OPINION Jose Machado works for the United States Postal Service. In April 1987 he sought a transfer and his request was denied. Due to that denial, he now brings this action pursuant to Title VII, 42 U.S.C. § 2000e et seq., alleging discriminatory treatment in employment based on his national origin. After presiding over the two day trial, I find that Mr. Machado’s claims are barred for failu...
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OPINION In December, 1986, the plaintiff in this case, Edward DelSignore, was promoted to the position of sergeant in the North Providence Police Department. Approximately two years later, he was, without notice, demoted to his previous rank of patrolman. He now brings this Section 1983 action against police and town officials alleging that he was denied procedural due process in violation of t...
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MEMORANDUM AND ORDER It is with deep regret and great concern that I revisit this case. Project B.A.S.I.C. began in April 1989 and, in the words of the Providence Housing Authority (“PHA”), has involved a “near-epic saga of litigation.” On April 12, 1991, the parties entered into a settlement stipulation. It was my hope at that time the project would run smoothly without any fu...
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OPINION Almacs, the plaintiff in this case, is the owner and operator of a chain of supermarkets in Rhode Island and southeastern Massachusetts. It has rented space and operated a store in the Wampanoag Mall Shopping Center (“Mall”) in East Providence, Rhode Island since 1967. The lease between Almacs and Wamp Associates, the current owners of the Mall, contains restrictive covenants plac...
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MEMORANDUM AND OPINION The plaintiff, Unisys Corporation, seeks damages pursuant to an alleged breach of a sublease agreement from Legal Counsel, Inc., Speights and Micheel, Nathaniel H. Speights, Richard A. Micheel, Iverson O. Mitchell, III, and Linda P. Holman (“Legal Counsel”). The plaintiff also seeks relief from defendants Markborough Columbia, Inc., Viking Capital, Inc., Norseman Property Gr...
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OPINION In this securities fraud class action, the plaintiffs allege violations of Sections 10(b), 14(a) and 20 of the Securities Exchange Act, 15 U.S.C. §§ 78j(b), 78n(a) and 78t, Rules 10b-5 and 14a-9 of the Securities and Exchange Commission promulgated thereunder, and the common law of negligent misrepresentation. 1 The defendants have moved to dismiss the Consolidated Amen...
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Upon the defendant’s Motion to Suppress Evidence and Statements, the Court held an evidentiary hearing at which the government presented the testimony of the arresting officer, Marc Little, and at which the defendant also testified. Although the testimony of these two individuals is contradictory in many respects, the facts relevant to the basis for the Court’s ruling are not disputed. On March 31...
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MEMORANDUM OPINION AND ORDER This matter is currently before the Court upon the motion of the defendants, Wayne Dunn and Clark Edwards for summary judgment. Also before the Court is the plaintiff’s motion for pre-trial conference and to set a trial date. The plaintiff, Paul Phelps, is an individual who, at the time of submitting his pro se civil rights complaint pursuant to 42 U.S.C. § 1983, ...
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RULING This action concerns a $75,000 insurance policy issued by defendant Sphere Drake to John Milton Johnson covering an apartment complex located in Elizabeth, Louisiana. On 3 June 1989 a fire completely destroyed the building. On 5 October 1989 defendant filed a declaratory judgment action seeking to void the policy covering the complex; this suit has been consolidated with a proceeding instit...
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ORDER OF PERMANENT INJUNCTION Litigation in this case began when the plaintiff, Rose Ferdinand’s, request for an adoption subsidy under Title IV-E, 42 U.S.C. § 673(c) was denied by the defendants, Department for Children and Their Families of the State of Rhode Island et al (“DCF”), in February of 1990. Ms. Ferdinand adopted her daughter, Nia, a black child, through Children’s Friend and Serv...
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OPINION Plaintiffs, approximately 100 migrant farmworkers (“migrant workers” or “workers”), instituted this consolidated action under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (1988) (“FLSA”), against defendants, six farm owners in Orange County, New York (“owners”).1 The workers seek to recover “rent” deducted from their wages by the owners for the on-site housing...
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MEMORANDUM OPINION This matter comes before the court on Petitioner Ollie Leon Bailey’s petition for a writ of habeas corpus. For the following reasons, the petition is denied. BACKGROUND Mr. Bailey petitions this court for a writ of habeas corpus, claiming his incarceration is illegal. More specifically, he attacks the actions of the United States Parole Commission (“Commission”) in revoki...
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In 1978, Tarra Hall Clothiers, Inc. (“Tarra Hall”), a New York-incorporated garment manufacturer, received two direct loans totalling $1 million from the Economic Development Administration (“EDA”), an agency within the United States Department of Commerce, under an economic assistance program established by the Trade Act of 1974, 19 U.S.C.A. §§ 2101 et seq. (West 1980 & Supp.1991) (...
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MEMORANDUM AND ORDER Before the Court is defendant Allied Signal, Inc.’s motion to dismiss Counts Y, VI, VII, and VIII of plaintiff’s second amended complaint as time barred. In this action, plaintiff alleges that her husband, Robert L. Reichert (Reichert), suffered serious injuries, from which he ultimately died, when seat belts failed to properly restrain him in a motor vehicle collision. The ac...
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MEMORANDUM, OPINION AND ORDER GRANTING IN-JUNCTIVE RELIEF This case involves a challenge to a United States Park Service regulation which prohibits “[t]he sale or distribution of newspapers, leaflets, and pamphlets, conducted without the aid of stands or structures” in the area of the Vietnam Veterans Memorial (“the Memorial”). 36 C.F.R. § 7.96(j)(2)(vi). The plaintiff challenges this restricti...
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MEMORANDUM AND OPINION This suit was originally instigated by Trustbank Savings, F.S.B. (“Trustbank”), formerly Dominion Federal Savings and Loan Association, to seek redress for the defendants’ alleged breach of guaranty contract. Subsequently, the Resolution Trust Corporation (“RTC”) was substituted as plaintiff in its capacity as conservator for Trustbank. The parties have filed cross motions f...
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MEMORANDUM AND ORDER The issue in this case is whether the Court may review and enforce an Administrative Order on Consent (“Consent Order”) entered into by plaintiff Fairchild Semiconductor Corporation (“Fairchild”) and defendant United States Environmental Protection Agency (“EPA”). The Consent Order, executed in August 1985, relates to the study of hazardous waste cleanup alternatives ...
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OPINION This matter is on appeal from a ruling of the Bankruptcy Court. Plaintiff in bankruptcy Michael Steven Hudgins, appellee herein, operated a business known as Hudgins Masonry, Inc., which was incorporated until September 1984 when the Virginia State Corporation Commission terminated its certificate for failure to pay its annual registration fees. Neither Hudgins nor the defendant Internal ...
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ORDER The Plaintiff, an inmate at the Federal Correctional Institute at Mariana, Florida (hereinafter, “FCI Mariana”), seeks a declaratory judgment to permit her to “waive” good time credits to which she is entitled pursuant to 18 U.S.C. § 4161, et seq., and thereby to prolong her confinement. The Defendant prison officials denied Plaintiff’s request to waive good time because the governing legis...
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MEMORANDUM Dennis J. Brubeck and Lee Ann Brubeck appeal the final order of the Bankruptcy Court entered 8 December 1989 in Bankruptcy Cause number 89-41 TH. The Bru-becks were young family farmers who, because of economic conditions, were unable to continue to farm. It is unfortunate that this opinion is but another sad chapter in their farming lives and but one of many thousands of other sad foo...
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ON MOTION TO RECONSIDER Defendants Infelise, DeLaurentis, Bella-via and Aleman filed a motion requesting the court to reconsider its June 12, 1991 order, 765 F.Supp. 960, in which the court denied defendants’ motion for release pending trial. The court’s Order dealt with a very narrow issue defined by the Seventh Circuit— “whether the use of anklets would satisfy the Bail Reform Act and there...
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ORDER ON PETITION FOR WRIT OF HABEAS CORPUS This matter comes before the court on the Petitioner, RISTO YLIPELKONEN (“Ylipelkonen”), Petition for Writ of Habe-as Corpus (DE 1). Having reviewed the record, the memoranda of counsel and the law, the court enters the following order for the reasons set forth hereinafter. BACKGROUND The Petitioner seek habeas corpus review of the Extradition Certificat...
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MEMORANDUM OPINION I. INTRODUCTION Before the Court in the above-captioned case 1 is the issue of what amount of additional funding defendant the Board of Education of the State of Ohio (“State”) should be required to contribute to the desegregation program in the Lorain City Schools. On January 29, 1990, defendant the Lorain Board of Education (“Lorain”) filed a motion fo...
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ORDER Before the court is the Magistrate’s report and recommended decision, plaintiff Janet Palmer’s objections and defendant’s response thereto. The Magistrate concluded that summary judgment should be granted to defendant Secretary of Health and Human Services (the “Secretary”) on the ground that substantial evidence supports the Administrative Law Judge’s (the “AU”) determination that ...
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MEMORANDUM-DECISION AND ORDER Presently before the court are cross-motions by plaintiffs and defendant. Defendant moves pursuant to 28 U.S.C. § 1631 to transfer the case to the United States District Court, Southern District of New York to cure a defect in this court’s subject matter jurisdiction. Alternatively, defendant moves to transfer pursuant to 28 U.S.C. § 1404(a) or 28 U.S.C. § 14...
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MEMORANDUM AND ORDER This case is before the court on the parties’ cross-motions for summary judgment. In February, 1989, plaintiff, Barwell, Inc., delivered a machine to McMann Golf Ball Company, Inc. Barwell did not file a financing statement to perfect its interest in the equipment. McMann immediately implemented the machine in its manufacturing operations. In March, 1989, defendant Fi...
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MEMORANDUM OPINION This matter is before the court on the plaintiffs’ motion to compel discovery and motion to modify a discovery ruling. For the reasons below, the plaintiffs’ motion to compel is granted in part and the motion to modify is denied. I. Background The plaintiffs in this action allege that the Islamic Republic of Iran, through certain agencies and instrumentalities, “froze” the plai...
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MEMORANDUM OPINION The instant matter is before the court on motions for summary judgment filed on behalf of the defendants, USX and United Steelworkers of America (“USWA”). Plaintiff Brian Nicely is employed as a welder at the Edgar Thomson Plant in Braddock, Pennsylvania. Nicely’s claim against USX arises under section 301 of the Labor Management Relations Act of 1947, which authorizes suits in...
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OPINION BACKGROUND 1 The parties are presently before the court upon third-party defendants’ motion to sever and stay the third-party claims filed against them, and upon the United States' motion for amendment of a case management order. Plaintiffs, the United States and the State of New Jersey, brought this case pursuant to section 107(a) of the Comprehensive Environmental R...
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MEMORANDUM AND ORDER In Counts I and II, plaintiff Steco, Inc. (“Steco”) alleges violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68, by defendants Saul Spector, Charles Spector, and Jerry Blecker 1 for (1) misrepresenting the assets of S & T Manufacturing Inc. (“S & T”) which were purchased by Steco and (2) fraudulently diverting...
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ORDER Ogden Allied Security Services, Inc. (“Ogden”) brings this action against Draper & Kramer (“Draper”). In turn, Draper has initiated a third party suit against River West Development Limited Partnership, River West Limited, Marc Berger and Jack Berger (collectively “River West”). River West, as third party defendants, have moved for summary judgment against Ogden and Draper. Draper joins Riv...
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775 F.Supp. 238 (1991) Mark STEPHENSON, Plaintiff, v. CNA FINANCIAL CORPORATION, Edward J. Noha, Senior Executive, Lawrence A. Tisch, Chief Executive, Dennis H. Chookaszian, Vice President, Thomas R. Igleski, Vice President, Barbara Demytrasz, Supervisor, and Chrissy Gresey, Defendants. No. 90 C 06445. United States District Court, N.D. Illinois, E.D. July 24, 1991. Mark Stephenson, pro se. Jeffr...
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MEMORANDUM OPINION AND ORDER This suit is an action by plaintiff to recover damages in the amount of $2,000 allegedly resulting from an incident occurring in relation to airline transportation furnished by defendant. This action is before the court on defendant’s motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). BACKGROUND The parties are substant...
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MEMORANDUM OPINION AND ORDER Horace Griffin (“Griffin”) has sued— among others—former Director of the Illinois Department of Corrections Michael Lane (“Lane”), Joliet Correctional Center (“Joliet”) Warden James Fairman (“Fair-man”), Menard Correctional Center (“Menard”) Warden Mary Flannigan (“Flannigan”), Joliet correctional officer Lieutenant James Kelly (“Kelly”) and Administrative Review Boar...
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DECISION AND ORDER Defendant Nixon, Hargrave, Devans & Doyle (“Nixon Hargrave”) brings this motion pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff’s complaint for failure to state a claim upon which relief can be granted. In support of its motion, Nixon Hargrave submits the affidavits of defendant’s counsel Phillip H. Magner, Jr., Esq., sworn to on December 12, 1990, February 11, 1...
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MEMORANDUM OPINION AND ORDER Defendant Infelise filed a motion for an evidentiary hearing, and to suppress statements made by him to William Jahoda after the issuance of grand jury subpoenas to him and Jahoda. Defendant Bellavia brought a motion for additional discovery with respect to tape recorded statements made by him to Jahoda after the issuance of the same subpoena, to suppress stat...
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MEMORANDUM AND ORDER Plaintiff DBC of New York, Inc. (“DBC”) brings this action asserting violations of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1988), copyright infringement, and pendent state claims for unfair competition for allegedly unauthorized copies made of certain diamond ring designs. Defendants Alarama Jewelry Co., Inc. and A.L.A. Casting Co., Inc. (collectively “ALA”) m...
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MEMORANDUM AND ORDER Pending before the Court are plaintiffs’ motion for partial summary judgment; defendant’s motion for summary judgment; plaintiffs’ motion to reopen discovery; and the parties’ respective oppositions and replies to those motions. Because, as explained below, the Court lacks jurisdiction over this action, the motions are denied and the case is dismissed. I Pla...
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*7MEMORANDUM AND ORDER On March 9,1990, a federal grand jury in Washington, D.C., returned the instant 13-count indictment against defendant William J. Kilroy, an insurance broker, charging him with multiple offenses in connection with his alleged embezzlement of approximately $573,000 from two ERISA pension plans of which he was the administrator from mid-1981 to mid-1985.1 According to the indic...
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MEMORANDUM I. BACKGROUND This action was commenced on July 5, 1990 by the United States of America on behalf of the Small Business Administration (“SBA”) and is currently before the court on the parties’ cross motions for summary judgment. The undisputed relevant facts of this case are as follows: Defendant First National Bank of Jer-myn (“Bank”) is, and was at all times relevant to this action, ...
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MEMORANDUM AND ORDER Delco Wire and Cable Co., Inc. and Delco Electronics Corp. (collectively “Delco”) entered a plea of guilty to a multicount indictment, including charges under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq. The court entered an Order of Forfeiture and appointed a Trustee to liquidate the company. Before the court a...
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DECISION AND ORDER RE DEFENDANTS’ MOTION TO DISMISS On October 29, 1990 the court heard Motion to Dismiss by defendants United States Department of the Air Force and Edwards Air Force Base. Upon due consideration of the written and oral arguments of the parties, the court now enters its order granting the motion as set forth herein. I. BACKGROUND On June 7, 1987 plaintiffs transferred from other f...
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OPINION AND ORDER Defendant Eric Stewart 1 has been charged in a two-count Indictment with bank robbery in violation of 18 U.S.C. §§ 2113(a), and with armed bank robbery in violation of 18 U.S.C. §§ 2113(d). Defendant has moved: (1) to suppress an out of court identification of him; and (2) to suppress post-arrest statements. On June 18, 1991, an evidentiary hearing was held to...
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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. The material facts are not in dispute. A full hearing was held on these Motions in open court. FACTS On December 29, 1988, the Internal Revenue Service’s (“IRS”) Philadelphia Service Center issued to Plaintiffs Edward C. Mes-singer and ...
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MEMORANDUM OPINION AND ORDER Plaintiff brought this action under the Declaratory Judgment Act, 28 U.S.C. § 2201, for a declaration of non-infringement of trademark, damages, and injunctive relief. Defendant counter-claimed for trademark infringement, damages, and injunctive relief. Subject matter jurisdiction is based on 28 U.S.C. §§ 1338 and 1332. Venue lies under § 1391(b). The Court di...
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DECISION AND ORDER INTRODUCTION Now before me is the motion of defendant Sheridan Products (“Sheridan”) to dismiss the Complaint for lack of personal jurisdiction, improper venue and insufficiency of process, pursuant to Fed.R.Civ.P. 12(b)(2), 12(b)(3) and 12(b)(4), respectively. Sheridan brings this motion instead of filing an Answer. This Court has jurisdiction over this lawsu...
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MEMORANDUM AND ORDER This action arises from the ongoing enterprise from October 1986 through March 1989, wherein defendants Randy Ayers, Joseph Geltz, and Thomas N. Petro allegedly took fitness equipment, products, and cash belonging to Marcy Fitness Products (“Marcy”), a Pennsylvania manufacturer, and converted the same to their own use and benefit. At all times relevant to this action,...
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770 F. Supp. 5 (1991) Donald SABIN, et al., Plaintiffs, v. REGARDIE, REGARDIE & BARTOW, et al., Defendants. Civ. A. No. 90-1891. United States District Court, District of Columbia. June 27, 1991. *6 D. Mitchell Basker, Law Offices of D. Mitchell Basker, Washington, D.C. Edward L. Weidenfeld, Washington, D.C. MEMORANDUM AND OPINION REVERCOMB, District Judge. The plaintiffs publish a real esta...
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DECISION BACKGROUND On April 5, 1984, the United States Coast Guard awarded a contract to Charles E. Lanier (“Lanier”). The contract required Lanier to remove and dispose of approximately 8,022 used shorelight and buoy batteries stored in a U.S. Coast Guard facility. The batteries contained hazardous substances. Lanier, an unlicensed contractor, removed the batteries for the Coast Gu...
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OPINION Now before the Court are the Washington Metropolitan Area Transit Authority’s (WMATA’s) motion for summary judgment and the cross-motions for summary judgment filed by plaintiff Eicon Enterprises, Inc., and defendant Schindler Elevator Corporation. 1 For the reasons set forth below, defendants’ motions are denied and plaintiff’s motion is granted, with limited relief. ...
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MEMORANDUM AND ORDER GRANTING JUDGMENT TO PLAINTIFF Introduction Shelton McNeal claims he suffered an unprovoked beating on November 7, 1988, by Swat Team officers in the Shelby County Jail, Memphis, Tennessee. Mr. McNeal claims the beating he suffered occurred in the immediate presence of Sheriff Jack Owens and Chief Deputy Sheriff A.C. Gilless. Testimony revealed that Sheriff Owens and other j...
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OPINION Plaintiffs filed this action under the Education for All Handicapped Children Act (“EHA”), 20 U.S.C. §§ 1400 et seq., as amended by The Handicapped Children’s Protection Act (“HCPA”), 20 U.S.C. §§ 1415 et seq. (West 1990). In March of 1989, plaintiffs filed a petition with the New Jersey Department of Education seeking a hearing regarding the placement of the...
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MEMORANDUM AND ORDER This is an action to enjoin the City of Providence (the “City”) and its Fire Department from commencing a training school for prospective fire fighters and to declare void what the plaintiffs describe as the Fire Departments's efforts “to establish or maintain a quota system for women, blacks or other minority recruits” in its hiring practices. Amended Verified Complaint ¶ ...
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MEMORANDUM OPINION This matter comes before the court upon the defendants’ summary judgment motion, pursuant to Rule 56 of the Federal Rules Civil Procedure. Both sides have briefed the issues, and the matter is now ripe for a ruling. The court hereby rules that defendants’ summary judgment motion as to the plaintiff’s ERISA, age discrimination, wage and overtime compensation, negligence,...
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770 F.Supp. 517 (1991) Laurie BRUNNER, As Guardian ad Litem for Jeremiah Brunner, A Minor, and Laurie Brunner, As an Individual, Plaintiff, v. HUTCHINSON DIVISION, LEAR-SIEGLER, INC., A Kansas Corporation, Defendant and Third-Party Plaintiff, v. Brad BRUNNER and H.L. Brunner and Sons, Third-Party Defendants. No. Civ. 89-5065. United States District Court, D. South Dakota, W.D. March 15, 1991. *51...
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MEMORANDUM This is an action brought by the plaintiff for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and for violation of constitutional rights under 42 U.S.C. § 1983. Plaintiff has named as defendants the State of Tennessee, Tennessee State University (“T.S.U.”), Dr. Annie Neal, Vice President for Academic Affairs at T.S.U., Dr. Geor...
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ORDER On February 20, 1990, plaintiff John Be-thel was injured in an oil field accident that resulted in permanent loss of the full use of his legs and his right arm.1 Plaintiffs John and Nancy Bethel filed this action on October 11, 1990, alleging that John Be-thel’s injuries were directly caused by a defective pump jack manufactured by defendant, American International Manufacturing Company, Inc...
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ORDER I. FACTS Earlier this year, the Clark County School District solicited bids for the construction of the Thurman White Junior High School. When the bids were opened on April 23, 1991, Plaintiff Bud Mahas Construction (“Mahas”) was shown to be the low bidder on the project with a total bid of $11,511,000. Sletten Construction of Nevada (“Sletten”) submitted a bid of $11,644,-000, which is...
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MEMORANDUM AND ORDER Plaintiff Resolution Trust Corporation (“RTC”), as conservator of Sun State Savings and Loan Association (“Sun State”), filed on January 3, 1991 a Motion for Partial Summary Judgment, seeking an order declaring that defendants Kenneth D. Olson and Valera A. Olson (collectively “Olson”) are liable for a deficiency judgment, after a trustee’s sale, in the amount of $1,132,420...
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MEMORANDUM OPINION AND ORDER Plaintiff, Arctic Catering, seeks review of an Immigration and Naturalization Service (“INS”) decision denying the visa application of one of its employees, Frederick G. MacMillan. I. Background. In 1983, MacMillan, a citizen of Canada, entered the United States on a non-immigrant “L” visa awarded under 8 U.S.C. § 1101(a)(15)(L). He went to work for Arc*1168tic Cateri...
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MEMORANDUM I INTRODUCTION This action arises out of a series of written agreements entered into between petitioner Bio-Vita, Ltd. and respondent Bio-pure Corporation (“Biopure”) and Biopure Associates Limited Partnership (“BALP”)2 on January 29, 1990 (the “January Agreements”).3 The underlying purpose of the January Agreements was to finance and promote the research, development, and marketing of...
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MEMORANDUM AND ORDER This is an action to declare void a regulation of the Rhode Island Solid Waste Management Corporation (“RISWMC”) requiring that all solid waste originating or collected within the State of Rhode Island be disposed of at state-licensed facilities (i.e. facilities in Rhode Island) and to enjoin RISWMC from enforcing that requirement. Stephen D. DeVito, Jr. Trucking, Inc. (“DeVi...
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MEMORANDUM & ORDER Plaintiff Moise Katz, Bernice Berger, Barnett Stepak, Gary Goldberg, Joel Blake, Steven Verkouteren, Bruce Doniger, Diversified Imaging Supply Corporation, Joseph E. Kovacs, Phyllis Freiman, Maria Figueroa, Larry Neuman, and Olga Fried (collectively “Katz”) commenced this action on behalf of nominal defendant LIN Broadcasting (“LIN”) for an alleged failure to disclose c...
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ORDER Continental Bank N.A. (“Continental”) initiated this lawsuit to recover the balance of an unpaid loan from Robinson Everett, Kathrine Everett, and J.H. Froelich — three guarantors of a bankrupt borrower. On March 28, 1991, this court entered summary judgment in favor of Continental on the issue of liability. 760 F.Supp. 713 (N.D.I11.1991). Continental now moves for summary judgment on the is...
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ORDER This forfeiture case continues to wend its way through the federal judicial system. If claimant Mario Reyes were to have his way, though, he would put a stop to this case, at least in the federal system. He claims that this court lacks jurisdiction over the disputed $135,290 in United States currency. It is his contention that Illinois state court has exclusive jurisdiction over the disposit...
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*265 ORDER FACTS On May 2, 1991, Douglas Gowan commenced this action pro se by filing a complaint on behalf of himself and The Capital Group, Inc. The Capital Group, Inc., is a professional services corporation of which Mr. Gowan is the president and sole shareholder (Complaint 111). Mr. Gowan alleges that Gaston & Snow, a Boston, Massachusetts law firm, engaged him and The ...
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OPINION Plaintiff Patricia Milligan-Jensen was dismissed from employment as a public safety officer of defendant Michigan Technological University on February 25, 1988. She subsequently filed a lawsuit alleging sex discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq., age discrimination in violation of the Age Discrimination in Employment Act (“AD...
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MEMORANDUM OPINION This is a civil action brought by the plaintiff, Aquino, against the defendant, the Secretary of the Army, pursuant to the Privacy Act of 1974, 5 U.S.C.A. § 552a(g). Plaintiff alleges that the United States Army Criminal Investigation Command (CID) has refused to amend a Report of Investigation (ROI) which states that the plaintiff was the subject of an investigation for sexu...
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FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW, AND ORDER This trademark infringement action arises under the Federal Trademark Act of 1946, 15 U.S.C. §§ 1051 et seq. (the "Lan-ham Act”), the common law of Pennsylvania, and Pennsylvania’s Anti-Dilution statute, 54 Pa.Cons.Stat.Ann. § 1124 (Purdon 1986 Supp.). Plaintiff, Nugget Distribu *1014 tors Cooperative of A...
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ORDER DENYING PLAINTIFF’S MOTION TO REMAND, GRANTING DEFENDANT'S MOTION TO STAY PROCEEDINGS PENDING ARBITRATION OF THE PARTIES’ UNINSURED MOTORIST LIABILITY AND DAMAGE DISPUTE, AND DENYING PLAINTIFF’S REQUEST TO COMPEL ARBITRATION OF THE PARTIES’ UNDERINSURED MOTORIST COVERAGE DISPUTE On June 7, 1991, defendant Liberty Mutual Insurance Company (“Liberty”) filed a *1137 motion...
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MEMORANDUM AND ORDER The case comes before the court on the defendant’s motion to dismiss or for summary judgment (Dk. 31). Plaintiff brings this employment discrimination case alleging that on the basis of her race and in retaliation, she was denied promotions and transfers, was demoted, was transferred and was a victim of harassment. Plaintiff seeks relief under 42 U.S.C. § 1981 and 42 ...
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ORDER Plaintiffs, eight students at Virgil Gris-som Elementary School and their parents, filed suit against Faye Brown, a teacher at Grissom; the Houston Independent School District (“HISD”); members of the school board; and HISD administrators claiming that Defendants violated their constitutional rights by Brown’s alleged verbal and physical abuse of the students. Defendants filed motio...
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MEMORANDUM AND ORDER On May 29, 1991, this court concluded that plaintiff Pete Poulakis had demonstrated good cause for his failure to serve defendant Amtrak within the 120-day time period set forth by Fed.R.Civ.P. 4(j). Defendant has filed a motion for reconsideration of that ruling, which we deny. Plaintiff has filed additional documentation in further support of his motion for appointment of c...
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MEMORANDUM OPINION AND ORDER This case is a class action brought by certain residents of defendant Chicago Housing Authority (“CHA”) challenging CHA’s practices of terminating leases based on the conduct of nonleaseholders occurring outside the leaseholder’s premises. On March 8, 1991, this court ruled on the parties’ cross motions for summary judgment. Turner v. Chicago Housing Aut...
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OPINION The matter before the court is the motion (#356) of Beijing Ever Bright Ind. Co. (Beijing Ever Bright) to vacate sanctions. BACKGROUND On April 4, 1991, this court ordered Beijing Ever Bright to pay to Timber Falling Consultants, Inc. (TFC) the sum of $10,000 per day from March 14, 1991, until Beijing Ever Bright complies with the court’s orders of March 4,1991 and October 15,1990, which r...
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*248 MEMORANDUM OPINION AND ORDER Plaintiffs Council 31, American Federation of State, County and Municipal Employees, AFL-CIO (“Council 31”), and Delores Barrett, Karen Bryson, and Sidney Bush, individually and as prospective class representatives, brought suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), agains...
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MEMORANDUM OPINION AND ORDER Plaintiffs Tokio Marine and Fire Insurance Co., Ltd. (Tokio Marine) and Chiyoda Fire and Marine Insurance Co., Ltd. (Chiyoda) insured a shipment of Panasonic goods for Matsushita Electric Corporation of America (Matsushita). The goods were to be shipped from Japan to Tacoma, Washington and then to Arlington Heights, Illinois. Part of the shipment never was del...
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MEMORANDUM AND ORDER In this action charging breach of an insurance contract, defendant moved to dismiss plaintiff’s second count, a charge based on 42 Pa.C.S.A. § 8371. Defendant claims the statute is void for vagueness. Having considered the parties’ briefs, I will deny the motion to dismiss. I. BACKGROUND 42 Pa.C.S.A. § 8371 provides: In an action arising under an insurance contract, i...
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The court has considered the testimony presented in this case and is now prepared to make its Findings of Fact and Conclusions of Law and decision. FINDINGS OF FACT 1. The plaintiff’s claim arises under 42 U.S.C. § 2000e-16, alleging discrimination based on race (Caucasian) and color (white) in federal employment. 2. The plaintiff exhausted all administrative remedies within the ...
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ORDER Plaintiffs filed this products liability action against defendants seeking damages for the alleged wrongful deaths of Khadige Bahsoon and Helene M. Houayek, who died following a helicopter accident which occurred in Sierra Leone, West Africa. Plaintiff Hisham Bahsoon also sues as the natural guardian of Ghina Bahsoon, a passenger on the same helicopter flight who survived, but was alleged...
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OPINION AND ORDER Defendant Bankers Trust Co. moves pursuant to Rule 62(d) of the Federal Rules of Civil Procedure for a stay of execution and enforcement of judgment pending appeal and also moves that it not be required to post a supersedeas bond as a condition of the stay. In considering whether to grant a stay of judgment pending appeal, a court will consider whether the petitioner is like...
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MEMORANDUM OPINION AND ORDER Pending is Defendant’s motion for partial summary judgment or in the alternative to bar evidence. The issue raised is whether the estate of a non-seaman may recover lost future earnings in a general maritime law wrongful death action. The Court concludes that such damages are recoverable. Accordingly, the Court denies the Defendant’s motion for partial summary...
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OPINION In this securities action, the plaintiffs have alleged that the defendants committed fraud in connection with a proxy contest held in December, 1990. The plaintiffs seek to be installed on the Board of Directors of Guaranty Bancshares Corporation (“Guaranty”). The court has held a number of evidentiary hearings, and the parties have submitted pre- and post-trial briefs. Upon consideration ...
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MEMORANDUM AND ORDER The case comes before the court on the defendant’s motion for summary judgment. Plaintiff brings this race discrimination suit seeking relief under 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq., for the denial of promotions and transfers, unequal pay, and harassment. The request for oral argument is denied for it would not materially assist the court’s dec...
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OPINION This case comes before the Court on four motions by the defendant-insurers. The facts underlying these motions are set forth at length in two prior Opinions of this Court, familiarity with which is assumed. See Olin v. Insurance Co. of N. Am. (INA), 762 F.Supp. 548, 550-55 (S.D.N.Y.1991) (hereinafter “Olin II”) (Huntsville claims); Olin v. INA, 743...
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OPINION AND ORDER Defendants in this case decided that they would not patronize a particular hotel because they did not wish to share facilities with members of Jews for Jesus. Jews for Jesus’ resulting lawsuit challenges the defendants’ ability to convey that information to the hotel in question. The question posed by this summary judgment motion is whether the defendants’ conduct is protected by...
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OPINION The matter before the court is the petition of Karl J. Keller for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Keller is a federal prisoner who is housed at the Federal Correctional Institution at Sheridan, Oregon (FCI Sheridan), BACKGROUND Keller was arrested on November 19, 1986. Pursuant to a plea agreement with the government, he waived indictment and plead guilty to an inform...
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ORDER The indictment charges the defendant with conspiracy to sell more than 100 *448grams of heroin and selling heroin on four separate occasions during the summer of 1986. The Court has before it a number of motions filed by the defendant a) to dismiss the indictment because the prosecution is based upon prosecutorial vindictiveness b) to preclude the Government from introducing at trial evidenc...
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MEMORANDUM OPINION AND ORDER Petitioner Lloyd Louis Valdez (Valdez) is incarcerated in a Colorado state prison pursuant to a conviction that was affirmed by the Colorado Court of Appeals. People v. Valdez, 725 P.2d 29 (Colo.App.1986). He seeks release by writ of habeas corpus. One of Valdez’s claims is that he was denied effective assistance of counsel because of his attorney’s failure to file a t...
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MEMORANDUM AND ORDER The defendants have moved this court for an order that would: 1. Suppress, on a variety of grounds, the fruits of electronic surveillance conducted at the Ravenite Social Club, 247 Mulberry Street, New York, New York, pursuant to. an order initially entered by a judge of the United States District Court for the Southern District of New York on September 25,1989 (...
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*7 MEMORANDUM DECISION This is an interlocutory appeal of an order of the Bankruptcy Court for the Southern District of New York (Blackshear, B.J.) which granted appellees’ motion to strike appellant’s jury demand in this adversary proceeding. 1 Plaintiff/Appellant Alec H. Chaplin, as Agent for the Chaplin Group (“Chaplin”) seeks reversal of the bankruptcy court’s orde...
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MEMORANDUM OPINION This matter is before the court on Defendant Sherman Hospital Association’s motion for summary judgment. For the reasons stated below, the motion is granted. BACKGROUND This case involves the alleged medical misdiagnosis of an eight month old child, Shauntia Deberry, by a Sherman Hospital Association doctor, Douglas Jackson. On January 10, 1988 the plaintiff, ...
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DECISION AND ORDER On June 28, 1990, McGraw-Edison Co. filed this action, which consists of the following: a claim under the Comprehensive Environmental Response Compensation and Liability Act [CERCLA], 42 U.S.C. § 9601 et seq., against Speed Queen Co. and Raytheon Co.; breach of contract claims under state law against Speed Queen Co. and Raytheon Co.; and breach of insurance contract cla...
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MEMORANDUM & ORDER Harry Davidoff moves to intervene in the instant matter pursuant to Fed.R.Civ.Pro. 24, and to obtain materials submitted in connection with Application XLII. This Court heard argument in connection with the instant intervention motion on July 30, *511991. At that hearing, this Court denied Davidoff’s motion. This memorandum supplements that oral decision. Application XLII is th...
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MEMORANDUM ORDER This case arises under Title VII of the Civil Rights Act of 1964 as amended by the Equal Employment Opportunity Act, 42 U.S.C.A. section 2000e, et seq. (West 1981 & 1990 Supp.), 1 and the District of Columbia Human Rights Act, D.C.Code sections 1-2501 et seq. (1981). 2 Plaintiff Deborah Perkins, a black female, works as an Admin...
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DECISION AND ORDER On May 28, 1991, the plaintiff instituted this action by filing a “complaint at law” along with a supporting “memorandum of law” and several exhibits and other papers. The plaintiff has filed a motion for default judgment and a “demand for judgment,” which the court construes as a request for entry of a default judgment, given the procedural posture of the action (and the plain...
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RULING ON PENDING MOTIONS I. Motion to Strike Claimant’s Motion to Strike is denied. While incorporation of the search and seizure warrant with its accompanying documentation is not the most precise nor orderly compliance with the requirement of Fed. R.Civ.P. Rule 8(e)(1), no real detriment to claimant is found nor is the pleading thereby rendered substantively deficient. II. Objection t...
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ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND GRANTING DEFENDANT LEAVE TO CORRECT ERROR IN CAPTION In this Title VII action, the plaintiff, Maxine Gonzales Townsend (“Townsend”), claims that the Oklahoma Military Department (“OMD”) rejected her application for a job as a shop foreman because she is a woman. In a motion to dismiss pursuant to Rule 12(b), the State of Oklahoma (“the state”) has...
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*1031 OPINION AND ORDER This action was tried before me without a jury over six days in October and November 1989. Plaintiff, a student at the New York State University at Albany, 1 attacks as unconstitutional the allocation to the New York Public Interest Research Group (“NYPIRG”), of $3 from his $53 mandatory student activity fee payable each semester. 2 T...
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MEMORANDUM OF DECISION AND ORDER ON CLAIMANT’S MOTION TO DISMISS COMPLAINT AND MOTION TO DISMISS WARRANT OF SEIZURE Plaintiff United States of America’s Verified Complaint seeks the forfeiture of Defendants *724 1 pursuant to 18 U.S.C. section 981 and 21 U.S.C. section 881(a)(6). 2 Plaintiff alleges that Defendants are properties involved in transactions whi...
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OPINION AND ORDER This matter comes before the Court for factfinding and final resolution of claims by Plaintiff Kathleen Barker Clement under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., arising out of the medical care and treatment provided by Defendant United States of America to Plaintiff’s deceased brother, Burton Barker. Plaintiff’s claims were tried before the C...
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OPINION Plaintiff Donald Carson was the business agent and later the elected secretary-treasurer of defendant Local 1588, Local 1588 is a small union with a membership today of less than 300 workers, primarily from the cargo and shipping industries, and assets worth approximately $176,000. Carson was the only full time officer employed by the union for the entirety of the approximately fi...
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ORDER GRANTING PARTIAL SUMMARY JUDGMENT AGAINST JAMES R. WINING, WILLIE A. SCHONACHER, JR., FIELDING REINSURANCE, LTD. AND KENSU HOLDINGS, INC. I. Background On April 3, 1986, Mutual of Omaha (Mutual) and The Omaha Indemnity Company (Omaha Indemnity) began this litigation against Royal American Managers, Inc. (RAM), James R. Wining (Wining), Willie A. Schonacher, Jr. (Schonac...
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This is an action for reinstatement and damages pursuant to the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. Plaintiff, a former employee of defendant, was notified on October 7, 1988, that his position was to be eliminated. Plaintiff alleges that, instead of eliminating his position, defendant gave his job responsibilities to a younger person. ...
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ORDER Defendant State of Arizona moves for summary judgment dismissing plaintiffs’ claim that the State is liable as an “arranger” under CERCLA § 107(a)(3) 1 for costs related to all hazardous waste deposited at the Hassayampa Landfill. Plaintiffs responded and filed a cross-motion for summary judgment on that issue. Both motions have been fully briefed. In addition, defendant ...
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OPINION Nadine Baker (“Baker”) has appealed from a judgment of conviction entered in the United States District Court for the Southern District of New York on January 7, 1991, following a four-day trial before the Honorable Barbara A. Lee, United States Magistrate Judge, and a jury. For the reasons set forth below, the judgment is affirmed, and the appeal dismissed. Prior Proceedings Informatio...
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ORDER Landbank Equity Corporation and Richmond Equity Corporation filed Chapter 11 bankruptcy petitions in September 1985. Shortly thereafter, the cases were convert ed to Chapter 7 liquidation proceedings, and Laurence H. Levy was appointed Trustee. On May 23, 1990, the IRS filed a Request for Payment of Internal Revenue Taxes and a Proof of Claim for Internal Revenue Taxes. The Trustee ...
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MEMORANDUM I.Introduction This is an employment discrimination action. In his Third Amended Complaint plaintiff Benjamin White, Jr., a black male, asserts that defendant SKF Aerospace, Inc. (“SKF”), his former employer, has violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Plaintiff also alleges pendent state law claims of breach ...
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ORDER Plaintiffs move for summary judgment on Chemical Waste’s CERCLA liability on the ground that site selection is not a necessary element to transporter liability for hazardous waste deposited at a “facility” as defined by the act. 1 Having considered the parties’ written submissions and heard oral argument, the court will deny plaintiffs’ motion. Determining whether si...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW I. BACKGROUND A. Summary of Facts and Ruling In January 1986, Phyllis Kay Torbeck, a secretary, learned that she was pregnant and announced this fact to her coworkers. Torbeck was working in the secretarial pool of the Oklahoma City office of Acker-man, Hood & McQueen (“AHM”), an advertising and public relations firm. Prior to her ...
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ORDER This matter comes before the court on motions to dismiss, motions to strike, and motions for a more definite statement. Defendant Florian Barth (“Barth”) filed a motion to dismiss or for a more definite statement on November 5, 1990, in which defendant Neil Bush (“Bush”) joined on November 30, 1990. Defendants Sherman & Howard and Ronald Jacobs (collectively “S & H”) filed a motion ...
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MEMORANDUM OPINION AND ORDER Came on to be considered the motion of defendant, The Atchison, Topeka and Santa Fe Railway Company (“Santa Fe”),1 to dismiss or, in the alternative, for summary judgment. Having considered the motion and all matters proper to be considered in connection therewith, including, with consent of the parties, evidence received and admissions made at the hearing on class ce...
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769 F.Supp. 1080 (1991) VSA, et al., Plaintiffs, v. VON WEISE GEAR CO., et al., Defendants. No. 89-2063-C-5. United States District Court, E.D. Missouri, E.D. July 26, 1991. *1081 Alvin Greenwald, Randy Greenwald and Christine Harwell, Los Angeles, Cal., Gerald Rimmel, Michael Waxenberg, Susman, Schermer, Rimmel & Shifrin, St. Louis, Mo., for plaintiffs. Richard J. Ney, Armen K. Hovannisian, ...
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MEMORANDUM AND ORDER This action represents the consolidation of numerous actions against Spantax Airlines, McDonnell Douglas, and United Airlines resulting from a crash of a Spantax DC-10, Flight BX-995, on takeoff from Malaga, Spain on September 13, 1982. The action has been the subject of numerous Memorandum and Orders, familiarity with which is assumed. By Order dated March 18, 1...
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MEMORANDUM ORDER RE ATTORNEYS’ FEES AND COSTS This is a certified class action alleging securities fraud with respect to the common stock of Ashton-Tate Corporation. The court has approved a class settlement of $10.8 million, together with interest thereon accrued since February 19, 1991. Counsel for the class now seek attorneys’ fees and costs. 1 In Paul, Johnson, Alst...
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ORDER Plaintiff, the Resolution Trust Corporation (“RTC”) as Receiver for MeraBank Federal Savings Bank (“MeraBank”) moved for summary judgment. Defendants/Counterclaimants responded, cross-moved for summary judgment and for partial summary judgment. The court heard oral argument on May 20, 1991 and now rules. I. FACTS This lawsuit is the consolidation of eighteen separate actio...
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MEMORANDUM This action is before the Court on the parties’ Cross Motions for Summary Judgment. The parties have fully briefed the issues before the Court, and the motion is ripe for decision. BACKGROUND The Plaintiff Virginia State Education Assistance Authority (“VSEAA”) commenced this action in January 1989 to challenge the constitutionality and lawfulness of a portion of the ...
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ORDER The above entitled matter comes before the court upon defendants’ objection to the February 28, 1991 order of United States Magistrate Judge Franklin L. Noel. The magistrate judge’s order is not to be set aside unless it is clearly erroneous or contrary to law. 28 U.S.C. § 1636; Fed. R.Civ.P. 72(a); LR72.1(b). I. PROCEDURAL BACKGROUND Plaintiffs, five former employees of Phillips Beverage C...
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MEMORANDUM We are currently considering the motion of the plaintiff, Willard Stitzell, D.O., to alter or amend our judgment order, dated January 25,1991, which granted the motion of the defendants, York Memorial Osteopathic Hospital (Memorial), Martin Lasky, D.O., Michael L. Mitrick, D.O. and Dean Nachtigall, D.O., for summary judgment on counts I, II and V of the plaintiff’s complaint and which d...
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MEMORANDUM OPINION John M. Woods, plaintiff in the above-entitled cause, invokes Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981 and the prior decrees entered in Lee v. Macon, CV 70-0251-S, especially the decree entered on December 13, 1985, in which this court consolidated Alabama Technical College, Gadsden State Technical Institute, and Gadsden State Junior Colleg...
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OPINION AND ORDER This is a compelling case for interlocutory appeal. I certify it herewith, pursuant to 28 U.S.C. § 1292(b). A putative plaintiff class of more than 84,000 non-union (“salaried”) retirees of the General Motors Corporation (“GM”), sues under the Employee Retirement Income Security Act of 1974 (“ERISA”). They seek a judgment which would require GM to furnish them with basic...
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MEMORANDUM OPINION I. Conventional wisdom provides that “just because you are paranoid, it doesn’t mean that they aren’t out to get you.” And so it goes with the travails of plaintiff Paul McArdle, Esquire. Mr. McArdle has been diagnosed as a paranoid schizophrenic, and although he ardently challenges that diagnosis at every opportunity, his tale is an apophasistic account of no less than sev...
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MEMORANDUM OPINION The Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (“FELA” or the “Act”) gives railroad workers a remedy against the railroad for injuries sustained in the course of their employment as a result of the negligence of the railroad or its agents. But injuries incurred while “commuting” to or from work are not sustained in the course of employment. Thus...
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FINDINGS OF FACT and CONCLUSIONS OF LAW In reaching its findings of fact and conclusions of law in this maritime suit for negligence, the court must confront an issue explicitly left open by the Supreme Court’s recent decision in McDermott Internation, Inc. v. Wilander, — U.S. -, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991): whether a river pilot who is not permanently attached to a s...
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OPINION AND ORDER The issue in this action is whether, under the Constitution of the United States, persons whose duties relate to the safe operation and maintenance of natural gas pipelines may be subjected to random drug testing. The drug testing regulations at issue require that the operators of natural gas pipelines or liquified natural gas (LNG) facilities implement random drug ...
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OPINION This case challenges the procedures employed by the State of New York for involuntarily committing psychiatric patients in Dutchess County. We will presume familiarity with our earlier decision granting motions for intervention and class certification, and dismissing plaintiffs’ claim relating to the fifth amendment’s privilege against self-incrimination. See Goetz v. Crosso...
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OPINION AND ORDER Defendant McGraw-Hill, Inc. (“McGrawHill”) moves for an order, pursuant to Fed. R.Civ.P. 12(c), 1 dismissing plaintiffs’ federal securities claims as time-barred. For the reasons set forth below, the motion is granted. BACKGROUND These five related actions, which have been consolidated for certain purposes, all arise out of the syndication and market...
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MEMORANDUM OPINION This is a declaratory judgment action in which Grant County Savings & Loan Association (Grant County) seeks a determination that the amounts it owes the Resolution Trust Corporation (RTC) as Conservator for Savers Savings Association (Savers Savings) under certain loan participation agreements should be offset against an amount represented by a Receiver’s Certificate is...
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MEMORANDUM This motion is before the Court on the plaintiffs’, Sierra Club and certain other individuals, motion for a preliminary injunction. The plaintiffs brought this action to enjoin the federal and state defendants from any further construction of the Central Artery/Third Harbor Tunnel Project (the “Project” or “CA/T”). The plaintiffs contend that the CA/T’s proposed ventilation fac...
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ORDER THIS MATTER is before the Court on the motion of Plaintiff United States of America (hereinafter “the Government”), filed 12 June 1991, for summary judgment. On that same date, the Government also filed a memorandum of law in support of its motion. On 11 July 1991, the Court granted the claimant, Miguel Angel Abreu, an seven-day extension of time in which to respond to the Government’s moti...
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ORDER Petitioners as plaintiffs attorneys have filed a petition for approval of attorneys’ fees, pursuant to 42 U.S.C. § 406(b) (Social Security Act). This court heard oral arguments on April 8, 1991. After considering both parties’ written and oral arguments, this court now rules. I. FACTS. Plaintiff retained petitioners, Jerome, Gibson, Stewart, Friedman, & Stevenson, P.C., in August 1986 to re...
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MEMORANDUM OF DECISION THIS MATTER came on for hearing before the undersigned on May 20, 1991 at *1086 Charlotte, North Carolina. Cecil M. Curtis, Esquire, represented the Plaintiff and Jon D. Pifer, Trial Attorney, Tax Division, U.S. Department of Justice, represented the Defendant. FINDINGS OF FACT 1. Thomas A. Wilkinson, Jr., [hereinafter “taxpayer”], father of t...
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ORDER THIS MATTER is before the Court on Defendant’s motion, filed June 14,1991, for default judgment based on Plaintiff’s failure to attend his deposition. Plaintiff, a pro se litigant, filed on June 28, 1991, a response to Defendant’s motion. The facts of this dispute are not contested. On May 3, 1991, Defendant sent to Plaintiff a notice of deposition indicating that it intended to depose Plain...
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MEMORANDUM OPINION AND ORDER This is a declaratory judgment action. Green Construction Company seeks a declaration of National Union Fire Insurance Company’s duty to defend Green in other litigation and to indemnify it for any judgment obtained against Green in that litigation. The issues of liability—both coverage and the duty to defend—have been submitted on stipulated facts and cross-m...
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MEMORANDUM AND ORDER In October 1989 plaintiff Ronnie Lee Henderson (“Henderson”) incurred over $75,000 in damages as a result of an automobile accident. At the time of the accident Henderson had an automobile liability policy issued by defendant Universal Underwriters Insurance Company (“Universal”) that included underinsured motorist coverage in the amount of $50,000. After settling with the ...
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REPORT AND RECOMMENDATION RE: DEFENDANTS’ MOTION TO TRANSFER CASE TO WESTERN DISTRICT OF MISSOURI (DOCKET ENTRY #11) Defendants’ Motion to Transfer Case to the Western District of Missouri was filed on September 5, 1990. (Docket Entry # 11). As grounds for their motion, the *17defendants, Rita Lindsey, Herb Lindsey, and Debbie Kraft (hereinafter the “Lind-seys”), argue: (1) the claims involve act...
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OPINION ON ORDER DENYING PRELIMINARY INJUNCTION AND GRANTING ATTORNEYS’ FEES PROCEDURAL HISTORY On April 5, 1991, plaintiff Fabian Financial Services (“Fabian”) filed its Application for Preliminary Injunction seeking to restrain the Kurt H. Volk, Inc. Profit Sharing Plan (the “Plan”) from proceeding with arbitration of a claim against Fabian before the American Arbitration Associati...
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MEMORANDUM OPINION This matter comes before the Court on defendant’s Motion for Summary Judg*370ment and plaintiffs’ Cross-Motion for Summary Judgment. For the following reasons, plaintiffs’ motion will be denied and defendant’s motion will be granted. I. Plaintiffs are two current members1 and one retired member2 of the International Brotherhood of Electrical Workers (“IBEW”). Plaintiffs claim t...
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MEMORANDUM AND ORDER Defendant Vicom Video, Inc. (“Vicom Video”) has moved to dismiss or stay this breach of contract action in deference to a previously commenced action pending in Ireland. For the reasons set forth below, the motion is granted and the case is dismissed. I. BACKGROUND On August 1, 1989, plaintiff Caspian Investments, Ltd. (“Caspian”), a British corporation, ent...
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MEMORANDUM OPINION AND ORDER This action comes before the court as an appeal from an order entered by the United States Bankruptcy Court, Northern District of Texas, Fort Worth Division, the Honorable Massie Tillman presiding. The court, having reviewed the briefs of appellant, NCNB Texas National Bank (“NCNB”), and appellee, Hulen Park Place Ltd. (“debtor”), the record on appeal and appl...
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OPINION AND ORDER Plaintiff Bernice Ortiz is a New York State and Local Retirement Systems (NYSLRS) pensioner who claims that she was born November 7, 1925 and is entitled to a pension based on that birth date. Even though NYSLRS had apparently resolved a discrepancy in their file and accepted the correctness of the 1925 birth date before she retired, the agency suspended her benefits in ...
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*634 OPINION This interlocutory appeal poses the question of whether the bankruptcy court may conduct a jury trial in a core matter where defendants have not conferred jurisdiction on the Bankruptcy Court by filing a claim therein. The Court holds that jury trials in bankruptcy court in core matters are authorized by the Bankruptcy Amendments and Federal Judgeship Act of 1984 (th...
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ORDER At sentencing in this case, I raised, sua sponte, the applicability of Sentencing Guideline 2P1.1(b)(3), which provides, in pertinent part: If the defendant escaped from the non-secure custody of a community corrections center, community treatment center, “halfway house,” or similar facility ... decrease the [base] offense level ... by 4 levels.... § 2P1.1(b)(3), United States Se...
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MEMORANDUM AND ORDER The government has moved this court for an order disqualifying Gerald Shargel, Bruce Cutler and John Pollok from representing any of the defendants in this case at trial. The motion is based upon the assertion that there are several actual and numerous potential conflicts of interest to which their continued participation would give rise and that those conflicts can neither be...
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OPINION AND ORDER On May 23, 1991, following an eight-week jury trial with six co-defendants, Joseph DiSomma was acquitted of mail fraud, RICO, and RICO conspiracy charges and convicted of one count of conspiracy to rob a jewelry store in violation of the Hobbs Act, 18 U.S.C. § 1951. I have denied DiSomma’s motion for a judgment of acquittal under Fed.R.Crim.P. 29, and he is awaiting sentence. ...
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MEMORANDUM OPINION I. INTRODUCTION. The plaintiffs in this case claim that the defendants, the Secretary of Agriculture as well as state and local officials, improperly treated the utility reimbursement checks the plaintiffs receive as tenants in federally assisted public housing as income which led to a reduction in the plaintiffs’ award of food stamps. In a Memorandum Opinion issued June 29, 199...
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MEMORANDUM AND ORDER BACKGROUND This is a maritime personal injury action brought under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905(b). Plaintiff Gilbert Logwood was employed by River Marine Contractors, Inc., (“River Marine”) as a member of a longshore crew. Logwood alleges he was injured on December 26, 1986 while unloading cargo from the M/V GRETKE OLDENDOR...
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MEMORANDUM I INTRODUCTION On July 10, 1991, defendant Governor Weld signed into law the 1992 fiscal year budget. See 1991 Mass.Acts ch. 138. The next day, plaintiff Correction Officers Local 419 brought this action seeking to enjoin Weld and defendant Sheriff Rufo from implementing certain provisions of the budget. Specifically, plaintiff alleges that §§ 358, 362, and...
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OPINION Introduction The plaintiffs in this matter seek relief which will permit them to maintain a residence for recovering addicts of drugs and alcohol, pending further hearings and a determination in state court proceedings. The plaintiffs are part of a nationally recognized program which, through peer pressure and strict conditions of abstinence, successfully maintains freedo...
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MEMORANDUM AND ORDER Defendant Warren J. Burdett (“defendant” or “Burdett”) moves to dismiss the counts of his indictment which charge him with knowingly and willfully attempting to evade income taxes, pursuant to 26 U.S.C. § 7203, owed for the years 1984 and 1985. Burdett alleges that the Internal Revenue Service (“IRS”) failed to comply with the Paperwork Reduction Act of 1980 (“PRA” or ...
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MEMORANDUM AND ORDER Plaintiffs are a class of California recipients of Aid to Families with Dependent Children (“AFDC”) who require child care in order to participate in educational or training activities likely to assist them in securing employment and ultimately removing themselves from welfare. In a Memorandum and Order dated June 7,1991 (“Memorandum and Order”), 768 F.Supp. 1331, this Cour...
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ORDER GRANTING SUMMARY JUDGMENT Pending in this case are several motions, including the motion to dismiss, or in the alternative for summary judgment, filed by defendants Honeywell and Geis. (Doe. 184). For the reasons stated below, that motion is GRANTED as to all counts except Counts XIX and XX, and Counts XIX and XX are DISMISSED, without prejudice. I. FACTUAL BACKGROUND. The...
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OPINION This case turns on the interpretation of eleven Settlement Agreements (“Agreements”), of like terms in all relevant respects. All parties to each Agreement assert as their primary positions that their Agreement is integrated. Nevertheless, they urge contrasting interpretations and, in the alternative, each party asks the court to consider extrinsic evidence to support its proposed...
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MEMORANDUM OPINION An individual otherwise eligible to receive employment compensation in Virginia is disqualified by Va.Code Ann. § 60.2-618 (Repl.Vol.1987) if he or she voluntarily resigns “to accompany or to join his or her spouse in a new locality.” 1 Plaintiff, Barbara Austin (“Austin”), brings this action pursuant to 42 U.S.C. § 1983 for declaratory, injunctive, and other relief against vari...
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MEMORANDUM OPINION I. SUMMARY This case involves a dispute between sureties and a bankruptcy trustee over liability for certain defalcations that Charles E. Duck committed during his term as Chapter 11 trustee in the FoodSource consolidated bankruptcy proceedings. It comes on appeal from an interlocutory order of the federal bankruptcy court for the Northern District of California. T...
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ORDER On March 27,1991, this Court entered an Order which granted a summary judgment in favor of the Plaintiff, Ernest W. Lee, in the above entitled cause. On May 17,1991, Lee filed a Petition to Obtain Approval of Attorney Fees. On May 23, 1991, the Defendant, Secretary of Health and Human Services, filed a response to Lee’s Petition, which expressed no opposition to the requested relief. Lee is...
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MEMORANDUM AND ORDER In its order dated May 9, 1991, 765 F.Supp. 667, this court converted the defendant’s motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure into a motion for summary judgment pursuant to Rule 56 because both parties submitted evidentiary materials outside of the pleadings. Since plaintiff filed several affidavits and exhibits, the court a...
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129 B.R. 463 (1991) SECOR BANK, FEDERAL SAVINGS BANK, Appellant/Creditor, v. Edward J. DUNLAP, Jr., and Kathy Hurrelbrink Dunlap, Appellee/Debtor. Civ.A. No. 91-1395. United States District Court, E.D. Louisiana. July 22, 1991. *464 Robert L. Kuhner, Scoggin, Strong & Kuhner, New Orleans, La., for Secor Bank. William G. Meiners, Baton Rouge, La., for Dunlap. MEMORANDUM OPINION LIVAUDAIS, Dis...
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MEMORANDUM AND ORDER This is an action on a note in the amount of $205,000 plus interest. David J. Nicholas executed a note in favor of First National Bank & Trust Company in Great Bend (FNBT). FNBT contends that American Standard Life and Accident Insurance Company (ASL) guaranteed the note. Both Nicholas and ASL are citizens of the State of Oklahoma. This case comes before the court upo...
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MEMORANDUM AND ORDER Plaintiffs Edward Kleczek and Alyce Kleczek brought this action on behalf of their son Brian, a South Kingstown High School student who desires to play on that school’s girls’ field hockey team. Defendants are the Rhode Island Interscholastic League, Inc. (“RIIL”), which is a private nonprofit organization, and various officials associated with South Kingstown High School, ...
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ORDER In baseball, after three strikes the batter is out. Plaintiff Marianne Wilbert has already filed two amended complaints in this case. The defendant City of Chicago (which also brings its motion on behalf of the police officers) (“City”) wants to call a second strike on plaintiff and deny her the opportunity for a third. Toward that end, the City has filed a motion to dismiss Wilbert’s second...
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MEMORANDUM AND ORDER These consolidated cases were instituted by plaintiffs Gary Showalter and Nenh Phetosomphone alleging that they were sexually harassed while employed at Techni-Craft Plating Company, a jewelry plating firm located in Cranston, Rhode Island. Essentially, they both claim that defendant Noel Smith, the General Manager of Techni-Craft, forced them to engage in various sex...
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RULING ON MOTIONS TO DISMISS On August 22, 1990, John Spear (“Spear”) and Spear Printing Company, *524 Inc. (“Spear Printing”), commenced this section 1983 action against the Town of West Hartford (“the Town”), Marjorie Wilder (“Wilder”), Corporation Counsel for the Town of West Hartford, Robert McCue (“McCue”), Police Chief and acting Town Manager for the Town of West Hartfo...
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MEMORANDUM AND ORDER Appellant Louanne Frances Anderson, debtor in a Chapter 7 bankruptcy proceeding, (“Debtor”) appeals a Bankruptcy Court determination that an interest created by her mother’s will is property of the bankruptcy estate under Section 541 of the Bankruptcy Code. 1 11 U.S.C. § 541. Trustee Matthew J. McGowan (“Trustee”) in supporting the Bankruptcy Court determin...
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MEMORANDUM OPINION This action was brought by Brian J. Griffin against Richard F. Daniel, Jr. for violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq (1988). Griffin claims that Daniel is liable to him for double minimum wage and overtime compensation for unpaid work and for attorney’s fees. Because the interpretation of the FLSA is a federal question, th...
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ORDER This matter comes before the court for de novo review of the magistrate judge’s recommendation with regard to dismissal of the indictment in the above-captioned matter and after an independent thorough review of the magistrate judge’s recommendation, the government’s objection thereto, the defendant’s response and the parties previous submissions to the magistrate judge, I conclude that...
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ORDER Pursuant to 28 U.S.C. § 1404(a), defendants have moved to transfer this contract action to the United States District Court for the Southern District of Texas, where a related case between the same parties is currently pending. For the reasons stated herein, defendants’ motion to transfer is denied. I. FACTS Defendant Kenneth Lohr, a Texas resident, is the founder of Lohr Structural Fastene...
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MEMORANDUM In this RICO action, the plaintiffs have moved to disqualify counsel for the defendants Swatara Coal Company (“Swatara”), Winnie Land Company (“Winnie”), and James J. Curran Jr. (“Curran Jr.”). For the reasons set forth below, the motion is granted in part and denied in part. I. BACKGROUND Reading Anthracite Company (“RAC”) instituted this RICO 1 ac...
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OPINION Plaintiff Shell Oil Company brought this action as part of its effort to learn the contents of certain Internal Revenue Service documents. These documents were requested by Shell under the Freedom of Information Act, but were withheld as privileged by defendants Internal Revenue Service and the Department of the Treasury. Shell has moved for partial summary judgment regarding a si...
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MEMORANDUM I. Introduction. In my Memorandum and Order of May 31,1989,1 referred certain discovery issues regarding production of documents to the Special Master. Section XIII of the May 31 Memorandum referred to the Special Master post-receivership loan work-out documents. I requested that the Special Master review these documents for relevance and if the documents are relevant, determine whethe...
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MEMORANDUM OPINION Due to the nature of this case and the issues involved, the parties agreed to bifurcate this matter, with the issue of whether the Louisiana Oilfield Indemnity Act (“LOIA”) 1 applies to defendant, Loop, Inc. (“Loop”), 2 to be heard first, any remaining issues to be tried separately after the Court ruled on the LOIA issue. The parties also agreed to...
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MEMORANDUM & ORDER Plaintiffs The Drexel Burnham Lambert Group Inc. (“DBL Group”) and Drexel Burnham Lambert Incorporated (“DBL Inc.”) (collectively “Drexel”) have moved to remand this action to the New York State Supreme Court for New York County. For the reasons stated below, plaintiffs’ motion is granted. I. BACKGROUND Drexel has pleaded guilty to criminal charges, entered in...
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OPINION AND ORDER In an opinion and order dated April 9, 1991 the Court denied plaintiffs motion to enjoin release of the paperback edition of defendants’ book The Enneagram in this copyright infringement action. Defendants now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the complaint which also asserts claims for false desig...
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MEMORANDUM AND ORDER In the above-referenced action, Robert Bivona (“plaintiff”), seeks damages for an eye injury under the Consumer Product Safety Act (“CPSA”), 15 U.S.C. § 2051 et seq. Named as defendants are Victor Trol-lio, Jr. and his natural guardian, Victor Trollio, Sr. Subject matter jurisdiction is premised on a federal question pursuant to 28 U.S.C. § 1331. In papers dated June 12, 1990...
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OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW United States Court of International Trade, sitting as a United States District Court Judge by Designation: Introduction This diversity action, 28 U.S.C. § 1332(a), arises out of the alleged liability of UBAF Arab American Bank, a New York commercial bank (“UBAF”), in the sum of $109,145.86 to Weyerhaeuser Company, a Tacoma, Washington prod...
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MEMORANDUM AND ORDER This case comes before the court upon the motion of American Bankers Insurance Company of Florida (American Bankers) to set aside the judgment for bond forfeiture. The Government opposes American Bankers’ motion. FACTS On July 6, 1989, Richard Ray Lacey was charged by information with violations of federal drug laws. On July 12, 1989, Richard Ray Lacey was released on bond sub...
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ORDER This matter is before the court on defendants’ motion for summary judgment. Based on a review of the file, record and proceedings herein, the motion is granted in part and denied in part. FACTS This action arises out of the arrest of Keith L. Bahr (“Bahr”) by Martin County deputy sheriffs on April 12, 1988. On the morning of April 12, 1988, Martin County sheriff deputies R...
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ORDER AND OPINION This is an action to enforce a foreign judgment. Plaintiffs have now moved, pursuant to Federal Rule of Civil Procedure 56, for summary judgment enforcing the foreign judgment. Defendant has cross-moved, pursuant to the same rule, to dismiss all or part of the complaint on several grounds. For the reasons stated below, plaintiffs’ motion is granted in part, with judgment...
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*662 ORDER Plaintiff in this action, Thomas Pasant, claims that defendant, Jackson National Life Insurance Company of America (“Jackson Life”), was not true to a settlement agreement. Therefore, Pasant has brought suit. Jackson Life has moved for partial summary judgment on the relief requested in Count I of Pasant’s complaint. For the reasons stated herein, Jackson Life’s motion...
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*478 OPINION AND ORDER This action is presently before the Court on plaintiffs’ motion for recusal and replacement of Judge William C. Conner. For the reasons stated hereinafter, the motion is denied. DISCUSSION Allegations of Bias and Prejudice A party may move that a judge disqualify himself pursuant to 28 U.S.C. §§ 144, 455. Section 144 requires that the aff...
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ORDER On February 26, 1991, defendant filed a Motion for Sanctions pursuant to Federal Rules of Civil Procedure Rule 37, and 28 U.S.C. § 1927 for plaintiffs’ failure to engage in good faith discovery during depositions. This motion was followed by a Motion for Order Confirming Arbitration Award and Motion for Entry of Judgment in Favor of Dean Witter filed March 12, 1991. All the motions were the...
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MEMORANDUM The Court is in receipt of the Report and Recommendation issued by the Magistrate regarding the defendants’ motion to dismiss for lack of venue in the above styled action. No objections have been filed to the Report and Recommendation, but the issue of venue has been briefed extensively by the parties. Background This dispute arose when the plaintiffs, a corporati...
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MOTION TO DISMISS BANKRUPTCY APPEAL OPINION OF THE COURT THE COURT: The debtor in this case is appealing from an order confirming a trustee. The creditors have moved to dismiss the appeal, primarily on the grounds of lack of standing and lack of finality of the order. In order to have standing to bring an appeal from a decision by the bankruptcy court, the appellee must be “an aggrieved par...
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ORDER This is a case alleging copyright infringement under Title 17, United States Code. Jurisdiction is vested with this Court pursuant to 28 U.S.C. § 1338(a). The case is before the Court on Plaintiffs’ Motion for Summary Judgment. The Court GRANTS Plaintiffs’ Motion. BACKGROUND Plaintiffs are songwriters and music publishers who are the owners of valid copyrights in the five ...
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OPINION Unwashed feet and the Eighth Amendment. This matter went to jury trial on the merits. Had the Attorney General’s Office filed a motion for summary judgment accompanied by the proper affidavits, a trial of this case might well have been avoided. Plaintiff’s pro se prisoner complaint, filed under 42 U.S.C. § 1983, claimed that Carol Glenn and Anthony Snyder, employees of the Illinois Departm...
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OPINION AND ORDER Before this Court is plaintiffs’ motion pursuant to Fed.R.Civ.P. 56 for summary judgment. Defendants cross-move for dismissal under Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, defendants’ motion is granted and plaintiffs’ motion is denied. BACKGROUND The OCC is the federal agency charged with the supervision and regulation of national banks and the ...
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OPINION AND ORDER This is an action brought pursuant to 42 U.S.C. § 1983, alleging violations of the United States and New York State Constitutions, and seeking various forms of declaratory and injunctive relief. The parties have now cross-moved for summary judgment. For the reasons set forth below, defendants’ motion for summary judgment is granted and plaintiff’s cross-motion for summar...
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*308 OPINION The matter before the court is the de novo review of the decision of the Bureau of Alcohol, Tobacco and Firearms (the BATF) to revoke the license of plaintiff, John C. Benjamin, to manufacture machine guns. The issue in this case is whether Benjamin willfully refused to allow inspectors from the BATF to have access to his premises on June 1, July 6 and July 7,1989, in violation...
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MEMORANDUM AND ORDER This matter is before the court on its own motion. This case was set for jury trial to commence on July 29, 1991. Because the court concludes that it lacks subject matter jurisdiction, this action shall be remanded to the District Court of Reno County, Kansas, from where it was removed. This action was originally filed in the District Court of Reno County, Kansas on April...
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ORDER DISMISSING ACTION This matter comes before the court upon the Defendant’s Motion to Quash Service of Process and to Dismiss Action (the “Motion to Dismiss”) (DE 4). I. Background Southeastern Casualty and Indemnity Company (“SCI”), and Southeastern Reinsurance, Incorporated (“SRI”), operated as surety companies in Plantation, Florida. Upon their insolvency, the Circuit Cou...
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OPINION The matter before the court is the motion (# 36) of plaintiff, Robert Martyr, for summary judgment on his claim that defendants, George Bachik, Alice Shannon, A. Furqan, D. Hillyer and C. Jeter, are violating his right to send sealed mail to government officials. He seeks an order of the court declaring that mail addressed to government officials is privileged, and that OAR 309-10...
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MEMORANDUM AND ORDER I. INTRODUCTION At the conclusion of my decision holding AMI liable with respect to certain of IBM’s counterclaims, Allen-Myland, Inc. v. International Business Machines Corp., 746 F.Supp. 520 (E.D.Pa.1990) (“AMI v. IBM II”), I directed the parties to brief any issues related to appropriate relief before I entered judgment in accordance with...
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MEMORANDUM AND ORDER A number of post-trial motions are pending in this case. The court held a status conference on May 2, 1991. Since that hearing, the court has received certain additional submissions from counsel. The court has examined the voluminous briefs filed over the course of the last year and a half and is prepared to rule. The court notes that it has received a number of ...
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ORDER DENYING PLAINTIFFS’ MOTIONS FOR FINAL SUMMARY JUDGMENT, DENYING DEFENDANTS’ CROSS MOTION FOR SUMMARY FINAL JUDGMENT, AND DENYING CONSIDERATION OF CLASS CERTIFICATION AS MOOT This cause comes before the court on the plaintiffs’ motions for final summary judgment, the defendants’ cross motion for summary final judgment, and the defendants’ withdrawal of their opposition to class certification....
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*255 ORDER Plaintiffs, residents of Ohio and Kentucky who live near a chemical manufacturing plant in Haverville, Ohio, (the Haverville Plant), bring this diversity action based on six theories of liability: negligence, nuisance, trespass, fraud, strict liability, and intentional infliction of injury. (Doc. 1). Plaintiffs allege that defendants are responsible for injuries to pla...
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OPINION Attorney’s fees. Civil Rights Act and Rule 11. Since resolution of Defendants’ motion for fees depends in large measure upon the objective reasonableness of Plaintiff's position and the specific facts underlying this action, we must discuss the facts in some detail: On August 5, 1987, Plaintiff, Kenneth M. Lolling, a Logan County Deputy Sheriff, filed this action against both Logan County ...
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MEMORANDUM AND ORDER This case began as a declaratory judgment action filed by Allstate Insurance Company. Allstate sought a declaration regarding its duties of coverage and defense in a sex discrimination case filed by Dannie L. Harvey. Allstate had issued policies to Harvey and to the defendants sued by Harvey. One of the defendants (O.R. Whitaker) filed a counterclaim against Harvey, and Harvey...
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MEMORANDUM OPINION AND ORDER Plaintiff Jay Vanderloop, a Colorado resident, commenced this negligence and bad faith action against the defendant Progressive Casualty Insurance Company (Progressive), an Ohio corporation. Asserting that the plaintiff’s claims and action are time barred, the defendant has moved for summary judgment. Plaintiff has responded by opposing the motion. The parties hav...
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OPINION The matter before the court is the renewed motion (# 24) of plaintiff, Robert Martyr, for a preliminary injunction prohibiting defendants, George Bachik, Alice Shannon, A. Furqan, D. Hillyer, C. Jeter, their agents, and those acting in concert with them, and all others with notice of the order from opening, reading, censoring, seizing, withholding or delaying any mail from Martyr ...
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DECISION AND ORDER BACKGROUND On June 8,1990, plaintiff Home Indemnity Company (“Home Indemnity”) commenced an action in this court against defendants Farm House Foods Corporation (“Farm House”) and Diana Corporation (“Diana”) alleging that they had breached a contract they entered into with Home Indemnity by not paying Home Indemnity $629,935.02 in premiums due on insurance policies...
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MEMORANDUM AND ORDER This matter is before the court on the following motions filed by defendant Stotler and Company: (1) motion for leave to file instanter amended affirmative defenses (Doc. 56); (2) motion for leave to file instanter defendant’s motion for summary judgment and defendant’s memorandum in support of motion for summary judgment (Doc. 50); and (3) motion for summary judgment...
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768 F.Supp. 272 (1991) GULF INSURANCE COMPANY, Plaintiff, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant. No. 88-2257 C (2). United States District Court, E.D. Missouri, E.D. April 15, 1991. John I. Schaberg, Roberts, Perryman & Bomkamp, St. Louis, Mo., for plaintiff. James L. Homire, Jr., Homire, Mueller, Bippen, Hellwig & Councilor, St. Louis, Mo., for defendant. MEMORANDUM AND...
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OPINION The matter before the court is the motion for summary judgment (# 53) of defendant Navegar, Inc. (Navegar). UNDISPUTED FACTS In the early 1980’s, Carlos Garcia formed a corporation known as Intradynamics of America (Intradynamics), for the purpose of manufacturing guns. In 1984, Miguel Garcia, the father of Carlos Garcia, formed Intratec USA, Inc. (Intratec) for the...
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MEMORANDUM AND ORDER This matter is before the court on the application for rehearing and reconsideration filed by defendant Connaught Laboratories, Ltd. (“Connaught Ltd.”). Doc. 150. Connaught Ltd. cites Fed.R.Civ.P. 76(b), which applies to a stay of a judgment of the magistrate entered following a trial to the magistrate by consent of the parties. The cited rule is completely inapplicable here. ...
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MEMORANDUM AND ORDER This matter is before the court on the defendant’s pro se memorandum and brief in support of motion to reconsider. Doc. 9. The defendant has not filed a separate motion to reconsider. The court will, however, consider the memorandum that has been filed as a motion to reconsider. The defendant seeks to have the court reconsider its order of May 23, 1991 (Doc. 8) which ...
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MEMORANDUM AND ORDER This matter is before the court on cross-motions for summary judgment. Plaintiff Central States Construction, Inc. (CSC) appeals pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq., an administrative decision by defendant Small Business Administration of the United States (SBA). The at-issue administrative decision denied CSC admission into SBA’s Minority Set...
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MEMORANDUM & ORDER THIS CAUSE comes before the Court on numerous motions to dismiss filed by various Defendants in six of the consolidated actions bearing the master file number 89-6308-CIV-HOEVELER. 1 FACTUAL BACKGROUND Prior to 1986, Sahlen & Associates, Inc. (“SAI” or “the Company”), a Delaware corporation with its principal place of business in Deerfield Beach, Flori...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion for summary judgment against defendant Margaret Neitzel. The action is for recovery on a note acquired by plaintiff from the Citizens State Bank in St. Francis, Kansas upon its closure on May 15, 1989. The dispute concerns a document titled “LOAN GUARANTY AGREEMENT” executed by defendant Margaret Neitzel on Fe...
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MEMORANDUM OPINION This case, in which plaintiff Universal Manufacturing Company (“Universal”) charges defendant Douglas Press, Inc. (“Douglas”) with trademark and copyright infringement, is before the court on Douglas’ motion for leave to add an additional affirmative defense. Douglas seeks to add the following paragraph as an additional affirmative defense to Universal’s complaint: ...
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MEMORANDUM OPINION AND ORDER The Pension Benefit Guaranty Corporation (“PBGC”) brought this action against defendant Artra Group, Inc. (“Artra”) under Title IV of the Employee Retirement Income Security Act of 1974 (“ERISA”) claiming that Artra is liable to PBGC as the sponsor of a terminated, underfunded single-employer pension plan. FACTS The material facts are not in dispute. Plaintiff PBGC is...
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MEMORANDUM AND ORDER This matter comes before the court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, an inmate at the Lansing Correctional Facility, Lansing, Kansas, was convicted in the Jefferson County District Court, Oskaloosa, Kansas, in December 1981 and is serving two consecutive sentences of fifteen years to life. In this action, petitioner asserts...
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OPINION The present dispute arose in the aftermath of a severe flood in the Town of Elsmere on July 5, 1989. Following the flood, the Town of Elsmere (“Town”) condemned the thirty-nine basement level apartments in a 195 unit apartment complex (the “Apartments”) owned by Elsmere Park Club Limited Partnership (“Elsmere Park”). Thereafter, the Town refused to issue Elsmere Park a building pe...
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MEMORANDUM AND ORDER Charles Bennett (“plaintiff”) brings this action pursuant to § 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g), for review of a final decision of the Secretary of the United States Department of Health and Human Services (“Secretary”), denying plaintiffs application for disability insurance benefits and supplemental security income benefi...
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MEMORANDUM AND ORDER I. This action is brought under the Cape-hart Act, 42 U.S.C. § 1594, and the Miller Act, 40 U.S.C. 270a et seq. 1 Plaintiff Erb Lumber Company (Erb) seeks to recover payment for materials provided for use on a project at the Selfridge Air National Guard base. In Count I, Erb seeks recovery pursuant to the Capehart Act, on a labor and mater...
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OPINION AND ORDER In this action, plaintiff, a 15-year-old illegal alien, seeks appointment of a guardian ad litem to represent him in deportation proceedings. The government moves pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the action for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. For the reason...
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MEMORANDUM AND ORDER On May 6, 1991, the United States, through its Environmental Protection Agency (“EPA”) issued an order pursuant to section 106 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9606 (1990), which required CMC Heartland Partners (“CMC”) to perform certain remedial activities at the Wheeler Pit site. The site, presently ...
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MEMORANDUM AND ORDER I. This is a patent case. Now before the Court is the motion of plaintiff Robert W. *191 Kearns (Kearns) styled “Motion to Disqualify Counsel for Defendants,” seeking to disqualify the law firm of Harness, Dickey, and Pierce (HDP) from representing defendants Chrysler Corporation (Chrysler) and American Motors Corporation (AMC). Kearns argues that be...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendant Thomas A. Burger (“defendant Burger”) and defendant James R. Cruce (“defendant Cruce”). Defendants move the court to apply the United States Sentencing Guidelines (“USSG”) effective December 1988, when sentencing defendants in the above-captioned case. Defendants seek to avoid the application of two amendments which...
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JUDGMENT AND MEMORANDUM OPINION Before the Court are three motions: (1) the Plaintiff MBank New Braunfels’ Motion for Summary Judgment, (2) the Defendant FDIC’s Motion for Summary Judgment, and (3) the Plaintiff’s Motion to Dismiss Counterclaim or for Summary Judgment on Counterclaim. The Court is of the opinion that this case is ripe for summary judgment. After careful consideration of t...
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MEMORANDUM AND ORDER I. This is a case under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq. Plaintiffs are ten employees of defendant, Holcroft/Loftus, Inc. (Holcroft), who accrued benefits during the course of their employment under the terms of the Holcroft & Company Employees’ Retirement Plan (the Plan). 1 Plaintiffs say that, ...
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*1124 MEMORANDUM AND ORDER This matter is before the court on the motions for new trial filed by defendant Douglas S. Pringle, Special Administrator for the Estate of George D. Johnson (“Pringle”) (Doc. 152) and defendants Board of Trustees of Butler County Community College, Butler County Community College, and Randy Smithson (collectively, “the BCCC defendants”) (Doc. 153). The...
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The motion for summary judgment filed on behalf of defendant Federal Deposit Insurance Corporation, as Receiver of First National Bank, Covington, Louisiana was considered on memoranda. For the following reasons the motion is DENIED. Defendant urges that plaintiff’s claims are barred under the D’Oench doctrine. D’Oench, Duhme & Co. v. Federal Deposit Insurance Corporation,...
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*182MEMORANDUM In the late spring of 1989, a three-block section of center city Philadelphia in the vicinity of Broad and Walnut Streets was the scene of four bank robberies. All four of the banks being federally insured, the Federal Bureau of Investigation was called into the case and subsequently distributed a picture of a man wanted for questioning in connection with robberies. On June 16, 1989...
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MEMORANDUM OF OPINION I. Background. On March 21, 1991 Cable Alabama Corporation (Cable Alabama) filed its complaint against the City of Huntsville, Alabama (Huntsville or the City), its mayor and the five members of its council. Cable Alabama states claims under the Cable Communications Policy Act of 1984, Pub.L. No. 98-549, 98 Stat. 2779, 47 U.S.C. § 521 et seq. (the Cab...
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William A. Kinnie filed a complaint March 16, 1990, against the United States of America seeking recovery of penalties assessed and collected by the Internal Revenue Service (“IRS”) pursuant to Section *845 6672 of the Internal Revenue Code of 1986. The government filed a counterclaim May 21, 1990, against plaintiff Kinnie and added Barbara Bertollini and Robert M. Blinstrub as cou...
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MEMORANDUM AND ORDER On May 7, 1991, the Court issued a memorandum and order [A(902)] setting forth the procedure by which lead and former liaison counsel are to be compensated for their time and reimbursed for the costs they have incurred in these tag-along actions. In response thereto, lead and former liaison counsel have submitted statements of expenses [A(910) and A(909) respectively], Lead co...
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770 F. Supp. 1195 (1991) Peter A. THOMASON, Christine Jones, Rev. Charles Irvin, Rev. Levon Yuille, and Lois Jungkuntz, Plaintiffs, v. Jerry JERNIGAN, Ann Marie Coleman, Larry Hunter, Ingrid Shelton, Nelson K. Meade, Liz Brater, Jerry Schleicher, Mark Ouimet, Joe Borda, Thais Peterson, the City of Ann Arbor, and the Police Department of the City of Ann Arbor, Defendants. No. 90-73335. United Stat...
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ORDER AFFIRMING MAGISTRATE’S RECOMMENDED DECISION ON MOTION TO SET ASIDE DEFAULT On January 7,1991 Third-Party Defendant, Instructional Systems Inc. (ISI), accepted service of Biddeford’s third-party complaint. On January 30, 1991 default was entered. ISI filed a motion to set aside default, and on April 30, 1991 United States Magistrate Judge David M. Cohen issued his opinion denying the...
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ORDER AFFIRMING IN PART MAGISTRATE’S RECOMMENDED DECISION ON MOTION FOR SUMMARY JUDGMENT In this action Plaintiff (BCL) has moved for summary judgment on its breach of contract claim arising out of an equipment lease agreement between it as lessor and Defendant Biddeford School Department (Biddeford) as lessee. The Magistrate Judge recommended that summary judgment be granted on Count I a...
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*887OPINION AND ORDER ON DEFENDANTS’ MOTION FOR DISMISSAL AND/OR SUMMARY JUDGMENT Plaintiffs’ claims arise out of the financial difficulties and eventual bankruptcy of Tucker Freight Lines, Inc. (“Tucker”). Plaintiffs are former employees of Tucker who entered into wage deferral contracts to save the company from its eventual demise. They claim that those contracts constitute “securities” within ...
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OPINION AND ORDER In November 1990, acting pursuant to the defense appropriations bill for fiscal *741 year (FY) 1991, the Navy issued a solicitation for bids for the contract to construct the SSN-22 Seawolf submarine, the second ship in the Seawolf program. 1 The plaintiff, Newport News Shipbuilding and Dry-dock Company (“Newport News”), and defendant Electric Boat Division of General Dyna...
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MEMORANDUM DECISION AND ORDER On March 18, 1991, a non-jury trial was held in the captioned matter. No jury demand was made and the case was tried without a jury. Plaintiffs Central Pennsylvania Teamsters Pension Fund and Central Pennsylvania Teamsters Health and Welfare Fund brought this action against defendant W & L Sales, Inc., alleging a failure to make $2,680.16 in pension contribut...
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ENTRY This matter comes before the court on the defendant’s motion for partial dismissal of this action for the recovery of federal corporate income tax.1 Oral argument was heard on this motion on February 12, 1990. In its motion, the United States asks this court to dismiss the plaintiffs’ refund claims for the years 1967 and 1970 on the ground that these claims were not timely filed. “A timely,...
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MEMORANDUM OPINION Plaintiff Capitol Hill Hospital (the “Hospital”) filed this action for equitable and declaratory relief against the District of *17 Columbia, the District State Health Planning and Development Agency (“SHPDA”) and various city officials. The District has moved to dismiss or in the alternative for summary judgment. After oral argument on this motion, this Court finds that de...
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ORDER This case is before this Court on a motion for summary judgment filed by the defendant, Blue Cross and Blue Shield of Alabama (Blue Cross). On August 7, 1990, the parties jointly filed a preliminary pretrial order setting forth the uneontested facts. The Court finds that there is no genuine issue as to any material fact and that this action can be decided by applying the law to the ...
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MEMORANDUM OPINION AND ORDER As a general rule, an individual may not sue the sovereign. “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983). Each state government, like the federal government, has a constitutional ...
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MEMORANDUM OPINION AND ORDER Plaintiff Karl D. Weisenhorn brought this action against Transamerica Occidental Life Insurance Company (Transamerica) to recover accidental death benefits for the death of his ex-wife, Robin Ann Nehring. Because both Weisenhorn and David Nehring, Mrs. Nehring’s husband at the time of her death, submitted conflicting claims for these benefits, Transamerica set...
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MEMORANDUM OPINION AND ORDER This matter comes before the court on plaintiff's objection to the removal of this action on the ground that defendant Food Lion, Inc. (“Food Lion”) filed its notice of removal more than thirty days after the action was filed. On July 12, 1987, plaintiff was allegedly injured while on the premises of defendant’s grocery store in Norfolk, Virginia. Plaintiff filed a mot...
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OPINION This suit charges that, in the fall of 1988, just prior to the presidential election, the plaintiff, at that time an inmate at the El Reno Federal Correctional Institution in Oklahoma, 1 contacted national and local journalists to inform them that in 1971 he had sold marijuana to Dan Quayle, then a candidate for and now Vice President of the United States. The complaint further allege...
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MEMORANDUM OF DECISION AND ORDER DENYING PLAINTIFF’S MOTION TO QUASH A SUBPOENA DUCES TECUM Plaintiff Fleet/Norstar Financial Group, Inc., on behalf of its subsidiary Fleet Bank of Maine, moves to quash an investigative subpoena issued by Defendant Securities and Exchange Commission (hereinafter SEC) seeking certain documents relating to Maine Saving Bank’s loan loss reserves and provisions.1 Pla...
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OPINION Plaintiffs, five North Carolina banks and the American Bankers Association, challenge decisions by the National Credit Union Administration (NCUA) approving amendments to the charter of the AT & T Family Federal Credit Union (AT & T Family) expanding its field of membership. They allege that when the NCUA approved the amendments, it acted arbitrarily and capriciously, and violated...
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MEMORANDUM OPINION This action was brought by Motorola Communications and Electronics, Inc. (“Motorola”) against the former minority shareholders and a director of Lowery Communications, Inc. (“LCI”) to recover an alleged debt owed by LCI to Motorola prior to LCDs dissolution on December 30, 1986. 1 The case was called to trial on July 25, 1991. Prior to the offering of testi...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT Plaintiff Darrell Waybenais sued the United States under the Federal Tort Claims Act (FTCA) for personal injuries resulting from gunshot wounds inflicted by Captain Gary Jourdain, a police officer with the Bureau of Indian Affairs (BIA). The government pleaded as an affirmative defense the Minnesota statutory privilege of a police officer...
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ORDER AND OPINION Plaintiff, United States of America, and defendant One Helicopter, by claimant Daniel M. Bonnetts, have filed cross motions for summary judgment. Plaintiff filed a two count complaint against One Helicopter seeking forfeiture of the helicopter (U.S. Registration N277ST) pursuant to 49 U.S.C.App. § 1472(b)(3). The first count charged claimant with operation of an unregist...
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Plaintiffs, individuals doing business as Private Network Cable System (Private Network), bring this action alleging various state and federal claims arising out of an alleged breach of a Right-of-Entry Agreement (the Agreement) between plaintiffs’ predecessor-in-interest, Satellite TV of Rochdale Associates, L.P. (the Partnership), and defendant Rochdale Village (Rochdale). The Agreement authoriz...
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ORDER Previously pending on this court’s law and motion calendar for March 14, 1991, was plaintiff’s motion to compel further answers to interrogatories and production of documents from The Hartford Accident and Indemnity Company. The parties filed a timely stipulation pursuant to E.D.Cal.R. 251. Having now reviewed the pleadings and heard oral argument, the court hereby issues the following orde...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS This matter is before this Court for consideration of the defendants' motion to dismiss (doc. 20). The plaintiff has filed a memorandum in opposition to that motion (doc. 23), and the defendants have replied (doc. 24). A hearing on this matter was convened June 25, 1991. The plaintiff, Margaret LeMasters, is a board certified physician in obstetrics...
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the court for trial on May 6, 1991 in Grand Junction, Colorado. The trial was on the issues of liability only. The damage issues were bifurcated for later trial if appropriate. Also before the court is Plaintiffs’ Motion to Amend Complaint to Conform to the Evidence, filed May 24, 1991. I. PROCEDURAL BACKGROUND In light of the...
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OPINION Plaintiffs filed this action challenging certain provisions of the Secretarial Fishery Management Plan for the Red Drum Fishery of the Gulf of Mexico, as amended by Amendment Number One, and its implementing regulations. On July 31, 1990, the Court dismissed that portion of Count One which addressed the directed redfish fishery. Now before the Court are plaintiffs’ motion for summ...
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MEMORANDUM OF DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Plaintiff Roger Vigue is a thirty-six-year-old quadriplegic who receives Medicare and Medicaid benefits. Plaintiff describes himself in his Complaint as being “dual-eligible” because of his entitlement to benefits under both federal health care programs. Defendant Rollin Ives heads the Maine Department of Human Ser...
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ORDER In this criminal action, defendant Bernard Michael McLaughlin is charged with two counts of bank fraud and one count of conspiring to commit bank fraud. Co-defendant David Carl Bruce also is charged with conspiracy to commit bank fraud. Currently before the Court is defendant Bruce’s motion to suppress. As an initial matter, the Court notes that this and several other motions were filed...
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MEMORANDUM I INTRODUCTION Plaintiff Kevin Monahan (“Plaintiff”), a mental health patient, brings the present action for injunctive relief and for damages arising out of injuries that he suffered during transportation between mental health facilities. Defendants, the Commonwealth of Massachusetts and twenty-one individuals and entities with responsibility for Plaintiff’s health care, have al...
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MEMORANDUM OPINION AND ORDER Introduction The United States Trustee (“UST”) appeals the bankruptcy court’s Letter Decision of January 24, 1991, holding that a $336,977.99 payment by Wernerstruck, Inc. (“Debtor”) to the First Western Bank of Wall, SD (“Bank”) is not a “disbursement” within the meaning of 28 U.S.C. § 1930(a)(6). Jurisdiction This Court takes jurisdict...
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FINDINGS OF FACT AND RULINGS OF LAW This involved, lengthy and complex case was tried before the court and jury. The court acted in a capacity as a fact finder with respect to the Education of the Handicapped Act, 20 U.S.C. § 1415 and the jury as fact finders rendering an advisory opinion concerning 42 U.S.C. § 1983. This is also an appeal from a decision issued by Hearing Officer, E...
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MEMORANDUM AND ORDER The defendant Lawrence O. Franklin, Jr., has filed a motion to vacate and set aside his sentence pursuant to 28 U.S.C. § 2255. The government has filed its response to said motion and defendant thereafter filed his reply. The parties agree that the facts are essentially as set out in the government’s response. The defendant was charged, along with two co-defendants, in a two-c...
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ORDER In this civil action, plaintiff Richard E. Banker seeks a deficiency judgment for alleged nonpayment of a promissory note executed by defendants. Defendants Carol and Wilton Buskey move for summary judgment, claiming that Banker, by exercising control over stock pledged as security for the promissory note, took that stock in satisfaction of any claimed indebtedness, and is thus barr...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT Plaintiff Donna Evans brought this action in Minnesota state court against defendants Ford Motor Company (Ford), International Union, United Automobile, Aerospace and Agricultural Implement Workers of America-UAW (the UAW), and United Automobile, Aerospace & Agricultural Implement Workers of America-UAW Local 879 (Local 879) alle...
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MEMORANDUM OF DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner Bruce Wellman petitions for a writ of habeas corpus on the grounds that *22he was induced to make unknowing and involuntary guilty pleas in Maine Superior Court. The following facts are undisputed. Petitioner was brought from New Hampshire and confined in the Cumberland County, Maine jail from May 23, 1985 to N...
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MEMORANDUM The defendant, Richard J. Eckert, filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiff, Zurich-American Insurance Company (Zurich) brought this action as the subrogee of Eugene DePaul and Peter DePaul, t/a Wissahickon Park Associates (Wissahickon), seeking to recover for fire damage to Wissahickon which it had paid pursu...
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MEMORANDUM DECISION AND ORDER The basic question presented on this application is whether the Court should, in its discretion, require the parties to submit on a motion for leave to amend the complaint, when the movant specifically requests the opportunity to present oral argument. Although the Court has the power to direct the parties to submit the motion and determine it without the benefit of ...
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OPINION AND ORDER Defendant Keramehemie (Canada) Limited (“KCC”) moves pursuant to Rules 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure to dismiss the action brought by plaintiff Keramehemie GmbH (“KCH”) for lack of personal jurisdiction and improper venue. For the reasons stated below, the action is stayed pending resolution of the related action in Canada. *620 ...
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MEMORANDUM AND ORDER Presently before the court is defendant Massachusetts Institute of Technology’s (“MIT”) motion to transfer venue pursuant to 28 U.S.C. § 1404(a). For the reasons stated below, MIT’s motion will be denied. 1 BACKGROUND The government brought the above-captioned action alleging that MIT and eight *242 other competing non-profit ...
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MEMORANDUM AND ORDER In the above-referenced action, plaintiff Gregory Fraser (“plaintiff”), sues for an alleged discriminatory constructive discharge and failure to rehire, pursuant to 42 U.S.C. § 2000e-2. Plaintiff appears pro se. Named as defendant is the New York State University at Stony Brook (“defendant” or “the University”). Currently, defendant moves to dismiss the complaint pursuant to ...
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MEMORANDUM OPINION AND ORDER Plaintiff, alleging that he was injured in a work-related accident, seeks damages for lost wages, lost earning capacity, medical expenses, pain and suffering, and mental anguish. Now before this Court is Defendant’s Motion to Dismiss. For the reasons that follow, the Court will GRANT Defendant’s Motion. FACTS On or about August 20, 1990, while Plaint...
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OPINION On July 23, 1991, the Court held what had been scheduled to be a bench trial in this action. Because the parties had stipulated to all relevant facts, and the original plaintiff, Nationwide Union Fire Insurance Company of Pittsburgh, Pa., and defendant, Bonnie L. Binker, had settled their portion of the case, counsel for third-party plaintiff, Binker, and third-party defendant, Travelers I...
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OPINION AND ORDER This matter is before the Court upon the motion of the Defendant, Larry Muldoon, District Director of the Office of Thrift Supervision (hereinafter “OTS”) to Dismiss or for Summary Judgment filed September 28, 1990. Defendant OTS’s motion was submitted the same day with two other filings; namely, a Request for Hearing on Defendant’s Motion to Dismiss or for Summary Judgm...
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MEMORANDUM OPINION AND ORDER This matter is before the court on defendants’ motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The court grants defendant’s motion as plaintiff’s law suit is barred under the applicable statute of limitations. Background Plaintiff, Paul Joseph Abramson, brings this action against his parents, the def...
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ORDER OF SANCTIONS AND PARTIAL DISMISSAL OF DEFENDANT MALONE TRUCKING COMPANY’S CROSS-ACTION Pending before the Court are the numerous Motions to Dismiss and Motions for More Definite Statement made by both the principal Defendants in this litigation, as well as the de minimis Defendants, who were the parties to the Partial Consent Decree executed in August, 1987, which were fi...
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MEMORANDUM OPINION AND ORDER Jeffrey Cagan and Cagan Realty, Inc. (collectively “Cagan,” treated as a singular noun) sues Intervest Midwest Real Estate Corporation (“Intervest”) for Inter-vest’s default on a $2,594,809 promissory note (the “Note”) delivered to Briarbrook Joint Venture (“Venture”) in consideration for the purchase of certain property. 1 Cagan now moves for judgm...
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OPINION AND ORDER Defendant John Kolb seeks an Order dismissing the First Amended Complaint (the “Complaint”) of plaintiff Securities and Exchange Commission (the “Commission” or the “SEC”) on the ground that it fails to state a claim against Kolb upon which relief can be granted and it fails to allege fraud against Kolb with particularity. Fed.R.Civ.P. 12(b)(6) and 9(b). Oral argu ...
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MEMORANDUM AND ORDER On July 25, 1991 this Court ordered the removal of the restriction on Regional Company participation in the information services market but simultaneously stayed the effect of that order pending appellate review. 767 F.Supp. 308. Now before the Court is a motion by the Regional Companies to vacate the stay which, if granted, would allow the Companies to enter the info...
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OPINION Presently before the court, in Civil Action No. 88-0461, are plaintiff’s motion for partial summary judgment on the issue of patent validity, plaintiff’s motion for partial summary judgment on the issue of infringement, and defendant’s motion for summary judgment based on the equitable doctrine of estoppel. 1 1. FACTS AND PROCEDURE Plaintiff, Symbol Technologies ...
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MEMORANDUM AND ORDER On March 27, 1991 plaintiffs commenced this action alleging violations of Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. 1, et seq., Section 4 of the Clayton Act, 15 U.S.C. § 15, et seq., and Section 1983 of the Civil Rights Act of 1964, 42 U.S.C. § 1983. Plaintiffs seek injunctive relief and damages for injury to their business. T...
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ORDER AND REASONS The defendant, Brown & Root U.S.A., Inc., seeks summary judgment dismissing the plaintiffs’ claims for exemplary damages. Having reviewed the briefs and documents submitted by counsel, and the applicable law, the Court GRANTS the motion for the reason that there is no evidence by which a jury could reasonably find that Brown & Root engaged in the storage, handling, or transporta...
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MEMORANDUM AND ORDER By motion filed April 23, 1991, the two remaining defendants in this Title VII employment discrimination suit seek an order striking plaintiff’s jury demand. A hearing was held on June 10, 1991 and the case was marked fully submitted on that date. This constitutes the Decision and Order of the Court. This Court previously issued a memorandum decision dated January 7, 1991, 77...
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OPINION Defendants Ira Rubin and his accounting firm, Krasnow, Cohen, Gaft & Rubin (collectively “Rubin”) and defendants Alfred Wilner and Alfred Wilner, Inc. (collectively “Wilner”) have moved under Rules 9(b) and 12(b)(6), Fed.R.Civ.P., to dismiss the complaint of plaintiffs Browning Avenue Realty Corp. (“Browning”) on behalf of the joint venture Cross County Square Associates (the “joi...
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ORDER AND REASONS This matter came before the Court on the plaintiffs’ motion for preliminary and permanent injunction. By stipulation the parties requested that the Court advance the trial on the merits and consolidate that trial with the hearing on the preliminary injunction. Also, by agreement the parties stipulated that this matter would be bifurcated insofar as the facial constitutio...
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ORDER AND REASONS Before the Court is the Motion for Summary Judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, filed by the defendant, Texaco, Inc. (“Texaco”). After reviewing the motion, memoranda of counsel, the record, and the law, this Court grants the motion for the reasons set out below. FACTS On June 28, 1989, the plaintiff, Elwin Axon, was injured ...
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OPINION AND ORDER Plaintiffs, New Jersey and Pennsylvania milk producers, bring these actions for declaratory and injunctive relief under 42 U.S.C. § 1983 and the Commerce Clause of the United States Constitution, Article I, Section 8, Clause 3. Defendant Richard McGuire, Commissioner of the New York State Department of Agriculture and Markets (“the Commissioner”), moves in both actions pursuan...
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MEMORANDUM In this action on a homeowner’s insurance policy, defendant Allstate Insurance Company is alleged, in count two, to have acted in bad faith in denying coverage for plaintiff’s property damage claim. 42 Pa. C.S.A. § 8371. 1 Defendant moves to dismiss this count, asserting that § 8371 cannot be applied retroactively, is unconstitutionally vague, and violates due proces...
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DECISION AND ORDER On June 8,1990, plaintiff Home Indemnity Company (“Home Indemnity”) commenced this breach of contract action against defendants Farm House Foods Corporation (“Farm House”) and Diana Corporation (“Diana”), alleging that the defendants owed Home Indemnity $629,935.02 in insurance premiums. On July 30, 1991, this court issued a decision and order granting partial summary j...
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ORDER ON MOTION TO DISMISS OR TO STRIKE This matter comes before the court on the Defendants’ Motion to Dismiss or to Strike (DE 3). Having reviewed the record, the memoranda of counsel and relevant authorities, the court enters the following order. BACKGROUND On March 28, 1991, the Plaintiff, Anita Thomas (“Thomas”), commenced this action in the Circuit Court of the Fifteenth J...
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DECISION AND ORDER On May 17, 1988, the defendant in the above-captioned action (along with another individual) was charged in a two-count indictment (1) with having knowingly and willfully conspired to distribute and possess with the intent to distribute cocaine and (2) with having knowingly and intentionally possessed with intent to distribute cocaine. A jury trial was commenced on May 28, 1991;...
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ORDER This matter is before the court on the following motions: 1. Defendant’s motion for a judgment notwithstanding the verdict under Federal Rule of Civil Procedure 50 or in the alternative for a new trial pursuant to Federal Rule of Civil Procedure 59; and 2. Plaintiffs’ motion for costs and attorneys’ fees pursuant to 15 U.S.C. § 15(a), D.Minn. LR 54.3(b) and the judgment of...
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DECISION AND ORDER The defendants, as “prevailing parties”, have filed motions for an award of attorney’s fees and sanctions under Rule 42 U.S.C. § 1988 and for sanctions under Rule 11, Federal Rules of Civil Procedure. The frivolous nature of the plaintiff's claims warrants an award against the plaintiff of attorney's fee under § 1988; the plaintiff's pre-filing investigation as to both the law a...
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MEMORANDUM Currently pending before this Court is plaintiff’s motion for summary judgment on all counts of her Amended Complaint. Also pending is defendant’s motion to dismiss plaintiff’s claims for unjust enrichment, action to quiet title and conversion, or in the alternative, for partial summary judgment on those counts. The relevant counts will be considered in turn. 1 Facts Plaintiff ...
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*373 ORDER Before the court is defendants Premier Crown Corporation (“Premier Crown”) and Sirchie Finger Print Laboratories, Inc.’s (“Sirchie”) motion for summary judgment. 1 After careful consideration of the briefs of counsel and the record as a whole, the court hereby issues the following findings of undisputed material fact and conclusions of law. UNDISPUTED M...
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AMENDED RULING ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT Pending before the court are plaintiffs’ Motion for Partial Summary Judgment (filed Dec. 5, 1990) and plaintiffs’ Supplemental Motion for Partial Summary Judgment (filed Mar. 13, 1991). After hearing extended oral argument, the court rendered an oral ruling on both motions. Here follows a written ruling substantially in the same form ...
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DECISION AND ORDER Presently before the court is the defendant’s “Motion To Try The Case To The Court,” filed on July 19, 1991. In the underlying action, the plaintiff, Dean Ahonen, alleges handicap and reprisal discrimination in violation of 29 U.S.C. § 701, et seq. The defendant in this action is Anthony M. Frank, in his official capacity as the Postmaster General of the United States Posta...
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DECISION AND ORDER Before the court is a “Motion To Quash Subpoena And For Protective Order,” filed on Monday, July 22, 1991, on behalf of Julie A. Monnier. According to the file, a notice of deposition and a deposition subpoena were served on Thursday, July 18, 1991, by claimant, Harry Kaufmann, upon Julie A. Monnier, who is neither a party nor a claimant in this forfeiture action between the Uni...
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MEMORANDUM OPINION AND ORDER I. Introduction Plaintiff American Life and Casualty Company (“American Life”) is an Iowa corporation with its principal place of business in Des Moines, Iowa. Defendant and third-party plaintiff First American Title Company of Utah (“First American”) is a Utah corporation with its principal place of business in Salt Lake County, Utah. First American ...
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OPINION AND ORDER The plaintiffs have filed suit under 42 U.S.C. § 1983 against the defendants, Shawano County, Walter E. Schardt, Donald J. Krueger, William J. Mott and Thomas G. Turna. 1 The plaintiffs seek monetary damages for the suicide-death of Peter J. Lamczyk while he was in the defendants’ custody in the Shawano County Jail. The defendants have moved for summary judgme...
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ORDER Codefendants Jorge Gomez Olarte, Alfonso Alvarado Molina, and Alexander Ro*65jano Rangel have filed a motion to sever their trial from that of codefendant Joaquin Cardona, pursuant to Rule 14 of the Federal Rules of Criminal Procedure. A trial judge has complete discretion in considering severance under Federal Rule of Criminal Procedure 14. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158,...
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MEMORANDUM AND ORDER This court must now comply with the mandate of the United States Court of Appeals For the Seventh Circuit in the reported decision of Clark v. Duckworth, 906 F.2d 1174 (7th Cir.1990). Specifically, Part IV of Judge Cudahy’s opinion at pages 1178-79 states: This conclusion, however, should not be read to suggest that Clark has defaulted all of his habea...
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RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Petitioner Eric N. Person, who is currently serving two concurrent ten-year terms of imprisonment at the Connecticut Correctional Institution at Somers, has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254, arguing that he is currently in state custody in violation of his constitutional right to due process. On January 26, 1988, a judg...
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OPINION AND ORDER This is an action alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., with pendent claims for breach of contract, accountant malpractice, breach of *200 fiduciary duty, fraud and conversion. The action, filed in state court on October 26, 1990, was removed to this Court in November 1990...
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MEMORANDUM AND ORDER Plaintiff Yera, Inc. (“Vera”) commenced this action in admiralty, naming the vessel “Dakota”, its engines, tackle and fixtures, its registered owner, William Deakin, and Anthony Mangone, an individual alleged to have a financial interest in the vessel as defendants (individually “the Dakota” or “vessel", “Deakin”, “Mangone”, and collectively the “defendants”). The foc...
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OPINION Following a quick jury verdict in their favor, after several years of incredibly fractious litigation and the denial of the plaintiffs’ motion for a new trial, all of the defendants now move for attorneys’ fees and sanctions pursuant to: (1) Rule 11 of the Federal Rules of Civil Procedure; (2) Federal Fair Housing Act, 42 U.S.C. § 3613(c); (3) 28 U.S.C. § 1927; and the general powers of t...
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OPINION AND ORDER Plaintiff Oscar Armando Sastre Gay was dismissed from his employment on June 30, 1989, at age sixty-one (61). He claims that the action was taken against him on the basis of his age in violation of Puerto Rico’s anti-discrimination statute. Two issues are currently before us. First, plaintiff wishes to amend his complaint to include a cause of action under the Federal Ag...
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MEMORANDUM OPINION AND ORDER On May 6, 1991 this Court issued its oral ruling granting the motion of defendant Camilo Testa (“Testa”) to strike from Count Six of the indictment in this case the references to Theodore Roosevelt Senior High School and 21 U.S.C. § 845a (“Section 845a”). 1 On June 5 the United States filed a motion for reconsideration of that ruling, and this brief memorandum opi...
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OPINION Background of Litigation This cause was tried to the court as a non-jury matter. The suit involves claims by plaintiff Mod-Form, Inc., as subcontractor, against defendant Barton & Barton Company, the general contractor on a project for the remodeling of a stair tower building at the U.S. Army Detroit Arsenal. The claims are made under the Miller Act, and are governed...
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OPINION AND ORDER The defendants’ motion to dismiss the amended complaint in this case raises the issue of whether the defendants’ alleged fraudulent activity as trial counsel for the plaintiff’s attorney-decedent in tort litigation is sufficient to state a claim for relief under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. Taking the allegation...
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OPINION AND ORDER Plaintiffs filed this action to enjoin the United States Fish and Wildlife Service from introducing chemical lampricides into the waters feeding into Lake Champlain. This court denied plaintiffs’ motion for a preliminary injunction in an opinion issued on October 2, 1990 and reported at 747 F.Supp. 1094. The relevant factual background and statutory scheme are set forth ...
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*464 DECISION AND ORDER In a Memorandum and Order dated August 8, 1990, the Court denied petitioner Carlton Walker’s (“Walker”) motion for a writ of habeas .corpus pursuant to 28 U.S.C. § 2254. Walker now requests that the Court reconsider its decision and rule, as well, on an additional claim raised in an addendum filed on June 1, 1990. In his addendum, Walker argues that the prosecutor an...
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MEMORANDUM OF DECISION Plaintiff Bank One Texas (“Bank One”) holds two notes executed by defendant Leaseway Transportation Corporation and various of its subsidiaries (“the Companies”) for a face value of $15 million. It alleges that the Companies are in default and currently owe past due principal of $1,499,999.90 on the term loan and $1,758,-287.64 on the revolving credit loan.1 Plaintiffs have...
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OPINION Presently before the court is the appeal of Security Savings Bank, S.L.A., from the April 30, 1990 order of the United States Bankruptcy Court. *435 I. FACTS AND PROCEDURE Cheryl M. Carr, appellee in this matter (“debtor”), filed for bankruptcy protection under 11 U.S.C. Chapter 13 on September 21, 1988. Debtor’s plan proposed to pay appellant, a secured credito...
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OPINION Plaintiff Victoria de la Mata Mendoza seeks (a) the recognition and enforcement of a Bolivian money judgment against defendant American Life Insurance Company (“ALICO”) and (b) punitive damages for defendant’s alleged bad faith refusal to provide payments under certain insurance policies. Currently before the court are (a) cross summary judgment motions on the *1377recognition claim and (...
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ORDER ACCEPTING MAGISTRATE’S 17 JULY 1991 REPORT AND RECOMMENDATION IN PART AND REJECTING IT IN PART INTRODUCTION AND BACKGROUND Plaintiff, an African-American, claims that he was denied access to certain magazines because of his race and the race of the nude women depicted in the photographs contained in the magazines. He further claims that white inmates were given access to the same magazines. ...
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ORDER DENYING MOTION TO PROCEED TO TRIAL IN ABSENTIA THIS CAUSE came before the Court upon the government’s Motion to Proceed to Trial against defendants Olivera and Va-sallo in their absence. Both defendants have failed to appear and are fugitives in the instant action. BACKGROUND On July 20, 1990, defendants Olivera and Vasallo and numerous codefendants, were indicted on various narcotic offense...
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MEMORANDUM and OPINION This matter is before the Court on debtor Rudolph Klenosky’s (“Klenosky”) appeal from an order of the bankruptcy court, Judge Marvin A. Holland, dated October 11, 1990, converting Klenosky’s Chapter 11 case to a case under Chapter 7 (the “Order”). 1 On February 15, 1991, Judge Holland denied Klenosky’s motion to vacate the Order. Klenosky argues that this...
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This action is brought under 42 U.S.C. § 405(g) to review the final decision of the Secretary of Health and Human Services [the Secretary] finding claimant “not disabled” under the Social Security Act [the Act] and denying him Supplementary Security Income [SSI]. Currently pending is defendant’s motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. C...
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MEMORANDUM DECISION Defendant has filed objections to the report and recommendation of the Hon. James C. Francis IV, United States Magistrate Judge, dated June 24, 1991. In this action, the plaintiff sought review of a determination by the defendant that denied her request to waive recovery of an overpayment of Supplemental Security Income benefits. The Magistrate Judge recommended that the mat...
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MEMORANDUM OPINION By its complaint, Zurn industries seeks to recover funds allegedly owed by several insurers under various excess insurance policies. The insurers, American International Underwriters Corporation (AIU), American Home Assurance Company (American), and Granite State Insurance Company (Granite), (collectively “the Insurers”), have filed their own complaint seeking a declaratory jud...
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ORDER ON SECTION 2255 MOTION On December 28, 1990, James Michael Milliken filed a motion under 28 U.S.C. § 2255 attacking the 15-year sentence imposed upon him March 2,1990 following his guilty plea to a one count indictment brought under 18 U.S.C. § 922(g). Defendant’s sentence of 15 years was the minimum pursuant to the provisions of 18 U.S.C. § 924(e)(1) and was adjuged against him in accord...
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MEMORANDUM-DECISION AND ORDER BACKGROUND This action was commenced in November, 1980 by the Cayuga Indian Nation of New York. On November 9, 1981, this court granted the motion brought by the Seneca-Cayuga Tribe of Oklahoma to intervene in this action. The plaintiffs (or the “Cayugas”) seek a declaration from this court concerning their current ownership of and right to possess a tract of lan...
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MEMORANDUM OPINION AND ORDER GRANTING MOTIONS TO DISMISS THIS CAUSE came before the Court upon defendants’, Fort Lauderdale Housing Authority (“FLHA”) and Department of Housing and Urban Development (“HUD”), Motions to Dismiss, filed November 15, 1990 and December 12, 1990. The Court has considered the motions, responses and replies thereto, and the pertinent portions of the record, and heard o...
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OPINION Rohm and Haas Company (“R & H”) brought this action against Brotech Corporation (“Brotech”) alleging that Brotech has willfully infringed four patents owned by R & H. While this Court has yet to confront the underlying patent issues involved in this case, since the time this suit was filed in March, 1990, every issue raised has been violently contested, and every step of this liti...
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DECISION and ORDER On November 11, 1990, the plaintiff, who is currently incarcerated at the Waupun Correctional Institution, filed this action against several officials at the Milwaukee county jail, where he had once been incarcerated. The complaint (which has been amended) alleges, among other things, that the plaintiff suffered a severe injury to the nerves and tendons of his left thumb and tha...
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MEMORANDUM AND ORDER Plaintiff, a computer programmer employed by the New York City Human Resources Administration [“HRA”], brought this action pursuant to: 42 U.S.C. §§ 1981, 1983 and 1985; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-l; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5; the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); the first, eighth and...
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MEMORANDUM AND ORDER After their initial appearance before the court on December 12, 1990, the defendant Gambino was released on bail and the other three were detained pending a bail hearing to be held on December 17, 1990. Shortly prior to that hearing, counsel for the detained defendants submitted a written request that the bail hearing be held in camera. To afford the representatives of th...
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ORDER Robert Ades, plaintiff, and Lee Ades, defendant, are brothers.1 Until 1986 they were in business together, owning and operating Ariela Inc., a clothing manufacturing concern in Puerto Rico. In 1986 Robert sold all his shares of Ariela stock back to the company and set out on his own, attempting to found and operate other enterprises. Robert’s endeavors were less than successful. Lee, in the ...
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OPINION AND ORDER On June 12 and 13, 1991, plaintiffs Pepe (U.K.) Ltd. (“Pepe (U.K.)”) and Pepe Clothing (U.S.A.) Inc. (“Pepe (U.S.A.)”) made ex parte applications for a seizure of T-shirts bearing the trademark PEPE. The items to be seized duplicated the appearance of various designs on T-shirts sold by plaintiffs. These were manufactured and/or sold by the defendants Ocean Vi...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT This cause is before the Court upon Defendants’ Motion for Summary Judgment. The Court, after consideration of the motion, the brief in support of the motion, the response, and cases related thereto, finds that this motion should be denied. STATEMENT OF FACTS The Federal Savings and Loan Insurance Corporation (the “FSLIC”) was appointed ...
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ORDER ON MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL The defendant has filed a Motion to Disqualify Plaintiff’s Counsel or in the Alternative for a Protective Order. Defendant alleges in its motion that counsel for the plaintiff, who has filed claims of sexual harassment and retaliation, has undertaken certain ex parte contacts with Dave Shreve, formerly employed by the defendant as plaintiff’s ma...
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MEMORANDUM I. BACKGROUND Plaintiffs commenced this diversity action on November 17, 1989 against numer *748 ous defendants. On March 19, 1990 defendants St. Joseph’s Hospital; the board of directors of St. Joseph’s Hospital; Sister Jean Coughlin, IHM, administrator of St. Joseph’s Hospital; the St. Joseph’s Foundation; and the board of directors of the St. Joseph’s Found...
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MEMORANDUM OPINION AND ORDER DENYING PETITIONER’S AMENDED PETITION FOR WRIT OF HABE-AS CORPUS PURSUANT TO 28 U.S.C. Section 2254 sitting by designation and appointment. This matter came before the court on Petitioner Ronald Leroy Kennedy’s “Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254” filed by and through his court-appointed attorney, Mr. Daniel G. Blythe,...
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ORDER The Court has before it defendant’s request that Dr. Agustín Garcia, a clinical psychologist be qualified as an expert in this case pursuant to Federal Rule of Evidence 702, in order to testify about the effects of drug use on the memory of a number of government witnesses. Federal courts which have accepted the testimony of expert witnesses regarding the effect of drugs upon the credibility...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This action arises from an alleged breach of contract. Plaintiff has moved for summary judgment on Count I of the complaint, which seeks specific performance of the contract. Plaintiff did not respond to the motion as required by Local Rule 19(b)(2) and (c). A motion for summary judgment must be granted if: [T]he pleadings, depositions, a...
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OPINION This case presents the question of whether a student should have been admitted to the National Honor Society chapter of his high school. As federal rights protected by both the first and the fourteenth amendment have allegedly been violated, this court must reluctantly project its opinion into a dispute distinctly within the realm of local educational authorities. BACKGROUND ...
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MEMORANDUM OPINION This case was brought on for trial before the court to resolve one issue: whether the Little Missouri River was navigable when North Dakota was admitted to the union and thus became a state in 1889. Under the Equal Footing Doctrine, title to the beds of those rivers which were navigable at the time of statehood passes to the state upon its admission to the union. Title to the b...
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CORRECTED OPINION AND ORDER INTRODUCTION On December 18, 1990, a jury convicted the defendant Paul Padilla of conspiring and attempting to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B) (Counts One and Two); forcibly assaulting and resisting Special Agents John Henderson, Nicholas Maggio, and Rene Robinson of the Drug Enforcement Administrat...
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OPINION This is an action to quiet title to certain real property pursuant to Title 28 United States Code Section 2409a(a). The real property in question is described by defendant United States of America as Tract 39, T. 26 N., R. 10 W., Michigan Meridian, Michigan (“Tract 39”). It is an island approximately .9 acres in size located in Arbutus Lake in Northern Michigan, known locally as H...
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This matter comes before the Court on Defendant Robert R. Davila’s motion to dismiss, Plaintiff Metropolitan School District of Wayne Township’s motion for summary judgment, and on Defendant Robert R. Davila’s cross motion for summary judgment. For the following reasons, Robert R. Davila’s motion to dismiss is denied, Metropolitan School District of Wayne Township’s motion for summary judgment ...
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MEMORANDUM OPINION AND ORDER By order dated March 7, 1991, attached as Appendix A, I granted the motion for summary judgment filed by plaintiff Resolution Trust Company (the RTC) and found defendants liable on a promissory note (the note). The RTC now moves for sanctions under Federal Rule of Civil Procedure 11 and 28 U.S.C. section 1927, and attorney fees under the terms of the note. In ...
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ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the First Amended Complaint, all of the records and files herein and the attached Reports and Recommendations of the Magistrate Judge. Objections to the Report and Recommendation have been filed herein. Having made a de novo de...
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ORDER I. INTRODUCTION These motions came on for hearing before the court pursuant to Local Rule 410-2(a), providing for review of nondispositive pretrial matters originally determined by a magistrate. In the instant case, plaintiff Robert D. Teasdale, M.D. (“plaintiff”) moves the court to reverse an order of Magistrate Judge Claudia Wilken denying plaintiff’s motion to compel production of certai...
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OPINION I. Introduction. On April 9, 1991, the grand jury sitting at Scranton returned a two-count indictment charging Gene Allen Herrold with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) and 924(e)(1) and with possession of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). On April 26, 1991, Herrold appear...
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OPINION This action was filed by plaintiff against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.A. § 1346(b) & §§ 2671 et seq., seeking recovery for injuries she allegedly suffered during one or more surgical attempts by United States armed forces’ medical personnel to correct a ptosis, or drooping eyelid, in her left eye. The United States has filed a motion to di...
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Our return to this case is prompted by the motion of defendant Robert Durnan for summary judgment on plaintiff Ramon Ospina’s two remaining claims. As explained in detail in our October 31, 1990 opinion, Ospina asserts that Durnan applied excessive force to Ospina’s wrist during an otherwise lawful arrest. He first claims that this alleged transgression violated his right to freedom from excessive...
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ORDER ON MOTIONS This cause is before the Court on the following: Dkt. 106 Order to show cause before 7/21/87 why this case should not be dismissed for lack of prosecution. Dkt. 107 Response to the Court’s order to show cause why this case should not be dismissed for failure to prosecute by Plaintiff. Dkt. 108 Motion for attorneys’ fees and costs by Plaintiff, filed October...
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MEMORANDUM OPINION This class action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, challenging the procedures governing admissions and discharges at Kentucky’s Mental Retardation Residential Treatment Centers [hereinafter “MRRTCs”] is submitted to the Court on plaintiffs’ motion for summary judgment and preliminary injunction. For the reasons set forth below, the Court will enter ...
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This suit was filed by plaintiff Karr against various State and Delaware Army National Guard (“DEARNG”) officers (the “State defendants”) asserting, among other things, violation of Karr’s constitutional rights in connection with his involuntary separation from the Active Guard/Reserve (“AGR”) program. On August 31, 1990, the court issued an opinion (“August 31 Opinion”) resolving the parties’ ...
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OPINION Plaintiff E.P. Lehmann Company brings this action for tortious interference with business relations and related claims against defendants Polk’s Modelcraft Hobbies Inc. and its president, Lewis Polk, seeking damages and injunctive relief. Defendants move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss certain of Lehmann’s claims. The motion is denied. The Complaint The foll...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT This cause is before the Court on both parties’ motions for summary judgment in an appeal from an administrative decision rendered by the Health Care Financing Administration (HCFA). I. BACKGROUND Plaintiff, Morton Plant Hospital, is a 745-bed acute care, non-profit hospital. Plaintiff, a participant in the Medicare program administered by Defendant, claims t...
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MEMORANDUM — DECISION AND ORDER BACKGROUND In January, 1989, the New York State Department of Environmental Conservation (“NYDEC” or “EnCon”) commenced these four consolidated actions in New York State Supreme Court against the United States Department of Energy (“United States”), as representative of ten federal facilities located in New York State which have been underpaying certain regulatory ...
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ORDER ON APPEAL This cause comes before the Court on appeal from Defendant’s conviction on three counts of willful failure to file an income tax return. By agreement of the parties, the jury trial was held before United States Magistrate Judge Paul Game, Jr. I. BACKGROUND On April 25, 1989, this case was commenced with the filing of a three count indictment against Defendant alleging willful failu...
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ORDER ON MOTIONS This cause comes before the Court on three motions filed by Plaintiff, Practice Management Associates, Inc. Plaintiff has filed a Motion to Strike Defendant’s Plead*149ings, a Motion to Remand, and a Motion for Rule 11 Sanctions. The Court will consider each of these motions in this order. I. BACKGROUND This case concerns a contractual dispute between the parties. Defendant, Patr...
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ORDER This cause is before the Court on an appeal from the Bankruptcy Court’s order *595 sustaining the objection of Uiterwyk Corporation, the Debtor, to claim # 1010 filed by Backer Navid and disallowing the claim. The claim is in the amount of $1,150,256 and is based on civil theft and conversion of $383,418.72, plus pre-petition interest and attorneys’ fees. The appellant,...
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ORDER ON APPEAL This cause comes before the court on appeal from a ruling of Chief Bankruptcy Judge Alexander L. Paskay of the Middle District of Florida. Appellant/Creditor Joel A. Schleicher appeals from the Bankruptcy Court’s award of $177,766.67 in his favor, alleging a series of errors in the disallowance of certain claims and the calculation of damages. I. BACKGROUND On Ju...
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*153OPINION AND ORDER Plaintiff, a Vermont resident, brought suit in Vermont state court alleging breach of contract and misrepresentation relating to the possibility of his obtaining a franchise for a Domino’s Pizza outlet. Defendant had the case removed to this Court on diversity grounds and now moves for dismissal or, in the alternative, transfer of venue to the Central District of California a...
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*147ORDER ON MOTION TO DISMISS FOR FAILURE TO JOIN INDISPENSABLE PARTIES This cause is before the Court on Defendant’s motion to dismiss for failure to join indispensable parties filed June 3, 1991 and response thereto filed June 20, 1991. Defendant states that Jennifer Jill Hughes (Hughes) and Pension Benefit Guaranty Corporation (PBGC) are indispensable parties to this action. Defendant claims t...
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MEMORANDUM OPINION This case is before the court on motion for summary judgment filed by defendants Marvin Runyon and John Waters, as Directors of Tennessee Valley Authority. Pertinent Undisputed Facts Between March and June of 1987, TVA posted two notices of vacancies, Vacancy Announcement Number TLBFN-28 (VA-28) and Vacancy Announcement Number TLBFN-29 (VA-29), which were ...
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ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT This cause is before the Court on motions for summary judgment filed by all the parties. Defendant Agrico Chemical Company (Agrico) filed its motion for summary judgment and statement of uncontested material facts on August 23, 1990. Plaintiffs Jack W. Hurley, (Hurley), International Chemical Workers Union, (ICWU), and International Chemical...
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ORDER The Court has before it an allegation of juror misconduct. Federal Rule of Criminal Procedure 24(c) provides that: “alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.” It is well settled law that “it is within the trial judge’s so...
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ORDER This matter comes before the Court on the motion of the defendant, Norfolk Shipbuilding and Drydock Corporation (Norshipco), for summary judgment, and on the motion of the third-party defendant, Industrial Marine Service, Inc. (IMS), to dismiss Norshipco’s third-party complaint for lack of subject matter jurisdiction. Norshipco’s motion presents the question whether an injured worke...
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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”) and several Village officials and police officers alleging that defendants retaliated against Bennett, including selectively prosecuting him, in violation of Bennett’s constitutionally protected right to freedom of expression. Defendants Village...
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Pending is the application of the attorneys for intervenor-plaintiffs Afro-American Police Association, et al. (“intervenors”), for attorneys’ fees and related expenses from defendant City of Buffalo (“City”). In support of the application, the intervenors have submitted affidavits with exhibits of Paul C. Saunders, Esq. (Items 355, 359), and of Richard T. Seymour, Esq. (Item 354). In oppositio...
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OPINION AND ORDER Plaintiffs are the widow and three children of Angel Negrón. Negrón received a blood transfusion at a Veterans Administration hospital in San Juan, Puerto Rico, in April of 1981. He tested positive for AIDS in June of 1988, and died on August 8, 1988. In the vague complaint filed in this action, plaintiffs allege that 1) the defendant was negligent in giving Negrón a transfusi...
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OPINION AND ORDER On June 12, 1986 a tank exploded at the Barceloneta, Puerto Rico plant of Merck, Sharp and Dohme Química de Puerto Rico, Inc. (“Química”). Among those injured was plaintiff Angel Robles Meléndez, an employee of Química. He, along with his spouse, the conjugal partnership constituted by them, and their children, commenced this action against, inter alia, Merck ...
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MEMORANDUM OPINION This case is before the court on the United States’s “Application For An Order Amending The Memorandum Opinion Entered On March 13, 1991.” The court will deny the Application. *202 FACTUAL AND PROCEDURAL BACKGROUND Tim McAfee (“McAfee”) is the Commonwealth’s Attorney for Wise County, Virginia. He is also a Special Assistant United States Attorney for the Western Distric...
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MEMORANDUM-DECISION & ORDER I. Background This action arose out of the merger in 1979 of defendant Great American Industries, Inc. (“GAI”) and defendant Chenango Industries, Inc. (“Chenango”). The plaintiff, Alexander Wilson, was a minority shareholder in Chenango. Wilson is the class representative for minority shareholders on the date of the merger. This court, in Wil...
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OPINION AND ORDER On November 30, 1988, Supply Sergeant Angel Serrano Vargas was waiting for his wife to pick him up from Fort Buchanan, a United States Military installation in Puerto Rico. When she failed to arrive at the agreed upon time, he called home, only to *55 leam that his wife, pregnant, had suffered an accident. Serrano grabbed the key to an “Auto-Sedan Compact”, a government vehi...
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MEMORANDUM OPINION AND ORDER In these consolidated cases, plaintiffs, two cable television program services and trade associations representing cable program services and cable television system operators, assert antitrust claims against the defendant, Broadcast Music, Inc. (“BMI”), in connection with music performing rights licenses issued by BMI. BMI, in turn, along with several affilia...
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MEMORANDUM OPINION Plaintiff filed this action challenging the final decision of the Secretary of Health and Human Services denying plaintiff’s claim for child’s insurance benefits and mother’s insurance benefits under the Social Security Act, as amended, 42 U.S.C. §§ 402(d)(1) and 402(b)(1), respectively. This review is limited to a determination as to whether there is substantial evidence to sup...
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OPINION TABLE OF CONTENTS Facts....................................................................... 672 Discussion.................................................................. 680 I. Discovery-Related and Miscellaneous Motions..................... 680 A. Motion for Statements of Co-Conspirators.................... 680 B. Motion for List of Government Witne...
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OPINION AND ORDER The Court has before it the defendants’ motion for summary judgment based on the fact that the plaintiff’s complaint was time barred under the one year statute of limitations dictated by the relevant Puerto Rico law. This is a civil rights case brought pursuant to 42 U.S.C. § 1983. The plaintiff, Juan Rivera Muriente, claims that he was discharged from his position as Investigato...
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OPINION AND ORDER On December 5, 1990, a jury found defendants Ogilvy & Mather (“O & M”) and Pepperidge Farm liable for copyright infringment, but awarded plaintiff Susan Branch (“Branch”) only nominal damages in the amount of $1. Plaintiff now moves for a judgment notwithstanding the verdict on the issue of damages pursuant to Fed. Civ.Pro. 50(a)-(b). For the reasons set forth below, the...
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MEMORANDUM DECISION AND INJUNCTION I. INTRODUCTION On March 7, 1991, the court entered an order on summary judgment declaring unlawful a proposal of defendants John L. Evans, et al. (collectively the “Forest Service”) to log northern spotted owl habitat *1083 in national forests located in Washington, Oregon, and Northern California without complying with requiremen...
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MEMORANDUM OPINION I. Introduction In Sun Dun of Washington v. Coca-Cola Co., 740 F.Supp. 381 (D.Md.1990), this Court denied in part and granted in part several motions to dismiss filed by the four defendants (the Washington-area bottlers of Coke and Pepsi and their respective licensors (i.e., Coke and Pepsi “headquarters”)) in this antitrust case. In that opini...
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OPINION I. This litigation, in part, is the result of the discovery of oils containing PCBs in the transformer penthouse at an old factory in Muskegon Heights, Michigan. In its complaint, plaintiff Sanford Street Local Development Corporation (“Sanford”) alleges that Textron, Inc. (“Textron”) is responsible for some, if not all, of the response costs under the Comprehensive Environme...
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ORDER How to protect; how to preserve; how to access wilderness? What and whose values are embodied in the concept of wilderness? This matter is before the Court on cross motions for partial summary judgment. The immediate issue is whether there is an alternative to motorized portages at three locations in the Boundary Waters Canoe Area Wilderness (Boundary Waters or BWCAW). The parties agree...
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OPINION AND ORDER This is a civil rights action, brought under 42 U.S.C. §§ 1983 and 1988, in which plaintiff seeks declaratory and injunctive relief from what he considers was his unlawful and arbitrary discharge from the Puerto Rico Air National Guard (PRANG) upon testing positive for the Human Immunodeficiency Virus (HIV). Plaintiff originally moved for a temporary restraining order an...
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OPINION AND ORDER Petitioners Vigilantes, Inc. (“Vigilantes”) and Angel L. Pedrosa, founder and president of Vigilantes, filed this action against respondent officials of the United States Department of Labor (“DOL”) seeking review and an order revoking a Final Decision and Order of the Deputy Secretary of Labor (“Deputy Secretary”) issued on August 2, 1988, as amended on September 6, 198...
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MEMORANDUM Before the court is defendant Marvin Staiman’s motion to dismiss or alternatively for summary judgment. The motion has been briefed and is ripe for consideration. Background1 This case presents a tangled web of facts, contentions, and allegations stretching over a period six years and wending its way into one other case before this court as well as other cases from one coast to the oth...
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DECISION The Alpine Land & Reservoir Company (Alpine) has moved to amend the final decree dated October 28, 1980, 503 F.Supp. 877, to reflect the correct storage capaci*1143ties of four reservoirs: Kinney Meadows (Claim No. 800), Lower Kinney Lake (Claim No. 802), Wet Meadows (Claim No. 803), and Lower Sunset (Claim No. 804). The United States has filed objections. In this action a temporary rest...
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MEMORANDUM AND ORDER Presently before the Court are Defendants’ Partial Motion to Dismiss the Amended Complaint and to Dismiss Richard Levine, M.D.; Plaintiffs’ response thereto; and Defendants’ reply. For the following reasons, Defendants’ Motion is DENIED in part and GRANTED in part. I. BACKGROUND Plaintiffs, Wendy R. Hurst, M.D. (“Dr. Hurst”) and Richard Levine, M.D. (“Dr. Le...
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MEMORANDUM AND ORDER Pending before the Court in the above-captioned case are twelve motions to dismiss filed by fifteen of the nineteen defendants. 1 The issues have been extensively briefed by the parties, and oral argument was had on April 12, 1991. The motions are now ripe for consideration by the Court. I. FACTS The facts of this case, as alleged in Mylan’s First...
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OPINION Plaintiff moves, pursuant to papers filed July 16, 1991, for an order pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to vacate an order filed June 11, 1991, dismissing for failure to prosecute this complaint alleging violations of the Age Discrimination in Employment Act. The motion to vacate under Rule 59(e) is untimely. It was not made within 10 days of entry. Although th...
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MEMORANDUM OPINION AND ORDER I. Background. On the morning of June 27, 1991 an agent of the Federal Bureau of Investigation served twelve “forthwith” subpoenas on six individuals, who herein are collectively referred to as “Respondents.” Two subpoenas were served on each of the six Respondents; each pair of subpoenas was identical. All six Respondents are related and all six ...
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MEMORANDUM AND ORDER This consolidated action is presently before the court on plaintiffs’ motion for sanctions pursuant to Fed.R.Civ.Pro. 11 (“Rule 11”). Earlier today, the court is*48sued an Opinion deciding the parties’ cross-motions for summary judgment, familiarity with which is assumed. See Opinion, Soler v. G & U, Inc., 78 Civ. 6252(CHT) (S.D.N.Y. July 24, 1991). Plaintiffs claim that two ...
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TABLE OF CONTENTS I. INTRODUCTION.........................................................549 II. FACTS AND BACKGROUND.............................................549 A. Parties................................................................549 B. Computers, Computer Programs, and Operating Systems................549 C. Operating System Compatability Components (Interfa...
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MEMORANDUM OPINION AND ORDER GRANTING FINAL SUMMARY JUDGMENT IN FAVOR OF RTC THIS CAUSE came before the Court upon defendant’s, Resolution Trust Corporation, Amended Motion for Summary Judgment, file dated November 1, 1990. On May 9, 1991, this Court heard oral argument on the Motion. 1 After consideration of the motions, responses and replies thereto, and the pertinent portion...
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OPINION AND ORDER Plaintiff Arturo Cora, a United States Postal Service (“Postal Service”) employee and union representative, pro se, filed this action against defendant Anthony Frank, Postmaster General of the United States, alleging a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. Specifically, plaintiff claims that he was denied official tim...
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OPINION One of the demands placed on the federal courts in the last several decades has been to define and determine the fine line between the rights of incarcerated prisoners to receive humane treatment and the entitlement of society to the punishment of, and protection from, those same prisoners. It has been our lot to be deeply involved in several of these controversies. See, Owens-El v. Ro...
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770 F. Supp. 66 (1991) UNITED STATES of America, Plaintiff, v. ONE RURAL LOT, etc., Defendant. Civ. No. RLA 89-0173 (JAF). United States District Court, D. Puerto Rico. August 7, 1991. *67 Miguel A. Fernández, Asst. U.S. Atty., Civil Div., Daniel F. López-Romo, U.S. Atty., San Juan, P.R., for plaintiff. Irma R. Valldejuli, San Juan, P.R., for claimant Alejandro López. AMENDED OPINION AND ORDER[1...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE has come before the Court upon a non-jury trial commencing Thursday, November 15, 1990. The Court hereby makes the following findings of fact and conclusions of law after a one-day bench trial. FINDINGS OF FACT 1. Jurisdiction is conferred on this Court by 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338 and the doctrine of pendent jurisdiction. 2...
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OPINION AND ORDER Plaintiff suffers from dyslexia and has sought unsuccessfully to be employed as a structural firefighter at the U.S. Military Academy, West Point. His application was rejected on the ground that he cannot read at a 12th grade level, a requirement West Point has imposed for hiring structural firefighters. His remaining claims arise under § 501 of the Rehabilitation Act of 1973,...
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OPINION This is an action brought by the United States of America (the “Government”) against Eastern of New Jersey, Inc. and Eastern of New Jersey Terminals, Inc. (collectively, “Eastern”) for injunctive relief and civil penalties pursuant to the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6921 et seq., and the regulations promulgated thereunder. ...
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MEMORANDUM ORDER THIS CAUSE is before the court on Defendants’ Motion to Dismiss Plaintiffs’ *1133 Claims under Florida Statute § 686.201 on the grounds that the statute is unconstitutional under both the Commerce Clause, U.S. Const, art. 1, § 8, cl. 3, and the Privileges and Immunities Clause, U.S. Const, art. IV, § 2, of the United States Constitution. After careful conside...
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OPINION AND ORDER The Court has before it the defendants’ objections to the Magistrate’s Report and Recommendation which recommends that the defendants’ motion to suppress be denied. After reviewing the record in this case and considering the arguments of the parties, we adopt the Magistrate’s Report and Recommendation, with certain modifications, and deny the defendants’ motion to suppress. ...
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MEMORANDUM OF DECISION AND ORDER THIS MATTER was tried before the undersigned from May 14, 1991 through May 17, 1991 without a jury in Charlotte, North Carolina. The complaint alleges that Defendant engaged in unlawful employment practices at its Mecklenburg County, North Carolina facility by failing to hire Claimant Andria Tribble and other blacks on account of their race. See Plai...
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MEMORANDUM OPINION This action involves the interpretation of state and federal regulations implementing 7 U.S.C.A. § 2015 of the Food Stamp Act. The parties have filed cross-motions for summary judgment. This court has jurisdiction over this action pursuant to 28 U.S.C.A. § 1331. PROCEDURAL AND FACTUAL BACKGROUND On November 4, 1988, plaintiff Curtis Wayne Poole (“Poole”) was convicted on ...
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OPINION AND ORDER Pan Am Corporation, et al., debtors and debtors in possession (collectively “Pan Am”) filed a petition for reorganization under Chapter 11 of the Bankruptcy Code (the “Code”) on January 8, 1991. On February 22,1991, Pan Am moved in the Bankruptcy Court for the Southern District of New York, by order to show cause, for an order authorizing it to cure defaults i...
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MEMORANDUM OPINION AND ORDER This case (originally brought against Otis Bowen, then Secretary of Health and Human Services (“Secretary”)) was originally assigned to the calendar of this Court’s then colleague, Honorable George Leigh-ton, who granted summary judgment in Secretary’s favor and against supplemental security income (“SSI”) claimant Edward Nelson (“Nelson”). Our Court of Appeals then...
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MEMORANDUM AND ORDER This case stems from the seizure by United States Customs agents of a vessel used for importing cocaine into the United States. Plaintiffs, the master and crew of the seized vessel, seek maritime liens for wages. In their first amended complaint, they ask the Court to set aside the United States Customs Service’s denial of their wage claims, and to enter a judgment aw...
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ORDER Before the Court is SMA Life Assurance Company’s (SMA) Motion for Reconsideration of our Order of May 24, 1991 which denied a previous request for the issuance of an injunction against the Commissioner of Insurance of Puerto Rico. 764 F.Supp. 7. Plaintiff vehemently requests that the injunction be issued, arguing that otherwise it “will suffer irreparable injury and will be left without an ...
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OPINION AND ORDER These are identical actions alleging misrepresentations and omissions in violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5 promulgated thereunder, violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and common law fraud in connection with the sale of cooperative ap...
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ORDER On July 22, 1991, an evidentiary hearing was conducted in connection with the Emergency Petition for Writ of Habeas Corpus and Request for Injunctive and Declaratory Relief filed on behalf of the Government of Jamaica and adopted by Richard Morrison in his individual capacity. 1 Pursuant to this Court’s Order of July 3, 1991, the parties filed supplemental briefs in advance of the heari...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT The instant case is a wrongful death action brought by plaintiff Jerry Coleman, individually and as husband and next of kin to Terrie Ann Coleman (Coleman), against defendant McCurtain Memorial Hospital (Hospital). Plaintiff asserts two claims for relief: 1) violation of the provisions of the Emergency Medical T...
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MEMORANDUM OPINION AND ORDER Before me are two motions: (1) defendant Douglas County School District REl’s (Douglas County) motion to dismiss; and (2) Douglas County’s motion for a protective order and plaintiff’s motion to compel. Because plaintiff’s amended complaint states a federal claim under 42 U.S.C. section 1983,1 deny the motion to dismiss that claim. Because I decline to exercise supp...
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ORDER ADOPTING REPORT AND RECOMMENDATION This matter comes before the court upon the Objection to the Magistrate’s Report and Recommendation filed by plaintiff, DR. VAL MANOCCHIO (“MANOCCHIO”) (DE 22). Defendants, DR. LOUIS W. SULLIVAN, Secretary of The Department of Health and Human Services, and RICHARD P. KUSSEROW, Inspector General of The Department of Health and Human Services (“HHS”...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This action was instituted by the Equal Employment Opportunity Commission (“EEOC”) under Title VII of the Civil Rights Act of 1964 as amended based on allegations of racial and religious discrimination against Dillard Department Stores, Inc. (“Dillard”), filed by Donald Cowley with the EEOC. Presently before the court is defendant’s Motion for Summary ...
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MEMORANDUM AND ORDER The Court now considers whether or not the retention of plaintiff Elmer “Gerónimo” Pratt in administrative segregation is justified based upon the charges of marijuana trafficking and possession as to which he was found guilty after separate disciplinary hearings. Plaintiff is a maximum security prisoner in the California Correctional Institution at Tehachapi (“Tehach...
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ORDER DISMISSING ACTION AND ENJOINING FUTURE FILINGS The Court, having reviewed the defendants’ motion to dismiss, plaintiff’s motion to stay this action, defendants’ motion to certify plaintiff’s appeal as frivolous, plaintiff’s motion to strike, the Report and Recommendation of Judge John L. Weinberg, United States Magistrate Judge, and the remaining record, does hereby find and order: (1) ...
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MEMORANDUM AND ORDER This matter is before the Court on the motions to suppress evidence and the supplemental motions to suppress evidence filed by defendants, John Upton and Kim Montgomery. The government filed mem-oranda contra both the original motions and supplemental motions, and an eviden-tiary hearing was held December 4, 1990. Afterwards, the parties submitted post-hearing briefs....
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MEMORANDUM AND ORDER Plaintiff brought this action pursuant to Title 45, U.S.C., § 51 et seq., the Federal Employers’ Liability Act (“FELA”). This case is now before the Court upon the motion of defendant and third-party plaintiff Consolidated Rail Corporation (“Conrail”) for summary judgment. In her response to defendant’s motion, plaintiff requests sanctions against defendant Conrail pursuant t...
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*970 MEMORANDUM OPINION AND ORDER This cause is before the Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on Defendant’s Motion for Summary Judgment. Plaintiff has responded to the Motion. The Court, having considered the Motion and Response, together with memoranda of authorities and attachments thereto, now renders the following findings of fact and conclus...
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MEMORANDUM OPINION AND ORDER Plaintiff Sierra Club brings this citizen enforcement action to abate alleged violations of the Resource Conversation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6991i, at the Rocky Flats Nuclear Weapons Plant (Rocky Flats) in Jefferson County, Colorado. The amended complaint alleges that defendant United States Department of Energy (DOE) is managing hazardous ...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the defendants N & N International’s and Sheriff Ali’s motion to dismiss and the plaintiff D.D.J. Development, Ltd.’s request for denial of the petition to removal, which the court shall treat as a motion to remand. A hearing was held on February 28, 1991 on both matters. The court has considered the arguments and briefs subm...
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MEMORANDUM AND ORDER This matter is presently before the Court on defendant’s motion to transfer venue. STATEMENT OF FACTS This action arises from an employment agreement executed by defendant Herb Kimball and plaintiff Midwest Motor Supply Co., Inc., dba Kimball-Midwest in December 1988. Under this agreement Kim-ball became a sales representative for Kim-ball-Midwest in several...
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ORDER Petitioner is in the custody of the Oregon Department of Corrections after conviction in Marion County for two counts of attempted sodomy in the first degree. In this proceeding, petitioner attacks the “adjusted commitment date” the Oregon Board of Parole (Board) used to set his parole release date on the two attempted sodomy convictions. Petitioner directly appealed the order, but the Or...
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OPINION AND ORDER The present action was commenced by plaintiffs, former employees of the Pattin Manufacturing Company Division of defendant Eastern Company, on December 28, 1989. The named defendants are the Eastern Company (“Eastern”), the Eastern Company Pension Plan for Hourly-Rated Employees of the Pattin Manufacturing Company Division (the “Plan”) and Colonial Bank, a trustee of the...
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*1278 MEMORANDUM OPINION AND ORDER This cause is before the court on the complaint of plaintiffs Security Savings and Loan Association (Security Savings), Bailey Mortgage Company (Bailey) and Security Trust Federal Savings and Loan Association (Security Trust) seeking declaratory and injunctive relief. After an October 5, 1990 hearing, this court, by memorandum opinion and order ...
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MEMORANDUM AND ORDER Defendant Second Shipmor Associates (“Second Shipmor”) 1 filed a motion for partial summary judgment on the law to be applied in this case. Having reviewed the memorandum in support, the opposition, and the applicable law, the court finds that state law, rather than federal maritime law, should apply to the merits of this case. BACKGROUND This sui...
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These consolidated actions arise out of the May 22, 1989 closing of the Atlantis Casino Hotel in Atlantic City, New Jersey. Presently before the court is defendants’ motion for summary judgment. The issue presented by this motion, one of first impression, is whether an employer may be subject to liability under the Worker Adjustment and Retraining Notification Act (WARN), 29 U.S.C. section 2101...
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ORDER Defendant Conrad Cafritz has withdrawn his demand for a jury trial on Counts III and V of the Complaint 1 , and joins with Defendant Weil, Gotshal & Manges in expressing a desire for a bench trial on these counts. The FDIC opposes this withdrawal pursuant to Fed.R.Civ.P. 38, and requests that the Court exercise its discretion under Fed.R.Civ.P. 39 in order to reinstate a ...
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MEMORANDUM OPINION Presently before the Court is an appeal of the bankruptcy court’s Order and Memorandum Opinion entered on April 30, 1990. In re Allegheny International, Inc., No. 88-448 (Bankr.W.D.Pa. 4/30/90). For the reasons stated hereafter, this Court affirms the bankruptcy court’s opinion in part, reverses in part, and remands for further proceedings. I. Facts ...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST, SECOND, FOURTH, FIFTH, SIXTH, AND SEVENTH CLAIMS FOR RELIEF I. FACTS AND PROCEDURAL HISTORY The dispute in this case arose in the context of a judicially mandated presub-scription of public pay telephones for long distance service. On October 14, 1988, the United States District Court for the District of Columbia ordered...
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OPINION The facts of this case are set forth in the court’s amended opinion of May 2, 1991, with which familiarity is assumed. Geler v. National Westminster Bank USA, 763 F.Supp. 722 (S.D.N.Y.1991) (Carter, J.). Ida, Israel and Yacof Geler (the “Gelers”) have now moved to amend their complaint against National Westminster Bank USA (the “Bank”) in No. 90 Civ. 6840, to allege fra...
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OPINION Presently before the court is plaintiff’s motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. For the reasons stated hereinafter, plaintiff’s motion is denied in part and granted in part. I. FACTS AND PROCEDURE On May 24, 1990, Quaker Valley Meats, Inc. (“Quaker Valley”) filed a class action complaint in this court. Quaker Valley named as defendants...
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MEMORANDUM This action arises out of the federal Medicaid program, specifically, 42 U.S.C. § 1396a (1983 & Supp.1991) and its implementing regulations. Plaintiffs in this motion contest the change in management minute ranges used to calculate reimbursement payments to Medicaid providers. Plaintiffs have filed this motion for a preliminary injunction to enjoin defendants’ use of the new ra...
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ORDER AND REASONS On June 18, 1990, Eddie W. Pugh, Jr., a deckhand employed by Anthony J. Bertucci Construction Company, drowned when he dove into the Intracoastal Waterway along the Port Allen/Morgan City route to go swimming. On that same day, Bertucci Construction instituted this proceeding as owner of the M/V MISS MARGARET, a towing vessel, seeking to limit its liability to the value of the v...
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This action was commenced in 1983 against two New York State troopers, defendants Weber and Pineau, under 42 U.S.C. § 1983 and under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. The adjudication of the merits of the case has a lengthy procedural history, which culminated on May 3, 1990 with the Second Circuit’s affirmance without opinion of our findings of fact...
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ORDER AND REASONS Before the Court is the third-party defendants’ motion to substitute and dismiss. For the reasons that follow, the motion is GRANTED. I. Facts The plaintiffs, Dr. Kevin Flynn, his nurse, Aurora King and her husband, Edward King, filed suit in state court on April 8, 1991, naming as defendants several physicians employed by L.S.U. and the Board of Supervisors of L.S.U. Th...
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OPINION AND ORDER Defendants move to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil *208 Procedure for lack of personal jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(3) for improper venue, or, in the alternative, to transfer this action pursuant to 28 U.S.C. § 1404(a) or § 1406(a). For the reasons stated below, the action is transferred to the United States...
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770 F. Supp. 585 (1991) GCI 1985-1 LTD., a Colorado limited partnership, Plaintiff, v. The MURRAY PROPERTIES PARTNERSHIP OF DALLAS, and Merry Land & Investment Company, Inc., Defendants. Civ. A. No. 90-B-2039. United States District Court, D. Colorado. August 14, 1991. *586 R. Nicholas Palmer, Palmer & Paoli, P.C., Denver, Colo., for GCI 1985-1 Ltd. Dale A. Gaar, Gulley & Gaar, P.C., ...
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MEMORANDUM AND ORDER I. PROCEDURAL AND FACTUAL BACKGROUND Plaintiff Motors Insurance Corporation (“Motors”) filed the underlying action seeking a declaration of its rights and obligations to defendants Patrick Michael Bodie and Teresa Bodie under an automobile liability insurance policy for an automobile accident which occurred on September 10, 1988 in Calaveras County California. Th...
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ORDER AND REASONS The Court addresses here (1) whether the cross-claimant, Exxon Shipping Company (Exxon), is entitled to an award of prejudgment interest on its property damages claim, and (2) the amount of the marine insurance policy limits provided by INA of Texas on behalf of its insured, Trinity Industries, Inc. I. BACKGROUND This case involves the November 13,1985 explosio...
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OPINION This is a suit by a prisoner seeking information related to himself and eight other individuals pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). 1 *9 Before the Court are cross-motions for summary judgment 2 on whether the Federal Bureau of Investigation (“FBI”) and the Drug Enforcement Agency (“DEA”) properly withheld a number of...
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OPINION In this Privacy Act suit, the privacy interests of the author of a letter are diametrically opposed to the right to access of the subject of that letter. Before the Court is the Motion for Reconsideration filed by the United States Information Agency (“USIA”) pursuant to Fed.R.Civ.P. 60(b). After carefully considering the instant motion, the underlying law, the submissions of the partie...
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ORDER Currently pending are cross-motions for summary judgment. Argument was heard on April 8, 1991 at 2:30 p.m. The Tribe seeks declaratory relief that certain gaming devices maintained on the Spokane Reservation are exempt from state regulation and hence do not derivatively violate federal law. See 18 U.S.C. § 1166. While the parties do not raise a jurisdictional issue, the court i...
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OPINION AND ORDER This is an action arising out of an insurance claim for costs allegedly incurred by plaintiffs in defending a libel suit. The original complaint in this matter asserted a breach of contract claim. Plaintiffs Journal Publishing Company (“Journal”) and Albuquerque Publishing Company (NSL) (“Albuquerque”) now move the Court, pursuant to Fed.R.Civ.P. 15(a), for leave to amen...
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ORDER This matter is before the Court upon motions to dismiss or in the alternative for summary judgment filed by defendants Timothy Ryan, Director of Office of Thrift Supervision (“OTS”), the Resolution Trust Corporation (“RTC”), the Federal Deposit Insurance Corporation (“FDIC”), and Pinnacle West Capital Corporation (“Pinnacle West”). 1 (See Doc. Nos. 8, 11, 13, 14). Plainti...
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ORDER AND OPINION This is a maritime action for damages following a fire aboard a cargo ship. Defendants Ahlers Shipping N.V. and F. Laeisz Schiffahrtsgesellschaft M.B.H. & Co. (the “Moving Defendants”) have now moved, pursuant to Fed.R.Civ.P. 15(a), to amend their answer to add a counterclaim (the “Proposed Counterclaim”) of negligence against plaintiff United Brands Company (“United Brands”). F...
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ORDER This is an action to vacate an arbitrator’s award in a labor dispute pursuant to Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. This matter is before the Court on cross-motions for summary judgment filed by plaintiff The Ficks Reed Company (“the Company”) and defendants Local Union No. 112 of the Internationa] Union, Allied Industrial Workers of America,...
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MEMORANDUM OPINION Plaintiff Universal Health Services of McAllen (“UHS”) brings this action challenging certain regulations promulgated by defendant the Secretary of the Department of Health and Human Services (“the Secretary”). The Secretary responds by arguing that the Court lacks subject matter jurisdiction to review the regulations. As discussed below, the Court finds that it has jur...
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ORDER This case is before the Court on cross motions for summary judgment. The facts in this case are clear and undisputed. The question presented is whether a former trustee can obtain reimbursement for legal fees expended in defense of its actions while trustee of the estate. On December 23, 1982, Oliver W. Reeves and Calhoun First National Bank (“Calhoun Bank”) established an irrevocable trust...
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MEMORANDUM OPINION AND ORDER Does Illinois recognize a cause of action premised upon the unreasonable intrusion upon the seclusion of another? The plaintiff says yes, and the defendant disagrees. The viability of Count IV depends upon which answer is correct. Plaintiff Gary Scott Ludemo claims that while in the employ of defendants George Klein and Current Development Corporation (“CDC”) Lude...
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ORDER AND OPINION This is an action for violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b promulgated thereunder, as well as state law claims for fraud, rescission, and breach of contract and fiduciary duties. On May 29,1991, 765 F.Supp. Ill, this Court granted a motion for summary judgment made by defendants Comstock Gold Company, L.P., United ...
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MEMORANDUM AND ORDER Plaintiff, Marjorie Pazdziora, has brought the instant products liability claim on behalf of her son, Thomas Pazdziora, alleging that defendants’ negligent manufacture of Neo-Mull-Soy, an infant formula, caused Thomas to suffer permanent physical and mental injuries, including speech and learning disabilities. In addition to compensatory damages, Pazdziora seeks punit...
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*106 MEMORANDUM OPINION AND ORDER Plaintiff Gerri Jackson filed suit against the City of Markham, Illinois, Mayor Evans R. Miller, Chief of Police Theodore Clayton, and Markham police officers David Bronnell, I. McDonald and Frank Pence, alleging that defendants violated her rights under the First, Fourth and Fourteenth Amendments to the Constitution by causing and/or effectuatin...
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ORDER ON MOTION FOR SUMMARY JUDGMENT AND MOTION TO DISMISS COUNTERCLAIM This matter comes before the Court upon the Motion to Dismiss Defendant’s Counterclaim and for Final Summary Judgment filed by the Plaintiff, BIRDSALL, INC., as agent for TROPICAL SHIPPING (“BIRDSALL”) (DE 11). BACKGROUND On January 11, 1991, BIRDSALL filed suit against TRAMORE TRADING CO., INC. (“TRAMORE”) ...
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ORDER Pending before the Court are Defendants’ motion to dismiss the original indict *118 ment and a motion to dismiss the superseding indictment. On May 24, 1991, the United States filed a motion to dismiss the original indictment of August 23, 1990, in favor of the superseding indictment. That motion is granted. The original indictment is dismissed. The Court finds that Def...
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ORDER This age discrimination suit filed pursuant to 29 U.S.C. §§ 621 et seq., is before the Court on Defendant’s motion for summary judgment. After reading the hundreds of pages of briefs and examining the voluminous documentary evidence on file with the Court, it is clear that summary judgment is inappropriate in this case. The Defendant, Shaw Industries, (“Shaw”), is a ...
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MEMORANDUM AND ORDER This matter is before the court on the defendant Wendall E. Nicholson’s motion to set terms of release (Doc. 71). The court held a hearing on August 12, 1991. The defendant Nicholson is charged in a two counts of a nine count superseding indictment with conspiracy to distribute heroin and use of a firearm during and in relation to a drug trafficking crime, in violation of 2...
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ORDER This forfeiture action is before the Court on the Motions of Plaintiff, United States of America, and Claimant, Calhoun First National Bank, for Summary Judgment. A second Claimant, Lawrence Timms has responded to Plaintiff’s Motion for Summary Judgment and filed a Motion to Strike Portions of the Plaintiff’s Pleadings. The United States of America (“Plaintiff”) filed a verifie...
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OPINION AND ORDER This is an action asserting numerous claims arising from defendants’ activities in connection with the operation and management of plaintiff Qantel Corporation. Defendants have now moved: 1) to dismiss the amended complaint, 1 pursuant to Fed. R.Civ.P. 12(b)(2), for lack of personal jurisdiction over defendants Christl Niemuller and Goodwood Management Service...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter was presented in a trial to the Court on the twenty-fourth day of June, 1991. The Court, having heard the testimony of the witnesses, having considered the other evidence presented, having heard and considered the legal arguments of counsel, and being fully advised in the premises, hereby enters the following FINDINGS OF FACT AND CONCLUS...
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MEMORANDUM AND ORDER This case involves a dispute among four businessmen and arises from the dissolution of a company they ran, the formation of a new company by two of them, and the settlement of claims asserted against them by their factor. It comes before me on a motion to reconsider my dismissal of their cross-claims asserted against each other. Francis R. Santangelo, Vincent G. Restivo, ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause is pending on plaintiffs’ application for preliminary injunction. The court has conducted an evidentiary hearing. 1 The court will now attempt to bring some ordered legal consideration to an area *1195 which is fully occupied by dialecticians and polemists; each having his or her own brand of contradictory certit...
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ORDER Defendant Bruce G. Livingston moves, pursuant to Fed.R.Crim.P. 35(a), for a correction of sentence. Essentially, he requests that the court modify the amount of restitution he has been directed to pay. The court denies defendant Livingston’s motion for the following reasons. Defendant Livingston was found guilty of sixty-five counts of engaging in a scheme to defraud using the mails and...
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ORDER Currently pending before the court in the above-captioned matter is a motion to dismiss the third and fourth counts of plaintiff Orlando J. Pozzobon’s complaint under Fed.R.Civ.P. 12(b)(6) filed by defendant Parts for Plastic, Inc. The underlying complaint, filed on March 5, 1991, alleges age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 ...
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MEMORANDUM ORDER Petitioner Benship International, Inc. (“Benship”) petitions for an order directing the consolidation of two arbitration proceedings (the “Arbitrations”) between it and respondent Phosphate Chemicals Export Association, Inc. (“Phosphate”). In response, Phosphate has filed a cross-motion also seeking to consolidate the Arbitrations, but naming it, Benship, and the Banglade...
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ORDER Defendant Orlando Nunez petitions this court for a reduction in sentence pursuant to Fed.R.Crim.P. 35(b). Nunez’s motion was filed in accordance with the rule applicable to offenses committed before November 1, 1987. “Rule 35 motions, ... should ... deal either with matters wholly misperceived by the Court the first time around ... or with unforeseen developments occurring since the original...
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ORDER This is an appeal brought pursuant to 28 U.S.C. section 158(a) of the December 26, 1989 Decision of the Bankruptcy Court of the Northern District of California allowing the dischargeability of debts arising out of an accountancy partnership dissolution. Appellant David D. Tobkin contends that the bankruptcy court committed reversible error in ruling that the debts were not nondischargeable ...
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DECISION Plaintiffs, employees of the Black & Decker Corporation, bring this action against the Black & Decker Corporation, Black & Decker (U.S.) Inc., and Black and Decker, Inc., 1 the Plaintiffs’ employer, and against eight members of the Pension Committee which administers the Black & Decker Retirement Plan (hereinafter “the Plan”). Pursuant to Fed.R.Civ.P. 23, Plaintiffs se...
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*931 REASONS FOR JUDGMENT When the pleadings demonstrate that there is no factual issue which could change the result, any party may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). At my first meeting with counsel on the day after the first of these two consolidated actions was filed, I suggested that this case would meet that test. After consideration of motions for judgment on the p...
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ORDER CARL B. RUBIN, District Judge. This matter is before the Court upon motions to dismiss the amended complaint brought pursuant to Rules 12(b)(6) and 9(b) of Federal Rules of Civil Procedure. Defendants American Financial Corporation (“AFC”), Carl H. Lindner, S. Craig Lindner, Ronald F. Walker, and James E. Evans (“Individual Defendants”) joined in a motion to dismiss (Doc. Nos. 3...
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ORDER On January 24, 1990, plaintiff James Crowley filed this suit against the United States of America pursuant to 28 U.S.C. § 1346(b). Crowley claims that physicians practicing at a Veterans Administration Hospital deviated from the applicable standard of care when treating him. A bench trial on his claims took place January 14-16, 1991. Based on the evidence presented at trial, the court makes ...
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MEMORANDUM OPINION I. Introduction Presently before this Court is a motion for costs and attorney’s fees filed pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927 (1982) by defendants Hyatt International 1, S.A., Hyatt Corporation, Hyatt Development Corporation, and Richard L. Schulze (“defendants”). An opposition thereto has been filed by plaintiff The Hilmon Company. Defendants assert that plaintif...
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MEMORANDUM OPINION AND ORDER The court has determined, sua sponte, that the above-styled and numbered action should be remanded to state court due to lack of subject matter jurisdiction. Because of the limited nature of federal court jurisdiction, there is a presumption against its existence. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 23...
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*474 ORDER This matter came before the Court on July 29, 1991, on claimant Bruce R. Morgan’s motion to suppress, and the government's counter-motion to dismiss. Having carefully considered the parties’ written and oral arguments, and the entire record in this matter, the government’s motion to dismiss is denied, and claimant’s motion to suppress is granted in part, and denied in part, for the...
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ORDER This matter is before the court on defendant Indiana Department of Education’s Suggestion of Mootness, filed December 13, 1990. Plaintiffs responded on January 25, 1991, and defendant filed a Supplement on Suggestion of Mootness on February 6, 1991. Defendant argues that this case is moot, because plaintiff Cheryl Merrifield (“Cheryl”) is of an age beyond the maximum statutory age allowed...
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MEMORANDUM The Commissioner of the Massachusetts Department of Revenue (“DOR”) appeals the Bankruptcy Court’s disallowance of a *364meals tax claim. This court has jurisdiction of the appeal pursuant to 28 U.S.C. § 158(a) and Bankruptcy Rules 8001 et seq. I PROCEDURAL HISTORY The proceedings below, before Bankruptcy Judge Carol J. Kenner, began after the debtor, Dorsie’s Steak House, Inc. (the “D...
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DECISION AND ORDER PROCEDURAL BACKGROUND This action involves a dispute between two companies as to their respective liability for clean-up costs for hazardous substances that were deposited at a manufacturing facility in Elmira, New York. Both companies, or their predecessors, had some connection with the premises. There were two agreements, however, with indemnification provisions,...
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MEMORANDUM ORDER This is an action arising out of an insurance claim following the alleged loss of a substantial amount of jewelry. Defendant Hanover Insurance Company has now moved, pursuant to Federal Rule of Civil Procedure 14(a), to implead as third-party defendants Joseph Rizzo and Anthony Riz-zo. For the reasons stated below, defendant’s motion is granted. *54BACKGROUND1 The facts necessary...
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MEMORANDUM OPINION Plaintiff Atlantic Richfield Company (“ARCO”) brings this action to set aside a ruling by the Office of Hearings and Appeals (“OHA”) of the United States Department of Energy (“DOE”). ARCO’s summary judgment motion is opposed by the government defendants and by intervenordefendants the Van Vranken class and Sinclair Oil Corporation. As discussed below, the Court will uphold the ...
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ORDER Before the court is Plaintiffs Pillin’s Place, Inc. (“PPI”) and Tina Lawson’s motion to remand the instant action to the Court of Common Pleas, Cuyahoga County, Ohio, and to order the Defendants, Bank One, Akron, N.A. (“BOA”) and Bank One, Cleveland, N.A. (“BOC”) to pay the Plaintiff’s costs and attorney’s fees. *206 Jurisdiction in the federal district court is allege...
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ORDER AND OPINION RE DISCOVERY Having considered the parties’ written and oral submissions regarding defendant/ counterclaimant, TELEDYNE INDUSTRIES, INC.’s (“Teledyne”) Motion to Compel Discovery, and plaintiff, counter-defendant McCORMICK-MORGAN, INC.’s (“MMI”) motion for a protective order, the court hereby enters the following opinion and ORDER. I. Introduction And Background The disputes add...
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MEMORANDUM AND ORDER Domino’s Pizza, Inc., a defendant in this personal injury suit, seeks a protective order to prevent the plaintiffs from disseminating to others information acquired by discovery in this case. The plaintiffs frankly acknowledge their intent to share the information with others. The parties also dispute the propriety of disclosure of certain information under any circumstances....
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MEMORANDUM OPINION AND ORDER Introduction Plaintiff Federal Deposit Insurance Corporation (FDIC), appointed receiver of the State Bank of Morgan, Minnesota, commenced this action to recover under fidelity bonds issued by defendant Banclnsure, Inc. Plaintiff moves the court to enter summary judgment against two affirmative defenses asserted by defendant as well as defendant’s counterc...
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ORDER This case arises out of a breach of contract dispute between a Missouri contractor and a Georgia limited partnership. Before the Court are cross-motions for summary judgment submitted by the plaintiff, An-tonic Rigging and Erecting of Missouri, Inc. (“Antonie Rigging”), and defendants, Foundry East Limited Partnership (“Foundry East”) and the Mayflower Group, Ltd. (“Mayflower Group”...
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MEMORANDUM This matter is before the Court upon Motion to Remand by the Plaintiff, the Commissioner of the Indiana Department of Environmental Management. The Plaintiff commenced this action in the Clay Circuit Court on October 18, 1989. On October 26, 1989, Defendant Girard Point Transfer Station, Inc. removed the matter to this Court. The basis of the motion to remand is that the Department feel...
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In the above-referenced action, plaintiff Patricia Ferraro (“plaintiff”) originally sought a review of a final determination by the Secretary of Health and Human Services (“Secretary”) which denied plaintiff’s application for disability insurance benefits, pursuant to the Social Security Act, 42 U.S.C. § 405(g). Defendant Louis Sullivan, the Secretary, moves to remand this case for a new hearing. ...
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MEMORANDUM ORDER Before the Court at this time is plaintiff Aetna Casualty and Surety Company’s Motion to Amend Judgment (docket no. 22A), which seeks judgment in Aetna’s favor, notwithstanding a jury’s verdict in favor of defendant State Farm Mutual Automobile Insurance Co. Aetna sought indemnification from State Farm for a claim that it paid under its uninsured motorist’s coverage after State F...
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ORDER Following his arrest for disorderly conduct, Jose Soler filed this lawsuit based on alleged violations of his civil rights. Specifically, Soler accused Arlington Heights police officer Charles F. Waite of using excessive force to effectuate the arrest. The case proceeded to trial. During jury selection, Waite used a peremptory challenge to excuse Wanda Motton, the only black pe...
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MEMORANDUM AND ORDER Petitioner pro se Michael Gonzalez (“petitioner” or “Gonzalez”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied. BACKGROUND I. State Proceedings In 1986, petitioner was convicted by a jury in the Supreme Court, Suffolk County, of robbery in the first degree and is now serving an indeterminate sent...
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MEMORANDUM AND ORDER This cause returns to the court following entry of judgment (and affirmance on appeal) and the defendants’ lengthy period in bankruptcy proceedings on two motions filed by plaintiff-intervenor Supporters to Oppose Pollution, Inc. (“STOP”). STOP has filed a motion to withdraw reference of Matter of Environmental Waste Control, Inc., Bankr.N.D.Ind., No. 89-30...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT LYKES BROS. STEAMSHIP CO., INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT On this day came on for consideration the defendant Lykes Bros. Steamship Co., Inc.’s Motion for Partial Summary Judgment, together with the plaintiff’s response. The court finds that the motion is meritorious and should be granted. NONPECUNIARY LOSS OF SOCIETY, COMPANIONSHIP ...
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MEMORANDUM Presently before me is the motion of the defendants City of Philadelphia and George Hayes to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Document No. 6. I shall dismiss plaintiff’s constitutional claims against both defendants arising out of compelled urinalysis and, in addition, shall dismiss plaintiff’s Firs...
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*389 MEMORANDUM OF DECISION On June 4-6, 1991 a non-jury trial was conducted in the instant case pursuant to Federal Rule of Civil Procedure 39(b). At that time, the court heard the Plaintiff Richard W. Danielson’s claim that the 1983 decision of a selecting officer at the National Aeronautics and Space Administration (NASA) not to promote him discriminated against him on the bas...
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OPINION In Herman Melville’s “Bartleby the Scrivener,” which coincidentally is subtitled “A Story of Wall Street,” the protagonist is asked by his employer to examine a document. Bartleby responds with the familiar refrain, “I would prefer not to.” This continues for a period of time and the employer becomes increasingly more exasperated. Finally, Bartleby is fired. When asked to leave, however...
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ORDER REJECTING MAGISTRATE JUDGE’S RECOMMENDATION This cause is before the court on review of the Magistrate Judge’s (MJ) recommendation that the defendant Williamson-Dickie’s motion for summary judgment be granted (doc. # 28). This case arises under the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. (ERISA). Following a review of the record, the MJ’s ...
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OPINION This case was previously before this Court on the parties’ cross-motions for summary judgment. On February 1, 1991, 771 F.Supp. 1406, the Court issued a Memorandum and Order holding each party liable to the other under the strict-liability provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607.1 Weyerhaeuser was held as an owner...
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OPINION On June 17, 1991, the Government rested its case. After a hearing and arguments of counsel on June 17,1991, defendant then moved for a judgment of acquittal on all counts pursuant to Fed.R.Crim.P. 29(a). The court orally denied defendant’s motions for judgment of acquittal on all counts. On June 13, 1991, the Government moved the court to make its findings pursuant to United...
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MEMORANDUM AND ORDER This cause is before the court on cross-motions for summary judgment filed both by the plaintiffs and the defendants in this cause. The plaintiffs are a class of individuals certified by the court pursuant to Federal Rule of Civil Procedure 23. The named defendants can be separated into two groups, certain officials of the United States Department of Health and Human ...
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ORDER MODIFYING AND ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION This case is before the court on review of the Magistrate Judge’s (MJ) recommendation that summary judgment be entered in favor of the defendant Federal Express on all of the plaintiff’s claims and on defendant’s counterclaim against the plaintiff (doc. # 32). Following a careful review of the MJ’s recommendation and the court record,...
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ORDER ON REMAND I. INTRODUCTION. The United States Supreme Court reversed the Ninth Circuit’s affirmation of this Court’s order that concluded Defendants had not created a limited open forum, and that even if it had, the Equal Access Act by its own terms cannot operate to require activity prohibited under the Washington constitution. On remand, the Ninth Circuit received additional briefs the...
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MEMORANDUM AND ORDER This matter is before the court on the United States’ motion for entry of judgment (Doc. 29). The United States seeks judgment in its favor pursuant to Fed. R.Civ.P. 16(f) and 55 and D.Kan. Rule 213(d) as a sanction for the defendants’ failure to appear at the final pretrial conference scheduled for August 2, 1991. The court record indicates that Magistrate Reid set the final ...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s application for attorney fees under the Equal Access to Justice Act (Doc. 21). Plaintiff requests fees for a total of 30.65 hours at the hourly rate of $150 pursuant to 28 U.S.C. § 2412(b), or in the alternative at the hourly rate of $98.52 pursuant to 28 U.S.C. § 2412(d). The Secretary opposes the request for attorney fees. ...
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MEMORANDUM AND ORDER This matter is before the court on the motion of defendants for summary judgment. (Doc. 24). The action is brought under Title VII of the Civil Rights Act of *1482 1964, 42 U.S.C. §§ 2000e, et seq., 42 U.S.C. § 1983, and state common law. Plaintiff alleges sexual harassment, retaliation, constructive discharge, as well as a due process violatio...
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MEMORANDUM AND ORDER This matter is before the court on the motion of plaintiff (“Sharp”) for partial summary judgment on the issue of liability (Doc. 30). This is a diversity action for breach of contract. I. BACKGROUND The dispute concerns certain purchase orders placed with plaintiff that were allegedly made by defendant (“Lodgistix”) through defendant’s agent — Preferred Technologies, Inc. (“...
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MEMORANDUM AND ORDER Plaintiffs Edgar and Mary Roberson object to the defendant’s notice of removal and move for remand. The court held a telephonic hearing on these matters on August 13,1991 and now, for the reasons that follow, finds that the case must be remanded because it was removed too late. I. On September 18, 1990, the Robersons filed their complaint for damages for bre...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT Plaintiffs Susan and Frank Ferlito, husband and wife, attended a Halloween party in 1984 dressed as Mary (Mrs. Ferlito) and her little lamb (Mr. Ferlito). Mrs. Ferlito had constructed a lamb costume for her husband by gluing cotton batting manufactured by defendant Johnson & Johnson Products ...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ answer, which incorporates a motion for dismissal, and on plaintiff’s response. In this pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983, plaintiff, an inmate housed at the Lansing Correctional Facility, Lansing, Kansas, claims his constitutional rights were violated when he was served undercooked chicken ...
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MEMORANDUM OPINION AND ORDER Plaintiffs Jacque Snyder and Eloise Simon filed these separate wrongful death and survival actions in which they seek to recover damages from ISC Alloys, Ltd. (“ISC”). 1 Plaintiffs allege several theories of liability in their complaint including negligence, strict products liability and breach of warranty. The cases are now before the Court on ISC’...
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OPINION This action concerns the limitations on a party’s ability to institute a citizen suit to challenge violations of the Clean Water Act, 33 U.S.C. § 1251 et seq. (the “CWA”), when state authorities have already entered into two Orders on Consent with the parties responsible for the pollution. I. FACTS The sordid details of this bureaucratic and political nightmar...
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MEMORANDUM AND ORDER This matter is before the court on the plaintiff’s motion for an order reversing the decision of the Secretary (Doc. 16) and the Secretary’s motion to affirm (Doc. 18). This is a proceeding under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Plaintiff filed an application for disability benefits under Title II. Tr. 98-101. The claim was denied initially (Tr. 10...
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OPINION AND ORDER This is a motion to dismiss the third-party complaint by third-party defendant New York Telephone (“NYTel”) for failure to state a claim under the antitrust laws. For the reasons set forth below, NYTel’s motion is granted as to NAI’s claim for common law unfair competition and is otherwise denied. I. Plaintiff American Telephone and Telegraph Company (“AT & T”)...
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ORDER This lawsuit, filed in 1970 on behalf of a class of Alabama funeral homes, has clung to life with a tenacity which, if it could be matched by humans, would undoubtedly have obviated the need for the “burial insurance” that has been the subject of contention in the case for over 20 years. Despite a final consent decree entered in 1977, the cause is now again before the court on a mot...
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MEMORANDUM AND ORDER This matter is before the court on plaintiff’s motion to remand. Doc. 3. This action was originally filed in the District Court of Barber County, Kansas. Defendant removed this action on the basis of diversity jurisdiction. Diversity of citizenship exists between the named plaintiff and the defendant. Plaintiff contends, however, that diversity jurisdiction is not present beca...
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MEMORANDUM AND ORDER This matter is before the court on plaintiffs’ motion to remand. This action was originally filed in the District Court of Barber County, Kansas. Defendants removed this action on the basis of diversity jurisdiction. Diversity of citizenship exists between the named plaintiffs and defendants. Plaintiffs’ claimed damages were less than $10,000. In response to the motion to rema...
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MEMORANDUM AND ORDER The defendants’ motion to dismiss requires the court to determine whether an alleged violation of the Consumer Credit Protection Act, 15 U.S.C. § 1674(a), can form the basis for a claim under 42 U.S.C. § 1983, and whether a Consumer Credit Protection Act violation occurs if an employer discharges an employee due to the prospect of a wage garnishment order, but before ...
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ORDER DISMISSING COPYRIGHT ALLEGATIONS FOR FAILURE TO STATE A CLAIM AND DISMISSING REMAINING STATE-LAW CLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION Introduction In the beginning, harmony prevailed among Bond’s assistants. Danjaq, S.A. (“Danjaq”) produced Bond films and MGM/UA Communications Co. (“MGM”) distributed them. Sixteen Bond films in all, from “Dr. No” to “License to Kill,”...
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MEMORANDUM AND ORDER This matter is before the court on numerous pretrial motions and motions in limine filed by the defendants. 1 On April 12, 1991, the court heard oral arguments on the motions. The above-named defendants have been charged in a 25-count Indictment, issued January 10, 1991. Count 1 charges defendants with a Pinkerton-type conspiracy, see Pinke...
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ORDER Plaintiff initiated this action under the Employee Retirement Income Security Act of 1974 (ERISA). She filed suit on January 30, 1991. Defendants have brought this motion to dismiss alleging that plaintiff has failed to effect timely service on them. Plaintiff contends that she mailed service of the complaint and summons, together with copies of a Notice and Acknowledgement of Receipt of Sum...
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MEMORANDUM AND ORDER This matter is before the court on the following motions filed by the defendant (hereinafter the government or the United States): (1) motion for leave to withdraw admissions (Doc. 66); (2) motion to compel (Doc. 68); and (3) motion to compel compli-anee with court order (Doc. 69). The government has also requested oral argument (Doc. 78). The court does not believe oral argu...
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OPINION AND ORDER This is a civil action for injunctive and declaratory relief brought pursuant to 42 U.S.C. § 1983. Plaintiff was granted leave to proceed in forma pauperis on her claims that the state’s failure to grant her an exemption from mandatory participation in the Aid to Families with Dependent Children work program, and the subsequent reduction in her benefits, violated her right t...
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OPINION AND ORDER Plaintiff Margaret Stoner sues derivatively on behalf of nominal defendant The Equitable Life Assurance Company of the United States against various present and former Officers and Directors of Equitable as well as Strategic Planning Associates, a management consulting firm, for alleged mismanagement and corporate waste. Before commencing this action, plaintiff’s attorne...
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ORDER On April 30, 1991, a jury found in favor of defendants in this discrimination suit filed pursuant to the Equal Pay Act of 1963, 29 U.S.C. §§ 206 and 215(a)(3). Presently before the Court is plaintiff’s motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Plaintiff asserts two reasons for granting either a judgment notwithstanding the verdict or ...
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OPINION Plaintiffs filed this action to recover response costs from defendants pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. The parties have filed cross-motions for partial summary judgment. Plaintiffs seek an order adjudicating defendants jointly and severally liable for contribution for all response...
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DECISION AND ORDER The plaintiff, Elee Brown, has filed an action ostensibly appealing an adverse administrative decision of the Secretary of Health and Human Services. She has filed a petition and affidavit for leave to proceed in forma pauperis. The court will grant the plaintiffs request to proceed in forma pauperis. In order to authorize a litigant to proceed in forma pauperis, the court must ...
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ORDER Pending is the Defendant’s motion to compel deponent Murray Sheet Metal Company, Inc. (Murray) to produce documents pursuant to a subpoena duces tecum. Murray refused to produce the documents based upon work product and attorney-client privileges. The Court concludes that the documents are protected by the work product privilege and accordingly, the Court DENIES the motion of Defendant ...
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770 F.Supp. 500 (1991) CITY OF EUREKA, MISSOURI, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. No. 90-1489C(6). United States District Court, E.D. Missouri. August 22, 1991. *501 Jerome Wallach, The Wallach Law Firm, St. Louis, Mo., for plaintiff City of Eureka. Robert S. Adler, Rothman, Sokol, Adler, Barry & Sarachan, St. Louis, Mo., for City of Fenton. Kay Allison, At...
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MEMORANDUM OPINION AND ORDER Before me are motions to dismiss plaintiffs’ claim under section 10(b) of the 1934 Securities Exchange Act, and Securities Exchange Commission Rule 10(b)—5 (the 10(b) claim). Moving defendants contend that the plaintiffs failed to bring the claim within the applicable statute of limitations period. I agree, and grant the motion. The motions are fully briefed a...
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DECISION AND ORDER RE MOTION FOR PRE-JUDGMENT INTEREST AND JUDGMENT This matter came on for hearing before the Court on the issue of prejudgment interest on August 12, 1991, following a jury trial and verdict for Golden State for $4.5 million. The trial followed the issuance of an opinion by the United States Supreme Court, Golden State Transit Corp. v. City of Los Angeles, 493...
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MEMORANDUM I. Plaintiff, Concord Savings Bank (“Concord”), is a New Hampshire chartered bank. Defendant, Louis Freitas, is a Massachusetts resident. Jurisdiction in this Court is founded upon diversity of citizenship. 28 U.S.C. § 1332 (1966 & Supp.1991). Freitas was co-maker on two notes in favor of Concord, in the amounts of $100,000 and $315,000. Both notes were secured by mortgages on real pro...
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MEMORANDUM OPINION AND ORDER Dahlia Grindle (“Grindle”) seeks judicial review of a final decision of Secretary of *1503 Health and Human Services Louis Sullivan (“Secretary”) denying Grindle’s claim for supplemental security income (“SSI”) benefits under the Social Security Act (“Act”), 42 U.S.C. §§ 416(i), 423 and 1381(a). 1 As is customary in these cases, the parties have filed Fed.R.Civ....
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Arnold Goodridge and his company, New Wave Electronics, Inc. (collectively “Goodridge”), bring this action to recover on contracts between Goodridge and his former company, Components Plus, Incorporated (“Old CPI”), which were assumed by Neboc, Inc., a subsidiary of The Harvey Group, Inc., after Neboc acquired Old CPI. 1 Harvey has presented numerous affirmative defenses and counterc...
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OPINION AND ORDER Plaintiff Securities Settlement Corporation (“SSC”) sues defendant Lucy M. Jachera to recover the value of securities which SSC mistakenly delivered to Jachera’s IRA securities account at the investment firm of Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”). Plaintiff now moves for summary judgment pursuant to Fed. R.Civ.P. 56. As appears below, plaintiff’...
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MEMORANDUM OPINION AND ORDER Pending before the Court is the motion of Defendant Corbin, Ltd. (Corbin) to dismiss this action pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, or in the alternative for summary judgment pursuant to Rule 56. A responsive memorandum of law has been submitted by Plaintiff, Deborah L. Mounts (Mounts), to which Corbin has replied. Accordingly, this matter is...
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MEMORANDUM AND ORDER This matter is before the court on the defendant’s amended motion for specific performance of the plea agreement. The procedural history of this action may be briefly summarized as follows. Defendant William J. Johnson (“defendant”) was indicted on February 13,1991, on one count of being a felon in possession of a firearm, and one count of making a false and fictitious stateme...
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DECISION AND ORDER This law suit arose out of a business misadventure known as the E.A. Doyle Manufacturing Company. Ed Doyle, founder of the company, had a bright idea, an integrated, robot controlled, trim press operation for automated die cast production, but an apparently bad sense of accounting. Consequently, when the defendants invested in Ed Doyle’s company, they got more than they...
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MEMORANDUM AND ORDER This matter is before the court on the following motions: (1) defendant Dara Johnson, M.D.’s motion to dismiss; (2) defendant Lewis Young, Ph.D.’s motion for summary judgment; (3) defendants Winston Barton, A1 Nemec, G.W. Getz, Larned State Hospital and the State of Kansas’ motion for summary judgment; and (4) plaintiff’s motion to set aside and redraw journal entry. ...
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ORDER The instant matter arises from the alleged inadequate medical treatment that the Plaintiff, Willie Gene Harrington, received at certain state correctional facilities within the State of Michigan. On November 15, 1989, Harrington was treated for a recurring problem with the large toe on his right foot by the medical staff at the Health Care Unit of the Charles Egeler Correctional Fac...
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OPINION Plaintiff is a “Circuit Rider.” This is a civil rights action in which Armstrong, a state prisoner, challenges the constitutionality of the Illinois Department of Corrections’ “Circuit Rider” program. That process is an arrangement in which difficult-to-control inmates are transferred *946from segregation unit to segregation unit among the various state prisons. In short, summary judgment...
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ORDER GRANTING DEFENDANT’S MOTION FOR DISMISSAL This case involves plaintiff’s appeal of defendant’s denial of social security disability insurance benefits and supplemental security income. It is undisputed that plaintiff has exhausted all administrative remedies and is in this court for judicial review of the defendant’s final decision. 42 U.S.C. § 405(g) (1988). Before the court is defendant’s...
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OPINION AND ORDER Defendant Highlands Insurance Co. (“Highlands”) moves for sanctions against defendant Fairchild Industries, Inc. (“Fair-child”) for its refusal to dismiss Highlands from this suit. Highlands’ motion for sanctions is granted for the reasons and to the limited extent set forth below. I. The background to this motion is as follows: In or about late 1980 or early 1981, Diggs Sanitat...
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MEMORANDUM Richard Cartwright was a member of the Freight Drivers and Helpers Local 557 Health and Welfare Fund (“the Fund”), and Shirley Cartwright was entitled to coverage as his spouse. Mrs. Cartwright was also covered by CareFirst, a health maintenance organization (“HMO”), owned and operated by HealthCare Corporation of the Mid-Atlantic, Inc. 1 Mrs. Cartwright was a ...
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MEMORANDUM OPINION AND ORDER Petitioners filed this action seeking an order compelling respondent Guy Grider (Grider) to proceed to arbitration. After a trial to court, I granted the petition based on an arbitration clause contained in two fee agreements signed by Grider. McGuire, Cornwell & Blakey v. Grider, 765 F.Supp. 1048 (D.Colo.1991). Before me are respondent’s motion for...
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OPINION AND ORDER James Joy and plaintiff Roger Walther each guarantied a loan made in 1986 by defendant The Bank of New York (“the Bank”) to Real Estate Research Corporation (“RERC”) and each secured his guaranty by pledging shares in AIFS, Inc., a publicly traded company. The security agreements that Joy and Walther each executed in connection with their respective pledges provided that...
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OPINION I. INTRODUCTION Prior to their trial on racketeering and extortion charges, defendants Gaetano Vastola, Elias Saka, and their co-defendants moved, inter alia, to suppress certain electronic surveillance tapes contending that the tapes had not been sealed “immediately” as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Wiretap Act”), as amended, at 1...
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ORDER On April 30, 1991, the Court directed the plaintiff to file a Second Amended Complaint. The Court also directed the parties to advise the Court as to whether the Court could proceed with consideration of the pending dispositive motions as they were then presented, or whether the filing of the Second Amended Complaint required new motions to be filed. On May 28, 1991, the defendants file...
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MEMORANDUM AND ORDER Plaintiff David Gaskell was employed for many years by the Harvard Cooperative Society (the “Coop”). Due to severe illness, he became permanently disabled, 'and, in January, 1988 he resigned from the Coop. Plaintiff Gaskell commenced this action to enforce his rights and those of his spouse, Carolyn Gaskell, to continued health insurance coverage under the Coop’s group heal...
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MEMORANDUM OPINION AND ORDER This matter came before the court for trial on May 7, 1990, and was concluded on May 15, 1990. Many of the factual questions in the instant action were brought into sharp focus by the testimony of numerous witnesses and the submissions of documentary evidence detailing the plaintiff’s allegations and the defendant’s rebuttals thereto. The court, having conside...
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MEMORANDUM OPINION This matter is before the Court on the parties’ cross-motions for summary judgment. Plaintiff American Society of Cataract and Refractive Surgery (“ASCRS”) is a professional society of ophthalmologists who perform cataract surgery. Plaintiff Arthur Donaldson, M.D., is a Board-certified ophthalmologist with extensive experience in cataract surgery. Defendant Louis Sulliv...
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ORDER This matter is before the Court on appeal from a final order of the Honorable Barry S. Schermer, United States Bankruptcy Judge for the United States District Court for the Eastern District of Missouri. In re Apex Oil Co., 111 B.R. 235 (E.D.Mo.1990). Pursuant to Rule 8001 of the Bankruptcy Rules and the provisions of 28 U.S.C. § 158(b)(1), the debtors-appellants and appel...
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*898 MEMORANDUM AND ORDER STATEMENT OF THE CASE The plaintiffs are employees of United Parcel Service, Inc. (“UPS”), and are participants in the New England Teamsters and Trucking Industry Pension Fund (“the Fund”) and in the New England Teamsters and Trucking Industry Pension Plan (“the Plan”). The defendants are the Trustees of the Fund. The law suit has been certified as ...
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ORDER On May 30, 1991, the court entered an order finding defendants in contempt of its order of March 30, 1990 and directing defendants to enter into a contract with BRCA for conducting certain evaluations and preparing plans of corrective action required by §§ 17, 18, and 19 of the environmental plan approved by the March 1990 order. Defendants were required to file an executed contract...
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MEMORANDUM OPINION This action comes before the Court for a hearing on plaintiffs’ application for a preliminary injunction. Plaintiffs, National Information Corp., and KCI Communications, Inc. (“NIC” and “KCI”), seek to enjoin defendant the Kiplinger Washington Editors, Inc. (“Kiplinger”) from using the trademark KIPLINGER’S PERSONAL FINANCE MAGAZINE. Plaintiffs contend that defendant’s ...
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MEMORANDUM OF DECISION AND ORDER PROCEDURAL HISTORY This employment discrimination case, brought by two black women against their white former employer, was tried from February 25, 1991 to March 4, 1991. The claims submitted to the jury included plaintiff Mayse’s claims under the common law: 1) that defendants had terminated Mayse’s employment in bad faith in contravention of the pub...
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MEMORANDUM AND ORDER Pending before the Court are cross-motions for summary judgment filed by the parties in the above-captioned case. Plaintiff has moved for partial summary judgment on the issue of defendant’s liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607 (Supp.1987). Defendant has moved for summary judgment on the ...
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MEMORANDUM Sherwood Medical Company (“Sherwood”) moves for a Judgment Notwithstanding the Verdict (“j.n.o.v.”) under Fed. R.Civ.P. 50 or in the alternative for a new trial under Fed.R.Civ.P. 59. “The question to be resolved when deciding a motion for judgment notwithstanding the verdict is whether there is evidence on which a jury can properly base a verdict.” Lust v. Clark Equ...
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MEMORANDUM OPINION AND RULING GRANTING MOTION FOR SUMMARY JUDGMENT Bhupendra Patel was a guest at the Airport Hilton Inn in Des Moines, Iowa. As Patel exited the shower in his room, he grabbed the handle portion of a soap dish attached to the wall. The soap dish detached, and Patel fell. On August 30, 1990, Bhupendra Patel died from causes unrelated to his fall at the hotel. The co-execut...
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MEMORANDUM OPINION In 1966, Judge Richard T. Rives wrote that, I look forward to the day when the State and its political subdivisions will again take up their mantle of responsibility ... and thereby relieve the federal Government of the necessity of intervening in their affairs. Until that day arrives, the responsibility for this intervention must rest with those who through their ...
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MEMORANDUM OPINION Plaintiff Mary M. Randall (Randall) brought this action against numerous defendants, alleging racial discrimination in employment, in violation of 42 U.S.C. § 2000e et seq. (Title VII), as well as other causes of action. Following summary judgment for all defendants except Jefferson County (the County), and Jefferson County Adult Probation Department (JCAPD), and eliminating al...
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MEMORANDUM OPINION The plaintiff Isaac Ramirez, appeals from the decision of the Secretary of Health and Human Services (the Secretary), denying the plaintiff retirement benefits for one year. The Secretary filed a motion for summary judgment April 26, 1990. The plaintiff, although represented by counsel, has not responded. The court has reviewed the motion, transcript of the hearing before the ad...
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OPINION AND ORDER Plaintiffs, residents of New York, bring this action for injunctive relief and damages pro se against defendant, a New York not-for-profit corporation. Plaintiffs allege breach of contract and malicious prosecutions. Defendant moves for dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons set forth be...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT/COUN-TERPLAINTIFF FDIC’s MOTION FOR SUMMARY JUDGMENT This matter is presently before the court on the motion of defendant Federal Deposit Insurance Corporation (FDIC) for summary judgment, filed November 28, 1990. Plaintiffs have filed a response, and the FDIC has filed a reply. Pursuant to Local Rule 17(i)(2) of the United States District C...
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MEMORANDUM Ernst & Young seeks dismissal of the second amended complaint (hereinafter “the complaint” or “the second amended complaint”). The basis of the complaint is that Ernst & Young audited Jiffy Lube International’s (“JLI” or “the company”) annual financial statements and issued reports assuring members of the investing public that such statements presented JLI’s financia...
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OPINION This case arises out of an accident occurring on the Outer Continental Shelf off the coast of Louisiana. The parties have filed an agreed Statement of Undisputed Facts and the matter is submitted for decision on briefs. The undisputed facts are as follows: 1. G & B Marine Transportation, Inc. (“G & B”) was the owner/operator of the M/V CELESTE. 2. On January 1...
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MEMORANDUM AND ORDER This is an action brought pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Defendants, Inter-County Hospitalization Plan, Inc. and Inter-County Health Plan, Inc. (jointly referred to as “Inter-County”), seek partial summary judgment against plaintiff Kendal Corporation (“Kendal”) on the grounds that Kendal lacks st...
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MEMORANDUM OPINION Plaintiff the Federal Deposit Insurance Corporation (“FDIC”) brought this action seeking judgment against eight defendants who allegedly are liable to the FDIC as guarantors of a defaulted promissory note. Each party presently has pending a motion before the Court. As discussed below, the Court will (1) grant the motion of defendant William Tutman for summary judgment; ...
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Defendants’ motion for summary judgment came on for hearing before the Honorable Laughlin E. Waters, Senior United States District Judge, on February 19, 1991. Based on the documents filed for this motion, the oral arguments and the case file, the Court finds as follows: FACTS The plaintiffs in these consolidated actions are former employees of Independence Bank. In late May 1989, Fulvio Dob-rich ...
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ORDER In this product liability case, defendant General Motors seeks a jury charge regarding the “spoliation” of evidence which General Motors contends is critical to its defense. Because the Court concludes that no such jury charge is warranted under either the controlling case law, or the facts *359 of this case, the Court will not charge the jury on spoliation of evidence....
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OPINION AND ORDER This is an action brought under 42 U.S.C. § 1983 by indigent appellants held in the correctional facilities of the Department of Corrections of the State of New York against the Supervising and Principal Court Stenographers of the New York City Criminal Courts and of the New York State Supreme Court, New York and Bronx Counties; the Clerk of the Appellate Division, First Departm...
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ORDER In November, 1990, Benjamin Gibson applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As explained below, the court now dismisses two of Gibson’s *129 three claims and orders both parties to address his remaining claim in more detail. FACTS In March, 1981, Gibson was arrested in Nevada for the murder of Stephen Butler, whose body had been found ...
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OPINION AND ORDER Plaintiff Dante N. Ruffo (“Ruffo”) moves pursuant to Rule 60(b)(3) of the Federal Rules of Civil Procedure to vacate a judgment of this Court, dated June 5, 1991, granting defendant Chase Manhattan Bank, N.A. (“Chase”) summary judgment in the instant action. Ruffo also argues that the Court abused its discretion under Rule 6(b)(1) of the Federal Rules of Civil Procedure in dismis...
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MEMORANDUM AND ORDER This is an appeal from a final order of the bankruptcy court dated December 14, 1989, determining that the federal tax liabilities of the debtors, Thomas and Elizabeth Graham, were dischargeable. This court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 158(a) and Bankruptcy Rule 8001(a). This appeal presents three issues. The first issue is whether...
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770 F. Supp. 457 (1991) John A. BETTS, Petitioner, v. UNITED STATES of America, Respondent. Misc. No. S-89-43. United States District Court, C.D. Illinois, Springfield Division. August 8, 1991. *458 Kenneth A. Kozel, LaSalle, Ill., for petitioner. Asst. U.S. Atty. Patrick Kelley, Springfield, Ill., for respondent. OPINION RICHARD MILLS, District Judge: Attorney John A. Betts, the Petitioner here...
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MEMORANDUM AND ORDER Plaintiff Toshimi Oye brings this derivative action on behalf of Symbol Technologies, Inc. (“Symbol Technologies” or “the Corporation”) against defendants Jerome Swartz (“Swartz”), Raymond R. Martino (“Martino”), Frederic P. Heiman (“Hei-man”), Kenneth M. Schlenker (“Schlenker”), Charles S. Strauch (“Strauch”), Harvey P. Mallement (“Mallement”), Edwin A. Deagle, Jr. (“Deagle”...
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MEMORANDUM The Official Bondholders Creditor’s Committee and the Indenture Trustee appeal from the bankruptcy court’s order dated February 14, 1990. The order, which granted relief from the automatic stay, permitted the Secretary of Health and Human Services to retain, postpetition, certain payments due for prepetition medicare services. 1 I. The following facts, as stip...
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MEMORANDUM OPINION This action was brought by the plaintiff Diceon Electronics, Inc. against the defendants Calvary Partners, L.P.; Calvary Holdings, Inc.; Calvary Partners, Inc.; James R. Arabia; and Bernice H. Feicht (collectively “Calvary”). The plaintiff seeks damages and injunctive relief against the defendants based upon their alleged violations of §§ 13(d), 14(a), 14(d) and 14(e) o...
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ORDER GRANTING PARTIAL SUMMARY JUDGMENT 'RE: PLAINTIFFS MADDEN, SHOOLBRAID AND HUGGARD Defendants’ motion for Summary Judgment, or in the alternative, for partial summary judgment, came on for hearing before the Honorable Laughlin E. Waters, Senior United States District Judge on February 19, 1991. Based on the documents filed for this motion, the oral arguments and the case file, the Cou...
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Defendants’ motion for summary judgment came on for hearing before the Honorable Laughlin E. Waters, Senior United States District Judge, on February 19, 1991. Based on the documents filed for this motion, the oral arguments and the case file, the Court finds as follows: FACTS The plaintiffs in these consolidated actions are former employees of Independence Bank. In late May 1989, Ful...
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MEMORANDUM ORDER On August 26, 1987, the plaintiff, Thomas W. Woods (Woods), filed an application with the defendant, the Secretary of Health and Human Services (the Secretary) for supplemental security income based on disability. His application was denied initially and on reconsideration. He then requested and received a de novo hearing before an Administrative Law Judge (ALJ). The ALJ found Woo...
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MEMORANDUM The instant case is a diversity action brought by plaintiff through a six count Complaint alleging strict liability, breach of contract, breach of express and implied warranties, and negligence against defendant. Presently before this court is defendant’s motion to dismiss Counts I and V of the Complaint, which are plaintiff’s tort claims. For the reasons that follow, defendant...
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ORDER Wysko Investment Company is the general partner of Spring Meadows Apartment Complex Limited Partnership. Spring Meadows filed for Chapter 11 Bankruptcy on January 4, 1991, and Wysko filed for Chapter 11 protection one week later. The two bankruptcies were consolidated. Debt- or Wysko originally signed a purchase agreement to buy Spring Meadows Apartment Complex from Great American Bank in...
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MEMORANDUM AND ORDER In the above-referenced action, plaintiff Mary Clay (“plaintiff”) asserts, inter alia, claims of employment discrimination based on her sex, pursuant to Title VII of the Equal Employment Opportunity Act, 42 U.S.C. § 2000e-5. Named as defendants are ILC Data Device Corporation (“ILC”), Clifford Lane, John Vogel, and Marge Kramer. Currently before the Court i...
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OPINION ON ATTEMPTED REMOVAL 1. Introduction. While Mclver was a debtor in bankruptcy court, he was brought into this federal district court action as a third-party defendant. Mclver then tried to remove the case from this court to the bankruptcy court, by filing a notice of removal and declining further to appear. A case is never removed from a United States district court t...
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MEMORANDUM OPINION AND ORDER Defendant United States Postal Service (the “Postal Service”) has moved to dismiss the complaint brought against it by plaintiff Gina Valluzzi. Valluzzi in turn has requested leave to amend her complaint. For the reasons set forth below, we grant the Postal Service’s motion to dismiss the complaint against it and deny Valluzzi’s request for leave to amend her compla...
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*1233 MEMORANDUM OPINION AND ORDER The plaintiff, Albert G. Tomasso, filed a complaint under 42 U.S.C. § 1983 against the City of Chicago, six named Chicago police officers, and other unnamed officers for alleged violations of his constitutional rights. This action is before the court on the individual defendants’ motion for summary judgment on Counts I and II of the Complaint, a...
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MEMORANDUM AND ORDER Petitioner Abraham Ballard, a/k/a Lawrence Upchurch, 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 by a grand jury and charged with: three counts of grand larceny in the second degree, in violation of section 155.40 of the ...
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MEMORANDUM OPINION AND ORDER This case is a declaratory judgment action concerning the issue of which of a series of insurance policies provides coverage for various claims against Eljer Manu *1104 factoring, Inc., the plaintiff in this action. 1 Presently pending are cross motions for summary judgment. 2 All parties agree that this case can be resolved ...
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MEMORANDUM ORDER This is an action asserting numerous claims arising from defendants’ activities in connection with the operation and management of plaintiff Qantel Corporation. 1 Defendant Karl H. Niemuller (“Karl”) has now moved, pursuant to New York Business Corporation Law (“BCL”) §§ 722 and 723, for an order directing plaintiff Qantel Corporation (“Qantel”) immediately to reimburse Karl ...
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ORDER Plaintiff Arthur Miller brings this action pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., claiming that the defendant SwissRe Holding, Inc. [“SwissRe”] failed to promote him due to his race and discharged him in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission [“EEOC”...
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AMENDED ORDER AFFIRMING IN PART AND REVERSING IN PART JUDGMENT OF THE UNITED STATES BANKRUPTCY COURT I. SUMMARY This matter comes on appeal from the judgment of the United States Bankruptcy Court for the Northern District of California, Division 5, in favor of defendant Marc Peters (appellee herein), denying the bankruptcy trustee any interest in the subject property at 565 Cambrian ...
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ORDER Plaintiffs, former officers and directors of Lincoln Savings and Loan Association (“Lincoln”) have moved for injunctive relief against an administrative proceeding now in progress pursuant to a Notice of Charges filed by the Office of Thrift Supervision (“OTS”). In support of their request, plaintiffs argue that this Court may intervene because the administrative proceeding exceeds OTS’s sta...
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OPINION This action is 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, Louis D. Sullivan (the “Secretary”), which denied plaintiff’s application for disability insurance benefits. For reasons which follow, the matter will be remanded to the Secretary. The plainti...
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ORDER Before the court is the motion of defendant A.B. Dick Company (“A.B. Dick”) for partial summary judgment on the plaintiffs’ “best efforts” claim. For the following reasons, the motion is granted. FACTS The plaintiffs, a pair of affiliated European firms—Agfa-Gevaert, A.G., based in the Federal Republic of Germany, and Agfa-Gevaert, N.Y., based in Belgium (collectively “Agf...
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AMENDED ORDER GRANTING SUMMARY JUDGMENT AND ENJOINING THE ATTORNEY GENERAL FROM ENFORCING AN UNCONSTITUTIONAL STATUTE Introduction The question before the Court is whether section 2805(a) of the California Vehicle Code authorizing warrantless searches without probable cause of automobile repair shops for the purpose of locating stolen vehicles violates the Fourth Amendment to the...
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MEMORANDUM OPINION This litigation arises out of a maritime contract for the carriage of goods to Iraq. The shipper, a Brazilian construction company, sued the Houston-based maritime carrier for damages suffered because of delivery delays, claiming that the ship carrying its cargo deviated from the course of the contracted voyage and that the carrier was negligent in chartering a ship tha...
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ORDER Petitioner Russell Coleman was convicted of first degree murder and sentenced to death in 1981. His conviction and sentence were affirmed in their entirety by the Supreme Court of California in 1988. People v. Coleman, 46 Cal.3d 749, 251 Cal.Rptr. 83, 759 P.2d 1260 (1988). That court then denied his petition for habeas corpus without comment in 1990. 1 Pursuant to 28 U.S.C. § 2254, ...
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OPINION AND ORDER The parties are before this court for what should be the last time in order to resolve two matters: (i) the relief to which plaintiff is entitled as a result of defendants’ copyright infringement, and (ii) whether the record before Judge Owen, and later before me, justifies the conclusion that defendants and their counsel violated Fed.R.Civ.P. 11. This case has been the ...
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RULING ON THE FEDERAL DEPOSIT INSURANCE CORPORATION’S MOTIONS TO SEVER AND TO STAY, AND ON THE DEFENDANTS’ MOTION TO REMAND The Federal Deposit Insurance Corporation (“FDIC”) moves to sever the defendants’ counterclaims and stay proceedings thereon pending exhaustion of the FDIC’s administrative review of those claims. The defendants oppose these motions, and have filed a motion to remand this ac...
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ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSES THIS MATTER comes before the court on plaintiff’s motion to strike affirmative defenses pursuant to Fed.R.Civ.P. 12(f). Having reviewed the motion, together with all documents in support and in opposition, and being fully advised, the court finds and rules as follows: I. FACTUAL BACKGROUND This lawsuit arises out o...
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MEMORANDUM ORDER Before the Court at this time are plaintiff’s motion to strike defendant's petition for removal, and defendant’s motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(5), challenging this Court’s personal jurisdiction over the defendant and plaintiff’s service of the complaint. Plaintiff Frank M. Soupart sustained serious crushing injuries to his left forearm at his ...
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ORDER GRANTING FDIC’S MOTION TO INTERVENE THIS MATTER comes before the court on the Federal Deposit Insurance Corporation’s motion to intervene. Having reviewed the matter, together with all documents filed in support and in opposition, the court finds and rules as follows: I. FACTUAL BACKGROUND Plaintiffs Albert L. Crosby, Randall C. Riffe and Roger C. Schmidt were directors or officers of the L...
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MEMORANDUM OF DECISION AND AMENDED INJUNCTION AND ORDER ON MOTIONS TO AMEND AND CLARIFY INJUNCTION AND ORDER The Court granted leave to Plaintiffs Isom Harris, Willie Minor, and Eddie Pugh, and Defendant International Paper to file proposed changes to the Court’s Injunction and Order of March 28, 1991. See Opinion and Order at 47-48 (Docket No. 50). Both parties have moved to a...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS Plaintiff Richard N. Bowman (Bowman) has filed a five-count Complaint against Western Auto Supply Company (Western Auto) and one of its employees, John R. Leach (Leach). Plaintiff asserts he was wrongfully discharged from employment with Western Auto for complaining about its alleged practice of double billing merchandise suppliers for advertisi...
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MEMORANDUM AND ORDER One year ago the 25 year old defendant appeared before the court for sentencing pursuant to an earlier plea of guilty to possession of counterfeit obligations of the United States. The guideline for imprisonment was two to eight months. The court imposed three years probation and a fine, but as a special condition of supervision required defendant to reside in a local halfw...
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MEMORANDUM This matter is before the Court on the Budget Review Committee’s (BRC) Report on Proposed 1990-91 Magnet Plan Budget Amendments. L(3418)91. The State and the City Board have filed responses. L(3443)91 and L(3444)91, respectively. The City Board has also filed a reply to the State’s response. L(3458)91. The BRC Chairperson reports complete BRC agreement as to certain regular annual adjus...
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ORDER This matter comes before this Court on a Motion to Compel Discovery Regarding Preparation and Prosecution of the Patent-in-Suit. Defendants sought this motion after Defendants sought to depose Jason Li-pow, the patent counsel for Plaintiffs. Mr. Lipow had written and prosecuted the application for the U.S. Patent No. 4,217,901 (the Bradstreet patent). During this deposition Lipow had refuse...
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MEMORANDUM OPINION AND ORDER In this diversity action, plaintiff Sabena Belgian World Airlines (“Sabena”) sues defendant United Airlines, Inc. (“United”) for breach of contract and implied indemnification. Pursuant to Fed.R.Civ.P. 12(b)(6), United moves to dismiss the amended complaint on the grounds that (1) Sabena’s claims are time-barred; (2) Sabena’s claims are preempted by the Carmac...
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771 F.Supp. 297 (1991) DAIRYLAND INSURANCE COMPANY, Plaintiff, v. Arthur J. MORSE, et al., Defendants. No. S88-0158C. United States District Court, E.D. Missouri, Southeastern Division. August 23, 1991. Joseph H. Mueller, Moser & Marsalek, St. Louis, Mo., for plaintiff. Karen J. Miller, Spain, Merrell & Miller, Poplar Bluff, Mo., for defendants. MEMORANDUM LIMBAUGH, District Judge. This ...
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RULING ON COOPER/T. SMITH STEVEDORING COMPANY’S MOTION FOR SUMMARY JUDGMENT CONCERNING RHONDA DUNBAR’S CLAIM This matter is before the Court on the motion of Cooper/T. Smith Stevedoring Company (Cooper/T. Smith) for summary judgment which seeks to dismiss Rhonda Dunbar’s claim for loss of society and consortium. For reasons which follow, the Court finds that the motion for summary judgmen...
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OPINION Defendant is charged in a four count indictment with conspiracy to commit bank robbery and two individual counts of bank robbery in violation of 18 U.S.C. §§ 371 and 2113(a). On March 1, 1991, pursuant to a plea agreement, defendant entered a plea of guilty to Count II, the December 10, 1990 robbery of the Lovejoy Branch of the U.S. National Bank, in exchange for a dismissal of the rema...
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ORDER Petitioner, Ibrahim Ahmed Dalis, who is currently incarcerated at the INS Detention Facility, commenced this action seeking a writ of habeas corpus. The case was assigned to Magistrate Judge Donald E. Abram who reviewed the matter and prepared a recommendation pursuant to Local Rule 605. The Magistrate Judge has recommended that the petition be granted. Copies of both the recommendation a...
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770 F. Supp. 41 (1991) DEDHAM WATER CO. and Dedham-Westwood Water District, Plaintiffs, v. CUMBERLAND FARMS DAIRY, INC., Defendant. Civ. A. No. 82-3155-S. United States District Court, D. Massachusetts. July 29, 1991. Thomas F. Holt, Jr., with whom Nancy B. Reiner, DiCara, Selig, Sawyer & Holt, Boston, Mass., John R. Cope and Bracewell & Patterson, Washington, D.C., were on brief, for pla...
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MEMORANDUM ORDER Snyder International, Inc. (“Snyder”) has filed this diversity action against Tap Equipment Co. (“Tap”) to recover damages for Tap’s alleged breach of contract. In 1985, Snyder asked Tap to provide a price quote on eight D318 Caterpillar engines. Snyder claims it specified that it was interested only in engines built of new parts which, it informed Tap, would be supplied ...
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OPINION AND ORDER This matter having been brought before the Court for hearing on the 19th day of July, 1991 upon the consolidated appeals of First Fidelity Bank, N.A. as Indenture Trustee and Manufacturers Hanover Trust Company, and upon consideration of the record and of the briefs and oral arguments of the Appellants, the Debtors/Ap-pellees and The New York Clearing House Association, amicu...
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ORDER Before the court is the motion of Defendant William M. Franz for assessment of fees and costs. For the reasons which follow, the court grants Franz’s motion, and awards Franz $3,275.00 in fees and costs. BACKGROUND On March 27, 1990, M.D.C. Wallcoverings and other Plaintiffs filed suit in state court in McHenry County, Illinois. The state court complaint sought foreclosure...
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OPINION Now before the Court is defendants’ motion to dismiss or, in the alternative, for summary judgment. For the reasons set forth below, defendants’ motion is granted in part and denied in part. 1 Background The following facts have been taken from the amended complaint. 2 In May 1980, plaintiff was hired for a GS-13, Schedule A position on the Chrysler Loan Guarantee Board (CLGB)...
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MEMORANDUM AND ORDER Petitioner, currently an inmate at Hutchinson Correctional Facility, Hutchinson, Kansas, proceeds on a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Petitioner was convicted of two counts of rape and two counts of aggravated robbery. The charges covered two separate incidents, involving two separate vie*1160tims, T.J. and S.S. Petitioner challenges th...
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RULING ON DEFENDANTS’ OBJECTIONS TO ELECTRONIC SURVEILLANCE EVIDENCE ON GROUNDS OF AUDIBILITY Pursuant to orders of July 19, 1991, and July 26, 1991, and with the consent of the parties, Judge T. Emmet Clarie referred to me the question of whether fifty-three conversations that were the subject of court-authorized electronic surveillance and recording are substantially audible and thus trustworth...
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OPINION This action arises from an accident which occurred on Route 113 near Dover, Delaware on October 25, 1988. Plaintiff David Alan Robinson is a Pennsylvania resident who, at the time of the accident, was acting in the course of his duties as an Airman First Class of the United States Air Force. Robinson was riding a motorcycle which collided with an automobile driven by Defendant Fernando Rui...
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MEMORANDUM ORDER This matter is before the Court on defendants’ motion to dismiss or, in the alterna *456 tive, for summary judgment. On consideration of the entire record, the Court dismisses counts one and two as moot and grants the motion for summary judgment as to counts three, four, and five, thus terminating the case. Plaintiff claims that she was removed from her position in the Seni...
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OPINION BACKGROUND Plaintiff Leanora Carfagno filed the present action against defendant, The Aetna Casualty and Surety Company (“Aetna”), on February 24, 1983. Plaintiff purchased a homeowners insurance policy from defendant. On March 22, 1982, a fire occurred at the insured premises, and plaintiff thereafter filed a claim under the policy to recover damages caused by the fire. Ulti...
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MEMORANDUM OPINION Plaintiff Julie Ann Dodd Brasher sues under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), to recover certain death benefits under an insurance policy issued to her deceased husband, Terry Dodd, when he was employed by Prudential, that is, between October 5, 1987, and June 2, 1989. Plaintiff claims that at the time Terry Dodd t...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ answer, which incorporates a motion for dismissal. Plaintiff, formerly an inmate at the Lansing Correctional Facility, Lansing, Kansas, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 while incarcerated in that facility. This action was summarily dismissed by the court in an Order dated May 18, 1987; however, th...
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ORDER Before the court is Defendant’s motion for disclosure of Sentencing Guidelines information. For the reasons which follow, the court grants in part and denies in part Defendant’s motion. BACKGROUND On November 13, 1990, Defendant, Roger L. Knell, was indicted in this court for counterfeiting, under 18 U.S.C. § 473 (1988). On November 16, 1990, Defendant filed a motion to compel production of ...
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ORDER Before the court is Plaintiff’s motion to dismiss the tenth affirmative defense of Defendants Chicago Central and Charles J. Freeland. For the reasons which follow, the court grants Plaintiff’s motion. Further, the court grants Defendants leave to amend their tenth affirmative defense within twenty-one days, in accordance with this Order. BACKGROUND On May 5, 1989, Plainti...
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ORDER Before the court is Defendant’s motion for summary judgment. For the reasons set forth herein, the court denies Defendant’s motion. BACKGROUND On June 21, 1989, Plaintiff Bennett Nielsen filed a complaint in this court against Defendant Revcor, Inc. Plaintiff alleges a cause of action under two federal statutes, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1988) [hereinaf...
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MEMORANDUM OPINION AND ORDER DENYING REMAND Plaintiffs George Force and Robbie Lou Force have moved the court to remand this action to the 58th Judicial District Court of Jefferson County, Texas due to a lack of complete diversity between the adverse parties. For the reasons set forth below, the plaintiffs’ motion is denied. The thrust of the plaintiffs’ motion is that one of the nam...
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INTRODUCTION This action is before the Court on Trustee David W. Allard’s (“Trustee”) Motion For Order Compelling Debtor to Testify, filed April 12, 1991. The Trustee, representing the creditors in a Chapter 11 bankruptcy proceeding, moves the Court to compel the Debtor, llene Ruth Moses (“Debt- or”), to respond under oath to certain questions concerning foreign assets associated with her...
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*291 MEMORANDUM AND ORDER This matter is before the court on the motions of defendant Thomas A. Burger (“defendant Burger”) and defendant James R. Cruce (“defendant Cruce”) for recusal; defendant Burger’s motion for reconsideration of this court’s order denying his motion to withdraw his plea or for resentencing and to dismiss the Indictment; defendant Burger’s motion for a Franks hearing; ...
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MEMORANDUM OPINION The claimant, Evans B. Crocker (Crocker) filed an application with the defendant, the Secretary of Health and Human Services (the Secretary), for supplemental security income based on disability (disability benefits). The Secretary denied Crocker’s application, initially and upon reconsideration. Crocker then requested and received a hearing de novo before an Administrative Law ...
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MEMORANDUM AND ORDER In this action, the Towns of Walpole and Norfolk, Massachusetts (“the Towns”), challenge the decision of the United States Army Corps of Engineers to issue permit no. 199000033. The permit in question approves various aspects within the Corps’ jurisdiction of a multi-billion dollar sewage treatment project intended to eliminate the pollution of Boston Harbor with untr...
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MEMORANDUM OPINION BACKGROUND The history that led to this litigation began with the savings and loan crisis in the late 1970s and early 1980s. The government agencies charged with dealing with the crisis were the predecessors to the defendants in the present case. The Federal Home Loan Thrift Board (FHLBB) was charged with regulating the thrift industry, a function that is now perfo...
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MEMORANDUM AND ORDER Petitioner was indicted for, inter alia, second degree murder for the shooting death of James Ebron in Jamaica, Queens. On August 5, 1985, he pled guilty to manslaughter in the first degree, New York Pen.L. § 125.20, in full satisfaction of the *572 indictment, and was sentenced on August 28, 1985 to an indefinite term of 6 to 18 years. Pe...
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MEMORANDUM AND ORDER This matter is before the court on Williams Natural Gas Company’s (“Williams”) motion to dissolve the injunction prohibiting Williams, Mobil Oil Corporation (“Mobil”), and Mesa Operating Limited Partnership (“Mesa”) from instituting or prosecuting any proceeding affecting the obligation owed by Oxy Helex, Inc. (“Helex”) for processing rights to natural gas produced by Mesa ...
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OPINION In New York, when a tenant fails to pay rent, the landlord may bring a summary proceeding to regain possession of the premises. The summary process is a statutory device designed to achieve simple, expeditious and inexpensive resolution of disputes over the right to possession of real property. When, however, the defendant removes the proceeding to federal court, complicated quest...
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ORDER Plaintiff Michael J. Corrigan brings this breach-of-contract action against his former employer, defendant Cactus International Trading Co. (“Cactus”). Pursuant to Fed.R.Civ.P. 12(b)(6), Cactus has moved to dismiss this case for failure to state a claim upon which relief may be granted. Cactus also seeks Rule 11 sanctions, claiming that the lawsuit is frivolous. For the reasons stat...
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ORDER DENYING MOTION TO VACATE THIS CAUSE came before the Court upon Defendant QRM TRANSPORTATION, INC.’s Amended Motion to Vacate Default. BACKGROUND This is an action for breach of contract, breach of duty arising out of a mutual benefit bailment, conversion and civil theft. On March 30, 1989, the Plaintiff, through its Miami agent (American Business Services Corporation [ABS]), entered into an...
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ORDER This appeal is taken from a bankruptcy court’s denial of a motion to avoid a judgment lien and partial granting of a motion to lift stay. The bankruptcy court entered the orders in proceedings styled In re Douglas Cary Finch, d/b/a Finch Alternator & Starter, Bankruptcy No. 89-09036-H3-13. The Court has considered the briefs, the argument of counsel at a *755 ...
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MEMORANDUM ORDER This case is before the court on the motion for summary judgment of plaintiff NCNB Texas National Bank (“NCNB”). For the following reasons, the motion is granted. I. Background To facilitate its $100,000 investment in Longcrier Farms, Inc. (“Longcrier”), Doal Ventures, a Texas partnership (“Doal”), furnished a fully funded letter of credit issued by Fore...
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MEMORANDUM OPINION AND ORDER Defendant Arthur E. Menaldi has brought this motion for summary judgment in an action filed against him to collect on a promissory note. Menaldi claims that, pursuant to the terms of a settlement agreement, he has been discharged from any and all liability. Plaintiff Bank of Chicago/Lakeshore (“Bank”) contends that Menaldi has defaulted on the promissory note and the ...
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AMENDED MEMORANDUM OF OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR INTERLOCUTORY APPEAL The United Auto Workers Local No. 486 and several named individuals (“plaintiffs”), now certified as a class, filed suit against Midland Steel Products Co. and the Lamson & Sessions Co. (hereinafter collectively referred to as “Midland”), in November, 1989 alleging that Midland discharged approximately 290...
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MEMORANDUM ORDER The defendant, Dave Husband (Husband), has filed a motion to withdraw his plea of guilty to all counts charged against him in the indictment in this cause.1 The court has reviewed the motion and response, heard oral argument and testimony, and reviewed letters and affidavits submitted following the hearing. The court finds the motion to withdraw plea should be, and is hereby, DENI...
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MEMORANDUM OPINION AND ORDER This action comes before the Court on cross-motions for summary judgment and other related motions. 1 For the reasons set forth in the opinion below, this Court finds that plaintiffs have met and adequately shown compliance with the five elements for a prima facie case of copyright infringement and, therefore, grants plaintiffs’ motion fo...
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MEMORANDUM OPINION This matter is before the Court on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and respondent’s motion to dismiss a petition or for summary judgment. The parties have not sought a hearing, and the matter is ripe for disposition. For the reasons stated below, the respondent’s motion will be granted and the petition dismissed. I This mem...
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MEMORANDUM AND ORDER I. This is a bankruptcy appeal. 28 U.S.C. § 158(a). The issues at hand arose in the context of a motion to lift the automatic stay. 11 U.S.C. § 362(d). Madison National Bank (Madison) seeks relief from the form of the order entered by the United States Bankruptcy Court in case number 90-07729-G on February 21, 1991. The order reads: NOW, THEREFORE, IT IS HER...
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*57 SENTENCING MEMORANDUM Richard Anthony Aloi was convicted, by a jury, of two counts of being a felon in possession of a firearm or ammunition. 18 U.S.C. § 922(g)(1). Aloi is now before this Court for sentencing. The probation department recommends that this Court impose a sentence of 188 months of imprisonment. This recommendation is based on the Armed Career Criminal Act (ACC...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This bankruptcy appeal is brought by the debtor Frank Trovato (“Trovato”) from an order of the Bankruptcy Court which approved a settlement in the sum of $4,000.00 of a retaliatory discharge lawsuit which had been brought by Trovato against Chicago-Midwest Credit Management Association (“CMCMA”). Trovato contends that the Honorable Eugene R. Wedoff, Uni...
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OPINION This case involves the constitutionality of the federal Low Level Radioactive Waste Policy Act of 1980 and the Act’s 1985 amendments. 42 U.S.C. §§ 2021b et seq. In their seven-count complaint, plaintiffs State of Michigan et al. (collectively “plaintiff”) object to implementation of the legislation on the ground that it violates Michigan’s state sovereignty as guaranteed by the Tenth Amen...
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MEMORANDUM AND RECOMMENDATION Before this Court is the issue of the sufficiency of process, and service of process, raised in the individual Defendants’ Motion to Dismiss, instrument # 44. Concurrently, we consider whether the Defendants waived this defense, as raised in Plaintiff’s Instrument # 23. After considering the pleadings on file, affidavits, arguments of the parties and relevant law, th...
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MEMORANDUM This is a case of first impression involving interpretation of certain alternative minimum tax provisions in effect in 1985. The Frists brought this refund action pursuant to 26 U.S.C. § 7422. The tax year at issue is 1985, antedating the Tax Reform Act of 1986. The United States filed a motion for summary judgment on November 1, 1990, and the Frists filed a cross-motion for partial su...
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MEMORANDUM OPINION AND ORDER Pro se litigant George Greanias (“Greanias”) sues his former employer Sears, Roebuck and Co. (“Sears”), charging that Sears terminated his employment, in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634. Sears now moves for dismissal under Fed.R.Civ.P. (“Rule”) 12(b)(6) 1 or alternatively for summary judgm...
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ORDER This court hereby ACCEPTS the Report and Recommendation of the Magistrate Judge. Plaintiff’s complaint is, therefore, dismissed. REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION TO DISMISS May 8, 1991 LAWRENCE B. COHEN, United States Magistrate Judge. Defendants’ Motion to Dismiss (# 50) was referred to this court for report and recommendation pursuant to the prov...
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DECISION This action is brought by Albert Kowalewski against eight Trustees or former Trustees of the Steamship Trade Association—International Longshoremans’ Association (STA/ILA) Pension and Benefits Funds (hereinafter “the Plan”). 1 Plaintiff is a participant in, and former co-administrator, of the Plan. Plaintiff is suing on behalf of the Plan. The Plan is an employee benef...
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771 F.Supp. 288 (1991) MUTUAL GUARANTY CORPORATION, Plaintiff, v. ARSENAL CREDIT UNION, Defendant. No. 88-0450-C-7. United States District Court, E.D. Missouri, E.D. January 11, 1991. Steven M. Hamburg, St. Louis, Mo., Robert Krik Walker, Chattanooga, Tenn., for plaintiff. Gary W. Bomkamp, St. Louis, Mo., for defendant. MEMORANDUM AND ORDER HAMILTON, District Judge. This matter is before the Cou...
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ORDER Defendant Martin Roman pro se moves under Fed.R.Crim.P. 35 and 36, and 28 U.S.C. § 2255, for “an order allowing him credit on his sentence for that time spent on bail from the time of his arrest on April 22, 1986 until May 3, 1988, the date of his post conviction imprisonment.” Roman previously moved, while represented by counsel, to reduce his sentence pursuant to Rule 35, but made no menti...
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MEMORANDUM OPINION The plaintiffs, K Lazy K Ranch, Inc., Simon Kusser and Joe Kusser, filed an adversary proceeding in bankruptcy court contending that the defendant, Farm Credit Bank of Omaha (FCBO), had breached the terms of a stipulation agreement which had been approved by the bankruptcy court. The adversary proceeding was transmitted to this Court based on the bankruptcy court’s finding that...
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OPINION In a previous opinion, Resolution Trust Corp. v. Diamond, 137 F.R.D. 634 (S.D.N.Y.1991) (Carter, J.) [hereinafter RTC], with which familiarity is assumed, the court ruled, among other things, that the Resolution Trust Corporation (the “RTC”) had failed to sustain its initial burden of showing that the 92 documents it withheld from the Attorney General (the “A...
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MEMORANDUM OPINION AND ORDER Plaintiff Howard Saffold has brought suit against the City of Chicago (“the City”) pursuant to 42 U.S.C. § 1983, claiming that defendant, without prior notice, has effected a forfeiture of 117 vacation days that plaintiff earned pursuant to a City of Chicago Police Department General Order. The City now moves to dismiss Saffold’s single-count complaint. ...
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OPINION AND ORDER Plaintiff Ruby Birt Sherwood, a New York resident, sues her former employer, defendant Olin Corporation, a Virginia Corporation for allegedly violating the New York State Human Rights Law (“HRL”), N.Y.Exec.L. §§ 290-301 (McKinney’s 1982 & Supp.) by discriminating against her on account of race and sex. Sherwood seeks damages pursuant to HRL § 297(9) which provides victim...
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OPINION AND ORDER Plaintiff Federal Deposit Insurance Corporation (“FDIC”) moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment against defendant Abelardo Morua (“Morua”), individually, and doing business as Yuni Handbags Co., on the first through ninth and fourteenth and sixteenth causes of action, and for default judgment against defendants Morua Investment Cor...
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I. Statement of the Case. The Voting Rights Act of 1965, 42 U.S.C. § 1973, et seq., (the Voting Rights Act) prohibits any state or political subdivision of a state from imposing or applying any “qualification or prerequisite to voting or standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen ... to vote on account of race or col...
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*238 ORDER AFFIRMING THE BANKRUPTCY COURT’S JUDGMENT OF AUGUST 30, 1989 AND ITS ORDER DENYING MOTION TO RECONSIDER I. PROCEDURAL ISSUES A. Procedural Background The bankruptcy court action that forms the foundation for this appeal is a Memorandum Decision Regarding Various Matters, filed July 3, 1989. In that decision, the bankruptcy court ordered certain compensation to Trustee John A....
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ORDER Before the Court is the motion of Way-cross law enforcement defendants Lynn Taylor, Chris Jordan, Jimmy Mercer, Herbert Bond, L.W. Lackey, Sr., and Leavy Dixon for sanctions pursuant to rule 11 of the Federal Rules of Civil Procedure. The defendants request an award of $6,629.25 in attorney’s fees and costs based on seven separate instances of Bill Thomas’ alleged frivolous and vexatious lit...
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AMENDED ORDER Plaintiffs move for summary judgment declaring the plaintiffs separate “persons” for purposes of the Payment Limitation Regulations, 7 C.F.R. § 795, applicable to Price Support Production and Adjustment programs promulgated under the Agricultural Act of 1949, as amended, 7 U.S.C. § 1421 et seq. Defendant responded to the motion and filed a cross-motion for summary judgment affir...
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ORDER Petitioner Joseph R. Porrazzo, Jr. (“petitioner”) plead guilty to 18 U.S.C. § 922(a)(1), dealing in firearms without a license. As a result, under 18 U.S.C. § 922(g)(1), petitioner was forbidden from possessing firearms. Petitioner filed an application under 18 U.S.C. § 925(c), seeking reinstatement of the privilege to possess firearms. Section 925(c) provides in relevant part: A person who...
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MEMORANDUM AND ORDER This matter is before the Court on plaintiff’s motion for a finding of probable cause for forfeiture and for summary judgment. FACTS This action involves forfeiture proceedings under 17 U.S.C. § 509 instituted by the United States against defendant property belonging to claimant David L. Holker. The defendant property was allegedly used to accomplish Holker’s alleged piracy o...
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MEMORANDUM OF OPINION DENYING MOTION FOR STAY PENDING APPEAL On April 29, 1991, the State of Alabama filed a Notice of Appeal from the Order and Judgment of the Court entered on March 28, 1991. The March 28, 1991 order effectively granted the plaintiff class’ mo*494tion to enforce the Consent Decree previously entered herein. Contemporaneous with the filing of its Notice of Appeal, the State of Al...
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ORDER In our Minute Order (document # 16) filed on December 22, 1988, this Court referred this case to the Magistrate for all further pretrial proceedings. Currently under submission to this Court is the Magistrate’s Report and Recommendation (document #75) regarding the Motion to Dismiss (document #47) by defendant Lane, the Motion for Summary Judgment (document # 53) by defendants Bradshaw, Mont...
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ORDER On December 15, 1989, plaintiff filed a Civil Rights Complaint (document # 1) under 42 U.S.C. § 1983, alleging violations of his Fourteenth Amendment rights (due process and equal protection) and his Eighth Amendment rights (no cruel and unusual punishment). Plaintiff’s claims arise out of an incorrect calculation of his good time work credits resulting in a sentence lasting approximately...
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MEMORANDUM OPINION AND ORDER Appellants Marcia and Howard Potter (“debtors”) are debtors in a bankruptcy proceeding currently pending in this district. Appellees United Bank of Denver National Association and National Bank of the Rockies (“creditors”), the Potters’ creditors, filed an adversary proceeding under 11 U.S.C. § 727, seeking a denial of discharge. The matter was tried to the bankruptcy ...
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MEMORANDUM DECISION AND ORDER Glynn Edward Scott, an inmate incarcerated at the Northern Nevada Correctional Center in Carson City, Nevada, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Therein, Plaintiff alleged that he was denied due process of law under the Fourteenth Amendment of the U.S. Constitution when the Nevada Department of Prisons froze his inmate trust account ...
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*503OPINION AND ORDER Plaintiff Liquilux Gas Corporation (“Liquilux”) filed this action against defendant Martin Gas Sales, Inc. (“Martin Gas”) and its insurers on September 24, 1990. The action was originally filed in the Ponce Section of the Superior Court of Puerto Rico. Martin Gas removed the case pursuant to 28 U.S.C. § 1441(b) on the basis of this court’s diversity jurisdiction. 28 U.S.C. § ...
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ORDER This suit arises out of incidents occurring after a settlement of an earlier case involving the same parties. In 1984, plaintiff Peter Etchart (“Peter”) obtained a VISA credit card from defendant. In February, 1987 both plaintiffs were hired as correctional officers at the Nevada State Prison. On February 17, 1987, Peter was attacked by an inmate at the prison. He suffered physical ...
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MEMORANDUM OF DECISION The above entitled declaratory judgment civil action is before the Court upon the [submitted] amended motion of defendant THE ST. PAUL INSURANCE COMPANY OF ILLINOIS, a corporation [“ST. PAUL”] for full summary judgment [or alternatively for partial summary judgment] in its favor and against its insured JOE G. CRO-MEANS who is a medical doctor in Scottsboro, Alabama ...
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OPINION AND ORDER Plaintiff Luis Marti commenced this action against defendants Chevron U.S.A., Inc. and its parent corporation, Chevron Corporation1 in the Superior Court of Puerto Rico, San Juan Part. Plaintiff alleged that defendant violated Act No. 80, of May 30, 1976, as amended, 29 L.P.R.A. §§ 185a-185m (1985 and Supp.1990) (“Act 80”), in that defendant dismissed plaintiff without cause and...
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MEMORANDUM DECISION AND ORDER TRPA initiated this action to enforce its ordinances by filing a complaint for injunctive relief and civil penalties. TRPA alleged that defendants C.E. Metrailer (“Me-trailer”) and Terrace Land Company (“Terrace”) graded a road and cut trees on an environmentally sensitive parcel over which defendants owned an easement and that such work was done in violation of TRPA’...
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ORDER On December 4, 1989, plaintiff Treg Neal (Neal) (Plaintiff) filed a diversity action (document # 1) in this Court alleging that on or about August 1, 1987, he and other members of the public used property, owned by defendant Bently Nevada Corporation (Bently) (Defendant), for recreational use. Neal swung from a rubber hose tied to a tree and dove into a shallow part of the Carson River. H...
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ORDER In May, 1990, plaintiffs discovered damage to their building. At the time, they were insured by defendant under an “all-risk” type of policy. Pursuant to this policy, plaintiffs are covered for every loss except those specifically excluded. After defendants denied coverage on the claim, plaintiff filed a complaint (document # 1A) in Nevada state court, which was subsequently removed...
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OPINION AND ORDER This is a declaratory judgment action arising out of events surrounding an oil spill in the waters off Staten Island, New York. Plaintiffs, a group of London underwriters and insurance companies (collectively, the “Underwriters”), filed this action seeking a declaration that they are not liable under insurance policies issued to defendants Diversified Transport Corporati...
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AMENDED ORDER * Before the court is the motion of defendants American National Bank and Trust Company (“American”) and Inland Real Estate Corporation (“Inland”) to dismiss the complaint of Home Savings of America, F.A. (“Home Savings”) for lack of subject matter jurisdiction. For the following reasons, the motion to dismiss is granted. Home Savings brings this complaint for foreclosure pursuant t...
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ORDER DENYING MOTION FOR EXPUNGEMENT OF RECORD On May 31, 1991, there was filed in behalf of the defendant Edgar Hardin Gillock (hereinafter defendant or Gillock) a Motion for Expungement of Record (hereinafter expungement motion) by his present attorney who was not one of his attorneys when this case was tried. The expungement motion seeks to have the Court expunge the entire record in this ...
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OPINION Defendant Matthew T. Crosson moves for an order entering judgment in this case, reversed and remanded to this Court by the Court of Appeals for the Second Circuit with instructions to: (1) enter a declaratory judgment declaring that New York’s lag-payroll law violates the contract clause of the United States Constitution; (2) enjoin the continuing effects and application of t...
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OPINION & ORDER This interpleader action was commenced by Pentech International, Inc. (“Pentech”) to settle competing claims to an underwriter’s warrant entitling its holder to purchase Pentech securities. The warrant was issued in June 1987 to Beuret & Company, Ltd. (“Beuret”), a securities broker-dealer that subsequently deposited the warrant in a proprietary account it maintained with ...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on the Motion of Defendant Armstrong Rubber Company (“Armstrong”) for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Having considered the Motion together with the supporting and opposing memoranda, exhibits, and documentation, the Court is of the opinion that the Motion of Defendant for Summary Jud...
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OPINION This is a case about the right of certain inmates in the State of New York to participate in conjugal visits while in prison. Plaintiff William Cromwell, proceeding pro se, 1 is incarcerated at Sing Sing Correctional Facility (“Sing Sing”). He brings this action pursuant to 42 U.S.C. § 1983 (1988) seeking injunctive relief for an alleged violation of his pr...
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OPINION AND ORDER In this diversity action plaintiffs sued for breach of an employment contract. A jury returned a verdict in favor of plaintiffs for $16,250 as salary due 1 and $48,750 for relocation expenses. Defendants argue that the relocation award is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 88 Stat. 829, as amended, 29 U.S.C. § 1001 ...
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MEMORANDUM Pending before the Court is a motion for summary judgment (cited as MSJ) filed by Defendants, Truck Drivers and Helpers Local No. 355, Health And Welfare Fund/Pension Fund on February 22, 1991. After consideration of said motion and the response filed by Plaintiff, Frank Thomas, I agree that there is no genuine issue of material fact in this case, and that, for the reasons disc...
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MEMORANDUM OPINION AND ORDER This purported class action 1 filed on behalf of a pension trust and ten individuals (collectively, “plain¶tiffs”) charges the following defendants with violating the Securities Act of 1933: Needle in a Haystack, Inc. (“Needle”), Arthur Andersen & Co. (“Arthur Andersen”), James E. Bowser, Steve B. Zaboji, and George J. Myrick. The amended complaint ...
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OPINION AND ORDER This case raises serious constitutional questions that go to the heart of the current national debate on what has come to be denominated as “political correctness” 1 *898 in speech and thought on the campuses of the nation’s colleges and universities. A professor who has had tenure for over sixteen years at one of America’s most famous institutions of higher learning, si...
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MEMORANDUM OPINION AND ORDER On January 31, 1986, after a lengthy trial, this court rendered judgment in favor of defendant Sears, Roebuck & Co. on all claims at issue in this case. Sears later brought a motion for costs and attorneys’ fees, which the court granted in part and denied in part on January 27,1987 and May 20, 1987. Those rulings are published at 114 F.R.D. 615. In order to calculate ...
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ORDER This matter comes before the Court on defendants’ motion to strike plaintiffs’ affidavits used to support plaintiffs’ brief in opposition to defendants’ motion for partial summary judgment. Plaintiffs resist the motion to strike and make their own motion to reopen discovery for a period of not less than 60 days. This action involves plaintiffs’ claim that on July 4, 1988 certain members of ...
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OPINION AND ORDER In December of 1988, M/V Barge No. 101 was en route from San Juan, Puerto Rico, to Miami, Florida, carrying cargo. Nineteen containers of cargo were lost overboard, setting off a series of actions against the barge owner, Sea Barge Group Inc. (“Sea Barge”), and Sea Barge’s insurance company, Fireman’s Fund Insurance Companies (Fireman’s Fund). Complaints were filed in bo...
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Michael Fried, a former co-executive director of debtor Roundabout Theatre Company, Inc. (“RTC”), appeals from the Bankruptcy Court’s denial by summary judgment of Fried’s claim against RTC for pre- and post-petition wages in the total amount of $143,003.33, with $30,770 representing a general claim for wages accrued before RTC filed for Chapter 11 protection and $112,233.33 a priority post-pet...
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MEMORANDUM AND ORDER This matter is before the Court upon motion of the plaintiff to amend the Court’s judgment entered June 3, 1991 pursuant to Federal Rule of Civil Procedure 59(e); upon motion of defendant State of Minnesota to dismiss as to the State of Minnesota pursuant to Fed.R.Civ.P. 60(b); and upon motion of the United States for leave to file a brief as amicus curiae. The motion of th...
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MEMORANDUM OPINION AND ORDER In this action involving bank loans for the refinancing and conversion of two apartment buildings into cooperative units, defendants have moved pursuant to Rules 12(b)(6), 12(b)(1) and 9(b) of the Federal Rules of Civil Procedure (hereinafter “Fed.R.Civ.P.”) for an order dismissing the claims in plaintiffs’ amended complaint (“Amended Complaint”). This motion ...
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This case presents issues concerning the rights of an insurer who has honored a claim under a Marine Insurance policy when the insured releases a third party allegedly liable for the loss. The question presented is whether the indemnified insured party has a duty to establish in the release that the insurer’s subrogated rights have been reserved. On October 14, 1980, defendant, the Hawaiian Eugeni...
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MEMORANDUM OPINION Bonita Weiss filed a complaint against Coca-Cola Bottling Co. and Jerry Lawrence in March of this year, alleging violations of Title VII and the Equal Pay Act. The defendants have moved to dismiss the complaint or, in the alternative, for summary judgment. For the reasons stated below, this court grants in part and denies in part defendants’ motion. BACKGROUND Ms. Weiss w...
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ORDER Before this court is plaintiffs Motion for Attorney’s Fees, filed June 13, 1991, pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The motion has been fully briefed by the parties. For the reasons set forth below, plaintiff’s motion will be denied. I. BACKGROUND On September 8, 1986, plaintiff Dolores J. Fergason (“Fergason”) filed an application for ...
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ORDER In an earlier order, we determined that ERISA preempted plaintiff’s state law claims against defendants. Defendants subsequently moved for attorney’s fees under various authority, including ERISA section 29 U.S.C. § 1132(g)(1). In an order dated December 20, 1990 (document # 43), we denied defendants’ motion on all grounds except § 1132(g)(1). We ordered the parties to file contemporaneou...
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MEMORANDUM OPINION AND ORDER The pro se defendant, Perikles Panagio-taros, filed a motion to reconsider a previous motion to reduce his sentence under Federal Rule of Criminal Procedure 35 (“Rule 35”) and, in the alternative, a motion attacking his sentence under 28 U.S.C. § 2255. For the following reasons, we deny both motions. We sentenced Panagiotaros to nine years after he pled guilty to extor...
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MEMORANDUM OPINION AND ORDER On August 10, 1990, plaintiffs Sam Hakemian, Universal Security Insurance Company (“Universal”), and Prestige Casualty Company (“Prestige”) filed this action in the Circuit Court of Cook County, seeking relief under 42 U.S.C. § 1983. On September 10, 1990, the defendant, Norman Koefoed, removed it to this court. Although plaintiffs’ allegations are complex and...
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MEMORANDUM OPINION In these two longstanding class-action lawsuits, two groups of officers in the Montgomery County Sheriff’s Department charge that the department has again illegally discriminated against them because of their sex and race. 1 In Johnson v. Montgomery County Sheriffs Department, Civil Action No. 82-717-N, Lois Johnson charges on behalf of herself and...
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*1523 MEMORANDUM The defendant, Salick Health Care, Inc. (“Salick”), moves the Court to grant summary judgment in this diversity action filed by the plaintiff, Daryl Cohen, formerly an employee of Salick. In her complaint, Ms. Cohen alleges that Salick wrongfully terminated her employment in retaliation for her protesting against and threatening to report wrongdoing on the part o...
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MEMORANDUM OF OPINION This matter is before the Court for the determination of three motions. The Defendants have moved for summary judgment and for preclusion of thirty-six designated witnesses proposed to be used at trial by the Plaintiff. The Plaintiff has moved for reconsideration of that portion of this Court’s Order of June 29, 1989, which denied Plaintiff’s motion to compel discove...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW I. INTRODUCTION This civil action was brought by the Plaintiff, Equal Employment Opportunity Commission, on behalf of claimant Aileen Peterson, a former employee of the Defendant, Marion Motel Associates, d/b/a Park Inn International. Plaintiff alleges sex discrimination by the Defendant during its employment of Ms. Peterson, in violation of Title VII o...
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ORDER This action is brought pursuant to 42 U.S.C. § 405(g), challenging the manner in which the Secretary of Health and Human Services calculates income for supplemental security income (SSI) applicants and recipients. Specifically, Plaintiff challenges the Secretary’s internal policy which counts that portion of veteran’s benefits paid to the veteran for the support of the veteran’s dependent as...
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MEMORANDUM OPINION AND ORDER Before me is an appeal of the bankruptcy court’s decision rejecting appellant’s argument that the debtor is collaterally es-topped from relitigating issues settled in state court. Appellant is a judgment creditor of the debtor. The judgment arose from a state court action the appellant filed against the debtor. That suit ended with the debtor signing a “Stipulation ...
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MEMORANDUM AND ORDER Plaintiff, First National Bank and Trust Company of Williston (First National), the insured, and defendant, St. Paul Fire & Marine Insurance Company (St. Paul), entered into a contract of insurance. The policy provided comprehensive general liability protection. First National brought *514 this action asserting that St. Paul breached its duty to provide t...
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ORDER This matter is before the Court on defendant’s motion for summary judgment. I. BACKGROUND This case arises out of the civil action Browder v. Botany Bay Marina (the “Browder action”), filed in the South Carolina Court of Common Pleas on March 4, 1988 and tried before a jury on March 29, 1989. Plaintiff in that action, David L. Browder, alleged seven c...
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MEMORANDUM OPINION AND ORDER This securities fraud and breach of fiduciary duty action is pending in the U.S. District Court for the .Middle District of Florida. The plaintiffs, six minority shareholders of defendant Brannen Banks of Florida, Inc., allege that members of the Brannen family (the directors of the company and holders of 80 percent of its stock) breached their fiduciary duties to min...
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MEMORANDUM ORDER Defendant Sanford Morrison has moved for withdrawal of his guilty plea under Fed.R.Crim.P. 32(d). As the basis for his motion, defendant asserts that he is innocent of the charge to which he pleaded guilty and that the victim of the alleged rape has recanted her accusations. Defendant was indicted on a charge of Aggravated Sexual Abuse. On January 10, 1991, at a plea hearing befor...
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ORDER AND REASONS This motion focuses on the growing phenomenon of strategic forum preclusion by the Bar. On July 10, 1990, plaintiff Rowan Companies filed suit seeking adjudication and declaration of its obligation to pay maintenance and cure benefits to defendant Mr. Harvey L. Blanton. Mr. Blanton was employed by Rowan as a member of the crew of the jack-up drilling rig ROWAN ODESSA # 19 wh...
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OPINION I. INTRODUCTION This matter is before the court upon motion of Wilson, Elser, Moskowitz, Edelman & Dicker, as Liaison Counsel for the Transporters Group in this multi-party hazardous waste case, for an Order compelling all delinquent defendant and third-party defendant Transporter Members of the Transporter Group to satisfy the common fees and expenses of Liaison Counsel incurred on behal...
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MEMORANDUM Presently before the Court is Plaintiffs’ Motion For Partial Summary Judgment as to Count I of their Complaint pursuant to Federal Rule of Civil Procedure 56(c). Count I alleges that the Individual Defendants violated Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder by not disclosing in Bell Atlantic’s 1991 Proxy Statement that four of the Individual Defendants...
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OPINION This is a habeas corpus petition by a state prisoner. Respondent has answered the petition. The issue raised in the petition depends upon the record at the criminal trial of petitioner, together with legal arguments. No hearing is necessary. The court rules that petitioner is not entitled to habeas corpus relief, and the petition is dismissed. Petitioner Edward Bonilla was convicted on two...
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MEMORANDUM Defendants Ralph McAllister and Dauphin County, William Livingston, Richard Shroy and Charles Fisher (the county and Livingston, Shroy and Fisher will collectively be referred to as the “Dauphin defendants”) have filed motions for partial summary judgment. The motions have been fully briefed. The court will address the two motions together. Background Many of the ...
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MEMORANDUM AND ORDER This consolidated cause is before the Court on the motion for partial summary judgment of plaintiff Park Place Home Brokers, Russell Wainer, and Toledo Fair Housing Center (collectively the Fair Housing plaintiffs), plaintiff United States of America’s motion for partial summary judgment, defendants’ motion for summary judgment, the Fair Housing plaintiffs’ opposition to de...
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MEMORANDUM & ORDER Plaintiffs, Paul Friedrich, Roger Hall, Tom Harahan, Roseanne Saunders, Richard Schaefer, Jack Wasneski, and Steve Zizza, who are current or former employees of defendant, U.S. Computer Services, which operates under the name “CableData”, brought this action against CableData seeking overtime compensation allegedly owed to them under the Fair Labor Standards Act, (“FLSA...
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ORDER INTRODUCTION Now before this Court is the motion of defendant Whiting Roll-Up Door Manufacturing Corp. (“defendant”) to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), respectively. Alternatively, defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56. *746 Thi...
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ORDER This matter has been referred to the undersigned by order of this Court for resolution of all nondispositive pretrial matters [Doc. 275]. *16This matter comes before the undersigned upon the motion of Ernst & Whin-ney to compel production of documents and answers to deposition questions [Doc. 539], the FDIC’s memorandum in opposition thereto [Doc. 569], Ernst & Whinney’s supplemental memora...
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ORDER AFFIRMING MAGISTRATE’S REPORT AND RECOMMENDATION THIS CAUSE came before the Court upon Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment. THE MATTER was referred to the Honorable William C. Turnoff, United States . Magistrate Judge. A Report and Recommendation dated April 22, 1991 has been filed, recommending that Plaintiff’s Motion for S...
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*778 ORDER AND REASONS This matter is before the Court on motion of plaintiff, Federal Deposit Insurance Corporation as Receiver of American Bank and Trust and in its Corporate Capacity (“FDIC”) for Summary Judgment on the complaint and the defendant, R. Ray Orrill, Jr.’s (“Orrill”), counterclaim. The matter was set for oral hearing on Wednesday, August 21st, 1991, but was s...
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ORDER AND REASONS This matter is before the Court on the CROSS-MOTIONS FOR SUMMARY *772JUDGMENT filed on behalf of PLAINTIFFS, Bricklayers Local No. 1 Welfare Fund, New Orleans Electrical Health and Welfare Fund, Iron Workers Local 58 Health & Welfare Fund, Iron Workers Welfare Fund and Western Louisiana Laborers Welfare Fund [hereinafter referred to collectively as “the Plans”] and DEFENDANTS, L...
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MEMORANDUM AND ORDER This case arises out of an automobile accident caused by the negligence of Donald Good, an uninsured motorist. The accident resulted in the death of Good and all of the occupants of the car with which he collided. The other car, driven by Nereida Andujar, was covered by an automobile insurance policy issued by the Government Employees Insurance Co. (GEICO), which incl...
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MEMORANDUM AND ORDER On July 25, 1991, the court directed a verdict in favor of the defendant at the close of all of the evidence. The purpose of this memorandum and order is to memorialize that ruling and elaborate upon the reasons for the court’s decision. Plaintiff claims that he suffered severe injuries when he fell from a wooden ladder designed, manufactured and sold by the defe...
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ORDER ON APPLICATION FOR EXTRAORDINARY RELIEF IN AID OF JUDGMENT Comes on to be heard, this 11th day of July, 1991, the application of Beech Accept*1155anee Corporation, Inc. (“BACI”), for Extraordinary Relief in Aid of Judgment. At the filing time of the initial application, this court entered a Temporary Restraining Order and an Order to Show Cause. Upon request made by Ted C. Connell, these ord...
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OPINION Applied Biosystems, Inc. (“ABIO”) filed this patent infringement suit against Cruachem Ltd. (“Limited”) and Cruachem Holdings Ltd. (“Holdings”) on May 4, 1990. On July 11, 1990 both defendants moved to dismiss this action for lack of personal jurisdiction. Following almost a year of discovery on the jurisdictional issue, briefing was completed and this Court heard oral argument on...
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OPINION This patent suit involves two manufacturers’ designs for ready-to-assemble (“RTA”) furniture in “traditional” styles. Bush Industries, Inc. (“Bush”) filed this action against O’Sullivan Industries, Inc. (“O’Sullivan”) alleging that O’Sullivan is infringing several of its design patents for various pieces of traditionally styled furniture. The patents-in-suit claim designs for an e...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter comes before the Court following a four-day non-jury trial held August 12-15, 1991. I. Findings of Fact Background 1. Prior to June 1966, Plaintiff, HERMAN CORN, TRUSTEE (“CORN”), acquired 261 acres of real property located in the unincorporated area of Broward County and then zoned for agricultural uses (the “Parcel”)...
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ORDER AND REASONS This matter is before the Court on defendant Texaco’s Motion to Dismiss Plaintiff’s Loss of Consortium and Punitive Damages Claims. The matter was set for oral hearing on August 28, 1991, but was submitted on the briefs. I. FACTUAL BACKGROUND. This suit involves the plaintiff Jerry Duplantis pursuant to 28 U.S.C. § 1333(1) [general maritime law] and 28 U.S.C. § 1332 [diver...
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ORDER THIS CAUSE has come before the Court upon Virginius A. Marks’s appeal from a final judgment of the United States Bankruptcy Court for the Southern District of Florida. The bankruptcy court entered judgment against Marks and in favor of Daniel Bakst on May 23,1990. The parties have briefed the issues raised on this appeal fully, and the Court heard oral argument of counsel on Friday, July ...
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ORDER Before the Court on objections by plaintiff and defendants to Magistrate Judge Bucklo’s Report and Recommendation filed on July 25, 1991. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court referred motions for preliminary injunctions to the Executive Committee for assignment to a magistrate. The Executive Committee gave its consent and this case was assigned to Magistrate Judge Bucklo....
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MEMORANDUM AND ORDER On May 3, 1989, Bobby Allen Jameson was indicted on one count of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (Case No. 90-10013-01). On May 17, 1989, Jameson was indicted on five counts of bank robbery and one count of possession of a firearm in commission of a felony in violation of 18 U.S.C. § 924(c)(1) (Case No. 89-10035-01). Jameson was ordered de*342tained on...
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OPINION AND ORDER This action came to be heard on petitioner’s objections to the December 14, 1990 Report and Recommendation of the United States Magistrate. In accordance with Hill v. Duriron, 656 F.2d 1208 (6th Cir.1981), and 28 U.S.C. § 636(b)(1)(B) and (C), this Court has made a de novo determination of the Magistrate’s findings to which the petitioner objects. For the following reasons, petit...
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*718ORDER This matter comes before the undersigned United States District Judge on the defendant’s motion to suppress evidence seized pursuant to a warrantless search and evidence seized pursuant to a search warrant. A hearing was held before the court. The court bases its decision on the hearing and the pleadings filed by the parties. Statement of Facts On April 8, 1991, members of the Naval In...
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MEMORANDUM OPINION This matter comes before the court on Mr. Gregory Edwards’ motion to dismiss the government’s verified forfeiture complaint against three pieces of real estate, two automobiles, and three bank accounts. Edwards filed a claim for all items and seeks to dismiss the action under Federal Rule of Civil Procedure Rule 12(b)(6). He claims that the forfeiture action should be d...
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MEMORANDUM OPINION AND ORDER We have before us two matters. The first is a motion to amend our November 2, 1990 order, filed by defendant Board of Election Commissioners of the City of Chicago (“Election Board”). The second is plaintiff 87 South Rothschild Liquor Mart, Inc.’s (“Liquor Mart”) statement of fees and costs. For the reasons set forth below, we deny the Election Board’s motion, and awar...
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*77ORDER United States District Judge J. Calvitt Clarke, Jr., by an order entered on December 12, 1990, designated Magistrate Judge William T. Prince to conduct a hearing and to submit to a judge of the court proposed findings of fact, if applicable, and recommendations for disposition by the judge of defendant’s Motion to Dismiss Under Rule 12(b)(6). The Magistrate Judge’s Report and Recommendat...
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*731 MEMORANDUM AND ORDER Plaintiff American Express Company (“American Express” or “plaintiff”) brings the above-referenced action against defendants American Express Limousine Service, Ltd. and its owners (“AELS” or “defendants”) alleging trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a), as well as trademark dilution and decep...
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MEMORANDUM OPINION AND ORDER ASPEN, District Judge: Gerald Richardson brings this two-count complaint against two former employers, Kraft-Holleb Food Service, Inc. (“KraftHolleb”) and Sysco Food Service, Inc. (“Sysco”). Richardson also names the Chicago Truck Drivers, Helpers & Warehouse Worker’s Union (“Union”) as a defendant. Kraft-Holleb and the Union have filed separate motions fo...
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MEMORANDUM OPINION AND ORDER Lone Star Forge Company (“Lone Star”) has moved to dismiss the Complaint brought by Gerard Licciardi (“Licciardi”) against codefendants Lone Star and Kropp Forge Division Employees’ Retirement Plan (the “Plan”) for the claimed violation *1070of Licciardi’s right to benefits under the Plan.1 Lone Star contends that it is not a proper party defendant for Licciardi’s ERI...
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MEMORANDUM OPINION This is matter is before the Court on the plaintiff’s motion to quash an administrative subpoena issued by the United States Postal Service, pursuant to Section 1110 of the Right to Financial Privacy Act of 1978, 12 U.S.C. Section 3401 et seq. This case presents an issue of first impression: whether the Chief Postal Inspector can designate his subpoena power ...
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MEMORANDUM OPINION AND ORDER These matters are before me pursuant to Bankruptcy Rules 9020 and 9033. I treat them together because they involve similar issues and concerns. On June 4,1990, the trustee in this bankruptcy case, C. Gail Hunter (trustee), filed a motion for citation for contempt of court. The trustee alleged that the debtors, Rains-ford and Winifred Winslow (debtors), failed to d...
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OPINION AND ORDER This action is before the court on the plaintiff’s “Motion for Summary Judgment,” filed with supporting materials on June 28, 1991. The defendants responded in opposition on July 26, 1991, and the plaintiff’s opportunity to file a reply brief passed unused on August 6, 1991. I. BACKGROUND This is an action for declaratory relief, which seeks to determine the pa...
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MEMORANDUM AND ORDER This matter is before the court on defendants’ motion to dismiss. Plaintiff, an inmate in federal custody, initially filed this pro se complaint in the Middle District of Pennsylvania in 1988. The action was transferred to the District of Kansas pursuant to 28 U.S.C. § 1406(a) in October 1988. Having reviewed the record, the court makes the following findings and order. Factu...
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OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW Introduction Plaintiff, formerly a federal employee and Head Nurse at the Veterans Administration’s Franklin Delano Roosevelt Hospital, Montrose, New York (“Hospital”), seeks an award of compensatory and punitive damages, injunctive and other relief against defendant, Secretary of the Department of Veterans Affairs, for alleged handicap discr...
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OPINION AND ORDER Plaintiff sued pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) for review of defendant’s denial of disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385. The parties stipulated that plaintiff is entitled to the benefits denied her, and on February 20, 1991, an order to pay those benefits was entered. Plaintiff now moves for attorney fees purs...
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MEMORANDUM AND ORDER The present case arises from events occurring October 8,1986 at the Texaco refinery in El Dorado, Kansas. The general background of the case is neither complex nor the subject of dispute. While being lowered to the ground in a manbasket, four workers were dropped 40 feet to the ground. The manbasket was attached to a crane manufactured by defendant Har *298 ...
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Sitting by Designation OPINION Before the court is plaintiff’s application for a preliminary injunction pursuant to 24 V.I.C. § 471 et seq. and Fed. R. Civ. P. 65. In addition, defendant George S. Jacobus moves to dismiss the complaint against him. *369I. FACTS AND PROCEDURE Plaintiff is the Commissioner of Labor in the Virgin Islands. On July 1, 1991, he commenced the instant action for a decla...
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OPINION FACTUAL BACKGROUND This case is before the court on the petition of C.T. Shipping, Ltd. (“C.T.”) to vacate an arbitration award, and the petition of DMI (U.S.A.) Ltd. (“DMI”) to confirm *148 the same award. The facts of this case, as summarized below, are set out in greater detail in the arbitration panel’s final award. DMI (U.S.A.) Ltd. v. C.T. Shipping, L...
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MEMORANDUM OPINION Before the court is defendant’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b) or alternatively, motion to transfer venue. Plaintiff has responded to the motion. Plaintiff brought his complaint against the defendant on September 26,1990, alleging wrongful employment termination, breach of contract, and intentional infliction of emotional distress. Defendant filed these motion...
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MEMORANDUM AND ORDER This case is now before the court on the defendants’ separate motions to dismiss as follows: Topeka Fire Department’s Motion to Dismiss (Doc. 7) *588Steven Michael Gill’s Motion to Dismiss (Doc. 14) Medevac Mid-America, Inc.’s Motion to Dismiss (Doc. 16) Motion to Dismiss by Roman Hiszcyn-skyj, M.D., and James McGovern, M.D. (Doc. 19) Pro se plaintiff Carol K. Lawton has resp...
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ORDER This matter comes before the Court on the plaintiff’s objections to the Magistrate Judge’s Report and Recommendation. The Court has conducted a de novo review of the portions of the Report and Recommendation to which the plaintiff objects, pursuant to 28 U.S.C. § 636(b)(1)(C). In the Court’s view, all of the objections raised by the plaintiff were very adequately addresse...
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RULING ON MOTION FOR SUMMARY JUDGMENT Plaintiff seeks damages for alleged violations of his constitutional rights, pursuant to 42 U.S.C. §§ 1983 and 1988, arising out of his arrest which he claims was made without probable cause. Defendant moves for summary judgment on the grounds that probable cause existed to arrest plaintiff, and that even if it did not, she is entitled to the defense ...
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MEMORANDUM OPINION AND ORDER Plaintiffs Robert L. Davidson and Guen-ther R. Roth brought this action against defendants Thomas C. Wilson, Winthrop Securities Co., and Winthrop Financial Associates. They asserted claims based on state and federal securities laws, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68, breach of fiduciary duty, and common-law fr...
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Decision and Order Larry Cisewski, doing business as Larry’s Guns, was a licensed gun dealer until June 21, 1990. On that day, respondent, Bureau of Alcohol, Tobacco and Firearms (hereinafter “ATF” or “respondent”) issued a Final Notice of Revocation, revoking Larry Cisewski’s license to sell firearms. On August 14, 1990, Cisewski filed a petition for judicial review of the revocation. The ca...
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MEMORANDUM AND ORDER Both plaintiff Sandra Jean Sutton and her former attorneys Eidson, Lewis, Porter & Haynes 1 of Topeka, Kansas, have moved for summary judgment in the present dispute over legal fees. On May 2, 1986, Sutton was seriously injured when the 1979 Subaru in which she was a passenger burst into flames after an accident. Eidson, Lewis contends that both Sutton (who...
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*138 ORDER Before the Court is a Motion by the Garnishee Defendant, American Casualty Company of Reading, Pennsylvania, for summary judgment (# 26) on the claim asserted against it. For the reasons set forth in this opinion, this Motion is granted. BACKGROUND Joe R. Gibson, the original Plaintiff in this action, commenced this action by filing a shareholder derivative c...
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ORDER The Magistrate Judge’s Report and Recommendations, dated June 12,1991, is hereby APPROVED AND ADOPTED and the Motion for Partial Summary Judgment of The Flagship Group, Ltd. is GRANTED and the Motion for Partial Summary Judgment of Peninsula Cruise, Inc. is DENIED. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION TOMMY E. MILLER, United States Magistrate Judge. This marit...
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ENTRY ON DEFENDANT BRIAN AHERN’S MOTION FOR ACQUITTAL Counsel for defendant Brian Ahern moved for a judgment of acquittal at the close of the government’s case. His motion was taken under advisement at that time, and he rested without presenting evidence. After the instructions were read to the jury, counsel for Ahern renewed the motion and the court retained the motion under advisement. Followin...
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MEMORANDUM OPINION Before the court is a motion for summary judgment by separate defendant Samuel K. Skinner. The motion contends that plaintiffs have failed to exhaust their administrative remedies, and that the complaint fails to state a cause of action upon which relief can be granted. Plaintiffs have responded to the motion. This action involves the construction of a modification of a highway...
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MEMORANDUM AND ORDER Plaintiffs Johnson, et al., four homeless men living in the District of Columbia, on behalf of themselves and others similarly situated, and the Community for Creative Non-Violence, a non-profit corporation advocating the causes of the homeless, bring this action against the District of Columbia, its Mayor, and the Director of its Department of Human Services (collect...
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ORDER This matter comes before the Court on plaintiff’s motion to compel discovery and to determine the sufficiency of defendants’ objections to that discovery. It presents an issue of first impression, to wit: whether a telephonic facsimile transmission satisfies the requirements of Fed.R.Civ.P. 5(b) for the service of discovery requests. On July 4, 1990, plaintiff served defendants with Request...
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ORDER This matter is before the court on appeal by Frann Perlow from the bankruptcy court’s order of 25 May 1990 in which the court held that her claim for equitable distribution of marital property was discharged by reason of her former husband’s discharge in bankruptcy which was entered on 9 February 1990. Jurisdiction is established in the United States District Court for the East...
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OPINION Plaintiff Michael Sidney Luft commenced this copyright infringement action in November 1985 against defendants Crown Publishers, Inc. (“Crown”), Audiofidelity Enterprises, Inc., and Dante Pugliese (incorrectly named in this action as “Daniel” Pugliese.) A default judgment was entered by me in January 1988. Luft subsequently settled the action against Crown and has been unable to p...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT BIC’S JULY 30, 1991 MOTION FOR SUMMARY JUDGMENT Defendant Bic Corporation (“Bic”) filed a motion for summary judgment July 30, 1991: plaintiff filed a response August 16, 1991. Oral argument was heard August 28, 1991. BACKGROUND FACTS This is a products liability action brought against Bic, the manufacturer of a disposable, butane ...
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MEMORANDUM OPINION AND ORDER This Court’s May 22, 1991 memorandum opinion and order as supplemented June 7 (collectively “Opinion 1”), coupled with its June 12 “Opinion 2,” found that plaintiffs were entitled to an award of attorneys’ fees for part (though not all) of the matters covered in their November 7, 1990 petition for fees (the “Fee Petition”). Both plaintiffs and Libbey-Owens-For...
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CONDITIONAL ORDER FOR NEW TRIAL After a jury verdict of guilty this court granted defendant, Brian Ahern’s motion for acquittal. Subsequently, Ahern moved for a conditional order for a new trial and the United States filed its response to that motion. Pursuant to Federal Rule of Criminal Procedure 29(d) this court is required to “determine whether [the defendant’s] motion should be granted if t...
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MEMORANDUM OPINION I. SUMMARY This case involves the issue of whether affirmative causes of action against the Federal Deposit Insurance Corporation-Receiver, based upon misrepresentations by a federal savings and loan association, or its representatives, in connection with the execution of a stock purchase agreement, are barred by the D’Oench doctrine and related Title 12...
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MEMORANDUM In response to this Court’s simple Order of August 9, 1991, requesting the parties in the above-captioned case to file memoranda as to whether removal is timely and appropriate, this Court has received a deluge of filings presumably constituting in the aggregate a response to our Order. Those filings include (in the order received): (1) Plaintiff’s Amended Civil Action Complaint; (2) D...
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MEMORANDUM OPINION Before this Court is the appeal of Mellon Bank, N.A., from a bankruptcy court order of July 20, 1990, denying Mellon Bank's motion to amend its proof of claim. I. Facts On October 23, 1989, debtor Walls & All, Inc., also known as Lebo Wallcoverings, filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701, et ...
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MEMORANDUM AND ORDER On July 23, 1991, the court entered a temporary restraining order prohibiting, among other things, defendant Operation Rescue from blocking the entrances or exits to the Wichita, Kansas clinic operated by plaintiff Women’s Health Care Services, P.A. On August 5, 1991, the court took up for hearing whether to issue a preliminary injunction against the defendants, colle...
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MEMORANDUM OPINION AND ORDER The plaintiff, the United States Equal Employment Opportunity Commission (“EEOC”) brought this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”). The EEOC claims that the defendant, Consolidated Service Systems (“Consolidated”) engaged in a continuing pattern and practice of illegally ...
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MEMORANDUM OPINION A jury trial was held in this Court on July 18, 1991 on a two-count Indictment charging the defendant, Joe L. Thomas, with possession of a firearm which had not been registered with the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5861(d) and 5871, and possession of cocaine base in violation of 21 U.S.C. § 844(a). The jury found the defendant g...
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MEMORANDUM OPINION AND ORDER Defendant Freeman Decorating Co. (“Freeman”) has moved to dismiss the claim brought against it by plaintiff American Pfauter, Ltd. (“American Pfauter”), whose nine-count complaint sets forth a variety of claims against perhaps six different defendants. Freeman argues that this court does not have jurisdiction over the negligence claim in Count I of the complai...
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ORDER RE: MOTION FOR CLASS CERTIFICATION I. INTRODUCTION Plaintiffs Donald A. Wells, Jr. (“Wells”) and Richard Cloutier (“Cloutier”) move this court for a class certification pursuant to Fed.R.Civ.P. 23 in this action for federal securities laws violations and pendent state law claims. Plaintiffs seek certification of a plaintiff class, exclusive of defendants, comprising persons who purchased co...
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MEMORANDUM, ORDER AND JUDGMENT This matter is before the Court on the findings and recommendations of the magistrate judge (Filing No. 140), and the defendants’ motion for additional hearing and arguments and objections to such findings and recommendations (Filing No. 141). The Court has reviewed de novo the portions of the findings and recommendations to which objections have been m...
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ORDER I. SUMMARY This case raises the issue of whether an insurance policy may be effectively rescinded if the insurer takes the requisite steps under Cal.Civ.Code section 1691, governing the requirements for effecting rescission of a contract, where the insurance policy contains an “incontestability clause.” However, because the parties failed to stipulate whether the contested resc...
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MEMORANDUM This matter comes before the Court having been removed from the 285th Judicial District Court of Bexar County, Texas, pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”). Title 12 U.S.C. Section 1441a(Z )(3)(A) permits removal of any civil action to the United States District Court for the District of Columbia where the Resolution Tru...
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*831 MEMORANDUM OPINION Introduction This is an unsuccessful offeror’s challenge to the Navy’s award of an auto parts supply contract to a competitor. Plaintiff, the unsuccessful offeror, charges that the award was unlawful and seeks cancellation of the award together with a declaration that the plaintiff was entitled to the contract or that the Navy must reopen the comp...
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MEMORANDUM OPINION This case reflects that a prison “lock-down” 1 undertaken for valid security reasons does not violate inmates’ constitutional rights even though the inmates may thereby suffer hardships. This matter comes before the Court on defendants’ motion for summary judgment. Plaintiff, Jimmie Lee Johnson, filed this action pursuant to 42 U.S.C. § 1983, alleging numerou...
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OPINION Plaintiff brings this shareholder’s derivative action on behalf of Danaher Corporation (“Danaher”) alleging breaches of fiduciary duties by defendants Steven M. Rales and Mitchell M. Rales (the “Rales brothers”), who are Chairman of the Board and President of Danaher, respectively, and directors of Easco Hand Tools, Inc. (“Easco”), now a wholly-owned subsidiary of Danaher. Also na...
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OPINION AND ORDER These actions arise out of the alleged breach of Aircraft Maintenance Service Agreements (“Maintenance Agreements”) entered into by the parties in 1986 and 1989. Plaintiff-Respondent Pan American World Airways, Inc. (“Pan Am”) is currently a debtor-in-possession, having filed a petition for reorganization in the United States Bankruptcy Court for the Southern District of...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the findings and recommendations of the magistrate judge (filing no. 56), and the objections to such findings and recommendations filed pursuant to 28 U.S.C. § 636(b)(1)(C) and Local Rule 49(B) (filing no. 57). The Court has reviewed de novo the portions of the findings and recommendations to which objections have been made pursuant ...
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RULING ON THE PLAINTIFF’S MOTION TO REMAND AND THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The interesting issue involved in the pending motions before the Court is whether the plaintiff’s cashing of the defendant’s check, which was for less than the full amount due, constituted “accord and satisfaction” under Louisiana law. The plaintiff, Burnside Terminal (Burnside), filed a motion to remand ba...
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OPINION OF THE COURT This case concerns a religious discrimination claim brought by Victor Lambert, a discharged employee. Plaintiff contends that he was required to work in an area where other employees displayed nude photographs of women and that this violates his religious beliefs. Plaintiff refused to continue working in that area, and he was discharged. Plaintiff filed suit...
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MEMORANDUM OPINION AND ORDER The case arises out of a denial by defendant Union Insurance Company of permanent medical and disability benefits claimed by plaintiff Boyed Jordan under the worker’s compensation insurance policy of plaintiff’s former employer. On May 4, 1987, while driving an automobile on a business trip for his employer Dakota Financial Network, plaintiff’s automobile stru...
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ORDER Before the Court are defendants Félix Núñez Molina (“Núñez”) and Rubén Ortiz de Jesús’ (“Ortiz”) motions for acquittal or new trial, on the grounds that the evidence was not sufficient to support the convictions for aiding and abetting Ernesto Llanos Domenech (“Llanos”) in distributing 563.3 grams of cocaine. The motions are further predicated on the Court’s failure to make a Petrozziello ru...
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*107 MEMORANDUM AND ORDER Plaintiff Tove dePoel brings this action against defendants the City of New York, the New York City Health and Hospitals Corporation, a doctor sued as John Doe, M.D., and Deva Alapati, M.D., claiming that defendants violated her rights under 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution by committing her involuntarily to a hospital w...
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RULING ON DEFENDANTS’ MOTION TO DISMISS Houston Industries, Inc. (HII) and Houston Industries, Inc. Employee Medical Plan (the Plan) have filed a motion to dismiss for lack of personal jurisdiction and/or improper venue. For the reasons set forth below, the motion to dismiss is denied. This dispute arises out of the plaintiffs’ demand upon HII and the Plan for payment of medical expe...
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ORDER GRANTING DEFENDANT AND INTERVENOR MOTIONS TO DISMISS THIS CAUSE comes before the Court upon Defendant’s and Intervenor’s Motions to Dismiss. For the reasons detailed below, the Motions to Dismiss are GRANTED. By a Complaint filed March 13, 1991, Plaintiff Edward N. Claughton, Jr. seeks injunctive relief and reasonable attorney fees arising under the Fifth and Fourteenth Amendments to th...
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MEMORANDUM AND ORDER ON DEFENDANT/THIRD-PARTY PLAINTIFF, McKIE COMPANIES’ [sic] MOTION FOR SUMMARY JUDGMENT (# 49, filed 5/1/91) INTRODUCTION The case is presently before the Court on the defendant’s motion for summary judgment; all parties have consented to the referral of the motion to me for final decision pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the mot...
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MEMORANDUM This matter is before the Court upon the renewed motions of Provident Life and Accident Insurance Company (“Provident”) (Court File No. 172) and the Government for summary judgment (Court File No. 173) as to Provident’s defenses relating to damages, not liability. I. Background This lawsuit grows out of various amendments to the Medicare Act, 42 U.S.C. §§ 1101 et seq., which provide ...
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ORDER This matter is before the court on the cross-motions of plaintiff and defendant for summary judgment. Plaintiff, the United States, has moved this court to require defendant to remove certain barriers, designated numbers 42 and 56, which obstruct navigable waters of the United States. This court entered an order dated June 6, 1990,1 2in which it held that the streams involved herein were “n...
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MEMORANDUM AND ORDER In this action for unjust enrichment, the government contends that defendants Alvin Nagelberg [“Alvin”], Sandra Break-stone Nagelberg [“Sandra”] and Bruce Tichy [“Tichy”] 1 received funds belonging to the Hyfin Credit Union [“Hyfin”] to which they were not entitled and moves for summary judgment. The government alleges that these defendants received the pri...
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MEMORANDUM OPINION AND ORDER Pending in this declaratory judgment action are cross motions for summary judgment made by Plaintiff Willard Plumley (Plumley) and Defendant Allstate Insurance Company (Allstate). Plumley seeks a ruling that he is entitled to the underinsured motorists’ coverage included in the automobile insurance policy issued to him by Allstate. Those facts necessary to res...
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ORDER Factual Background A. The Parties On March 12, 1987, the Patriot’s Point Development Authority (“Development Authority”), a public entity pursuant to South Carolina statute, issued $21 million of high yield, unrated tax exempt revenue bonds. The bond proceeds were to be used to build and develop a hotel and marina complex at Patriot’s Point, Charleston, South C...
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MEMORANDUM OPINION AND ORDER Facts On December 27, 1990, Golden Reward Mining Company filed a Complaint in three counts against the Jervis Webb Construction Company of Detroit, Michigan. The Complaint included counts in Negligence, Strict Liability, and Breach of Contract. Initially, Webb delivered to Golden Reward — sometime in August 1989 — a mobile reclaimer, pursuant to ...
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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 RAYMON...
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ORDER THIS MATTER comes before the Court on Plaintiff’s complaint to review a final decision of the Defendant Secretary. Jurisdiction is proper under 42 U.S.C. § 405(g). After careful review of the briefs sub*1112mitted and the record filed, the Court finds and rules as follows. Background The Plaintiff applied for disability insurance benefits under Title XVI of the Social Security Act (Act). P...
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OPINION The United States brings this action to regain title to an eighty-acre tract of land in Klamath County, Oregon for the heirs of an Indian allottee. The United States, on behalf of the heirs of the allottee, requests an ejectment of defendant, a return of the land, and damages for nearly fifty years of alleged wrongful occupancy by defendant. The court has jurisdiction under 28 U.S.C. § 13...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the defendants’ appeal (Filing No. 536)1 and the government’s appeal (Filing No. 537) of the magistrate judge’s memorandum and order (Filing No. 501). I. FACTUAL BACKGROUND This case involves a lengthy investigation of the so-called “Omaha Chapter of the Hell’s Angels” and the alleged involvement of that group in a large-scale drug c...
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MEMORANDUM Plaintiff Saunders sues defendant The George Washington University (GWU) under the Civil Rights Act of 1866, 42 U.S.C. § 1981, 1 and the D.C. Human Rights Act Statute, D.C.Code § 1-2501 et seq., for discriminating against her on the basis of her race and retaliating against her for filing this action. An Order of June 20,1991, 768 F.Supp. 843, granted defe...
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MEMORANDUM AND ORDER BACKGROUND This motion for summary judgment raises the issues of whether the acceptance of workers compensation or the failure to exhaust administrative remedies bars recovery for disability discrimination under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Lake City Nursing Home employed Elizabeth Smith as a licensed practical nurse. The City of L...
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AMENDED MEMORANDUM AND ORDER Having considered all the pleadings filed with respect to plaintiffs’ motion for partial summary judgment and the oral argument presented to the Court on August 23, 1991, the Court concludes as follows: INTRODUCTION This case was filed on January 12, 1990. On June 26, 1990, this Court certified a class composed of all adult persons who are now or who...
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MEMORANDUM OPINION AND ORDER On September 28, 1990, defendant Gabriel Tejada entered a plea of guilty to both counts of a two count indictment: (1) conspiracy to distribute heroin in violation of 21 U.S.C. § 846; and (2) possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B). Count 1 of the indictment carries a statutory mandatory minimum of ten years t...
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MEMORANDUM AND ORDER Petitioner appeals from a comprehensive and persuasive report of Magistrate Judge Orenstein recommending the denial of a writ of habeas corpus. The report is approved on the basis of the Magistrate Judge’s opinion set out below. Because the petition raises issues not fully resolved by the appellate courts on the rights of appellants vis a vis their appellate attorneys, a ...
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ORDER THIS MATTER comes before the Court on Plaintiff’s complaint to review a final decision of the Defendant Secretary. Jurisdiction is proper under 42 U.S.C. § 405(g). After careful review of the briefs submitted and the record filed, the Court finds and rules as follows. Background The Plaintiff applied for disability insurance benefits under Title II of the Social Security Act (Act). Her app...
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MEMORANDUM OPINION AND ORDER Plaintiffs John T. Bailiff and wife, Mary Ellen Bailiff, instituted this products liability action against defendants Manville Sales Corporation (Manville), CIBA-GEIGY Corporation, E.I. Du Pont De Nemours & Company (DuPont), SCM Corporation and NL Chemicals/NL Industries, Inc. (NL), 1 all of which are manufacturers and suppliers of various chemicals...
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ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiffs, Michael Thomas and Jane Thomas filed this civil action with claims *480 sounding in negligence, breach of contract and breach of warranty in the U.S. District Court for the District of Massachusetts on January 29, 1988. The Massachusetts District Court (Skinner, J.) on May 12, 1989 granted the defendant’s motion for a c...
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As noted in this court’s orders of August 2 and 8, 1991, this opinion provides the bases for those orders. The August 2 or*791der concerns the 1991 elections for the Mississippi Legislature being held on schedule. The August 8 order denies plaintiffs’ motions to stay the August 2 order and enjoin the elections, pending appeal of the August 2 order. Challenging Mississippi’s current legislative app...
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ORDER This matter comes before the Court on the motion to dismiss of defendants Administrative Office of the Third Judicial District Court, Timothy M. Shea, and Scott Daniels. The Court, having considered the materials on file both in support of and in opposition to the motion, having considered the arguments of counsel, and being fully advised in the premises, FINDS and ORDERS as follows...
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ORDER AND REASONS This matter is before the Court on MOTION FOR SUMMARY JUDGMENT filed on behalf of the plaintiff, IRON WORKERS MID-SOUTH PENSION FUND [“Fund”], seeking a declaration as a matter of law determining the proper recipient(s) to the Death Benefit due under the terms of the PLAN. The matter was set for oral hearing on August 21st, 1991, but was submitted on the briefs. I. ...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of defendants City of McComb and Wayne Parker in his official capacity to dismiss plaintiff’s state law claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively, for partial summary judgment as to plaintiff’s state law claims pursuant to Rule 56 of the Federal Rules of ...
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MEMORANDUM OPINION AND ORDER In ruling on defendants’ motion for summary judgment, it was held that there were no undisputed facts showing that plaintiffs’ § 10(b) claim was untimely filed. See Order dated March 7, 1991 at 8-9, 1991 WL 34439. Plaintiffs’ claim was filed more than one year after the violation occurred, but less than three years thereafter. It was held that the o...
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MEMORANDUM The amended complaint in this action is brought by the captioned Union on behalf of 172 named former employees of the National Bank of Washington, now in receivership, and others similarly situated. By order dated July 24, 1991, the Court denied plaintiffs’ motion to certify the class, and in so doing, held that the union was not á proper class representative. Since then, plaintiffs ha...
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MEMORANDUM An Order of March 8, 1991 granted defendant Green’s motion for summary judgment and dismissed the complaint for reasons to be stated in a forthcoming memorandum. Upon reconsideration, that Order will be vacated and defendant's motion for summary judgment denied. I. Plaintiffs allege that Green, a gynecologist practicing in the District of Columbia, provided plaintiff ...
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ORDER WITHDRAWING REFERENCE FROM BANKRUPTCY COURT THIS CAUSE comes before the Court upon the motion of Defendant, Community Bank of Homestead (“Bank”), to withdraw the reference from the bankruptcy court and Plaintiffs motion to strike the jury demand. 1 After the issues were thoroughly briefed, the Court entertained oral argument on the motions. The motions raise two issues wh...
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MEMORANDUM AND ORDER Plaintiff National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”), a Pennsylvania insurance underwriter, sues to cancel a lawyers’ professional liability insurance policy it issued to a Washington, D.C. law firm in 1986 as having been procured by fraud. 1 National Union has moved for early summary judgment on its complaint, for ...
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ORDER GRANTING DEFENDANT BELLSOUTH ADVERTISING & PUBLISHING CORPORATION’S MOTION FOR SUMMARY JUDGMENT This cause is before the Court upon defendant BellSouth Advertising & Publishing Corporation’s (“BAPCO”) motion for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. BAPCO contends that it is entitled to judgment as a matter of law because there has been no breach o...
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MEMORANDUM OF OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND DENYING DEFENDANT'S MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM AND IMPROPER VENUE This case is before this Court on defendant Gary G. McLaughlin’s three motions to dismiss pursuant to Fed.R.Civ.P. 12(b). These motions assert that (1) this Court lacks personal jurisdiction over defenda...
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MEMORANDUM OPINION AND ORDER Defendant Carlos Quintanilla, Jr. has filed a motion under Federal Rule of Civil Procedure 60(b)(4) for relief from the default judgment entered against him on March 29, 1991. Quintanilla contends that this court lacked jurisdiction over the complaint brought by plaintiff Kenneth G. Mason, and thus the default judgment is void. For the reasons set forth below, we gran...
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*1206 MEMORANDUM OPINION & ORDER THIS CAUSE IS before the court upon Plaintiffs’ Objections to the Magistrate’s January 25, 1991 Report and Recommendation in which the Magistrate recommended this court establish a two-year statute of limitations for all claims in this action brought under 42 U.S.C. § 1981. Discussion In this cause Plaintiffs have brought charges of empl...
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*598MEMORANDUM OPINION On March 5, 1990, defendants Juan Carlos Alonso and Rolando Carillo, along with seven others, were indicted on two counts involving the importation of cocaine into this country. Following Alonso’s and Carillo’s appearances in court, at which the two defendants were advised of the charges, arraigned, and at which they entered not guilty pleas to the indictment,1 the court hel...
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*553DECISION AND ORDER Defendants bring this motion for summary judgment pursuant to Fed.R.Civ.P. 56, on the grounds that this Court lacks subject matter jurisdiction because plaintiffs failed to present their claim brought pursuant to the Federal Tort Claims Act (the “Act”) to the appropriate federal agency within two years of its accrual, as required by the Act, 28 U.S.C. § 2401(b). In support ...
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MEMORANDUM AND ORDER THIS CAUSE IS before the court upon Defendants’ Motion for Summary Judgment. BACKGROUND Plaintiff Peter Kamenesh is a twenty year veteran of the City of Miami’s Police Department. He began his tenure as a rank and file police officer, subsequently earning promotions to sergeant and lieutenant. By August 1984, Kamenesh was the top candidate for promotion to c...
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ORDER DENYING MOTION TO DISMISS This cause comes before the Court upon the motion of the claimants to dismiss the complaint pursuant to Article X, § 4 of the Florida Constitution. The claimants argue that because the defendant property is homestead property, Article X, § 4 prohibits a civil forfeiture action pursuant to 21 U.S.C. § 881(a)(7). The government has filed a response. I. BACKGROUND Sect...
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MEMORANDUM OPINION At issue in this case is the right to create and market book publishing software for books which contain multiple listing of houses and other real property for use by local Boards of Realtors and multiple listing services throughout the United States. These multiple listing service (MLS) books are produced weekly or bi-weekly and contain information concerning the properties ...
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MEMORANDUM OF OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW This is a case in which the plaintiffs are claiming that they are entitled to be compensated under their federal flood insurance policies. Their claims were rejected and they have brought this action. Because homes near large bodies of water, such as lakes and rivers, have a difficult time getting or cannot get private insurance, th...
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*1188 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS This cause comes before the Court upon the separate motions of defendants Bob Martinez and Dale Twachtmann, and the joint motion of several Metro-Dade County defendants 1 to dismiss the second amended complaint on various grounds, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. All of the defendants ha...
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ORDER GRANTING PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES AND COSTS This cause is before the court upon the plaintiffs’ timely motion for attorney’s fees and costs, pursuant to 16 U.S.C. 1540(g)(4). 1 In this motion for costs and attorney’s fees, plaintiffs, having substantially prevailed in their effort to prevent construction of the access road under the Endangered Species Act of...
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OPINION Defendants Nyack Hospital (“Nyack”), Daniel Berson, M.D. (“Berson”), James Dawson (“Dawson”), Kenneth Steinglass, M.D. (“Steinglass”), and Rockland Thoracic Associates, P.C. (“Rockland”) have moved pursuant to Rule 56, Fed.R.Civ.P. for summary judgment dismissing the complaint of plaintiffs Fletcher J. Johnson, M.D. (“Johnson”), and Benjay Realty Corporation (“Benjay”), as well as...
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ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING GOVERNMENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT; ORDER DENYING GOVERNMENT'S MOTION TO DISMISS COUNTS III AND IV AND DENYING PLAINTIFFS’ MOTION TO COMPEL This cause comes before the court on a number of motions filed by the parties. *1270 Included among these motions are the plaintiffs’ motion for part...
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OPINION AND ORDER This matter is before the Court on the motion of plaintiffs Daniel P. Riedel and Richard Zborowski for partial summary judgment against defendants Versatile Investment Planners, Inc. (hereinafter VIP), I. David Cohen, and Lyle W. Preest. (Plaintiff Barry J. Greenberg, whose suit # C2-89-324 was consolidated with the present suit, has not joined in seeking partial summary...
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ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS This cause comes before the court upon the plaintiffs’ motion for attorneys’ fees and costs. In their motion, the plaintiffs seek attorneys’ fees pursuant to 42 U.S.C. § 1988, costs pursuant to 28 U.S.C. § 1920, and expenses pursuant to Dowdell v. City of Apopka, 698 F.2d 1181, 1190, 1192 (11th Cir.1983). In its response ...
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*296ORDER After due and proper consideration of all portions of this file deemed relevant to the issues raised, and there having been no objections filed, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is ADOPTED as the opinion of this Court. REPORT AND RECOMMENDATION This cause is before the Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636...
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MEMORANDUM AND ORDER ON MOTION TO DISMISS Count IB of this indictment alleges that the defendant Whiting “while engaging in the continuing criminal enterprise described in Part A of this count, did knowingly and intentionally counsel, command, induce, procure and cause the intentional killing of Calvin Reese by ROBERT LITTLES____” in violation of 21 U.S.C. § 848(e)(1)(A). The defendant has mo...
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ORDER This matter is before the Court pursuant to Defendants Carlile Patchen Murphy & Allison’s (hereinafter “CPM & A”) and Michael H. Igoe’s (hereinafter “Igoe”) June 14, 1989, Motion for Summary Judgment; Defendant Domenic Federico’s (hereinafter “Federico”) March 21, 1990, Motion for Summary Judgment and Plaintiff Century Media Corporation’s (hereinafter “Century”) February 26, 1990, Motion fo...
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MEMORANDUM OPINION AND ORDER On September 17, 1970, the City of Jackson adopted an ordinance pursuant to which an area of Hinds County which included the home of Ms. Thelma P. West-brook was annexed by the City. A Petition for Ratification, Approval and Confirmation of Ordinance Extending the Bou»’' *934 aries of the City of Jackson was filed in the Chancery Court for the Fir...
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ORDER This case is before the court on defendant’s Motion for Summary Judgment. The court DENIES defendant’s Motion. BACKGROUND On January 10, 1989, Georgia Farm Bureau Mutual Insurance Company (Georgia Farm Bureau) cancelled plaintiffs’ homeowners insurance policy. The cancellation notice gave the following explanation: “This decision was influenced by underwriting guides. This decision wa...
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ORDER GRANTING DEFENDANTS HAFETS AND LEBAU’S MOTION TO DISMISS AND TO QUASH SERVICE This cause comes before the Court upon motion of defendants Hafets and Lebau to quash service and to dismiss the Complaint for lack of personal jurisdiction, under Rule 12(b)(2) of the Federal Rules of Civil Procedure. Defendants Hafets and Lebau also move for dismissal for failure to state a claim under R...
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ORDER This matter is before the Court upon the Reports and Recommendations of the United States Magistrate (doc. nos. 45, 46, and 47), the objections thereto, the highlighted findings of fact and conclusions of law, and all related memoranda. A hearing was held on Friday, April 19, 1991. Upon a review of the entire record, especially in light of the objections raised, the Court finds that all...
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*711 MEMORANDUM This is a shareholder derivative action brought by Max Grill against the current and former members of the board of directors of MNC Financial, Inc. (“MNC”). Plaintiff alleges that the defendants committed various acts or omissions constituting waste and mismanagement, including permitting MNC to make a “perilously high” percentage of real estate loans, authorizin...
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*1155 MEMORANDUM DECISION AND ORDER FACTUAL BACKGROUND On April 10, 1987, the Federal Savings and Loan Insurance Corporation (the “FSLIC”) became receiver for the Central Savings and Loan Association (“Central”), a failed thrift. Claiming that former Central directors breached their fiduciary duty, the FSLIC’s statutory successor, the Federal Deposit Insurance Corporation (t...
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782 F. Supp. 102 (1991) MANILDRA MILLING CORPORATION, Plaintiff, v. OGILVIE MILLS, INC., Defendant, Third-Party Plaintiff, and Counterclaimant, v. HENKEL CORPORATION, Henkel of America, Inc., Defendants, and Third-Party Defendants, and John Thomas Honan, Counterclaim Defendant. Civ. A. No. 86-2457-S. United States District Court, D. Kansas. August 23, 1991. *103 Edward L. Bailey, Carol B. Bonebra...
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OPINION AND ORDER I. This case is before the Court pursuant to cross-motions for summary judgment filed by plaintiffs, Adam Ward, et al. (“plaintiffs” or “the Wards”) and the state defendants, the current director of the Ohio Department of Human Services and the Deputy Director for family, children, and adult services within the Ohio Department of Human Services (“ODHS”). At the time the state def...
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OPINION Plaintiff pro se Albert DePaul (“DePaul”), brought this action for patent infringement against defendant General Instrument Corporation (“GI”) seeking injunctive and monetary relief. GI now moves to dismiss and for summary judgment pursuant to Rules 12(b)(6) and 56, Fed.R.Civ.P. For the reasons set forth below, GI’s motions are denied. The Parties DePaul i...
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MEMORANDUM OPINION Plaintiff filed a complaint pro se on March 8, 1990, alleging that defendant, by *166 its police officers, violated plaintiff’s constitutional rights, harassed him, and subjected him to numerous false arrests in connection with his attempts to preach through use of an amplifier on a public sidewalk. 1 Plaintiff’s claims arise out of se...
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OPINION AND ORDER This matter is before the Court pursuant to the motion of Plaintiff Northwest Financial Agency, Inc. (“Northwest”) for a preliminary injunction to enjoin the defendants, Transamerica Occidental Life Insurance Company, Transamerica Assurance Company, and Transamerica Life Insurance and Annuity Company (collectively referred to hereinafter as “Transamerica”) from terminati...
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ORDER Having considered all the briefing filed with regard to defendants’ joint motion to intervene in lawsuit II and motion for order allowing expedited discovery, the Court concludes that this matter is appropriate for submission without oral argument1 and concludes as follows: BACKGROUND In October 1989, the Arizona Department of Environmental Quality (“ADEQ”) and the City of Phoenix (“City”) ...
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OPINION AND ORDER DIRECTING ENTRY OF SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS INTRODUCTION Plaintiffs are the board of trustees of fringe benefit trust funds for the Sheet Metal Workers Local Union No. 104 (Trust Funds). Defendant employers Udovch, doing business as Oceanside Sheet Metal, are bound by a collective bargaining and various trust agreements to make timely contributions to...
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ORDER & PRELIMINARY INJUNCTION I. INTRODUCTION On February 20, 1990, the Nevada Supreme Court added to its Supreme Court Rules, “PART V. RULES GOVERNING PRACTICE IN CERTAIN ACTIONS IN THE DISTRICT COURTS.” Part V, Rule 250 addresses procedure in capital cases. The Nevada Supreme Court added this new section to help remedy the many problems, delays and inefficiencies involved in the g...
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MEMORANDUM In Gollomp v. MNC Financial, Inc., 756 F.Supp. 228 (D.Md.1991), I dismissed three consolidated actions brought by five shareholders of MNC Financial, Inc. (“MNC”) against MNC and its former chairman and chief executive officer, Alan P. Hoblitzell, Jr. Plaintiffs in those actions sought to assert (on behalf of all persons who purchased MNC stock between January 17, 19...
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ORDER This matter is before the court on several discovery motions of defendant, counter-claimant and third-party plaintiff Ogilvie Mills, Inc. (“Ogilvie”). This action is set for trial on August 26, 1991, at Topeka, Kansas. This case may be briefly summarized as follows. Plaintiff Manildra Milling Corporation (“Manildra”) seeks a declaration of non-infringement, invalidity and/or unenforceability...
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ORDER THIS MATTER is before the court on the Defendants’ motion to dismiss and motion to strike. On August 7, 1991, Magistrate Judge Peter R. Palermo recommended that this court deny the motions. The court agrees for the reasons stated in the Magistrate’s report. Therefore, after an independent review of the record and being otherwise fully advised, it is hereby ORDERED AND ADJUDGED that the Defe...
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*821MEMORANDUM OPINION AND ORDER Presently pending before the Court in the above-captioned action are defendant’s applications for permission to enter the United States Bureau of Prison’s Boot Camp Program and for a modification of his sentence. The Government opposes both of these applications. For the reasons that follow, both of the applications are denied. DISCUSSION The government first state...
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OPINION AND ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT AND ON MOTION TO DISMISS COUNT THREE This cause is before the Court on two motions filed by defendant: (1) Motion for Partial Summary Judgment, filed on March 20, 1990, and (2) Motion to Dismiss Count Three of Plaintiff’s Amended Complaint, filed on May 10, 1990. Plaintiff filed a response to the first motion on April 30, 1990, and ...
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*463 MEMORANDUM This case returns to the Court after having been remanded to the defendant, Department of Energy (“DOE”), for further consideration in light of the Court’s decision in Civil Action No. 89-1315 (“GAMA I”). See Gas Appliance Manufacturers Association, Inc. v. Secretary of Energy, 722 F.Supp. 792 (D.D.C.1989). Plaintiffs in the current action, as in ...
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MEMORANDUM OPINION This matter came before the court on defendants’ motion for summary judgment. Plaintiff is a high school basketball coach who was temporarily suspended from her coaching responsibilities pending an investigation into various complaints regarding her coaching conduct. Plaintiff brought this suit for declarative, injunctive and monetary relief alleging that the suspension...
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MEMORANDUM OPINION This matter is before the Court on a motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. Petitioner, Frank Arnold Nesbitt, is currently incarcerated at the Federal Correctional Institution at Butner, North Carolina, pursuant to a guilty plea in this Court for transmitting top secret national defense infor *797 mation to the Union of Soviet Socialist Repu...
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ORDER By order of June 10, 1991, the above action was referred to Magistrate Judge William T. Prince to conduct necessary hearings and submit to a judge of this Court proposed findings of fact and recommendations for the disposition of defendant’s motion to dismiss and motion to strike jury award, which motion had been filed herein on May 14th. On July 19th, the said Magistrate Judge file...
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OPINION This matter has come before the court upon motion of plaintiff, Camden Iron & Metal, Inc. (Camden), for an order compelling the production of documents from the defendant, Marubeni America Corporation (MAC). The central issue presented in this motion is whether MAC exercises control over certain documents in the possession of its parent corporation, Marubeni Corporation (MC), thereby requ...
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MEMORANDUM OPINION AND ORDER Before the Court are plaintiffs’ motion for leave to file an amended complaint and defendants’ motion for summary judgment. For the reasons which follow, plaintiffs’ motion is denied, and defendants’ motion for summary judgment is granted. BACKGROUND Plaintiffs Paul Simpson and Dennis Bailey operated an automobile parts business, Cap’n Hook Auto Part...
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MEMORANDUM Plaintiffs Linda Wheeler Tarpeh-Doe and Marilyn Wheeler seek relief for inju *430 ries suffered by Nyenpan Tarpeh-Doe pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) & 2671 et seq. 1 Tarpeh-Doe is the mother of Nyenpan, an eight year old boy who is blind and suffers from severe neurological damage. Nyenpan is a long te...
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MEMORANDUM OPINION AND ORDER Introduction Plaintiff Joan Stainbrook commenced this action against John N. Kent, D.D.S. (Kent) and the Board of Supervisors of Louisiana State University (LSU) to recover for injuries sustained in connection with the surgical implant of a prosthetic device. Defendant LSU moves the court to dismiss this action under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdic...
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OPINION This matter involving the March 12, 1989 allision of the M/V ANPA with the Nashville Avenue Wharf while transiting the Mississippi River, was commenced pursuant to the Admiralty Jurisdiction of this Court. The claims by and between all of the parties to these consolidated proceedings were settled, with the exception of the cross-claim which was to be and in fact was filed against ...
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MEMORANDUM OF OPINION AND ORDER By Order of this Court dated December 7, 1989, Chief United States Magistrate Judge J. Toliver Davis was designated to conduct a hearing on pending motions in the captioned civil action and to submit to this Court recommendations for the disposition of these motions. On August 17, 1990, the Magistrate Judge filed a Memorandum and Recommendation in this case con...
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MEMORANDUM OPINION The above entitled civil action was originally filed on March 20, 1991 in the Circuit Court of Jackson County, Alabama by plaintiff Anthony Brizendine against the defendant “CNA Insurance Company” and three fictitious party defendants and was therein designated as “CV-91-76.” The state court complaint consisted of two counts. Count One for breach of cont...
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ORDER This action arises out of a dispute between Union and Employer appointed trustees of the Western States Asbestos Pension Fund (“Fund”).1 Pursuant to 29 U.S.C. § 186(c), an impartial umpire2 was appointed by the trustees to resolve their dispute. Plaintiffs’ suit attacks the award of the impartial umpire3. Under that *495award, all contributions received by the Fund for work performed after ...
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ORDER Before the court is the motion of plaintiff Octavia Harriston (“Harriston”) for class certification and the motion of defendants Chicago Tribune Company, Charles Brumback, John Sloan and Vincent Riordan (collectively “the Tribune”) for summary judgment. For the following reasons, Harriston’s motion is denied and the Tribune’s motion is granted. FACTS Harriston, a black wom...
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OPINION AND ORDER These civil actions are before the court on the motion of The Frank Lloyd Wright Foundation to transfer case no. 90-C-864-C for improper venue and in the interest of justice pursuant to 28 U.S.C. § 1406(a), or, in the alternative, pursuant to 28 U.S.C. § 1404(a). The Foundation also .moves to transfer case no. 90-C-261-C for purposes of judicial economy. In a status...
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OPINION AND ORDER This matter comes before the Court to consider the cross motions for summary judgment. Fed.R.Civ.P. 56. In this action the plaintiffs charge the defendant school system with an unconstitutional restraint upon their first, ninth, and fourteenth amendment rights by prohibiting their religious organization from a meeting time of their choice at Herbert Mills Elementary Scho...
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777 F.Supp. 750 (1991) John G. SMITH, et al., Plaintiffs, v. GENELCO, INC., et al., Defendants. No. 90-1714C(1). United States District Court, E.D. Missouri, E.D. June 10, 1991. *751 Nicholas Higgins, Whaley, Higgins & Associates, Clayton, Mo., for plaintiffs. Timothy Kellett, Armstrong, Teasdale, Schlafly, Davis & Dicus, St. Louis, Mo., for defendants. MEMORANDUM NANGLE, District Judge....
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OPINION Before the Court is plaintiff’s motion for a preliminary injunction, pursuant to Federal Rule 65, to restrain defendant from distributing liquid pharmaceuticals using defendant’s own trademark. In accordance with Federal Rule 52, the Court sets forth herein its findings of fact and conclusions of law. For the reasons expressed below, the Court will deny plaintiff’s motion. I....
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MEMORANDUM AND ORDER This matter is before the court on defendant Mid-America Auto Auction, Inc.’s (“Mid-America”) motion to dismiss or for summary judgment, and defendants Bill Phillips' and Jay Shrum’s motions to dismiss or for partial summary judgment. Because matters outside the pleadings have been presented, the motions will be treated as motions for summary judgment. Fed.R.Civ.P. 12(c). As a...
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*721 ORDER AFFIRMING BANKRUPTCY DECISION AND ORDER DENYING AVOIDANCE OF JUDICIAL LIEN This matter comes before the Court on appeal from the decision of the United States Bankruptcy Court, Central District of California, which denied the Debtors,’ Sandor Chabot and Betty Chabot (“Cha-bots”), Motion to Avoid Lien brought pursuant to Bankruptcy Code § 522(f)(1). CNB v. Chabot,...
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MEMORANDUM AND ORDER On July 25, 1991 this Court ordered the removal of the information services restriction contained in the consent decree. The Court simultaneously stayed the effect of the order pending appellate review. Subsequently, the Regional Companies (including Ameritech) moved that this Court vacate the stay in its entirety so as to allow the companies to enter the information services ...
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*1555 MEMORANDUM OPINION Presently pending before this Court is Defendants’ Motion to Dismiss. Also pending are cross motions for partial summary judgment. A hearing was held on Defendants’ Motion to Dismiss by Judge Paul Niemeyer, formerly of this Court. The issues have been fully briefed. No additional hearing is deemed necessary. Local Rule 105.6 (D.Md.). I. Mulberry...
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OPINION AND ORDER This action arises out of a construction project known as “O.S.H.A. Deficiencies Project” located at Fort Devens, Massachusetts. The Department of the Army awarded a contract to John’s Insulation Inc. (“John’s”) to perform the work. John’s then entered into a written subcontract agreement with Siska Construction Company, Inc. (“Siska”) to perform most of the general cont...
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MEMORANDUM OPINION This is a case in which plaintiff, Carlos Bozeman, a black man, invokes Title VII and claims that because of his race he was discharged by his employer, Sloss Industries Corporation, the defendant. In an exercise of the discretion granted by Rule 39(c), F.R.Civ.P., this court “of its own initiative” (the language of the Rule), ordered the case tried with an advisory jury. Sloss...
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ORDER All three defendants in this case have moved to dismiss plaintiff’s first amended complaint. On June 17, 1991, this court denied the motion to dismiss filed by defendant Donald Alloian. The court now considers the motion to dismiss of defendants Zakar Garoogian and Dr. Jack Wilkinson. The facts of the case are set forth in the court’s June 17 memorandum order (767 F.Supp. 173); therefor...
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MEMORANDUM OPINION Li a careful, thoroughly researched opinion, Bankruptcy Judge Schwartz assessed sanctions against attorney William L. Needier and his client for the dilatory and unreasonable actions they had taken in the course of litigating the action pending before Judge Schwartz. Because the assessment of sanctions was within Judge Schwartz’ jurisdiction and was not an *20 ...
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OPINION Plaintiff Martin Pincus Marketing (“MPM”) commenced this diversity breach of contract action against defendant/third party plaintiff Sawyer of Napa, Inc. (“Sawyer”), seeking certain commission payments allegedly due and owing from 1988 and 1989 contracts. Sawyer commenced the third-party action against one of its former employees, Vincent Mone, as the person ultimately responsible...
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OPINION AND ORDER Plaintiff, a United States Naval Serviceman, brought a negligence action under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Plaintiff was a pedestrian on liberty walking on Tarawa Road which was owned and maintained by the United States Navy when he was struck by a motor vehicle and fractured his left tibia and fibula, his right fibula, suffered a right frontal lobe br...
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*1077 FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff, Terri L. Nichols, brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. She claims that the defendants, Anthony Frank, the United States Postmaster General, and the United States Postal Service (collectively, the Postal Service), are liable for the acts of her supervisor, ...
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MEMORANDUM OPINION There are many ways to acquire wealth. For the vast majority of people, success is a combination of hard work and luck. This case, however, involves one of those rare situations where the road to wealth is paved with misfortune and mismanagement. There is only one force capable of producing such an anomalous result: the United States Bankruptcy Code. The question confronting th...
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MEMORANDUM AND ORDER This matter is before the court on appellant T.S. Note Company’s (“TSN’s”) appeal from the Bankruptcy Court’s May 15, 1990, Journal Entry of Judgment directing verdict for appellee United Kansas Bank & Trust (“UKBT”). In the Journal Entry of Judgment, the Bankruptcy Court concluded that appellant had failed to present a prima facie case at trial and found that UKBT ha...
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This case concerns a dispute over an insurance claim for lost or missing coffee. Presently before the court is defendant Balfour Maclaine International’s and Van Ekris & Stoett, Inc.’s motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff and the moving defendant have also cross-moved against each other for sanctions. BACKGROUND According to the Complaint i...
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MEMORANDUM The instant case is a Bankruptcy appeal brought by the debtor to vacate the Bankruptcy Court’s reduction of requested attorney’s fees. The appeal is unopposed. For the reasons that follow, the appeal shall be sustained and the Bankruptcy Court’s Order vacated. I. FACTUAL BACKGROUND On July 26, 1989, appellant’s attorney was retained for representation and to prepare a...
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OPINION AND ORDER Defendants Evergreen Marine Corporation and Evergreen International (U.S.A.) Corporation (together, “Evergreen”) move pursuant to Rule 56 of the Federal Rules of Civil Procedure for partial summary judgment to limit their liability on the loss of ties and other goods shipped from Italy to New York in a container. Plaintiff Home Insurance Company (“Home Insurance”), a New Hampshi...
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765 F. Supp. 337 (1991) Susan IRION v. PRUDENTIAL INSURANCE COMPANY OF AMERICA. Civ. A. No. 4-87-242-K. United States District Court, N.D. Texas, Fort Worth Division. June 5, 1991. *338 Jeffrey C. Irion, Arlington, Tex., for plaintiff. Katherine S. Youngblood, Norton & Blair, Houston, Tex., for defendant. MEMORANDUM OPINION BELEW, District Judge. In this lawsuit, the Court has been called up...
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MEMORANDUM OPINION AND ORDER Stanley Peters, a/k/a Stelios Panagiota-ros, was convicted in a bench trial on charges of mail fraud, arson and the use of an explosive device during the course of a felony. This court sentenced Peters to three years in the custody of the Attorney General, to be followed by five years probation. Currently before this court is Peters’ second motion to vacate or set asid...
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ORDER ON MOTION TO DISMISS This cause of action is before the Court on Defendant Pioneer Technologies Group, Inc.’s (hereafter “Pioneer”) motion to dismiss Counts I, III, and V of the Amended Complaint, filed on July 5, 1991, and opposition thereto, filed July 18, 1991. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can ...
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MEMORANDUM AND ORDER This matter is before the court on the defendant’s motion to dismiss, or in the alternative, for summary judgment. Plaintiff filed this negligence action against the defendant pursuant to the Federal Tort Claims Act (“FTCA”). Plaintiff’s claim arises out of medical treatment she received at a military hospital while she was on the United States Army’s Temporary Disability R...
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ORDER ON APPEAL This cause is before the Court on appeal from the Final Judgment of the Bankruptcy Court for the Middle District of Florida, Tampa Division, entered on October 81, 1990, by Bankruptcy Judge Thomas E. Baynes, Jr. STANDARD OF APPELLATE REVIEW Appellant is entitled to an independent de novo review of all conclusions of law and the legal significance accorded to the facts. In...
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Sitting by Designation MEMORANDUM In an earlier opinion, with which familiarity is assumed, the court granted summary judgment to defendants Gerald Singer and Joan Sparling, and denied summary judgment to defendant Kevin D’Amour. Lempert v. Singer, — F. Supp. —, 1991 WL 107257 (D.V.I. June 17,1991) (Carter, J.). Sparling and Singer have now moved for entry of final judgment in their favor pursua...
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*608 MEMORANDUM OPINION AND ORDER Plaintiff Jakobson Shipyard, Inc. (“Jakobson”) brings this declaratory judgment action to determine the rights and liabilities of the parties under a contract of insurance issued by defendant Aetna Life and Casualty Company (“Aetna”). 1 The action arises in connection with Aetna’s refusal to defend a prior action in this court, E...
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MEMORANDUM OPINION AND ORDER THE INCIDENT AND COVERAGES Tomlinson Interests, Inc. (Tomlinson) operated the E.N. Ross # 2 Well located in the Johns Field in Rankin County, Mississippi. 1 Republic Refining, Ltd. (Republic), a Tomlinson subsidiary, operated a gas plant nearby to process the sour gas produced by Tomlinson’s wells. 2 On July 15, 1985, there was an ab...
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ORDER This cause is before the Court on claimant’s motion to stay limitation proceeding and proceed with jury trial, filed June 24, 1991; claimant’s memorandum of law in support, filed June 24, 1991; and petitioner’s Memorandum of law in opposition, filed June 27, 1991. FACTS 1. On April 10, 1990, claimant, DAVID SKINNER, was injured when he dove off that certain Model Chris Craft Seahawk known a...
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MEMORANDUM This matter is before the Court as a reapportionment action pursuant to the Fourteenth and Fifteenth Amendments of the United States Constitution, the Voting Rights Act of 1965, as amended (42 U.S.C. § 1971 et seq.), and 42 U.S.C. §§ 1983 and 1988. The plaintiffs are three members of the Metropolitan Council, two white and one black; and four private citizens of Nashville, Tennessee, tw...
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MEMORANDUM DECISION Defendants have filed objections to the proposed findings and conclusions of the Hon. Howard Schwartzberg, United States Bankruptcy Judge, dated January 7, 1991. Defendants had moved in the District Court for a withdrawal of the reference to the bankruptcy court and to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2), Fed.R.Civ.P. This cou...
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775 F.Supp. 1137 (1991) Edmund J. LEWIS, M.D., individually and as Trustee for Edmund J. Lewis, M.D. & Associates, S.C. Defined Benefit Pension Trust, Edmund J. Lewis, M.D. & Associates, S.C., an Illinois corporation, and American Medical Supply Corporation, an Illinois corporation, Plaintiffs, v. Richard C. HERMANN, R.C. Hermann & Associates, C.P.A., Traverse Realty and Development C...
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OPINION AND ORDER This is an action commenced on December 13, 1990 by plaintiff pro se, seeking relief under 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1997a and 28 U.S.C. § 1961. Defendants Morgenthau, Morse, Dwyer, Hickey, Nardelli, and Ginetto move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, this action is dismissed as to all defendants. BACKGROUN...
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*178 OPINION AND ORDER In this diversity action plaintiff Andrew I. Cramer (“Cramer”) seeks monetary damages, asserting fraud, breach of contract and breach of fiduciary duty by defendant Devon Group, Inc. (“Devon”). This is the second time this matter has come before the Court: an earlier Opinion and Order, dated December 12, 1990, denied plaintiff’s motion for a preliminary inj...
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OPINION AND ORDER The Federal Bureau of Investigation (“FBI”) moves pursuant to Rules 59 and 62 of the Federal Rules of Civil Procedure for reconsideration, clarification and a stay of this Court’s prior Opinion and Order dated April 22, 1991 (familiarity with which is presumed). The FBI had moved for partial summary judgment as to the sufficiency of its production of documents dated 1963...
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OPINION AND ORDER This case, originally an action for the foreclosure of a mortgage, is now before the Court on a post-judgment motion filed by plaintiff United States of America (Small Business Administration) (docket entry 37). In its motion, the government has requested the issuance of an order to the Registrar of the Property of Puerto Rico, San Juan section IV, to cancel what it considers is ...
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MEMORANDUM AND ORDER This matter comes before the court on the motion of defendant Eagle Manufacturing Company (hereinafter “Eagle Manufacturing”) for reconsideration of the court’s memorandum and order entered on July 1, 1991. Defendant again argues that its product, a “safety can,” was not defective as a matter of law because it complied with administrative regulatory safety standards in desi...
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ORDER This cause is before the Court on the following: 1. Motion to dismiss by the Defendants, Lawrence Crow, et al., the claims of the individual Plaintiffs other than L.S.T., INC. and HARVEY ADAMS; 2. Motion by defendants, Lawrence Crow, et al., to dismiss the punitive damage claims asserted by the Plaintiffs; 3. Motion by the defendants, Lawrence Crow, et al., to dismiss...
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ORDER This motion is before the Court on the motion of Defendants, Irene Hamernik (Hamernik), Luis Felix Bustelo (Bustelo), and Urbano E. Garcia-Tobar (Garcia-To-bar), filed pursuant to Rule 12 of the Federal Rules of Civil Procedure, to quash service of process and also on the motion of Defendants, Hamernik and Bustelo to dismiss Plaintiffs’ complaint for lack of personal jurisdiction. ...
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MEMORANDUM DECISION This case challenges a federal statute that employs questionable means to *1161 achieve a laudable goal. The federal statute at issue, the Equal Access Act, 20 U.S.C. §§ 4071-4074 (1990) (EAA), requires public secondary schools to provide student religious clubs the same access to school facilities that other student clubs receive. To achieve this commendable result, howev...
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ORDER GRANTING PLAINTIFF PROVISIONAL LEAVE TO PROCEED IN FORMA PAUPERIS, SEVERING DEFENDANT KANSAS CITY, MISSOURI, AND DIRECTING REMAINING DEFENDANTS TO SHOW CAUSE Plaintiff, who is currently confined at the Jefferson City Correctional Center in Jef*420ferson City, Missouri, has filed pro se a civil rights action under the Civil Rights Act, 42 U.S.C. § 1983 (1976), seeking relief for certain claim...
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MEMORANDUM AND ORDER This case is before me essentially to determine whether the defendants are the perpetrators of a scheme to defraud the public in violation of the Securities Exchange Act of 1934, § 10(b) or whether the defendants are, along with the plaintiff, merely victims — casualties of this region’s recent economic downturn. See, e.g., DiLeo v. Ernst & Young, 901 F.2d ...
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MEMORANDUM AND ORDER This matter comes before the court on defendants’ motion to dismiss. Wyandotte County Sheriff Owen L. Sully (hereinafter “Sully”) and the Board of Wyandotte County Commissioners (hereinafter “board”) argue that the claims asserted by plaintiffs Jeff Ford (hereinafter “Ford”), Sean Jordan (hereinafter “Jordan”), Mario Sanders (hereinafter “Sanders”) and Michael Shelby,...
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ORDER GRANTING SUMMARY JUDGMENT TO CITY OF RIVIERA BEACH AND GWC 104, INC. THIS CAUSE comes before the Court upon Plaintiff Telesat Cablevision Inc.’s (“Telesat”) Renewed Motion for Partial Summary Judgment filed on March 19, 1990, Defendant City of Riviera Beach’s (“City”) Motion for Partial Summary Judgment also filed on March 19, 1990, and Defendant Intervenor GWC 104, Inc.’s (hereinaf...
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MEMORANDUM AND ORDER I. INTRODUCTION Plaintiff, MCI Telecommunications Corporation (“MCI”), brought this action against TCI Mail, Inc. (“TCI”), formerly known as Save a Life Publications, Inc., seeking to recover a deficiency in payment for telecommunications services. MCI is a national and international long-distance telephone carrier. TCI is a professional fund-raising consultant t...
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MEMORANDUM OPINION AND ORDER Onelia Limes-Miller (“Limes-Miller”) sues the City of Chicago (“City”) and Fabiene Rogers (“Rogers”) under 42 U.S.C. § 1983 (“Section 1983”) for their alleged violations of the Fourteenth Amendment’s Equal Protection Clause (Count I) and the First Amendment’s Free Speech Clause (Count II), 1 and she sues City alone under Section 1983 for its asserte...
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MEMORANDUM AND ORDER In accordance with my June 28, 1991 Opinion 771 F.Supp. 506 in the above captioned case, Rx Place was required to limit its display of food and food products to 2,500 square feet. To facilitate this, the parties submitted a floor plan designating the areas that could be devoted to such products. One problem remains. The parties currently are in disagreement over the definition...
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OPINION On remand The Marvel Entertainment Group, a division of Cadence Industries Corp. and certain individual defendants *647(collectively “Marvel”) and Dumler & Gir-oux, the Shukat Company, Ltd., and Peter Shukat (collectively “Shukat”) have moved to impose sanctions in the amount of $100,-000 against the estate of Northern J. Callo-way (“Calloway”) and his former counsel Raymond L. LeFlore (“...
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*1186DECISION AND ORDER On April 23, 1991, the defendant in the above-captioned action was charged in a single-count indictment with having knowingly and intentionally attempted to possess with intent to distribute approximately one kilogram of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2. A jury trial was commenced on' July 1, 1991; the jury returned a verdict finding...
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OPINION AND ORDER This is an insurance coverage case. Avondale Industries, Inc. and its former corporate parent, Ogden Corporation (collectively “Avondale”, except where noted), brought this diversity action seeking a declaration that The Travelers Indemnity Company (“Travelers”) has a duty to defend and to indemnify Avondale pursuant to several Comprehensive General Liability policies wr...
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ENTRY This matter comes before the Court on cross-motions for summary judgment, on the defendant’s motion to stay the proceedings, and on three non-parties’ motions to intervene as party-plaintiffs. For the reasons set forth below, the Court grants the plaintiff’s motion for summary judgment, and denies the defendant’s cross-motion for summary judgment, the defendant’s motion to stay and the thre...
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MEMORANDUM This matter is before the Court on petitioner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth in the opinion below, after review of the Magistrate’s Report and Recommendation and the trial record of the proceedings in the Court of Common Pleas, the petition will be DENIED. The court will approve the Report and Recommendation in all re...
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ORDER ON MOTION TO DISMISS This cause is before the Court on motion of the defendant Richmond Transportation Corp. (“Richmond”) to dismiss the complaint of RoyNat, Inc. (“RoyNat”) on grounds of forum non conveniens. The issues raised have been thoroughly briefed and are ready for resolution. For the reasons set forth, the Court GRANTS the motion subject to the conditions specif...
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ORDER Before the court are summary judgment motions of defendant Feature Enterprises, Inc. (“Feature”) and plaintiff pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the court denies both motions. FACTS Plaintiff, John Paist, was employed as a sales agent for Feature from 1984 until February, 1990. He sold various types of jewelry in Texas and was pa...
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MEMORANDUM OPINION AND ORDER DENYING THE GOVERNMENT’S 18 MARCH 1991 MOTION FOR SUMMARY JUDGMENT AND GRANTING CLAIMANTS’ 17 MAY 1991 MOTION FOR SUMMARY JUDGMENT FACTS On 6 May 1988 the claimants, Gregory Brunson and Willie Dixon were observed at Detroit Metropolitan Airport by Agents David Gentry and L. Ray Denton. Both agents were local police officers assigned to a special Drug Enforcement A...
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ORDER Petitioner, in addition to filing a memorandum in opposition to respondent's motion for summary judgment, has filed separate motions for: (1) additional discovery, (2) expansion of the record, and (3) an evidentiary hearing on certain issues raised in his request for habeas corpus relief. On March 13, 1991, the Court heard oral argument on these motions and on the question of whethe...
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ORDER GRANTING PLAINTIFF’S MOTIONS FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b) AND 28 U.S.C. § 2412(d) In this action to recover Social Security benefits, plaintiff, through his counsel, has moved the court for attorney fee awards pursuant to the provisions of the Social Security Act, 42 U.S.C. § 406(b), and the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). The Secretary has filed ...
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ORDER Daniel DeNardo (“DeNardo”) sued Patrick Murphy and the Alaska Public Employees Association (“APEA”). DeNardo charged that Murphy and APEA fraudulently caused DeNardo to lose his employment with the State of Alaska and contended that Murphy’s and the APEA’s reckless and intentional conduct deprived DeNardo of his job, which DeNardo contends is property, in violation of the Fourteenth Amendme...
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MEMORANDUM OPINION AND ORDER Pending before this court are the following three motions: (1) a motion for summary judgment of cross-defendant Isham, Lincoln & Beale (“Isham”); (2) a motion for summary judgment of cross-defendant Porter, Wright, Morris & Arthur (“PWMA”); and (3) a motion to dismiss the complaint and/or for partial summary judgment of defendants Julius Trump, Edmond Trump, M...
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DECISION AND ORDER On January 2, 1991, Britton Duane McKenzie, currently incarcerated at the Winnebago Correctional Institution, filed this action seeking redress under 42 U.S.C. § 1983, from the Wisconsin Department of Corrections and officers thereof, as well as from several officers and employees of the Oshkosh State Correctional Institution [Oshkosh]. Mr. McKenzie had been incarcerated at Oshk...
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MEMORANDUM AND ORDER This matter is before the Court on the appeal of David F. LaRoche, who seeks review, pursuant to 28 U.S.C. § 158 (1988), of an Order for Relief entered by the Bankruptcy Court on February 21, 1991. The order granted relief based on an involuntary Chapter 11 bankruptcy petition filed on January 2, 1991, by creditors Amoskeag Bank (“Amoskeag”) and Dartmouth Bank, both o...
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MEMORANDUM Plaintiff, a prisoner incarcerated at the Pemiscot County Jail (“PCJ”) at all times relevant to this action, filed this action against defendants pursuant to 42 U.S.C. § 1983. Defendant Clyde Orton is the sheriff of Pemiscot County. Defendant Floyd Buchanan is the jailer at PCJ. Plaintiff alleged that defendants displayed deliberate indifference to his serious medical needs in violation...
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MEMORANDUM OPINION Creditor, Confederation Life Insurance Co., appeals from the bankruptcy court’s final order of October 11, 1990 confirming the plan in the Beau Rivage Limited Chapter 11 bankruptcy case, and the underlying orders of October 4, June 28 and May 2, 1990. The appeal is pursuant to 28 U.S.C.A. § 158(a) which grants this court jurisdiction to hear appeals from final judg...
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I. Introduction...........................................................1384 II. Facts..................................................................1385 III. Propriety of Consolidation..............................................1387 IV. Erie Concerns and State Decisional Law................................1388 V. General Obligations Law Section 15-108 .......
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RULING ON MOTION FOR SUMMARY JUDGMENT Plaintiff sued defendants, the Coca Cola Bottling Company (“Coca Cola”) and John Pantano (“Pantano”), after Coca Cola terminated plaintiff’s employment. Count I alleges that Coca Cola demoted and discharged plaintiff, without just cause, and in retaliation for his informing upper management of alleged wrongful conduct by fellow employees. Amended Comp...
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MEMORANDUM OPINION I. INTRODUCTION In 1979, plaintiff Jerry Cranfill was a distributor for the defendant The Scott Fetzer Company, 1 and specifically for The Kirby Company Division of The Scott Fetzer Company (“Kirby”). In her deposition testimony, Jerry Cranfill admitted that in 1979, in direct violation of her Distribution Agreement, she submitted false sales and warrant...
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The Bennetts appeal the bankruptcy court’s order denying their motion for attorneys’ fees. Upon review of the record, we REVERSE the order of the bankruptcy court, and REMAND this case with the instructions that the bankruptcy court determine the amount of attorneys’ fees due the Bennetts. I. Background Martin and Elizabeth Edwards and James and Jean Bennett sold Maurice Luk-ens, a timber buyer,...
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MEMORANDUM OPINION This is a refund suit under 26 U.S.C. § 7422 for the tax year 1980 by plaintiffs, George W. Hagy (“Hagy”) and his wife, for income taxes and a negligence penalty Hagy and his wife paid on insurance commissions following an assessment for those amounts. Hagy and his wife maintain that the commissions were not income to Hagy but to his wholly owned corporation, the George W. Hagy ...
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MEMORANDUM OPINION AND ORDER I. This matter is before the Court on defendant Daniel Dzialo’s Fed.R.Crim.P. 12(b)(3) motions to suppress evidence. Defendant alleges the following: (1) that a search warrant issued for and executed on his residence and vehicle was without probable cause; (2) that the State of Michigan arrest warrant executed on June 5, 1989 was without probable cause; (3) that d...
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MEMORANDUM OPINION AND ORDER The plaintiffs, Billie Carl Major and her daughter, Naomi Lyn Lyons (Plaintiffs), and the defendants, the Nederland Independent School District and Lee Robinson, in his official capacity as Superintendent of Schools, Nederland Independent School District (NISD), have each filed motions for summary judgment. As is fully set forth below, the Plaintiffs’ motion i...
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MEMORANDUM AND ORDER Petitioners move pursuant to 28 U.S.C. § 2255 for an order vacating or setting aside their sentences. The factual back *537 ground of this case has been set forth in detail in numerous published decisions. United States v. Levasseur, 618 F.Supp. 1390 (E.D.N.Y.1985); United States v. Levasseur, 620 F.Supp. 624 (E.D.N.Y.1985); United States v. Levasseur, 816 F.2d 37 (...
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ORDER AND OPINION RE MOTIONS FOR SUMMARY JUDGMENT CONCERNING DEFENDANTS’ ENTITLEMENT TO 271(e)(1) DEFENSE Plaintiff’s second amended complaint alleges that defendants are liable for patent infringement, misappropriation of trade secrets, and a variety of other unfair business practices in connection with defendants’ development of the Cadence, an implantable defibrillator. Both, part...
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MEMORANDUM OPINION AND ORDER Charles Copeland was a participant in and covered by the Carpenters District Council of Houston and Vicinity Pension Fund (Pension Fund), his membership owing to his membership in the Carpenters Union. Plaintiff Wanda Copeland ceremonially married Charles Copeland in Rye, Liberty County, Texas in 1965. They lived together in Rye as husband and wife until their...
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ORDER GRANTING DEFENDANTS’ 26 JULY 1991 MOTION FOR SUMMARY JUDGMENT INTRODUCTION AND BACKGROUND Plaintiff filed the complaint in the instant matter on 23 July 1990. In count I of his complaint he alleges a 42 U.S.C. § 1983 claim against all defendants. The claim against defendant Officer Beach is, essentially, for excessive force. The claim against defendant City of Keego Harbor is, essential...
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ORDER AND OPINION First Nationwide Bank (“FNB”) and Pathway Financial, A Federal Association (“Pathway”) filed this declaratory judgment action on March 3, 1989 against The *1539 Kirchman Corporation (“Kirchman”) and Florida Software Services (“FSS”). FNB and Pathway seek a determination by the Court that they are not in breach of antiassignment clauses contained in certain c...
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AMENDED MEMORANDUM ENTRY I. Background This cause is before the Court on appeal of Bankruptcy Judge Utschig’s decision that (1) the payments from a structured settlement agreement which the debtor has been receiving are not part of the bankruptcy estate, and (2) even if the payments are included in the estate, that they are exempt under Indiana Code 27-2-5-1 and 11 U.S.C. § 5...
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BACKGROUND Plaintiff Daniel G. Wolf brings this action for employment discrimination against his former employer, Ferro Corporation, under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Plaintiff argues that he was subjected to disparate treatment under the Act when he was discharged, at the age of fifty-seven, during a reduction-in-force (“RIF”) at ...
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OPINION This is an action by petitioner Ali AbdulHabib Hakeem pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. For the reasons stated below, the petition for a writ will be granted. However, in light of the reservations expressed herein execution of the writ shall be stayed pending appeal. STATEMENT OF FACTS Elois Johnson is the proprietor of the Neighborhood Market Gro...
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ORDER ON MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, plaintiff, Dennis W. Conley, on May 2, 1991, filed a motion for summary judgment on counterclaim defendant, John C. Peterson’s counterclaim against Dennis W. Conley and Richard A. Christenson. Peterson filed a response on June 21, 1991. For the reasons set forth, the Court GRANTS plaintiff’s motion...
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MEMORANDUM & ORDER Beginning in the early 1950’s, major corporations began funding employee pensions plans. Trustees no longer required that funds be invested in employer corporations and diversified investments assuring the safest and most efficient use of the funds in order to earn benefit monies ultimately paid to employees upon retirement. These pension funds became major players in t...
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MEMORANDUM AND ORDER In the above-referenced bankruptcy proceeding, the United States appeals from an Order of Bankruptcy Judge Robert Hall which held the Internal Revenue Service (“IRS”) liable to Robert L. Pryor (“Pryor” or “trustee”), the trustee in bankruptcy of Al G. Husher (“Husher” or “the debtor”), for transfers of property which were void as preferences pursuant to 11 U.S.C. § 547. Mor...
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MEMORANDUM OPINION This matter came before the court for a bench trial. 1 Atlantic Mechanical, Inc. (“AMI”) originally filed this action in state court on a breach of contract claim against Atlantic Permanent Savings Bank, F.S.B. (“the Bank”). Subsequently, upon motion of the Bank and with the agreement of the parties, Resolution Trust Corporation as Receiver for the Bank (“RTC...
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RULING ON PENDING MOTIONS Plaintiff 1 brings this action for damages against two doctors who he alleges were negligent in the treatment of injuries he sustained in a motorcycle accident, which negligence caused him to suffer permanent brain damage. In addition, plaintiff seeks to hold the hospital where he was treated vicariously liable for the doctors’ alleged negligence on th...
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MEMORANDUM AND ORDER Plaintiff and defendant have filed motions for summary judgment. For the reasons which follow, plaintiff’s motion is granted and defendant’s motion is denied. BACKGROUND The following facts are not in dispute. On September 19, 1988, Bonnie S. Nachamie (“Nachamie”) opened an attorney escrow account with Guardian Bank, N.A. (“Guardian”), a national banking association. The acco...
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MEMORANDUM OPINION Plaintiff in this case is nothing if not a regular customer of the Federal court system. He is best called a “serial litigator.” In the past three years he has filed over thirty pro se actions. Between 1984 and 1987 he filed at least seventeen suits and appeals in Federal court against his ex-wife, her attorneys, and the state and federal judges who had earlier ruled against ...
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ORDER Before the Court is Plaintiffs Memorandum in Support of Attorneys Fees filed October 24, 1990. Upon review of the motion, the responses filed, and the entire file in this case the Court finds the motion lacks merit and should be DENIED. I. FINDINGS OF FACT Plaintiff seeks attorney fees pursuant to Title 5 U.S.C. Sec. 552(a)(4)(E) of what is popularly known as the Freedom of Information Act (...
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ORDER I. BACKGROUND Before the Court is Plaintiffs’ Motion for a Preliminary Injunction filed January 23, 1991. Also before the Court is the Defendants’ Motion to Dismiss filed January 30, 1991. A hearing on these motions was held January 31, 1991 at which time the Court heard the argument of counsel and received exhibits into the record. Upon review of the motion, the response filed, and the enti...
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MEMORANDUM AND ORDER ON THIRD-PARTY DEFENDANTS’ MOTION TO DISMISS THIRD-PARTY COMPLAINT Background Plaintiff Thomas Morgan filed a complaint in a Massachusetts Superior Court against defendant Colonial Gas Company (Colonial), alleging that Colonial violated Mass.G.L. c. 152 § 75A by refusing to rehire Mr. Morgan following his recovery from an injury for which Worker’s Compensation benefits had b...
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INTRODUCTION Now before this Court are the plaintiffs' motion for partial summary judgment and the defendants’ cross-motion for summary judgment, pursuant to Fed.R.Civ.P. 56. 1 Plaintiffs are the Board of Trustees of Local 41, International Brotherhood of Electrical Workers (“Local 41”), Health Fund (“Health Fund”), Board of Trustees of Local 41, Annuity Fund (“Annuity Fund”) ...
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MEMORANDUM OPINION Presently pending before the Court is an appeal by the trustee for the estate of the Jeffrey Bigelow Design Group, Inc. (‘‘debt- or”) from the decision of the United States Bankruptcy Court for the District of Maryland and cross-appeals by appellees First American Bank of Maryland (“First American”), Ann Donatelli, Louis T. Donatelli, and Donatelli and Klein, Inc. (“Donatelli...
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ORDER This case is before the Court upon Norfolk Dredging Company’s Motion for New Trial or, in the Alternative, Remittitur, and memorandum in support thereof, filed May 10, 1991 (Doc. Nos. 56 and 57), and Plaintiff’s response thereto, filed May 30, 1991 (Doc. No. 60). Oral argument on the motion was held before the Court on May 31, 1991. After hearing argument from both parties, the Cour...
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OPINION AND FINAL ORDER This matter comes before the court for decision following a bench trial. Plaintiff Federal Deposit Insurance Corporation, in its corporate capacity (“plaintiff FDIC corporate”), brought this action pursuant to 12 U.S.C. § 1819(b)(2)(A) to enforce a promissory note against defendant Salvage DeLacy Stith (“Stith”) and a deed of trust against the property of defendant...
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MEMORANDUM AND ORDER I. INTRODUCTION This matter is before the Court on the Plaintiff’s motion, under Fed.R.Civ.P. 12(b)(6), to dismiss the Fourth Claim for Relief of Claimants James E. O’Neil and Robert L. Bendick, Jr. (“Fourth Claim”), *722 for failure to state a claim upon which relief can be granted. Plaintiff, Ballard Shipping Co (“Ballard”), is the owner of the ship M/V WORLD PRODIGY,...
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ORDER Gail W. Trask brings this civil rights action against the County of Strafford, New Hampshire, three Strafford County Commissioners, and the Superintendent of the Strafford County Jail for their failure to prevent Daniel from committing suicide while he was incarcerated in 1986. The individual defendants have been sued only in their official capacities. Plaintiff asserts this action ...
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MEMORANDUM Presently pending before the Court are plaintiffs’ and defendant American Casualty’s cross-motions for summary judgment. At issue in these cross-motions is the interpretation of the “Directors’ and Officers’ Liability Insurance Policy for Savings and Loan Associations Including S & L Reimbursement” (hereafter “the policy”) which was issued to the now insolvent Fidelity Federal ...
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MEMORANDUM OF OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND FOR PERMANENT INJUNCTION Once again, a court is being called upon to decide a case involving the general subject of discrimination and, in particular, a challenge to the City of Elyria, Ohio’s Minority Business Enterprise Program (Chapter 168 of the Codified Ordinances of the City of Elyria, Ohio)...
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783 F.Supp. 1199 (1991) AETNA CASUALTY AND SURETY COMPANY, Plaintiff, v. GENERAL DYNAMICS CORPORATION, Defendant. No. 88-2220C (A). United States District Court, E.D. Missouri, E.D. January 23, 1991. *1200 *1201 Miller, Cassidy, Larroca & Lewin, James E. Rocap, III, Niki Kuckes, Washington, D.C., Kohn, Shands, Elbert, Gianoulakis & Giljum, Robert T. Haar, St. Louis, Mo., for plaintiff. Co...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This is an action brought by plaintiff Lawrence Malone (“Malone”) against defendant Pipefitters’ Association Local Union 597 (“Union”), alleging racial discrimination pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff alleges that the Union discriminated against him in the dissemination of wo...
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MEMORANDUM OPINION In 1974, then-Chief United States District Judge Frank M. Johnson, Jr., writing on behalf of a three-judge district court, found that Alabama’s procedures for involuntary civil commitment of the mentally ill to state institutions did.not comport with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.)...
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*898 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT INTER ALIA Before the court for resolution are the plaintiff’s Motion for Summary Judgment (Ct.Rec. 8) and the defendant’s Cross-Motion for Summary Judgment (Ct.Rec. 25). Also before the court are Cross-Motions to File Overlength Memoranda (Ct.Rec. 14, 22). All were heard with oral argument on May 1, 1991 in Yakima, Wash...
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MEMORANDUM AND ORDER By a Complaint filed April 15, 1991 the United States sought the forfeiture of various properties used in connection with the drug trade. Forfeiture of these defendants-in-rem was sought pursuant to 21 U.S.C. Section 881(a)(6) and (7). By motions fully submitted for decision on August 1,1991 defendant-in-rem Jupiter Wine Corp. moved for summary judgment in its favor on th...
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MEMORANDUM OPINION AND ORDER This case concerns an ongoing dispute between the United States of America and Cook County over the imposition of ad valorem property taxes by Cook County on two federal buildings being purchased by the General Services Administration on an installment basis pursuant to the Purchase Contract Program, 40 U.S.C. § 602a. On March 26, 1991, the court granted ...
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MEMORANDUM RULING GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Between 1984 and 1987, defendant Atlantic Richfield Company (“ARCO”) reorganized and consolidated its operations by terminating employees, and by selling certain assets and divisions to other companies. In connection with that ongoing reorganization, ARCO added an enhanced retirement benefit to the Atlantic Richfield Retir...
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MEMORANDUM OPINION Great Lakes Turnings, Ltd. (Great Lakes) is in the business of collecting, selling and shipping steel ‘turnings’. Turnings are metal slivers produced during the sheet metal stamping process. They are oil-soaked and highly flammable. Aware of the volatile nature of their product, Great Lakes turned to Alexander & Alexander, *487 Inc. (A & A), an insurance br...
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BACKGROUND The parties to the present actions are CSX Transportation, Inc. (“CSXT”), a “carrier” within the meaning of the Railway Labor Act (“RLA”), 45 U.S.C. § 151, First, and the United Transportation Union (“UTU”) and American Train Dispatchers Association (“ATDA”), as well as other unions and individuals (hereinafter collectively referred to as the “Unions”), all of whom are “represe...
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MEMORANDUM Sitting by Designation. This action raises an issue which is important to the people of the United States Virgin Islands — whether the Virgin Islands Public Services Commission (“PSC”) has authority, independent of the Commissioner of Property and Procurement, to procure services of agents to assist PSC in its investigations of public utilities operating within the territo...
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MEMORANDUM This cause is before the court on motion of defendant, Virgin Islands Water and Power Authority (“WAPA”), to vacate the injunction previously entered in this action, to discharge the special master assigned to monitor the injunction, and to declare the agreement between the parties, which forms the basis of this dispute, terminated. *1236Plaintiff, CEC Energy Co., Inc. (“CEC”), seeks a...
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MEMORANDUM AND ORDER This matter is before the court on remand from the Tenth Circuit Court of Appeals to determine an appropriate sanction to be imposed against plaintiffs and their attorney pursuant to Rule 11 of the Federal Rules of Civil Procedure. On September 30, 1988, this court granted summary judgment in favor of defendant General Motors Corporation (“GM” or “defendant”). In ruling for t...
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OPINION AND ORDER Plaintiff David Wojnarowicz moves this Court to hold defendants the American Family Association (the “AFA”) and Donald E. Wildmon in civil contempt of this Court’s Order of September 24, 1990, by reason of their continued dissemination of an AFA pamphlet which that Order enjoined them from disseminating. Background Familiarity with the Court’s prior orders ...
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MEMORANDUM AND ORDER Under consideration this 14th day of February, 1991, is Plaintiffs’ Motion to Compel Defendants to Produce Documents Requested in Plaintiffs’ First Request for Production to Defendant Connaught Laboratories (Dkt. #53) and Memorandum in Support thereof (Dkt. # 54), both filed February 1, 1990. Defendant Connaught Laboratories, Inc., filed a Memorandum in Response to this Motio...
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MEMORANDUM DECISION AND ORDER This matter is before the court on third-party defendants’ Motion for Summary Judgment. The court heard this motion on March 1, 1991. Plaintiffs, Anaconda Minerals Company and Federated Metals Corporation, were represented by Jeffrey E. Nelson, Michael Keller and James A. Holtkamp. Plaintiff, Armco, Inc. was represented by Glen E. Davies, Rick L. Knuth, C. Sc...
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ORDER Plaintiffs filed their complaint on August 10, 1989, seeking remedies under 28 U.S.C. § 1332 for personal and property injury. Currently pending are Plaintiffs’ application to proceed in forma pauperis filed August 5, 1991, Defendant’s Motion for Summary Judgment submitted March 20, 1991, and Defendant’s Motion for Sanctions received by the Court on April 15, 1991. An inspection of Plaintiff...
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OPINION Plaintiff Key Bank N.A. (“the Bank”) has moved under Rule 56, Fed.R.Civ.P. for summary judgment granting the relief sought in its complaint against the four individual defendants (“the Defendants”), the makers of certain promissory notes assigned to the Bank (“The Notes”). For the reasons set forth below the motion is denied. Prior Proceedings These actions to recover on the Notes were ...
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*21 MEMORANDUM OPINION Before the Court is the defendant Ramsey Winch Co.’s (“Ramsey”) Motion to Quash Service and to Dismiss Due to Lack of Jurisdiction, and Motion to Transfer Venue, plaintiffs’ Opposition thereto, defendants’ Reply, and Supplemental Memoranda submitted by both plaintiffs and defendants in the above-captioned action. Defendants argue that they lack the minimum ...
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ORDER Before the Court is the Motion (# 92) by the Defendant Colt Industries for summary judgment on Counts I and II of the Plaintiff’s Amended Complaint. The Court grants Colt’s Motion for Summary Judgment in part and denies it in part. BACKGROUND In 1959, Colt obtained a license from the Armalite Division of Fairchild Hiller Corporation for the rights to Armalite’s AR-10 and A...
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MEMORANDUM OPINION This matter is before the court on the parties’ cross-motions for summary judgment. For the reasons set forth below, both motions for summary judgment are denied. Defendant’s immunity claim is denied and liability remains an issue for jury determination. BACKGROUND Plaintiffs brought this wrongful death action against the United States under the Federal Tort C...
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Sitting by Designation MEMORANDUM and ORDER THIS CAUSE is before the Court on defendant Carambola Beach Resort and Golf Club’s (“Carambola”) motion to dismiss, and Plaintiff’s motion for leave to file an amended complaint correcting the name of the defendant to Davis Beach Co. d/b/a Carambola, and adding Bodkin Development Corp. (“Bodkin”), and Fairfield V.I., Inc. (“Fairfield”) as defendants in...
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MEMORANDUM OPINION This is an action for declaratory and injunctive relief under 42 U.S.C. § 1983 by five non-profit agencies that are authorized recipients of funds under Title III of the Older Americans Act (“OAA” or the *193 “Act”), 42 U.S.C. §§ 3001 et seq. (Supp. 1991), against the Commissioner of the Virginia Department for the Aging (the “VDA”), Thelma Bland (“Bland”), alleging that ...
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MEMORANDUM Plaintiff Resolution Trust Corporation, as receiver for Missouri Savings Association (MSA) has filed a four-count claim for a deficiency judgment as a result of a foreclosure sale on four parcels of real estate located in Texas. This action is filed pursuant to 12 U.S.C. § 1819 and 28 U.S.C. § 1345. Venue in this district is predicated upon 28 U.S.C. § 1391(b). In August of 1983 Sandst...
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OPINION AND ORDER Defendants move to dismiss the case for improper venue pursuant to F.R.Civ.P. 12(b)(3) or, alternatively, for a transfer pursuant to 28 U.S.C. § 1404(a). Background This is an action brought pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (“IGRA” or “the Act”). The Act establishes a comprehensive scheme for the regulation o...
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MEMORANDUM OPINION AND ORDER The appellants, Bennett & Kahnweiler Associates (“Bennett & Kahnweiler”) and the Trustees of the Chicago Truck Drivers Helpers and Warehouse Workers Union Pension Fund (“the Trustees”), bring this appeal of the United States Bankruptcy Court’s April 11, 1990 judgment against them in this case, and the court’s June 12, 1990, denial of the appellants’ motions fo...
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OPINION I. FACTS AND BACKGROUND The present matter arises pursuant to several remaining motions in this action. First, defendant Armstrong has moved under Fed.R.Civ.P. 59 for a new trial, as an alternative to its motion for J.N.O.V. Second, Armstrong has separately moved under Rule 49 (pertaining to inconsistent verdicts) for a new trial. Finally, the plaintiffs have moved for “refor...
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MEMORANDUM AND ORDER This is a class action brought by a group of retirees from TRW, Inc. against TRW and Jake Schoepler, Secretary of the Board of Administrators of TRW’s Salaried Em *36 ployees Pension Plan (“the plan”) (defendants collectively referred to as “TRW”). The plaintiffs are a certified class composed of former employees of TRW who retired between January 1, 1985...
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MEMORANDUM OPINION AND ORDER The fourteen count indictment in this criminal case charges defendants with engaging in an extensive heroin trafficking conspiracy. The indictment charges defendant Dennis Lynch with conspiracy to violate the narcotics laws of the United States, specifically, Sections 812, 841(a)(1), and 841(b)(1)(A) of Title 21 of the United States Code. The general background of the ...
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OPINION The principal legal issue in this lawsuit— the extent to which the government may curtail the speech of a recipient of a government grant — is related to that which was recently resolved by the Supreme Court in Rust v. Sullivan, — U.S. -, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), a case involving abortion counseling in family planning clinics. This Court has carefully considered that de...
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MEMORANDUM AND ORDER Plaintiff was injured and her husband was killed when the plane on which they were travelling crashed en route from Colombia to New York in early 1990. She brought this action against Aerovías Nacionales de Colombia, S.A. (“Avianca, S.A.”), the operator of the aircraft, and The Boeing Company, the manufacturer of the aircraft to recover for the injuries they sustained as a re...
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MEMORANDUM OPINION This case presents the question, unresolved in Virginia, whether the storage and removal of gasoline in underground tanks is an “abnormally dangerous” activity for which strict liability should be imposed. The matter is before the Court on defendant Exxon Corporation’s (“Exxon”) motion for partial summary judgment with respect to counts II (strict liability) and V ...
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OPINION AND ORDER A class of private plaintiffs and the Equal Employment Opportunity Commission (“EEOC”) brought two civil rights actions in 1973 against the Newspaper and Mail Deliverers’ Union of New York and Vicinity (“NMDU” or “Union”) and more than fifty news publishers and distributors within the Union’s jurisdiction. Both suits charged that the Union, with the acquiescence of the publisher...
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MEMORANDUM AND ORDER Plaintiff was injured when the plane on which he was travelling crashed en route from Colombia to New York in early 1990. He brought this action against Aerovias Nacionales de Colombia, S.A. (“Avianca, S.A.”), the operator of the aircraft to recover for personal injuries he sustained as a result of that crash. Avianca, S.A. now moves this Court for an Order dismissing plainti...
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MEMORANDUM DECISION Plaintiff Eileen Williams originally brought this action pursuant to section 205(g) of the Social Security Act (the “SSA”) as amended, 42 U.S.C. § 405(g), seeking judicial review of a final decision by defendant Secretary of Health and Human Services (the “Secretary” of “HHS”) denying her application for widow’s insurance benefits. On April 29, 1987, this Court remande...
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OPINION AND ORDER The consignee’s insurers, plaintiffs Underwriters at Lloyd’s of London (“Underwriters” or “insurers”), filed this action in rem against defendant vessel THE M/V STEIR and in personam against defendant Compagnie Bretonne de Cargos Frigorifiques (“COBRECAF”), a French maritime carrier. Plaintiffs seek a decree for cargo damage due to the alleged negli...
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MEMORANDUM OF DECISION AND ORDER sitting by designation. On December 18, 1990, this matter, which involves an insurance coverage dispute, came before the Court on cross-motions for summary judgment. The plaintiffs were represented by their counsel, Thomas R. Bostock of Warden, Christian-sen, Johnson, & Bird, of Kalispell, Montana. Defendant, Horace Mann Insurance Company, was represented by its c...
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MEMORANDUM AND ORDER Pending before this court is the motion of plaintiff’s attorney for an additional award of attorneys fees and costs against defendants pursuant to 42 U.S.C. § 1988 and 43 Pa.Stat.Ann. § 1425 (Purdon’s Supp. 1990). Plaintiff was the prevailing party on claims under 42 U.S.C. § 1983. In his original motion for award of attorney’s fees and costs, plaintiff sought an award for fe...
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MEMORANDUM AND ORDER In the above-referenced action, trial was scheduled for July of 1991. On July 29, 1991, the parties appeared for trial and submitted documents and a statement of stipulated facts for trial, (“S.F.”), although no live witnesses were called. Thereafter, each party submitted a reply memorandum. Following a brief recitation of the background facts, the Court will turn to ...
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ORDER On September 12, 1991, a non-jury trial was held before the court to determine whether defendant Calvin Clark was guilty of carrying or using a firearm “during and in relation to [a] crime of violence” under 18 U.S.C. § 924(c). After considering the arguments of counsel and the record as a whole, the court makes the following findings of fact and conclusions of law. FACTS In February ...
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ORDER Before the United States Magistrate Judge is the issue of whether the defendant, Margaritas Mexican Restaurant, Inc., may assert the Missouri accountant-client privilege, Mo.Rev.Stat. § 326.151, in this federal question case. Because I find that State law does not provide the rule of decision in this case, and because federal law does not recognize an accountant-client privilege, defendant M...
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*1453 ORDER CLARIFYING SUMMARY JUDGMENT ORDER In its order of June 21, 1991, this court, 781 F.Supp. 1448, denied the motion of Montrose Chemical Corporation of America (“Montrose”) and Stauffer Chemical Company (“Stauffer”), defendants in these consolidated actions, for partial summary judgment pursuant to Fed.R.Civ.P. 56 on the issue of their liability. When the court issued that order, it ...
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MEMORANDUM OPINION AND ORDER Defendant United States of America (United States) moves for dismissal or in the alternative for summary judgment. Both parties agree that there is no genuine dispute of material fact and these motions can be resolved as a matter of law. The issue has been adequately briefed and oral argument will not materially assist its resolution. Plaintiff Nationwide Mutual Insur...
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MEMORANDUM AND ORDER Plaintiff brought this action against Aerovías Nacionales de Colombia, S.A. (“Avianca, S.A.”) to recover for personal injuries sustained by herself and her daughter when the Avianca, S.A. plane on which they were travelling crashed en route from Colombia to New York in early 1990. Avianca, S.A. now moves this Court for an Order dismissing plaintiffs action pursuant to Rule 12(...
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762 F. Supp. 1550 (1991) UNITED STATES of America, Plaintiff, v. Gustavo GOMEZ-VILLAMIZAR, Defendant. Crim. No. 90-0352CCC. United States District Court, D. Puerto Rico. May 10, 1991. *1551 Daniel F. López-Romo, U.S. Atty. by Epifanio Morales-Cruz, Asst. U.S. Atty., Hato Rey, P.R., for plaintiff. Aida M. Delgado-Colón, Acting Federal Public Defender by Miguel A. Nogueras, Asst. Federal Public Def...
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MEMORANDUM OPINION AND ORDER Introduction Plaintiff Federal Deposit Insurance Corporation (FDIC) commenced this action in its capacity as receiver of the Oak Park Bank of Stillwater, Minnesota against former directors of the bank seeking to recover $2.4 million in damages allegedly caused by defendants’ mismanagement. The FDIC’s complaint contains breach of fiduciary duty (count I), ...
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ORDER Before the Court are Cross-Motions for Summary Judgment. For the reasons set forth below, each of these Motions is granted in part and denied in part. BACKGROUND In 1984 the Defendant Northern States Power (“NSP”) decided to dispose of certain hazardous or toxic chemicals being stored at its plant near Minneapolis, Minnesota. The hazardous chemicals were poly-chlorinated b...
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BACKGROUND This case, brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., is before the court on defendants’ motion for reconsideration of the court’s decision of December 7,1988, granting partial summary judgment to plaintiffs. See Cipriano v. Board of Educ. of Sch. Dist. of North Tonawanda, 700 F.Supp. 1199 (W.D.N.Y.1988), ...
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MEMORANDUM Plaintiff Critical Care Registered Nursing, Inc. (“Critical Care”) commenced this action against defendants United States of America; Fred Goldberg, Commissioner of the Internal Revenue Service; and J. Robert Starkey, Regional Commissioner of the Internal Revenue Service (referred to hereinafter as “United States”) to recover federal employment taxes assessed by the Internal Revenue ...
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MEMORANDUM AND ORDER Before the Court are cross-motions for summary judgment (Document Nos. 24 and 26) on the plaintiff's complaint for declaratory judgment. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332 and venue is proper in the Southern District of Illinois. I. FACTS The basic facts of this case are undisputed. On July 1, 1987, the plaintiff, Americ...
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*647 OPINION Defendant Judith Levitt (“Levitt” or the “Department”) has moved pursuant to Rule 12(c), Fed.R.Civ.P. for judgment on the pleadings, or in the alternative, under Rule 56, Fed.R.Civ.P. for summary judgment dismissing plaintiff Om Chojar’s (“Chojar”) employment discrimination action. For the reasons set forth below, the motion is granted in part and denied in part. ...
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MEMORANDUM AND ORDER The court heard oral argument on August 19, 1991 on plaintiff’s application for attorney fees under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412. Defendants opposed the application on two grounds. First, defendants contend plaintiff’s application is premature because defendants have appealed. Second, defendants argue that even if the application is timel...
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*843 MEMORANDUM OF DECISION FINDINGS OF FACT 1. This is a patent infringement action in which the Plaintiffs claim that the Defendants have infringed Claim 18 of U.S. Patent No. 4,059,946 [hereinafter the ’946 Patent]. Plaintiffs’ Exhibit [“PX”] 273. 2. Subject matter jurisdiction, in personam jurisdiction, and propriety of venue are all admitted. The Court h...
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MEMORANDUM OPINION On February 8, 1990, plaintiffs Velda Howe and Theresa Taken Alive filed this class action against defendants James Ellenbecker, Secretary of the South Dakota Department of Social Services, Terry Walter, Program Administrator of the South Dakota Office of Child Support Enforcement and Louis Sullivan, M.D., Secretary of the U.S. Department of Health and Human Services (H...
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OPINION Plaintiff Jerome Russell (“Russell”) brought a pro se action under 42 U.S.C. § 1983 seeking monetary and injunctive relief against defendants Thomas A. Coughlin III (“Coughlin”), Commissioner of Correctional Services for New York State, Donald Selsky (“Selsky”), Director of Special Housing and Inmate Discipline for the New York State Department of Correctional Services ...
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MEMORANDUM Several defendants’ motions to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) or alternatively for a more definite statement under Fed.R.Civ.P. 12(e) are before the Court. I. BACKGROUND The factual background of the case involves the sale to plaintiffs by defendants of limited partnership interests in a real estate venture involving a downtown Nashville, Tennessee ...
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MEMORANDUM In this action under 42 U.S.C. § 1983, the plaintiff alleges that the defendants violated his Fourth Amendment rights by effecting an unreasonable seizure of his person using a trained attack dog. The canine seriously injured the plaintiff in the process of apprehending him at defendant Officer Effting’s direction. On July 3, 1991, the jury returned a verdict in favor of the plaintif...
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ORDER BEFORE THIS COURT is Defendants’ Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment. Plaintiffs did not file a response to Defendants’ Motion. After careful consideration of the arguments contained in the Defendants’ Memorandum in Support of their Motion, the Court is of the opinion Plaintiffs have failed to state a genuine dispute as to material facts, thus Defe...
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ORDER Before the court is the defendant United States’ motion for summary judgment. For the following reasons, the motion is granted. FACTS The plaintiff, Bruce Fulton (“Fulton”), was injured on January 28, 1987, while working as a laborer on a rehabilitation project at the Brandon Road Lock and Dam on the Illinois Waterway in Joliet, Illinois. Fulton was employed by the prime contractor on the p...
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MEMORANDUM OPINION Introduction Before the Court are motions for summary judgment raising the question whether (1) a private physician under contract with a prison and (2) a private hospital without such a contract may be held liable under § 1983 for failing to inform a prisoner-patient of his HIV infection. Because the undisputed facts of this case show that the hospital was not a state ac...
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ON DEFENDANT’S MOTION FOR REVIEW OF TAXATION OF COSTS United States Court of International Trade, sitting as a United States District Court Judge by Designation: Defendant seeks review and modification of the Judgment Clerk’s taxation of costs pursuant to Fed.R.Civ.P. 54(d) and Local Rule 11(b) of the United States District Courts for the Southern and Eastern Districts of New York. Specifically, d...
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MEMORANDUM AND ORDER This civil forfeiture action is before the court on the defendant and claimant’s motion to suppress, Doc. 11. The court held a hearing on the motion to suppress on July 12, 1991. The court has considered the testimony presented at the hearing and the post-hearing briefs and is prepared to rule. The defendant currency and the claimant Stephen L. Bosworth (collecti...
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MEMORANDUM On July 25, 1990, the City Council of Boston (“City Council” or “Council”) enacted an ordinance entitled “In Memory of Robert Waterhouse” (“Ordinance”) over the veto of the Mayor of Boston. The Ordinance makes it unlawful for an employer (1) to hire “strikebreakers” during a strike or lockout or (2) to hire “replacement workers” 1 if their employment is likely to cau...
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*511 MEMORANDUM OPINION AND ORDER This court must decide whether Emerald Denise Johnson, as the administratrix of the estate of her daughter, Lenise Xavier Nelson (hereafter both the estate and Emerald D. Johnson will be referred to as “Johnson”) has stated a claim for medical malpractice under Illinois common law and the Comprehensive Omnibus Budget Reconciliation Act (the “COBR...
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BACKGROUND This case involves an allegation of securities fraud. Plaintiff, Walter J. Panfil, is the former president of Network Consultant’s, Inc., a New York corporation involved in the telecommunications business. On November 30, 1984, Network Consultant’s agreed to merge into A.C. Telecon-nect Corp., a subsidiary of defendant ACC Corporation (“ACC”). As majority shareholder in Network ...
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MEMORANDUM OPINION AND ORDER In this diversity action, Michael Mondrus brings a three-count complaint against Mutual Benefit Life Insurance Company (“Mutual Benefit”), seeking a declaration of his disability under the terms of Disability Income Policy number H401.454, damages for breach of contract, and statutory relief pursuant to Ill.Rev.Stat. ch. 73, ¶ 767. Currently before the court i...
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776 F. Supp. 240 (1991) FOUR SEASONS HOTELS LIMITED, Plaintiff, v. KOURY CORPORATION, Defendant. No. 90-70-CIV-5-BR. United States District Court, E.D. North Carolina, Raleigh Division. July 23, 1991. *241 Douglas Wayne Kenyon, Arthur James DeBaugh, Hunton & Williams, Raleigh, N.C., for plaintiff. Larry L. Coats, Rhodes, Coats & Bennett, Raleigh, N.C., Hubert Humphrey, Greensboro, N.C., D...
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MEMORANDUM AND ORDER I. The claims in this case are based on allegations of a misappropriation of ideas. Plaintiff, William X. Kienzle (Kienzle), is a nationally renowned novelist. In 1980, Kienzle submitted to defendant, Capitol Cities/American Broadcasting Company, Inc. (ABC), a proposal for a television series. 1 The proposed series was a situation comedy involving occu...
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OPINION This matter arises out of the death of Michael A. Waechter (“decedent”). Plaintiffs Joseph and Gloria Waechter, parents of the decedent, allege violations of their and their son’s civil rights protected by the United States Constitution. They also allege violations of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Michigan wrongful death statute, M.C.L.A. § 600.2...
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OPINION Before the court is the motion of the plaintiffs, Public Interest Research Group of New Jersey (“NJPIRG”) and Friends of the Earth (“FOE”), for a preliminary injunction, partial summary judgment on the issue of liability and permanent injunctive relief against defendant, Donald B. Rice, the Secretary of the United States Air Force. Defendant has moved for partial summary judgment ...
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765 F.Supp. 358 (1991) Matias AVILES, et al., Plaintiffs, v. Donald KUNKLE, et al., Defendants. Civ. A. No. L-85-45. United States District Court, S.D. Texas, Laredo Division. June 10, 1991. *359 *360 *361 *362 Israel M. Reyna, Attorney in Charge, Texas Rural Legal Aid, Inc., Guadalupe Canales, Co-Counsel, Laredo, Tex., for plaintiffs. Don Kunkle, pro se. SUPPLEMENTAL FINDINGS OF FACT AND CONCLU...
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DECISION AND ORDER I. INTRODUCTION Plaintiff Frank Zavaro, a prisoner currently incarcerated at a New York State *86correctional facility, brought1 this action pursuant to 42 U.S.C. § 1983, alleging that his due process rights were violated when he was punished pursuant to a disciplinary hearing in which the prison hearing officer impermissibly relied on the uncorroborated testimony of confidenti...
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*1276ORDER THIS CAUSE has come before the Court upon the Petition Of Northern Kentucky Bank and Trust For Disclosure Of Matters’ Occurring Before The Grand Jury And Order Permitting David Kurash To Testify. The United States has filed a memorandum in opposition to the petition. Similarly, Paul Myers and Security Finance Group, Inc. have filed a joint memorandum in opposition. The petitioners have...
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*1563MEMORANDUM Presently pending before the Court are defendants’ objections to the Report and Recommendation of Magistrate Judge Daniel E. Klein, Jr., and plaintiffs’ response thereto. Based on a de novo review of the entire record pursuant to Fed.R.Civ.P. 72(b), the Court accepts the Magistrate Judge’s Report and Recommendation and the conclusions and findings therein for the reasons stated be...
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MEMORANDUM On May 3, 1991, the United States Attorney filed an Information charging defendants Barker Steel Co., Inc. (“Barker”) and Robert Brack, President of Barker, with conspiracy to defraud the United States in violation of 18 U.S.C. § 371.1 Specifically, the government charges defendants with conspiring to frustrate a “lawful governmental function” of various federal agencies.2 Information ...
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OPINION AND ORDER Chesrown Rapid Credit (“Chesrown”), defendant in the proceeding below, appeals from an order of the United States Bankruptcy Court. The issue presented on appeal is whether the bankruptcy court erred in declaring void Chesrown’s lien on a 1987 Plymouth Reliant. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158(a). I. The facts are not disputed. On June 29,...
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DECISION AND ORDER INTRODUCTION The defendants, Leonard Falzone and Salvatore “Sammy” Spano, are charged by indictment with various violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c), (d). Defendant Spano is also charged with money laundering and conspiracy to launder money in violation of 18 U.S.C. §§ 1956, 371, respectively, and three...
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*112 ORDER AND OPINION This is a negligence action brought by plaintiff Thelma Walker (“plaintiff”), individually and as administratrix of the estate of her deceased husband, Father Patrick DeSouza Walker, against defendant Eastern Air Lines, Inc. (“Eastern”). Eastern has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons state...
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ORDER Plaintiff Parker Laboratories, Inc., (“Parker”) has brought this action against Pharmaceutical Innovations, Inc. (“PI”), seeking equitable relief and punitive damages for trade dress infringement and unfair competition. Parker asserts that PI “blatantly copied” the distinctive, non-functional trade dress of Parker’s widely known and highly successful AQUASONIC 100 ultrasound transmi...
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MEMORANDUM AND ORDER “The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son: The righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him.” —Ezekiel, 18:20. I. This is an action to recover the costs of cleaning up hazardous waste under the Comprehensive Environmental Respon...
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MEMORANDUM This matter is before the Court on an appeal of the Bankruptcy Court ruling issued on June 20, 1990 which dismissed the case after finding that the debtor failed to meet the Chapter 13 eligibility requirements which are set out in 11 U.S.C. § 109. The APPELLEE’S BRIEF was filed on September 12, 1990. The APPELLANT’S BRIEF was filed on August 13, 1990. Oral arguments were heard in thi...
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MEMORANDUM AND ORDER The complaint in this case is based on the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq., and common law negligence. Defendant moves to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) and moves to strike the plaintiffs’ demand for a jury trial. As set forth below, defendant’s motion is granted in ...
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ORDER This matter is before the court on a number of related motions. *1530 I. HISTORY OF THE CASE Plaintiff filed a complaint on November 27, 1990 in the Superior Court of Newton County, Georgia, seeking payment under a fire insurance policy on plaintiffs home. Defendant filed a notice of removal on December 27, 1990. On January 11, 1991 defendant filed a motion to ame...
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MEMORANDUM OPINION AND ORDER Both the United States and claimant Alan Schroeder (“Schroeder”) have filed summary judgment motions under Fed. R.Civ.P. (“Rule”) 56 in this civil forfeiture action under 21 U.S.C. § 881(a)(7), 1 which targets both Schroeder’s residence at 30 Ironwood Court, Frankfort, Illinois and his law office at 111 Ash Street in the same city. 2 For ...
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OPINION This matter comes before the Appellate Division of the court on a petition for a writ of mandamus ordering the Clerk of the Territorial Court, Viola Smith, to comply with Rule 3(d), Fed. R. App. Pro., and transmit the necessary documents to this court for purposes of considering petitioner’s appeal. For the following reasons, the writ will be granted. FACTS AND PROCEDURAL BACKGROUND1 Plain...
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*76MEMORANDUM This securities action was commenced on March 22, 1990, by Michelle Mrdeza and Patrick Magrath, purchasers of common stock of Kirschner Medical Corporation (“Kirschner” or the “company”), against Kirschner and several of its officers and directors. On May 11, 1990, the Court consolidated into this action four similar suits filed by Howard Rosen on April 6, 1990 (WN-90-996), by Danie...
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Sitting by Designation MEMORANDUM — ORDER This matter comes before the Court on plaintiff’s motion for declaratory and injunctive relief. Plaintiff seeks a declaration that certain work it proposes on its first tier coastal property constitutes “repair” and not development reconstruction. Plaintiff argues the work is to repair damage to the property caused by Hurricane Hugo and is not the result...
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MEMORANDUM AND ORDER Plaintiffs Lamb’s Chapel and John Steigerwald (“Steigerwald”) brought an action before this Court 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...
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MEMORANDUM Hibbard Brown & Co., Inc. and Richard P. Brown (collectively “Hibbard Brown”) 1 have instituted this action against 218 of Hibbard Brown’s former customers seeking an injunction to stay arbitration proceedings instituted by former customers (“the investors”) against Hibbard Brown before the National Association of Security Dealers. The underlying dispute between the ...
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The Republican Party of Virginia, certain Republican members of the Virginia House of Delegates, and some voters registered in Virginia (Republicans) brought suit against the Governor and Executive Secretary of the State Board of Elections of the Commonwealth of Virginia, contending that the defendants participated in the enactment and enforcement of a partisan gerrymander which violated the Fi...
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ORDER DENYING MOTION FOR INJUNCTION PENDING APPEAL This matter comes before the court on defendants’ motion for injunction pending appeal, filed February 7, 1991. Jurisdiction is based upon 28 U.S.C.A. § 1331 (West Supp.1991). For the reasons stated below, defendants’ motion for injunction pending appeal is hereby DENIED. I. From 1987 to 1990, plaintiff D.R. Evans (“Evans”) atte...
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MEMORANDUM-DECISION & ORDER Before the court is the United States’ motion in limine for a pre-trial determination regarding the elements of an offense under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6928(d)(2)(A). Also before the court is defendant Laughlin’s motion to compel the government to furnish a bill of particulars and to identify documents which the governm...
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ORDER Plaintiff, Kansas City Community Center, is a not-for-profit corporation that provides drug and alcohol rehabilitation services in Kansas City, Missouri. Defendant, Heritage Industries, Inc., is a manufacturer of prefabricated modular housing and is located in Nebraska. In February of 1990, the parties entered into a “Purchase Agreement” for the design and construction of a new drug...
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RULING ON MOTION TO DISMISS In this one-count action pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., John F. Tracey, Jr. (“Tracey”) sues his former employer, Heublein, Inc. (“Heublein”), for the recovery of certain pension plan benefits. Heublein now moves to dismiss the substituted complaint. For the reasons that follow, the court g...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION On December 20, 1989, the court heard argument on two pending motions. The motions included: a Motion for Summary Judgment brought by plaintiff Hartford Accident and Indemnity Corporation (“Hartford”) with respect to the “alienated premises exclusion” contained in an insurance policy (the “Liability Policy”) issued by Hartford to defendant...
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ORDER This matter is before the court on defendant United States of America’s motion to dismiss Frank Wilkinson’s petition for writ of error coram nobis. Petitioner asks the court to vacate his January 22,1959 conviction for contempt of Congress. I. FACTS In the spring of 1958, the House of Representatives Committee on Un-American Activities authorized subcommittee hearings to be held in At...
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ORDER THIS MATTER comes before the court on the receipt of the Notice of Decision and Compliance filed by the federal defendants on July 8, 1991. The above captioned action was filed on October 19, 1989. The controversy has been prolonged: litigation concerning mining claims to oil shale land has lasted over sixty years. Numerous appeals have been taken to the Supreme Court and appellate courts...
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ORDER AND OPINION Petitioner seeks a writ of habeas corpus ordering his release from state prison. He alleges that the state violated his sixth amendment rights by failing to give him adequate notice that the prosecution intended to convict him of first degree murder under the theory of felony murder. I. The history of this habeas corpus proceeding is lengthy. In 1985 Usher filed his first ...
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ORDER THIS MATTER comes before the court on several post-trial Motions: Defendants’ Motion for Judgment Notwithstanding the Verdict and Plaintiffs’ Motion for a New Trial on the Issue of Damages, and for Prejudgment Interest, Costs, Increased Damages, and Attorneys’ Fees. By this Order we deny defendants’ Motion for Judgment Notwithstanding the Verdict and plaintiffs’ Motion for a New Tri...
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MEMORANDUM I. INTRODUCTION Plaintiff and defendant are parties to a Hauling Agreement executed on October 20, 1987. Through that agreement defen *634 dant contracted to haul commodities for the plaintiff. Clause 15 of that contract calls for the application of Indiana law in the event of a disagreement between the parties. Clause 17 reads, in part: ARBITRATION. All disputes and controve...
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MEMORANDUM OPINION AND ORDER On March 22, 1990, plaintiff Maxine E. Acrey brought this civil action for damages and injunctive relief based upon alleged unlawful employment practices committed by her former employer, the American Sheep Industry Association (“ASI”). Jurisdiction is based upon 28 U.S.C.A. § 1343 (West Supp.1991). Acrey seeks relief for age and sex discrimination under the Age Discr...
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ORDER THIS MATTER comes before the court on plaintiffs Motion to Review Taxation of Bill of Costs, filed July 22, 1991. On June 19, 1991, the court entered judgment on a jury verdict in favor of plaintiff and against defendant on plaintiffs breach of contract and breach of express covenant of good faith and fair dealing claims. On June 27, 1991, judgment was entered in favor of defendant and agai...
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MEMORANDUM OPINION The October 2, 1990, edition of the Sun published a photograph of the plaintiff in conjunction with a “story” entitled, “World’s oldest newspaper carrier, 101, quits because she’s pregnant!” The “story” purports to be about a “papergal Audrey Wiles” in Stirling, Australia, who has been delivering papers for 94 years. Read *1236 ers are told that ...
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MEMORANDUM OPINION At the trial in this case, the jury awarded compensatory damages of $500,000 to the decedent’s estate and $250,000 for loss of consortium to the decedent’s wife for personal injuries Pedro Belardinelli sustained in a three vehicle accident.1 The jury found no contributory negligence on the part of the elderly plaintiff decedent and allocated equal responsibility for the accident...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT This matter comes before the court on defendant’s motion to dismiss or, in the alternative, for summary judgment, filed February 11, 1991. It involves the growing issue of the legitimacy of drug testing in the workplace. On April 4, 1991, we notified the parties that the court would be treating the motion as one for summary judgment. Jurisdiction...
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ORDER REJECTING IN PART AND ADOPTING IN PART THE RECOMMENDATION OF THE MAGISTRATE JUDGE This cause is before the court on review of the recommendation of the Magistrate Judge (MJ) to grant summary judgment in favor of the plaintiff, Southern Aluminum Castings (Southern) (doc. # 38). The defendant, United States, has filed written objection to the MJ’s recommendation (doc. # 39). Following...
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MEMORANDUM AND ORDER At the close of plaintiff’s case, defendant, Rhode Island Hospital Trust National Bank, made a Motion for Jurisdictional Dismissal under Rule 12(h)(3) and Rule 12(b)(1) of the Federal Rules of Civil Procedure. The Court grants defendant’s motion; the above captioned case is dismissed for lack of subject matter jurisdiction. BACKGROUND The facts not in dispute in the abo...
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ORDER GRANTING MOTION TO COMPEL No. 1991-8 This matter comes before the court on defendants Sherman & Howard’s and Ronald H. Jacobs’s motion to compel production of assertedly privileged regulatory documents, filed March 19, 1991. On March 20, 1991, defendant Florian F. Barth joined in the motion. Defendants Richard F. Vitkus and Richard J. Bunchman joined in the motion on March 26, 1991. The cou...
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Sitting by Designation ORDER AND NOW this 24th day of April, 1991 it is hereby ORDERED that upon consideration of plaintiff’s motion for summary judgment *259and defendant’s response thereto, plaintiff’s motion is GRANTED for the reasons that follow. 1. The parties have stipulated to the following facts. Defendant has been imposing excise taxes on paperback books that plaintiff imports into the ...
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ORDER This matter is before the court on plaintiff H. Gibbs Andrews’ motion to recover costs for special service of process pursuant to Rules 4(c)(2)(C) and (D) of the Federal Rules of Civil Procedure. This motion is unopposed. On or about February 22, 1991, the date a complaint was filed against defendants with this court, plaintiff attempted to serve process against defendants via certified mai...
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AMENDED OPINION ON SUMMARY JUDGMENT 1. Introduction. Ted Hirtz, Paul Force, Dallas Pittman, and Chapoton/Ramsey Ltd. Partners own property on Galveston Island and on the Bolivar Peninsula. Their properties are adjacent to the beach of the Gulf of Mexico. As their property has been diminished by erosion, the public’s access along the new boundaries of the beach encroached. The owners conte...
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ORDER Before the Court is the Government/Creditor’s appeal of the bankruptcy court’s order of summary judgment and final judgment in favor of the Debtor (Doc. 2). 101 B.R. 787. The facts in the case are pleasantly simple. The Debtor, supported by affidavits, alleges that he tardily mailed his 1982 income tax return on 2 May 1984. The Government alleges that the Internal Revenue Service (I.R.S...
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ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND PERMANENTLY ENJOINING ENFORCEMENT OF CERTAIN PROVISIONS OF HOUSE BILL 225 Introduction Plaintiffs challenge the constitutionality of certain provisions of Conference Committee Substitute for House Committee Substitute for House Bill No. 225, 85th General Assembly, entitled “An Act to repeal section 573.010, RSMo Supp.1988...
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ORDER This matter is before the court on defendants Thomas Jackson Hawes and Donald Berry Burns’ motion to dismiss the second superseding indictment and on defendant Joseph L. Laforney’s motions to dismiss the second superseding indictment, to sever his case from that of his codefendants, and to exclude certain evidence at trial. An evidentiary hearing was held on 30 July 1991. The court ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION Plaintiffs H-U-S of MN, Inc. (H-U-S) and Daniel P. Milligan (Milligan) commenced this action in Minnesota state district court, Scott County, against defendants Help-U-Sell, Inc. (Help-U-Sell) and the Mutual Benefit Life Insurance Company (Mutual Benefit) to rescind a franchise agreement and recover damages plaintiffs allege they sustained as a result of d...
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*960 MEMORANDUM OPINION Plaintiff Blanca L. Iturbe (Iturbe), a woman of Chilean birth, was fired from her job at defendant Wandel & Goltermann’s plant in Research Triangle Park, North Carolina. She sued, charging violations of Title VII of the Civil Rights Act of 1964, and attached pendent state claims of breach of contract and wrongful discharge, and a separate claim for attorne...
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ORDER This matter is before the court on plaintiff Piedmont Associates’ (hereinafter “Piedmont”) emergency complaint for stay of the final order of the bankruptcy court or in the alternative, for preliminary injunction against the defendant, Cigna Property & Casualty Insurance Company (“CIG-NA”). Piedmont requests this court to stay the bankruptcy court’s order pending its appeal. In...
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ORDER GRANTING PLAINTIFF’S MOTION FOR REVOCATION OF CHIEF MAGISTRATE JOHN T. MAUGH-MER’S ORDER OF RELEASE AND COMMITTING DEFENDANT TO CUSTODY PENDING TRIAL Pursuant to 18 U.S.C. § 3145, the United States moves to revoke Chief Magistrate John T. Maughmer’s June 4,1991, Order of Release. A hearing was held on June 7, 1991, in which the parties were given the opportunity to present additiona...
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MEMORANDUM OPINION Defendant Tyrone E. Brawner (Brawner) requests the Court to reconsider Brawner’s Motion for Judgment of Acquittal, which was denied by this Court on July 9, 1991. Brawner contends that, .in light of United States v. Bruce, 939 F.2d 1053 (D.C.Cir. 1991), the Court must set aside his conviction for using or carrying a firearm during and in relation to a drug trafficking offense in...
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ORDER This matter is before the court on plaintiff’s motion to substitute plaintiff; plaintiff’s motion for expedited trial and expedited pretrial procedures; plaintiff’s motion to file brief in excess of this court’s page limitation; and plaintiff’s and defendant’s cross motions for summary judgment. The court will address the motions seriatim. I. MOTION TO SUBSTITUTE A...
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ORDER The Bankruptcy Court entered summary judgment in favor of Thomas Sierer: the United States appeals that decision. This Court has jurisdiction pursuant to 28 U.S.C. § 158(a), and, as the issue presented is one purely of law, may properly engage in a de novo review. In re New England Fish Co., 749 F.2d 1277, 1280 (9th Cir.1984). The facts are relatively simple and not in dispute. Thom...
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*560 ORDER Plaintiff United States brought this action to recover against defendant Dr. Charles D. Hugelmeyer for his default on an agreement with the National Health Service Corps Scholarship Program. Pursuant to this program, defendant obtained $50,448.00 in scholarship funds for four years of medical school and in return agreed to serve for four years in a designated Health Ma...
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MEMORANDUM OPINION This is an action under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. This case originated in the Circuit Court of Washington County, Arkansas. The action was removed to this court on September 9, 1989. Plaintiffs’ motion to remand was denied by opinion dated November 1, 1989. See Garred v. General American Life Ins. Co.,...
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MEMORANDUM OPINION AND ORDER THERE is a genius to our Constitution. Its genius is that it speaks to the freedoms of the individual. It is this genius that brings the present matter before the Court. More specifically, this matter concerns a freedom that was a natural idea whose genesis was in the Plymouth Charter, and finds its present form in the First Amendment to the United States Cons...
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ORDER sitting by designation. This matter is currently before the court on plaintiff’s motion for a protective order, filed June 6, 1991, pursuant to Rule 26(c), Fed.R.Civ.Proc. Plaintiff seeks an order prohibiting defendants, their counsel, or their agents from conferring informally with any of the non-party physicians involved in the treatment of the decedent without plaintiff’s consent and unl...
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MEMORANDUM This matter is before the Court on the parties’ cross motions for summary judgment. This is an interpleader action which was originally filed by the City of Keytesville (City) in the Circuit Court of Chariton County, Missouri. Acting pursuant to 28 U.S.C. § 1446(a), the United States, one of the claimants in this action, removed the matter to this Court. Kelco Industries, Inc. (Kelco) ...
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OPINION AND ORDER This action arises out of a claim that the defendant violated provisions of the antitrust laws, namely section 2 of the Sherman Act, 15 U.S.C. § 2, sections 4 and 16 of the Clayton Act, 15 U.S.C. § 15 and § 26, and the common law of the state of New York 1 . The gravamen of the complaint is that defendant exerted monopoly power over the U.S. market for a produ...
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MEMORANDUM OF DECISION This case comes before the court on a Motion for Entry of Judgment. The plaintiffs, Isidor Paiewonsky Associates, Inc., (IPA) and L.S. Holding, Inc., contend that they are entitled to entry of judgment in their favor based upon the terms of a proposed settlement agreement. Two of the three defendants, Bared Jewelers of the V.I., Inc. (Bared) and Ari Corporation (Ari)...
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MEMORANDUM OPINION AND ORDER The central issue to be resolved in this action is whether Canon 7(B)(1)(c) of the Arkansas Code of Judicial Conduct which provides— B. CAMPAIGN CONDUCT (1) A candidate, including an incumbent judge, for a judicial office that is filled either by public election between competing candidates or on the basis of a merit system election: (c) should ...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTIONS TO DISMISS AND MOTION FOR RULE 11 SANCTIONS Background This case arises out of a series of disputes surrounding a foreclosure by defendant Gershman Investment Corp. (Gershman) on a Missouri residence then owned by pro se plaintiff Benjamin Hoover, Jr., in joint tenancy with his parents Benjamin Hoover, Sr., (Hoover, Sr.) and ...
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MEMORANDUM OPINION AND ORDER THIS COURT previously granted Defendant’s motion to suppress evidence obtained as the result of a canine sniff of his vehicle. The Court of Appeals for the Tenth Circuit reversed. United States v. Morales-Zamora, 914 F.2d 200 (10th Cir. 1990). In its opinion, the court observed that this Court had assumed that the alleged purpose of the roadblock was valid. It declared...
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These motions concern the most appropriate forum for the litigation of three lawsuits all arising from claims of fraud in the sale and financing of certain New Jersey real estate projects. Two of the claims are pending before this Court, and one is pending in the District of New Jersey. The first action before this court (“New York Action 1”), PRPJ Bergen, Inc., et al. v. United Jersey Bank, et al...
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MEMORANDUM ORDER Before the court is the motion of deponent Nikki Zollar, Director of the Illinois Department of Professional Regulation (“Director”) for a protective order that certain documents targeted by plaintiffs subpoena are not discoverable, pursuant to Illinois law. Plaintiffs bring this action under 42 U.S.C. § 1983, to redress the shooting death of the decedent, Stanley Scott, which all...
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*1440OPINION AND ORDER A class of private plaintiffs and the Equal Employment Opportunity Commission (“EEOC”) brought two civil rights actions in 1973 against the Newspaper and Mail Deliverers’ Union of New York and Vicinity (“NMDU” or “Union”) and more than fifty news publishers and distributors within the Union’s jurisdiction. Both suits charged that the Union, with the acquiescence of the publ...
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ORDER ON MOTION TO DISMISS THIS CAUSE is before the Court on Defendant’s Motion to Dismiss the claim of Plaintiff, IRENE S. LOEWER, filed May 24, 1991. Memoranda in support of the motion were filed May 24, 1991, and June 12, 1991. Memoranda in opposition were filed June 7, 1991, and July 19, 1991. A complaint should not be dismissed for failure to state a claim unless it appears beyon...
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MEMORANDUM This matter is before the Court on defendant Alvin J. Wilson’s motion for qualified immunity. A government official is entitled to qualified immunity whenever his “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The decisio...
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ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT This matter is before me on the motions for partial summary judgment, filed July 12, 1988 and December 29, 1989, by defendant Phillips Petroleum Company against plaintiff Elisa Robyn. I have jurisdiction over this consolidated action under 28 U.S.C. § 1332(a). For the following reasons, I grant in part the December 29 motion and deny it in par...
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MEMORANDUM AND ORDER The defendant Salvatore Fusco seeks an order directing a mental examination of a major government witness, Dominick Cos-ta. His motion is predicated upon what he alleges to be a pre-existing history of psychological disturbance and the traumatic effect of bullet wounds to his head in which fragments of bullets still remain. The motion was denied at the commencement of the t...
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MEMORANDUM Before the court are the motions for summary judgment of four sets of defendants: 1) defendants William Demmy, III, Jay Stoner, Scott Pellman, Mechanicsburg Police Department and the Borough of Mechanicsburg (hereinafter referred to as the “Mechanicsburg defendants”); 2) defendant Joanne Robertson, M.D.; 3) defendant Silvestre De La Cruz, M.D.; and 4) Ron Roberts, Walter Kather...
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OPINION Before the court are the plaintiff’s Motion for summary judgment on its claim and to dismiss the defendant’s counterclaim. For the reasons set forth below, these Motions will be granted. I. Factual Background On February 27, 1979 the defendants, Alfred and Barbara Hemmons [“the defendants”] borrowed $8,000 from Greater Bethlehem Savings and Loan [“the bank”] for ...
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MEMORANDUM OPINION AND ORDER Plaintiff Helen M. Katta, as special administrator for the estate of her son, Thaddeus (“Ted”) C. Katta, brings this suit under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”). Plaintiff seeks damages arising from the tragic death of her son. Before filing this action, plaintiff submitted her claim to the Veterans’ Administration (“VA”) Medical Ce...
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*761 DECISION AND ORDER Defendant filed motions to dismiss the indictment and to suppress evidence obtained in violation of the Fourth Amendment. The motions were referred to United States Magistrate Kenneth R. Fisher, pursuant to 28 U.S.C. § 636(b)(1)(B) to conduct a hearing and to issue a report and recommendation. The Magistrate issued a lengthy, thirty-three page Report and R...
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MEMORANDUM The issue is a motion for a directed verdict in this patent infringement case about an inventory control device used by laundries and dry cleaners. Defendants argue that the language of the patent and evidence presented at trial require an interpretation by the court of the patent claims at issue. Defendants argue that the undisputed facts concerning the capabilities of its pro...
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MINUTE ENTRY A motion for summary judgment was filed by Avondale Industries, Inc. (“Avon-dale”) and submitted on the papers. The issue presented is whether the Louisiana Worker’s Compensation Law, La.Rev.Stat. 23:1032, insulates Avondale as a contractor from a claim for tort liability brought under diversity jurisdiction in federal court by the employee of a subcontractor who is covered by the Lon...
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MEMORANDUM-DECISION AND ORDER Background Various professional sports organizations — Major League Baseball, the National Hockey League, the National Basketball Association and the National Football League, insofar as relevant here — possess the exclusive right to license the commercial use of their member teams’ names, symbols, emblems, designs and colors on merchandise. The unauthorized us...
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OPINION INTRODUCTION Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552(a), Plaintiff Richard Norman Rojem, Jr. has requested the FBI to produce his rap sheet and all other information in his file, as well as information pertaining to two victims of violent crimes which he allegedly committed. The Defendant FBI withheld certain docu...
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*918 MEMORANDUM & ORDER On October 23, 1986, Thaddeus Sobiech Sr., d/b/a Ted Sobiech Farms, filed a bankruptcy petition pursuant to Chapter 11 of Title 11 of the United States Code. The debtor was engaged in the onion farming business and continued as debtor-in-possession throughout the Chapter 11 case. On March 10, 1988 an order converting this case to one under Chapter 7 was en...
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MEMORANDUM & ORDER Plaintiff, the Pharmaceutical Society of the State of New York, Inc., Still’s Pharmacy, Inc., Riis-Wald Pharmacy, Inc., and M.F.D. Drug Co., Inc. (collectively, the “Pharmaceutical Society”) commenced this action in 1976 against defendants Governor of the State of New York, and the Commissioner of New York State’s Department of Social Services (“DSS”) (collectively “the State”)...
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MEMORANDUM OPINION Before the Court is the defendant’s Motion for Summary Judgment, plaintiff’s opposition thereto, and defendant’s reply in the above-captioned action. In her amended complaint, plaintiff challenges the action of defendant Communications Satellite Corporation (“COMSAT”) in filling the position of Assembler Specialist/Group Leader in its Assembly Department effective June 15, 1987....
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MEMORANDUM OPINION Before the Court is the defendant’s Second Motion for Summary Judgment, plaintiff’s opposition thereto, and the defendant’s reply. The plaintiff, a federal employee, complains that the Postal Rate Commission has failed to promote her because of race and gender discrimination. She initially alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq...
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OPINION AND ORDER This is an action for damages alleging breach of contract and fraud. Jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332. Defendants Nycal Corporation (“Nycal”), Arimathaea Holdings Ltd. (“Arimathaea”), Shephard Insurance Group Ltd. (“Shephard”) and Graham Lacey (“Lacey”) move: (1) pursuant to Fed.R.Civ.P. 12(b)(2) to dismiss the complaint for lack of per...
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This cause came on for hearing on a previous day on the motion of defendant, the United States of America, pursuant to Fed.R.Civ.P. 12(b)(1), to dismiss the complaint in Civil Action No. 90-831 with prejudice. The Court, having heard the arguments of counsel and having studied the legal memoranda submitted by the parties, is now fully advised in the premises and ready to rule. Accordingly, IT IS T...
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MEMORANDUM OPINION I. Introduction This case presents the Court with an overriding issue: are insurance companies *970 required to indemnify policyholders for expenditures made by them to remedy environmental damage caused by a third party? The plaintiff, a large electric utility which primarily serves the District of Columbia and parts of Maryland, purchased twenty...
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MEMORANDUM OPINION AND ORDER This case comes before the Court on Defendant’s, Kuwait Airways, motion to *483 dismiss based on lack of subject matter jurisdiction and failure to state a cause of action upon which relief may be granted. Because the plaintiff, Basharat Jamil, has failed to state any cognizable claim, Kuwait Airways motion is granted. BACKGROUND On September 25, 1991, the Court...
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OPINION ON ORDER REMANDING ACTION TO STATE COURT PROCEDURAL BACKGROUND On April 30, 1991, plaintiff Boulder Creek Corporation (BCC) filed a complaint against defendant Maruko, Inc. (Maruko) and Does 1-100. BCC filed a First Amended Complaint on or about May 13, 1991 which named Monarch Beach Inn Partners, L.P. as an additional defendant. Maruko filed a Notice of Removal on May 16, 1991. On June 19...
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In this patent infringement dispute, following completion of the damages phase of a bifurcated trial BIC Leisure Products, Inc. (“BIC”) moves to modify the resulting findings of fact and conclusions of law dated April 8, 1991, 761 F.Supp. 1032, to reflect BIC’s defense of absolute intervening rights. Windsurfing International, Inc. (“Windsurfing”) opposes, arguing that BIC has waived the defens...
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ORDER AND REASONS Defendant Robin B. Cheatham (“Cheat-ham”) has filed a motion to refer this civil action to the United States Bankruptcy Court on the basis that it is a “core proceeding.” Plaintiff Rheem Manufacturing Company (“Rheem”) opposes this motion. *324 This suit arises out of a financing agreement between Rheem, the manufacturer of heating and air conditioning equi...
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ORDER This matter is before the court on the following motions: 1. Plaintiffs’ motion in limine and motion for partial summary judgment; 2. Defendants’ motion in limine, motion to dismiss for failure to state a claim on which relief may be granted, motion for lack of subject matter jurisdiction and motion for partial summary judgment. Based on a review of the file, record a...
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MEMORANDUM AND ORDER Pending is the Defendants’ Supplemental Motion for Summary Judgment. The facts of this case were fully set forth in this Court’s memorandum of March 26, 1991. At that time, several issues were, for various reasons, left pending. Defendants’ motion addresses these remaining issues. That motion was filed April 19, 1991 and Plaintiff has not responded. Constitutionality of ...
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MEMORANDUM AND ORDER By order of this Court on December 18, 1990, Defendant Julio Garcia’s motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P., was converted into a motion for summary judgment. Plaintiff Ana Maria Garcia has filed four claims in the pending action. Her first claim under Title VII of the Civil Rights Act of 1964 is against Jose Rubio, the District Attorney for Webb County,...
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MEMORANDUM Defendant Machinery Systems, Inc. (“MSI”) contracted to sell plaintiff a machine known as a Dries & Krump Hydraulic Press Brake. When the machine was lost in transit, plaintiff sued defendants to recover for the loss. Presently before the court is plaintiff’s Motion for Summary Judgment and defendant MSI’s Cross-Motion for Summary Judgment. I. LEGAL STANDARD In consid...
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MEMORANDUM OPINION AND ORDER Manapurath Eappen Johnson — originally indicted, convicted on a guilty plea and then sentenced under the name M.E. Johnson (“Johnson”) — has petitioned for a vacation of his conviction by issuance of a writ of audita querela, a writ of coram nobis or a writ of undefined specificity under the All Writs Act, 28 U.S.C. § 1651. 1 For the reasons stated in this memoran...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING 17 JUNE 1991 DISGORGEMENT HEARING On September 4, 1990, this court entered an order and judgment 1 in the above-refer *212 enced proceeding. That order held that disgorgement was appropriate and ordered an evidentiary hearing be held to determine the appropriate amount. The evidentiary hearing was held on June 17, 1...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff Engineering Dynamics, Inc. (“EDI”) filed suit against defendants Structural Software, Inc. (“SSI”) and S. Rao Guntur for copyright infringement, trade dress infringement, and unfair competition regarding computer software and accompanying manuals used by engineers to analyze structures. The matter was tried before the bench from March 7th ...
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MEMORANDUM and ORDER Having considered the oral argument presented to the Court and the briefing filed with regard to the parties’ cross-motions for summary judgment, the Court concludes as follows: INTRODUCTION In October 1989, the Arizona Department of Environmental Quality 1 (“ADEQ”) and the City of Phoenix (“City”) filed suit against sixteen separate defendants, s...
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MEMORANDUM AND ORDER This matter is presently before the Court on the motion of defendant Edward O’Brien (“O’Brien”) for dissolution of a prejudgment attachment imposed upon his real estate by order of this Court on March 20,1991. Plaintiff Joan Hatch (“Hatch”) is suing O’Brien to recover pecuniary and other damages pursuant to the Rhode Island Wrongful Death Act, R.I.Gen.Laws §§ 10-7-1 t...
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MEMORANDUM OPINION On May 19, 1986, the United States Army Corps of Engineers, Galveston District (the Corps) notified United Texas Transmission Company (UTTCO) that a proposed drainage and flood control project would require relocation and alteration of two of UTTCO’s pipelines. A disagreement arose between the Corps and UTTCO over who would have to bear the cost of such relocation and alteration...
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MEMORANDUM OPINION AND ORDER Paul Knox (“Knox”) initially tendered a self-prepared 42 U.S.C. § 1983 (“Section 1983”) Complaint against former Illinois Department of Corrections Director Kenneth McGinnis (“McGinnis”) and Stateville Correctional Center (“Stateville”) Warden Thomas Roth (“Roth”). Knox charged that it is unconstitutional, in the course of transporting inmates who are confined to se...
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*1040 MEMORANDUM OPINION This multi-defendant criminal case is one of a series of criminal cases filed in this federal district court in the past few years 1 as a result of a multi-jurisdictional investigation into alleged crimes by persons alleged to have been associated with the Chicago street gang the El Rukns. 2 The indictment in this case alleges, among other criminal violations, RIC...
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MEMORANDUM OPINION I. INTRODUCTION This case involves a claim by the plaintiff, Mary A. Woodward (“Woodward”), that the defendant, Heritage Imports (“Heritage”), and the named individual defendants discriminated against her on the basis of her gender when the defendants reduced her level of compensation prior to the termination of her employment. Woodward has brought causes of action...
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MEMORANDUM OPINION - Background Plaintiff Corporate Resources, Inc. (“C.R.I.”) is a corporation incorporated in Michigan with its principal place of business in Michigan. It is in the business of providing financing for leased equipment. Defendant, Southeast Suburban Ambulatory Surgical Center (“Southeast”) is a corporation incorporated in Illinois with its principal place of business in ...
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*611MEMORANDUM OPINION AND ORDER Lake Forest Academy (“Lake Forest” in this opinion, though the parties’ agreements refer to it as “The School”) filed a Complaint (the “Complaint”) against American Language Academy (“American” in this opinion, though the parties’ agreements and the Complaint refer to it as “ALA”) in the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois, seek...
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MEMORANDUM OPINION AND ORDER Vladimir A. Wapensky (“Wapensky”), Donald Hillman (“Hillman”), Theodore Sieler (“Sieler”), Rex Golobic (“Golobic”) and Harry Wells (“Wells”) (collectively “Trustees”), as Trustees of the Bowling Proprietors’ Association of America, Inc. (“BPAA”) Group Insurance Trust (the “Trust”), have sued John Hancock Mutual Life Insurance Company (“Hancock”) for breach of ...
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ORDER GRANTING DEFENDANT MELAHN’S MOTION TO DISMISS AND DISMISSING PLAINTIFF AMERICAN REINSURANCE COMPANY’S FIRST AMENDED COMPLAINT Defendant Lewis E. Melahn (Receiver) moves to dismiss plaintiff American Reinsurance Company’s (American Re) First Amended Complaint on the ground that it fails to state a claim upon which relief may be granted. American Re opposes the motion. I. F...
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ENTRY This matter comes before the Court on the plaintiff’s motion for partial summary judgment and on the defendants’ cross-motion for summary judgment. For the reasons set forth below, the Court grants the plaintiff’s motion and denies the defendants’ cross-motion. Background The facts relevant to the resolution of the motions before the Court are not in dispute. The plain...
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MEMORANDUM In re Jiffy Lube Securities Litigation, 927 F.2d 155 (4th Cir.1991), directed the Court to specify the method of setoff as it pertains to Ernst & Young prior to trial and not postpone a decision until the case is resolved. The three alternative methods of setoff are: (1) Pro tanto, in which the judgment is reduced by the amount paid by the settling defend...
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MEMORANDUM OPINION AND ORDER Plaintiff, Nadana C. Kelly (“Kelly”), brings this action against her former employer, Mercoid Corporation (“Mercoid”). This action arises out of Kelly’s discharge by Mercoid for her refusal to submit to a urinalysis test. Kelly originally filed her complaint for damages, reinstatement, backpay and other relief in the Chancery Division of the Circuit Court of C...
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MEMORANDUM OPINION This matter comes before this court on Plaintiffs Motion to Reconsider our decision of July 25, 1991, in which we granted summary judgment in favor of the defendant. 769 F.Supp. 1030. For the reasons set forth below, plaintiff’s motion is denied. BACKGROUND Plaintiff, Veronica Deberry (“Deberry”), has filed this action as mother and next friend of Shauntia Deb...
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OPINION AND ORDER Plaintiff PepsiCo, Inc. brings this action alleging defendants defrauded it in connection with PepsiCo’s sale of Lee Way Motor Freight, Inc. to Commercial Lovelace Motor Freight, Inc. This matter is before the Court on Banner Industries, Inc.’s February 27, 1987 motion to dismiss and to stay, PepsiCo’s February 1, 1990 objection to Magistrate Judge Abel’s September 15, 1989 Repor...
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OPINION AND ORDER This matter is before the Court on a Notice of Appeal brought by Larry E. Staats, Trustee in Bankruptcy for Raymond L. Dixon, from the Opinion and Order on Complaint to Determine Validity, Extent and Priority of Alleged Liens or Other Interest issued by the Bankruptcy Court on November 21, 1990. This Court having considered all issues and being duly advised finds the Appellant’s...
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ORDER This action is before the court on the motion of the United States to proceed against the juvenile, Morris McKee, as an adult pursuant to the provisions of 18 U.S.C. § 5032. The Juvenile Justice Act and Delinquency Prevention Act, 18 U.S.C. § 5031-.. 42 (1988), establishes special procedures for prosecuting individuals who are juveniles at the time a federal crime is committed. The federal j...
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*258 MEMORANDUM OPINION AND ORDER Benito Gonzalez, an inmate at the Pontiac Correctional Center, brings this action pursuant to 42 U.S.C. § 1983 seeking damages and other relief for alleged violations of his constitutional rights during an interrogation following his arrest and in the course of the trial that resulted in his conviction. In its order of August 8, 1988, the court dismissed all ...
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ORDER Before the court is the defendants’ motion for summary judgment. For the following reasons, the motion is denied. FACTS The present case arose from a commuter rail accident in Woodstock, Illinois, during the early morning hours of July 4, 1987, in which the plaintiff, Edwin T. Akerberg (“Akerberg”), lost both of his legs. 1 The train involved was owned by defend...
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OPINION AND ORDER In this admiralty action, plaintiff-intervenor Sanko Steamship Co. Ltd. (“Sanko”) *841 seeks to recover a judgment against Inter-tanker Ltd. (“Intertanker”) by piercing the corporate veil between Intertanker and its parent corporation, Interpetrol Bermuda Ltd. (“Interpetrol”). 1 Interpetrol has moved for summary judgment under Fed. R.Civ.P. 56, cl...
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OPINION AND ORDER This is an action by an electrical subcontractor against a general contractor and its surety for delay damages following completion of a contract for renovations and new construction on the Nyack Hospital in Nyack, New York. Pursuant to the parties’ consent under 28 U.S.C. § 636(c), a bench trial was held before me. This Opinion and Order contains the findings of fact an...
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MEMORANDUM OPINION Pending is Defendant’s motion to dismiss Plaintiff’s amended complaint, or in the alternative, for summary judgment. This motion has been treated as a motion for summary judgment pursuant to this Court’s order dated July 11, 1990. The Plaintiff, Daniel Perez [“Perez”], filed this action for wrongful termination against his former employer Vinnell Corporation [“Vinn...
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MEMORANDUM From 1979 to 1983, through a series of limited partnerships that included plaintiffs’ TMG Associates and TMG II (the “Partnerships”), Edward Markowitz “created and marketed more than $445 million in false and fraudulent federal income tax deductions through sham, non-existent and pre-arranged transactions in United States Government securities and precious metals forward contra...
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MEMORANDUM OPINION (Pepeo II) In our previous memorandum opinion of September 30, 1991, 777 F.Supp. 968, {Pep-eo I), we considered and acted upon five dispositive motions. The underlying facts which led to this litigation have been previously set forth and will not be repeated. Still pending are five additional dispositive motions, all of which were filed by one or more of defe...
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MEMORANDUM OPINION This is an action brought by Western Trails, Inc., the owner of a private campground resort, against Camp Coast to Coast, Inc., a corporation that arranges reciprocal visitation privileges for individual members of licensed campground resorts such as Western Trails. For an annual fee plus use fees paid to Coast to Coast for each night stayed at another resort, members of a lice...
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MEMORANDUM AND ORDER In this Federal Employers’ Liability Act case, plaintiff seeks damages for the emotional distress he suffered as a result of a co-worker’s death. His employer, the defendant, Consolidated Rail Corporation, moves for summary judgment. After considering the record, both parties’ briefs, and oral argument, I will grant the motion. I. BACKGROUND On August 10, 19...
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MEMORANDUM AND ORDER In the above-referenced action, plaintiff Peter S. Bernard (“Bernard”) asserts *105 claims against defendants Commerce Drug Company (“Commerce”) and Del Laboratories, Inc. (“Del”) (collectively, “defendants”) for, inter alia, trademark violations under the Lanham Act, 15 U.S.C. § 1051 et seq., and more specifically 15 U.S.C. §§ 1125(...
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OPINION AND ORDER Defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on plaintiff’s three claims for relief in this diversity action alleging breach of contract, misappropriation of plaintiff’s idea for a financial product, and fraud and misrepresentation. The Court denied the defendants’ first motion for summary judgment without prejudice, by...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court following a trial to the Court and post trial briefs. Plaintiff Viea M. Taylor, in her personal capacity and as executrix of the estate of her late husband Francis K. Taylor, and the estate itself, sued for a refund of federal income taxes. The parties unanimously consented to trial and entry of final judgment by the United S...
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MEMORANDUM OPINION AND ORDER In this diversity action, plaintiffs Terry and Rosemary Doran brought suit against CPC International, Inc. (“CPC”), alleging that Terry Doran (“Doran”) was negligently injured after receiving an electrical shock while climbing out of a precipitator located on CPC’s premises. In turn, CPC filed a third-party complaint against Super Electric Construction Company...
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JUDGMENT ENTRY This matter is before The Honorable William G. Hussmann, Jr., United States Magistrate Judge, pursuant to consents to Magistrate Judge jurisdiction filed by the parties and the Order of Reference entered by the District Court Judge on July 23, 1991. The trial of this matter was held on July 25 and 26, 1991, before the Magistrate Judge in Terre Haute, Indiana. The plaintiff was repr...
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ORDER All parties in this case have moved for judgment on the pleadings on the issue of whether defendant Edward M. Schuster, as guarantor, is liable for the deficiency on a promissory note despite the failure of plaintiff, the United States Small Business Administration, to obtain confirmation of a foreclosure sale of the property that secured the note. Because the court has heard no arg...
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OPINION Plaintiff In Design, alternate trade name of Hukafit Sportswear, Inc. (“Hukafit”) brought this copyright infringement action against defendants Lauren Knitwear Corporation (“Lauren”), Petrie Stores Corporation (“Petrie”), and Zayre Corporation (“Zayre”). Hukafit alleges, that the defendants violated its copyright in a sweater design by manufacturing and selling sweaters in the sam...
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MEMORANDUM AND ORDER Defendants’ request that this Court charge the jury in this case that there is a quid pro quo requirement under a theory of extortion under color of official right. For the reasons discussed below, defendants’ request is denied. There is a split amongst the circuits on whether an affirmative act of inducement is required to prove extortion under color of official right. In Uni...
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ENTRY GRANTING SUMMARY JUDGMENT This cause is before the Court on the plaintiff’s Complaint, the defendant’s Answer, the plaintiff’s “Memorandum in Support of Ryan L. Harper’s Status as a “Child” Entitled to Social Security Benefits Through his Deceased Father” and accompanying Motion for Oral Argument, the defendant’s Memorandum in Support of the Secretary’s Decision, the plaintiff’s Reply Memor...
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OPINION The matters before the court are 1) the motion of the plaintiff for summary judgment (# 30); and 2) the motion of the defendants for summary judgment (# 35). This is a proceeding for declaratory and injunctive relief brought by the plaintiff, Pacific Gas Transmission Company (PGT), against the defendants, Richardson’s Recreational Ranch Ltd. and Johnnie W. Richardson (hereina...
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MEMORANDUM OPINION AND ORDER This matter came on for consideration of the defendants’ Motion to Dismiss, filed June 19,1991. The Court has reviewed the defendants’ memorandum in support of the motion and notes that the pro se plaintiff has failed to file a brief in opposition to the motion which, pursuant to Local Rule 7.8, constitutes a consent to deny or grant the motion. The Court has review...
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SENTENCING MEMORANDUM The defendant pled guilty to two counts of the indictment: the first, possession with intent to distribute narcotics, the second, using or carrying a firearm in relation to a drug trafficking crime. When sentencing a criminal defendant, the Court has the responsibility to find matters of fact that are relevant. As guideline § 6A1.3(b) states: The court shall resolve di...
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ORDER These consolidated cases are declaratory judgment actions by which the parties seek a determination as to whether certain insurance companies (the “insurers”) are obligated, pursuant to their respective comprehensive general liability policies, to defend and indemnify their insured (the “policyholders”) against claims arising out of the alleged contamination of groundwater situated ...
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MEMORANDUM OPINION Before the Court is the Objection to Removal and Motion to Remand filed by defendants Billy J. Thomas and D. Jack Armstrong, and the plaintiff’s opposition thereto. This case was removed by the plaintiff from the District Court of Woodward County, State of Oklahoma to this Court, pursuant to 12 U.S.C. § 1441a(Z )(1), on May 28, 1991. The defendants filed their motion in opposit...
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MEMORANDUM OPINION This is an appeal by the United States from the order of the Bankruptcy Judge denying relief from the automatic stay provisions of 11 U.S.C. § 362. The issue presented on appeal is whether the Bankruptcy Judge erred in his determination that the exemption from the stay of 11 U.S.C. § 362(b)(4) did not apply to the government in its attempt to prosecute a claim against the deb...
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OPINION The matter before the court is the motion of plaintiff, School District No. 1J Multno-mah County, Oregon (the School District), for new trial (# 289-1), alteration for amendment of judgment (# 289-2) or for reconsideration (# 289-3) or rehearing (# 289-4). BACKGROUND On December 1, 1989, the School District filed this action against the defendants based upon strict liability, negligence, a...
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MEMORANDUM On June 25, 1990, Defendant TransAmer-ican Natural Gas Corporation (TransAmeri-can) removed this action from state court and moved this Court to transfer venue and refer the case to the U.S. Bankruptcy Court for the Southern District of Texas, Houston Division. On July 25, 1990, Plaintiff Finkelstein sought remand or abstention by this Court. Following a hearing on August 30, 1...
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MEMORANDUM OPINION Plaintiff’s motion to remand this case to the Fairfax Circuit Court from which it was removed raises a somewhat murky jurisdictional issue, namely whether a state court decision on a demurrer deprives a federal court of removal jurisdiction. After careful consideration of the issue presented and the arguments on both sides, the court is of the opinion that Plaintiff’s motion ...
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MEMORANDUM OPINION, RULINGS GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO AMEND COMPLAINT AND DENYING MOTION TO TRANSFER VENUE, AND ORDER Plaintiff United States of America brings suit under 18 U.S.C. § 1345 to permanently enjoin defendant Richard Hartbrodt d/b/a 1st Federal Bankcard, d/b/a Kelly Advertising (hereinafter “Hartbrodt”) from defrauding consumers through postcard s...
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MEMORANDUM OPINION AND ORDER In this action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., defendant Colorado Department of Health (CDH) moves for summary judgment, contending that there is no genuine dispute of material fact concerning plaintiffs “voluntary retirement” from employment with CDH. In the alternative, CDH moves for partial summary...
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OPINION AND ORDER Whether the federal “boundary statute” and New York’s Navigation Law together permit Connecticut-licensed pilots to navigate their vessels through the Long Island Sound, into or out of ports located in New York on the north shore of Long Island, is the gravamen of the present controversy. Claiming entitlement to do so prompted these Connecticut pilots to commence this de...
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MEMORANDUM OPINION AND ORDER This case can be adjudicated on the parties’ cross-motions for summary judgment. The issue is whether Central Bank of Denver (Central Bank) has a valid defense to its untimely return of four electronic debits. The question is adequately briefed and oral argument will not materially aid its resolution. I hold that Central Bank has no valid defense, grant plaintiff’s ...
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OPINION Defendants Melvin Simon Productions, Inc. (“MSP”) and Koala Productions, Ltd. (“Koala”) have moved to dismiss the complaint of Viacom International, Inc. (“Viacom”) pursuant to 28 U.S.C. § 2201, Rule 12(b)(2), (3) or (6), or in the alternative to transfer this action to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1404(a). Viacom ...
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MEMORANDUM OPINION The Court has presently before it a myriad of applications, both of a procedural and substantive nature.1 Petitioner William Henry Flamer has pending the following: (1) Motion Objecting to Respondents’ Manner in Obtaining Official Records; (2) Motion for Order Requiring Authentication of State Court Records; (3) Motion for Reconsideration of Order dated March 18, 1991 Withdrawi...
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MEMORANDUM OPINION AND ORDER Debtors-defendants (collectively the Rar-icks) object to the report and recommendation of the bankruptcy court denying their motion for abstention in this adversary proceeding. The matter has been adequately briefed and oral argument will not materially aid its resolution. I grant the Raricks’ motion and abstain in favor of the pending state court action. ...
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MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff New Maine National Bank moves for summary judgment on both counts of its Complaint for judgment on two promissory notes against Defendants Alan L. and Julie C. Benner. 1 The Court will grant NMNB’s motion for summary judgment for the reasons discussed below. I. Facts and Summary Judgmen...
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MEMORANDUM AND ORDER Plaintiffs Alfred Fisichelli and Salvatore Ambra seek monetary damages from Defendants the Town of Methuen, the Methuen Industrial Finance Authority, and certain individual members of the Town Council for violations which allegedly occurred when, in October, 1982, the Defendant Town Councillors voted to deny plaintiffs’ application for an industrial revenue bond to build a sho...
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OPINION ON SUMMARY JUDGMENT 1. Introduction. Robert Hefner seeks to recover as a third-party beneficiary against two insurance companies under policies issued to Byron Lasky. Lasky is a limited partner of a Texas partnership that owns, among other properties, the apartment complex where Hefner was injured. Mutual Fire Marine and Inland Insurance Company, La-sky’s primary insu...
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MEMORANDUM OPINION The plaintiff, Gordon B. Phillips, as guardian for his son James G. Phillips, seeks to recover nearly $500,000 in insurance benefits that he claims have been wrongly withheld by the defendant, Lincoln National Life Insurance Company (“Lincoln”). Mr. Phillips has sued Lincoln pursuant to § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 ...
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*993 ORDER Having considered all the testimony and evidence presented to the Court, all the memoranda and proposed findings of fact and conclusions of law filed with the Court, the Court concludes as follows: FINDINGS OF FACT On January 23, 1991, plaintiff, American Sleek Craft, Inc. (“American”), filed a complaint and petition for order to show cause why a preliminary ...
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MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS This case involves a challenge by the Plaintiff to the constitutionality of the City of Saco’s municipal ordinance regulating massage establishments (Article IX of Chapter 15 of Licenses and Business Regulations). Plaintiff is the owner of an establishment in the City of Saco named Absolute Relaxation Spa, formerly Absolute Ma...
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*992 MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This class action suit involves seamen who sustained injury or illness rendering them unfit for duty during the course of their employment with various vessels of the defendant owners. There is no dispute that seamen were paid the maintenance and cure ...
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OPINION AND ORDER Mr. Theodore Kheel (“Kheel”) seeks leave to intervene in this action for the sole purpose of moving for sanctions against plaintiffs’ counsel. Since the requirements for intervention under Fed.R.Civ.P. 24 have not been satisfied, the request to intervene is denied. Moreover, the case has effectively been resolved, and intervention at this late date would cause delay and prejudic...
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RULING ON PLAINTIFF’S MOTION FOR PREJUDGMENT ATTACHMENT The present action, involving the sale of units in certain limited partnerships, comes before this court on the plaintiffs’ motion for prejudgment attachment. The court finds that the plaintiffs have met their burden of proving that there is probable cause to sustain the validity of their claims, and hereby grants their applications for a wr...
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OPINION AND ORDER Plaintiff MGM-Pathe Communications (“MGM”) seeks a preliminary injunction barring the defendants from using the name “Pink Panther Patrol” and a paw print design as part of their logo. BACKGROUND 1. Plaintiffs Trademark MGM is the owner of the federally registered trademark THE PINK PANTHER. The trademark was registered in 1979 by United Artists Co...
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OPINION AND ORDER Rio Energy International, Incorporated (“Rio Energy”), has filed a motion with this Court to consolidate certain arbitrations. Hilton Oil Transport (“Hilton Oil”), opposes the motion. For the reasons stated herein, the motion is granted. FACTS On August 30, 1990 Hilton Oil and Rio Energy executed a charter party agreement for the transportation of bulk asphalt ...
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*399MEMORANDUM OPINION AND ORDER THIS MATTER comes on for consideration of the following motions: 1) Plaintiff’s Objections to Magistrate Judge’s Order Compelling Production of Documents1; 2) Plaintiff’s Objection to Magistrate Judge’s Order of June 26, 1991 Compelling Production of Documents; and 3) Defendant’s Objection to Magistrate Judge’s Order of June 26, 1991 Compelling Production of Docum...
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ORDER This matter is before the court on the following motions: 1. Plaintiffs’ motions to decertify the class pursuant to Federal Rule of Civil Procedure 23(c)(1) and to dismiss without prejudice plaintiffs’ remaining claims pursuant to Federal Rule of Civil Procedure 41(a)(2); 2. Defendants’ motion for summary judgment on plaintiffs’ abuse of monopoly power claims; and 3. ...
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ORDER This matter comes before the Court on reciprocal Motions for Partial Summary Judgment by both the Plaintiff Stalcup and the Defendant United States of America. These motions are reciprocal in the sense that each side asks for partial summary judgment in its favor on the same issue in this case. The issue before this Court is whether to give effect to the gift tax limitations period ...
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MEMORANDUM Plaintiffs, Rhone-Poulenc Rorer, Inc. and Armour Pharmaceutical Company as well as fourth-party plaintiff Revlon, Inc. (collectively, the policyholders) have filed their Motion to Compel seeking information concerning the insurers’ reinsurance for the claims made in the underlying AIDS-related litigation, and the reserves which the insurers have set for the underlying claims, all of wh...
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MEMORANDUM AND ORDER These are wrongful levy actions brought by the plaintiffs pursuant to 26 U.S.C. § 7426. 1 Plaintiffs claim an interest in certain condemnation proceeds which were levied upon by defendant. These cases were consolidated by the court’s order of January 7, 1991. The cases are presently before the court upon defendant’s motion for summary judgment and plaintiff...
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MEMORANDUM In this action, Dr. Deloris Saunders, an associate professor at defendant George Washington University (GWU), sues the university for racial discrimination and retaliation in violation of 42 U.S.C. § 1981 and the D.C. Human Rights Act Statute. Currently before the Court are Saunders’ motion for a preliminary injunction and defendant’s motion for summary judgment. A hearing on b...
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MEMORANDUM OPINION AND ORDER Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he received ineffective assistance of counsel. The Magistrate Judge found that petitioner had proeedurally de*1227faulted with regard to five of the six grounds.1 The Magistrate Judge found that petitioner’s sixth ground, that counsel was ineffective in failing to perfect a...
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MEMORANDUM AND ORDER Plaintiff, Middlesex Savings Bank, commenced this interpleader action in the state court after foreclosing a lien against real estate owned by defendant Raymond Johnson (“Johnson”) at 27-29 Crane Ave., in Maynard, Massachusetts. The foreclosure resulted in surplus proceeds of $56,115.11, to which Middlesex Savings Bank makes no claim. Excluding Johnson, 1 s...
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OPINION The Association of Accredited Cosmetology Schools (Association) seeks to enjoin the Secretary of Education from enforcing certain regulations affecting the schools’ eligibility to participate in federal student aid programs, on the grounds that the regulations violate the controlling statute, are unconstitutional, and were promulgated in violation of the Administrative Procedure *657 ...
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MEMORANDUM OPINION Plaintiff Nofziger Communications, Inc. (“NCI”) brings this breach of contract action against defendant Frederick P. Birks in his capacity as trustee of the Wynmark Trust (defendant is hereinafter referred to as “Wynmark Trust”). Before the Court are NCI’s motion for summary judgment, Wynmark Trust's motion for summary judgment, and their respective replies. I. The parties do n...
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ORDER (Nunc Pro Tunc) This case was tried to the court pursuant to 28 U.S.C. § 636(c). Following a trial to the court, defendants Mid-America Petroleum, Inc. and MAP 1984-1 Drilling Partnership have filed their proposed findings of fact and conclusions of law (Doc. 77). Defendant Charles Williams, Jr. has also filed his findings of fact and conclusions of law (Doc. 76). Supplemental brief...
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MEMORANDUM AND ORDER This case is an appeal from the an adversarial proceeding before the bankruptcy court. Dennis Arthur Joyner had issued a guaranty in favor of Arkansas Aluminum Alloys (Arkansas Aluminum) which guaranteed the debt of Midwest Diecast, Inc. (Midwest). Joyner owned twenty-four percent of Midwest’s stock. Midwest Diecast defaulted; Arkansas Aluminum subsequently secured ju...
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MEMORANDUM AND ORDER This case is now before the court upon long-pending cross-motions for summary judgment. The court has carefully reviewed the pleadings of the parties and has determined that both motions should be denied. Under FED.R.CIV.P. 56, summary judgment shall be rendered if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the ...
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RECOMMENDED RULING ON DEFENDANT MESSINA’S MOTION TO DISMISS AND RULINGS ON PLAINTIFF’S MOTION TO SEVER AND COUNTERCLAIM PLAINTIFF’S MOTION FOR PARTIAL RELIEF FROM STAY The plaintiff, Gabriel Levine, has brought this action seeking money damages arising out of the allegedly wrongful transfer of certain shares of stock owned by him. Addressed herein are: (1) defendant Messina’s motion to dismiss; (...
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MEMORANDUM AND ORDER This action is brought under 42 U.S.C. § 1983 and state tort law theories. Cross-motions for summary judgment are pending. After carefully reviewing the pleadings of the parties, the court shall grant defendants’ motion for summary judgment as to plaintiff’s federal law claims and deny plaintiff’s motion for partial summary judgment. Under FED.R.CIV.P. 56, summar...
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MEMORANDUM OPINION Defendant Bobby Wood was indicted in July, 1991, on one count of conspiracy to *336 distribute adulterated or misbranded animal drugs, one count of concealing material facts from the Food and Drug Administration, and 10 counts of distribution of misbranded animal drugs. Trial is set for early February, 1992. Defendant Wood has now moved for discovery o...
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MEMORANDUM AND ORDER The case comes before the court on several motions. The claimant, Lee Ray Harper, moves to suppress all physical evidence obtained and all observations made as a result of the search of the respondent vehicle on July 27, 1988. (Dk. 13). Petitioner moves to strike the claimant’s affidavit. (Dk. 25). Petitioner also moves for summary judgment against the respondent vehicle. (Dk....
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ORDER On January 25,1991, the Honorable Nancy C. Dreher, United States Bankruptcy Judge, imposed Bankruptcy Rule 9011 sanctions upon Steven K. Champlin, an attorney with the law firm of Dorsey & Whitney. For the reasons set forth below, the bankruptcy court’s order is reversed. Background The Lafayette Club (or the Club), operates its country club on property (the property) ...
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ORDER Petitioner has filed objections to the report and recommendation entered herein by the United States Magistrate Judge on Jan*310uary 24, 1991, in which the magistrate judge recommended denial of this petition for a writ of habeas corpus. Based on my review of the objections, the report and recommendation, and the parties’ briefs, I agree with the magistrate judge that petitioner has failed t...
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MEMORANDUM AND ORDER This matter is before the court on the plaintiffs request for review of attorneys’ fees. Jurisdiction over this action arises under 28 U.S.C. §§ 1331 and 1343, 29 U.S.C. § 216(b), and 42 U.S.C. §§ 1983 and 1988. In his complaint, plaintiff contends that he was unlawfully discriminated against because he previously filed and pursued a claim under the Fair Labor Standards A...
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MEMORANDUM OPINION AND ORDER Defendants Edward Williams and Dyron McClennon have been indicted, inter alia, for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a) and (b). Both have moved to have the cocaine base statute declared unconstitutional under the Due Process clause of the Fifth Amendment. Williams also seeks a ruling that the penalty provisions regarding...
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OPINION Debro Siddiq Abdul-Akbar, an inmate at the Delaware Correctional Center (“DCC”), filed this action pursuant to 42 U.S.C. § 1983 (1988) challenging the constitutional adequacy of legal services provided to inmates in DCC’s Maximum Security Unit (“MSU”). Plaintiff was incarcerated in MSU for approximately three and one-half years, and alleges that during this period, prison official...
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MEMORANDUM AND OPINION This summary judgment motion arises out of an ongoing action for breach of contract between Plaintiffs Mergentime Corporation and Perini Corporation (“Mergentime/Perini”), and Defendant/Counter-Plaintiff Washington Metropolitan Area Transit Authority (“WMATA”). Jurisdiction in the underlying action is based on diversity of citizenship, 28 U.S.C. § 1332, and D.C.Code...
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MEMORANDUM AND ORDER This matter is before the court on defendant General Electric Company’s (“General Electric”) motion for summary judgment. *1471 The Equal Employment Opportunity Commission (“EEOC”) brought this action on behalf of JoAnn McGinnis (“McGinnis”) alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 626(b), for failure to hire McGinnis ...
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ORDER ON MOTION FOR CLARIFICATION The plaintiffs filed this motion seeking clarification of the following part of the courts order. 1. In its findings of fact and rulings of law, this court awarded compensation in the form of monetary damages for seven and a half months from the period May, 1987 to November, 1988 771 F.Supp. 483. No monetary damages were awarded for the period during which Ca...
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Pending before the court are motions for summary judgment filed by plaintiff Cox Cable Communications, Inc. d/b/a Cox Cable Warner Robins (“Cox”) and by defendant-intervenor CATV Communications & Communications Service Co., Inc. d/b/a Centerville Telecable (“Centerville”), a motion by Cox to substitute parties under Federal Rule of Civil Procedure 25(c) and a motion for a protective order filed...
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MEMORANDUM DECISION AND ORDER In this civil forfeiture action, the Court is asked to determine whether the default of the claimant, Nidia Campos (“Campos”), should be excused and whether the Court should grant her motion to vacate a decree of forfeiture and enlarge the time within which to submit a claim and to file an answer. For the reasons set forth below, the claimant’s motion to vacate the de...
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DECISION AND ORDER This is a class action brought by black and hispanic inmates at the Elmira Correctional Facility (“Elmira”) in Elmira, New York claiming widespread discrimination at the facility on the basis of race in violation of the Fourteenth Amendment of the Constitution and 42 U.S.C. §§ 1981 and 1983. In general, plaintiffs claim that officials in charge of Elmira have, for ...
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OPINION Before the Court is Riveredge Associates’ (“Riveredge’s”) motion to dismiss Metropolitan Life Insurance Co.’s (“Metropolitan’s”) counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted, or in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the C...
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OPINION AND ORDER Pursuant to Fed.R.Civ.P. 14(a) defendant moves for leave to file a third-party complaint, impleading Coca Cola Bottling Company, Inc. (“Coca Cola”). For the reasons that follow, this motion is granted. BACKGROUND On November 16, 1990 plaintiff Frank Pantano was injured at his place of employment, allegedly as a result of the defective and dangerous condition of a forklift on said...
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MEMORANDUM AND ORDER In the above-referenced action, plaintiffs Lee Paulison, Jr., (“plaintiff” or “Pauli-son”), and his parents, Lee Paulison, Sr. and Linda A. Paulison sue defendants Suffolk County (“the County”) and the Town of Brookhaven (“the Town”) to recover damages for permanent spinal injuries sustained by Lee Paulison, Jr. when, on July 16, 1988, he dove from a tree diving platform in...
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MEMORANDUM AND ORDER Universal Manufacturing Corp. and Greg Jenkins, d/b/a Advanced Leasing Corporation, (“plaintiffs”) bring this suit for damage caused to a driller-router machine (“the machine”) while in transit from Aquebogue, New York to Woodenville, Washington. Named as defendants are Associated Rigging and Hauling Corp. (“Associated”), United Van Lines, Inc. (“UVL”), and Killmorgen Corpora...
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MEMORANDUM OPINION On May 4, 1984, we enjoined enforcement of the Illinois Parental Notice of Abortion Act of 1983 (“Act”). Zbaraz v. Hartigan, 584 F.Supp. 1452 (N.D.Ill.1984), aff'd in part, vacated in part, 763 F.2d 1532 (7th Cir.1985), aff'd, 484 U.S. 171, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987). We found that the statute was unconstitutional by imposing a...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of defendant State Farm Mutual Automobile Insurance Company (State Farm) styled “motion to dismiss for failure to state a claim to be treated as a motion for summary judgment.” Plaintiff James L. Jordan has responded to the motion and the court has considered the memoranda of authorities together with attachments su...
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ORDER The parties are before this court on plaintiff’s motion for a preliminary injunction. The motion is fully briefed and the court conducted a hearing at which the parties argued their positions and presented evidence on July 12, 1991. The court, having heard the arguments and considered the memoranda and evidence submitted in this matter, is now prepared to rule on the pending motion....
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MEMORANDUM AND ORDER Deerfield police officers stopped the claimant’s vehicle on May 24, 1990, for traffic violations. The claimant admitted that there was some marijuana in the automobile and that he had been smoking some of it. The claimant was arrested for possession and the vehicle was held for an inventory search. The following day the Deerfield police contacted the FBI and subsequently the p...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT INTRODUCTION On January 7, 1991, the court held a hearing on the defendant's motion for summary judgment under Fed.R.Civ.P. 56 which was filed on October 12, 1990.1 The plaintiff filed a memorandum in opposition on December 20, 1990 and the defendant filed a reply memorandum on December 31, 1990. After the hearing, the court requested additio...
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MEMORANDUM AND ORDER Plaintiff, Elaine J. Emser, was employed as an offset press operator by Curtis Industries until her discharge in January 1989. Emser alleges that she was told that her position was eliminated but younger persons were hired to perform her job. She also alleges that shortly after her discharge, Curtis advertised for help. She applied and was not hired but a younger pers...
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ORDER This matter is before the court on defendants’ “motion to dismiss” and the brief submitted in support thereof (tabs 3 and 4), and on plaintiffs’ brief in opposition thereto (tab 5). Essentially, defendants’ request the court to dismiss count two of plaintiffs’ complaint for failure to state a claim upon which relief may be granted. After due and proper consideration, the court concludes tha...
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MEMORANDUM The plaintiff, New Market Investment Corporation, is a Pennsylvania corporation and successor in interest to Frupac International Corporation, an importer of Chilean fruit to the United States, principally through the port of Philadelphia. The plaintiff was referred to at trial as “Frupac”, and the Court will so refer to the plaintiff in this Memorandum. The defendant, Fireman’...
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MEMORANDUM AND ORDER This case is before the court on the motion (Doc. 56) of defendants Merck, Sharp & Dohme and Merck & Co., Inc., for summary judgment pursuant to Fed.R.Civ.P. 56(b). Plaintiff Charlotte Hall has responded (Doc. 67) and opposes defendants’ motion. The motion is granted. Plaintiff brought this products liability action against defendants seeking damages for personal...
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ORDER This matter is before the court on defendant’s “motion to dismiss” and the brief submitted in support thereof (tabs 6 and 7), and on plaintiff’s brief in opposition thereto (tab 10). Essentially, defendant requests the court to dismiss count two of plaintiff’s complaint for failure to state a claim upon which relief may be granted. After due and proper consideration, the court concludes tha...
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OPINION AND ORDER I. INTRODUCTION This is a social security disability case. It has been pending for some time because the parties have been engaged in a dispute about discovery. The history and nature of that dispute can be found in my order of March 4, 1988, 136 F.R.D. 618, which granted plaintiff’s motion to compel discovery; in my status conference memorandum of February 8, 1990, which set up...
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MEMORANDUM AND ORDER Defendant appeals a Judgment of Preferential Transfer entered by the United States Bankruptcy Court for the District of Kansas on February 5, 1990 (Case No. 87-20398-7). The bankruptcy court found that the debtor corporation made an avoidable preferential transfer to defendant, and awarded the trustee judgment in the amount of $5000.00. Defendant’s general contention ...
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MEMORANDUM OPINION AND ORDER This case (originally assigned to the calendar of this Court’s then colleague, Honorable George Leighton) was first brought before this Court when counsel for plaintiff Edward Nelson (“Nelson”) applied for an award of attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.1 This Court’s August 13, 1991 opinion found that the merits of the issu...
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OPINION This is the third in a series of opinions in this multidistrict litigation. 1 On July 12, 1990, I issued an opinion ruling upon summary judgment motions relating to the Government’s “discretionary function” defense. In re Sabin Oral Polio Vaccine Products Liability Litigation, 743 F.Supp. 410 (D.Md.1990). On April 18,1991, after a fifteen-day trial, I issued ...
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OPINION AND ORDER Plaintiff, Broadway National Bank (“Broadway”) sues its insurer, the Progressive Casualty Insurance Company (“Progressive”), under a Financial Institution Bond (the “Bond”), for losses sustained when credit card sales drafts deposited by a merchant customer proved uncollectible. Progressive contends that recovery is barred by two exclusionary clauses in the Bond. The par...
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775 F.Supp. 1219 (1991) Sharon LANE, Plaintiff, v. The GROUND ROUND, INC., Defendant. No. 90-1533-C-5. United States District Court, E.D. Missouri, E.D. October 2, 1991. *1220 *1221 Mary Anne Sedey, St. Louis, Mo., for plaintiff. John J. Gazzoli, Robert J. Golterman, Lewis, Rice & Fingersh, St. Louis, Mo., for defendant. MEMORANDUM LIMBAUGH, District Judge. In this case, plaintiff sues her f...
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ORDER On December 4, 1988, plaintiff Dana Henry received a call from DuPage County Deputy Sheriff George Wick. 1 Deputy Sheriff Wick requested that Henry come to his office and answer questions in connection with an investigation into the death of Kristina Wesselman. Wick told Henry that Henry was not a suspect in the investigation. Henry agreed to go and answer questions. Seve...
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MEMORANDUM This matter comes before the Court on plaintiff’s motion for summary judgment, or alternatively to remand, and on defendant’s motion for summary judgment. Plaintiff Tolbert fell 15 feet from a crane and sustained multiple injuries, including a serious fracture of a leg and of certain bones in the ankle or foot. Tolbert applied for benefits pursuant to Title II of the Social Security Ac...
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OPINION AND ORDER INTRODUCTION On February 15, 1991, plaintiff Walgreen Company filed a complaint against defendants Sara Creek Property Company and Phar-Mor Corporation seeking preliminary and permanent injunctive relief for breach of a lease agreement. Walgreen seeks an order enjoining Sara Creek and Phar-Mor from entering into a lease under which Phar-Mor would rent retail sto...
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MEMORANDUM OPINION REVISED NOTICE OF GROUNDS FOR POSSIBLE SENTENCING DEPARTURE In the mid-1970’s, the defendants in this matter, Kenneth F. Boula and Earl Dean Gordon, began to operate a venture known as Financial Concepts. The defendants used Financial Concepts to create a number of real estate partnerships and they were quite successful in attracting a large number of investors to those partners...
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MEMORANDUM OPINION In this criminal case, defendant John Gerald Gerant has been charged in a five count superseding indictment with a conspiracy to distribute cocaine and marijuana in violation of 21 U.S.Code § 841 and 846, with engaging in a continuing criminal enterprise in violation of 21 U.S.Code § 848 and with related counts of possessing cocaine with intent to distribute. The conspiracy a...
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MEMORANDUM AND ORDER This action is brought by Turner and Boisseau, Chtd., to recover legal fees which Turner & Boisseau claims are owed by the defendants. The central issues of this case concern contract and agency law. It is undisputed that Turner & Boisseau represented certain insureds of Transit Casualty Company (Transit), including two cases known as Morales v. City of Garden C...
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ORDER DENYING MOTION TO VACATE This matter comes before the Court on Plaintiffs Oral Motion to Vacate Orders and Judgment, made at an informal conference on September 24, 1991. 1 The question presented is whether, upon a voluntary settlement by the litigants, we should vacate our prior orders and judgment after an appeal has been perfected. For the reasons enunciated below, the...
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MEMORANDUM OPINION AND ORDER Plaintiffs, Dr. Gaddam V. Reddy and Gaddam Usha Reddy (the “Reddys”) bring this action seeking damages arising out of an alleged unauthorized transfer of funds from plaintiffs’ money market fund account, by defendant, Barclays Bank of New York, N.A. (“Barclays”). The defendant, pursuant to Fed.R.Civ.P. 12(b)(1), moves to dismiss the complaint for lack of federal sub...
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OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW NEWMAN, Senior Judge of the United States Court of International Trade, sitting as a United States District Court Judge by designation: INTRODUCTION Blommer Chocolate Company (“Blom-mer”), the purchaser and consignee of a double-bagged sugar cargo transported on board the M/V NOSIRA SHARON from Antwerp, Belgium to Toledo, Ohio in A...
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MEMORANDUM OPINION AND ORDER DENYING REMAND A. Factual Background The plaintiffs have filed a motion to remand this action to state court because one of the defendants, Joseph Crosfield & Son, Ltd. (Crosfield) failed to timely consent to removal. As explained below, the plaintiffs’ motion is denied. This action was commenced in the 172nd District Court of Jefferson County, T...
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MEMORANDUM OPINION This case presents the question whether a husband, who claims his employer discharged him because of his wife’s pregnancy, has standing to sue under Title VII, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act (the “Act”). 1 I. Background Mr. and Mrs. Nicol worked for Imagematrix, Inc., as vice presidents from...
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MEMORANDUM AND ORDER The case comes before the court on the plaintiffs’ motion to certify their class action as maintainable pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. (Dk. 20). After this motion was filed, the parties conducted discovery on the issues relevant to class certification. Among those deposed were the class representatives. The parties then filed with the court...
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MEMORANDUM OPINION AND ORDER This action stems from the administration of the estate of Barbara W. Reese (“Reese”). Plaintiff Richard W. Barber, in his capacity as personal representative of Reese’s estate, brought suit against John and Lucille Ruth to recover funds allegedly removed by Lucille Ruth (“Ruth”) from a joint bank account held by her and the decedent. Currently before the court is (1)...
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MEMORANDUM OPINION AND ORDER Plaintiff, Bank One, Merrillville, NA (“Bank One”), brought this diversity action against defendant, Northern Trust Bank/DuPage (“Northern”), claiming wrongful dishonor of a cashier’s check. Northern asserted affirmative defenses and a counterclaim based on fraud, bad faith and misconduct. Bank One has moved, pursuant to Fed.R.Civ.P. 56, for partial summary judgment o...
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MEMORANDUM OPINION Before the Court is the question whether a single conspiracy count in an indictment can support multiple 18 U.S.C. § 924(c)(1) firearms counts. At issue is an indictment charging defendant with one count of conspiracy, two counts of distribution or possession of cocaine, one count of flight to avoid prosecution, and four separate § 924(c)(1) firearms counts, each related sole...
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MEMORANDUM and ORDER Local 365 United Auto Workers Welfare and Pension Fund (the Fund), appeals from the order of Chief Bankruptcy Judge Conrad Duberstein granting appellee Sterling Die Casting Company an avoidance of appellant’s judgment lien under 11 U.S.C. § 547(b)(l)(4) (1988). The case turns on whether New York State practice regarding the docketing of judgments discriminates against...
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MEMORANDUM OPINION This is a wrongful death action arising from an all-terrain vehicle accident. The action is brought by plaintiff, Jackie O. Fleming (“Fleming”), administrator of the estate of Samuel Todd Fleming, deceased, against defendants, Yamaha Motor Corporation, USA (“Yamaha USA”), and Yamaha Motor Company, Limited (Yamaha Hatsudoki, K.K. and Yamaha of Japan) (“Yamaha Japan”). Fl...
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ORDER This matter comes before the court on Ms. Satara Bryson’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.1 The petition came on for oral argument on Monday, September 16, 1991 at 10:00 a.m. The petitioner was represented by Diane Marie Amann, Assistant Federal Public Defender. The respondents were represented by George Christopher Stoll, Assistant United States Attorney. Th...
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MEMORANDUM OPINION Elizabeth M. Dondero and her husband Joseph Dondero filed this action against *146 the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (“FTCA”). Elizabeth seeks to recover for personal injuries that she sustained as a result of an automobile accident. Her husband, Joseph, claims loss of consortium as a ...
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Pending before the court is Plaintiff Ennis Grimes’ motion for instatement to the position of Building Inspector of the City of Fort Valley, Georgia. *1538 The Plaintiff, a black male over forty-years of age, presently works as the Building Maintenance Supervisor for Fort Valley State College, where he currently earns $25,694.00 per year. 1 He applied for the position o...
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ORDER Before the court is The Gillette Company’s (“Gillette”) motion to dismiss plaintiff's punitive damages count of her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the court denies the motion. *515 FACTS On August 16, 1989, plaintiff, an Illinois resident, bought a “Toni, Epic Waves, Adaptable Perm” which among other thin...
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OPINION The United States has moved for summary judgment pursuant to Federal Rule 56 to dismiss the claimant’s protest to the forfeiture of an automobile. (Docket Item [“D.I.”] 24). The United States argues that the claimant is merely an unsecured creditor, whose interest is insufficient to give him standing. On the other hand, the claimant contends that he has a perfected purchase money ...
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MEMORANDUM On July 24, 1991, this Court sent a letter to counsel, a copy of which is appended hereto, setting forth its tentative views on the pending cross-motions for summary judgment. Counsel were afforded an opportunity to reply to that letter, an opportunity which was taken up by the plaintiffs, but declined by the defendant. Having carefully considered plaintiffs’ reply, the Court is of t...
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MEMORANDUM AND ORDER Plaintiff Evelyn Leyh brought this action to recover from the defendants an automobile that was seized by the New York City Police Department and that subsequently became the subject of state forfeiture proceedings. Defendants have moved for summary judgment, and plaintiff has filed a cross-motion for summary judgment. For the reasons stated below, the motion of the defenda...
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MEMORANDUM OPINION This matter comes before the court on plaintiffs’ motion for summary judgment and defendants’ motion to dismiss. In this action, the plaintiffs seek declaratory and injunctive relief for George Mason University’s imposition of discipline on the plaintiff fraternity which has allegedly abridged the plaintiffs’ right of free speech. Plaintiffs argue that the discipline imposed ...
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MEMORANDUM AND ORDER This case is now before the court on defendants Gary L. Dinges’ and Photo Images, Inc.’s Motion to Dismiss (Doc. 79), pursuant to Fed.R.Civ.P. 12(b)(6) for failure of plaintiff’s First Amended Complaint to state a claim upon which relief can be granted. Plaintiff has responded and opposes the motion. For the reasons stated below, defendants’ motion is granted in part and deni...
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MEMORANDUM OPINION AND ORDER Defendants Carletha Jeter Haskins (Has-kins) and Atlas Wayne Phillips (Phillips) have each filed motions to suppress evidence seized from their vehicle by officers of the Beaumont Police Department during the course of a traffic stop on Interstate Highway 10 on October 16, 1990, said evidence consisting of a large quantity of marijuana, a .32 caliber handgun, and bu...
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OPINION AND ORDER This action arises out of a dispute concerning the alleged omissions and misrepresentations made by the defendants in connection with the sale of all of the issued and outstanding shares of common stock of a close corporation, Hydronic Fabrications, Inc. Based on violations of the federal securities laws as well as pendent state law claims, the complaint alleges that the...
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MEMORANDUM AND ORDER This case is before the court on the motion (Doc. 27) of defendants Merck, Sharp *602& Dohme and Merck & Co., Inc., for summary judgment pursuant to Fed.R.Civ.P. 56(b). The motion is denied. Plaintiff brought this product liability action against defendants seeking damages for personal injuries resulting from an alleged breach of implied warranties under the Uniform Commercia...
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ORDER On this date came on to be considered the status of the above-styled and numbered cause. This civil rights action arose out of incidents that occurred in Marion, Texas on July 31, 1985. Plaintiffs Samuel Pfannstiel (“Pfannstiel”), David Vizza, Roy Vizza, and Victor Garza, Jr. (“Garza”) sued Michael Earl (“Earl”), Harvey Faulkner, (“Faulkner”), Waldon Boecker (“Boecker”), Doyle Elliot (“Ellio...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION At issue is defendants’ motion for summary judgment filed January 2, 1991. Plaintiff Carl Lane responded on January 16, 1991, to which defendants replied on February 8, 1991. On February 5, 1991, the Court ordered plaintiff to conform his brief to the requirements of the local rules. See W.D.Okla.R. 14(B). On February 14...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The plaintiff, Marilyn Wilson, filed suit against the defendants, alleging violations of 42 U.S.C. § 2000e et seq. (Title VII). Trial was had to the court. The court now enters the following findings of fact and conclusions of law. FINDINGS OF FACT 1. Plaintiff is a female citizen of the United States and is a resident of Smith County, Texas. 2. D...
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ORDER IMPOSING RULE 11 SANCTIONS I. INTRODUCTION Plaintiff Frank E. Marley, Jr. (“Marley”), a licensed attorney and member of the Oklahoma Bar Association and the Federal Bar for the Western District of Oklahoma, sued two state court judges, their court reporter, and others. With respect to the judges and court reporter, he alleged they violated his constitutional rights by conducting an in camer...
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Plaintiff’s motion to remand presents the questions whether a workers’ compensation retaliation action made nonremovable by 28 U.S.C. § 1445(c) becomes removable when pendent to a federal question claim and whether the court should exercise supplemental jurisdiction over the retaliation claim. I Plaintiff Agripin Cedillo (“Cedillo”) sued defendant Valcar Enterprises & Darling Delaware...
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MEMORANDUM OPINION This case is before the Court on defendant, Pedro Prandy-Binnet’s (“Prandy”), motion to suppress physical evidence and other “fruits” obtained on May 22, 1991 by officers of the Metropolitan Police Department. Because the procedures used by the police in this case violated the defendant’s rights under the Fourth Amendment, the motion to suppress is granted. FINDINGS OF FACT...
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SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW The Supreme Court has held plainly and clearly as to the election of justices of the Louisiana Supreme Court, in Chisom v. Roemer, — U.S.-, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) that: ... Congress made clear that a violation of § 2 could be established by proof of discriminatory results alone. It is difficult to believe that Congress, in...
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ORDER AND REASONS This matter is before the court on the below listed Motions to Quash Service of Process and to Dismiss for Lack of In Personam Jurisdiction: (1) Motion of SIG Schweizerische Industrie-Gesellschaft Holding AG [“SIG”] To Quash Service of Process and to Dismiss SIG from these consolidated proceedings for Lack of In Personam Jurisdiction. (2) Motion of SIG To Quash Service of Proces...
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ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT I. FACTS AND PROCEDURE The above-entitled action was brought by Plaintiffs Michael C. Collins, a resident of the State of Washington, and his two daughters, Leslie Collins and Barbara Collins, against Schweitzer, Inc. (Schweitzer), an Idaho corporation, and World Wide Ski Corp., a Colorado corporation doing business as NASTAR, f...
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MEMORANDUM OPINION AND ORDER I. BACKGROUND On March 24, 1987, plaintiff-government filed an action against defendant-Swor to collect on a loan to Swor awarded under the National Direct Student Loan Program (“NDSL”).1 In mistakenly believing that the statute of limitations had run, the government stipulated to a dismissal “with prejudice” pursuant to Fed.R.Civ.P. 41(a)(2). Later, in October, 1988, ...
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MEMORANDUM OPINION INTRODUCTION Elizabeth Kinney, Regional Director For Region 13 of the National Labor Relations Board (hereinafter the “Board”), suspects that respondents Dominick’s Finer Foods, Inc. and its subsidiary Donna’s Distribution (collectively hereinafter “Dominick’s”) have inter alia violated Sections 8(a)(1), (2) and (5) of the National Labor Relations Act (the “Act”). The Board als...
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MEMORANDUM OPINION AND ORDER Plaintiff James Butts is a disabled worker entitled to social security disability benefits effective January 1, 1980. Although disabled more than a decade ago, it was not until June 21, 1991 that defendant Secretary of Health and Human Services finally determined that Butts was entitled to disability benefits beginning in 1980. This award of benefits was based...
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OPINION “Colorado River Doctrine” and Illinois Code of Civil Procedure § 2-619(a)(3). Does § 2-619 apply to a federal court hearing a diversity case pursuant to 28 U.S.C. § 1332. No! Defendant Specialty Waste Services, Inc.’s motion to dismiss.1 Facts Indiana Lumbermens Mutual Insurance Company (hereafter, Indiana Lumbermens) was the surety on a project to remove asbestos at the State Farm Insura...
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OPINION Plaintiff Charles Russo (“Russo”) brought this action against defendants Douglas White (“White”), the Department of Personnel of the City of New York (“Personnel”), Police Commissioner Lee P. Brown (“Commissioner Brown”), the Police Pension Fund (“PPF”), the City of New York (“City”) and the Police Department of the City of New York (“Police Department”) (collectively “Defendants”) seekin...
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OPINION AND ORDER This case was first filed in the Common Pleas Court of Pike County, Ohio, by Howard Sparks on September 30, 1987. It was properly removed to this Court by virtue of federal question jurisdiction. On October 3, 1988, a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure was filed by defendants Goodyear Atomic Corporation (“Goodyear”) and Martin ...
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ORDER Having reviewed the Government’s Motion for Reconsideration of Order Denying Government’s Motion to Revoke the Supervised Release of Defendant and the Defendant’s Response thereto, the Court ORDERS that its Order of March 19, 1991 be WITHDRAWN from the record and the following Order entered in its stead. This Defendant now before the Court is the same individual that was found ...
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OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION OF DEFENDANTS E. PACKER WILBUR, E.P.W. PROPERTIES, INC., WILBUR & COMPANY, INC. AND E.P. WILBUR & COMPANY, INC. FOR DISMISSAL OF PLAINTIFF’S COMPLAINT I. Background Facts This action was commenced in the Circuit Court of Wayne County, Michigan, and was subsequently removed to the United States District Court for t...
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MEMORANDUM OPINION This case comes before the Court upon the defendant’s motion to dismiss for improper venue or, alternatively, to transfer to the Northern District of Texas. I. Background The Securities and Exchange Commission (“SEC”) brought this civil enforcement action against Ernst & Young (“E & Y”) seeking a permanent injunction that would prohibit alleged future violatio...
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OPINION AND ORDER In this damages action, Official Publications, Inc. (“Official”) seeks to recover for injuries it allegedly sustained as a result of defendants’ fraudulent business practices. Official bases its complaint upon both state law and the federal RICO statute. Background Official is a publisher of magazines for distribution and sale to the public. Kable News Comp...
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DECISION AND ORDER Defendant Johnny Delgado is charged in a one count indictment with possession with intent to distribute a' controlled substance. He moves pursuant to Fed. R.Crim.P. 12(b)(3) to suppress physical evidence seized from and statements made by him. This Court held a hearing on defendant’s motion on June 25, 1991. For the reasons articulated below, defendant’s motion is ...
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OPINION AND ORDER In June 1991, the Department of Labor (“DOL”) instituted this action against the Consolidated Welfare Fund (the “Fund”) sponsored by the Consolidated Local Union # 867 (the “Union”), past and current Fund trustees, the Union, and certain insurance agencies, which the DOL alleges are wholly owned by Fund trustees. The DOL alleges that the defendants violated the Employee Retiremen...
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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 Judge Joel L. Tyler for a Report and Recommendation, who recommended that the petition be dismissed. For the reasons that follow, the Court agrees that the petition should be dismissed. BACKGROUND The facts relevant to the determination of this action are s...
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OPINION FACTS In 1950, plaintiff, William Dunn, first went to work as a pipe installer’s helper for Dow Chemical in Texas. A pipe installer performs the job of fitting insulation over pipes. This often requires cutting, sawing or pounding the insulation which creates dust. During plaintiff’s career, this dust often contained asbestos. Plaintiff testified that Owens-Corning’s Kaylo wa...
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MEMORANDUM This is a case removed from a Maryland state court, in which the plaintiff’s complaint set forth four claims, all arising from his termination as a public employee (Chief of Highway Operations) of Frederick County, Maryland. The case is pending on cross-motions for summary judgment (or partial summary judgment) as to Counts I and II, plaintiff’s constitutional claims stemming from his d...
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OPINION and ORDER Defendant brings this motion to vacate his sentence pursuant to 28 U.S.C. § 2255, contending that his sentence for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), is invalid because prior convictions for burglary and armed robbery were used improperly to enhance his sentence, and because his counsel was ineffective for failing to show that the prior ...
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MEMORANDUM OPINION This action was before the undersigned United States District Judge, sitting without a jury on August 22 and 23, 1991 in Aberdeen, Mississippi. After considering the oral and documentary proof received at trial, together with the parties’ proposed findings of fact and conclusions of law, the court makes the following findings of fact and conclusions of law as required b...
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MEMORANDUM OPINION AND ORDER Simon Arnold is serving a ten-year sentence as a result of his 1987 conviction for armed robbery, armed violence, and unlawful restraint. See People v. Arnold, 218 Ill.App.3d 647, 160 Ill.Dec. 784, 577 N.E.2d 1355 (1991). Arnold brings this action seeking damages and declaratory relief under 42 U.S.C. § 1983 for his arrest and initial detention. On January 19, 198...
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MEMORANDUM OPINION Plaintiff Memorial Hospital, a participant in the Medicare program, 42 U.S.C. § 1395 et seq., seeks reimbursement for certain costs of labor and delivery room services to which it is entitled as a result of recent decisions in this Circuit 1 . Plaintiff contends that the Provider Reimbursement Review Board (“PRRB”) wrongfully refused to consider Pl...
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MEMORANDUM OPINION AND ORDER Antonia Moore, a resident of Illinois, filed suit against The Wausau Club (“Wau- *620 sau”), a Wisconsin corporation with its principal place of business in Wisconsin, for injuries arising from her performance at the club as a member of the Dick Judson Orchestra. Wausau subsequently filed a third party complaint against the Orchestra, an Illinois Corporation with ...
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MEMORANDUM The enactment and successive broadening of the Federal Magistrates Act (the “Act”), now comprising 28 U.S.C. §§ 631-39, 604, 1915 and 18 U.S.C. §§ 3401-3402, 3060, reflects the ongoing efforts of Congress to enlarge the role of the United States magistrate judge “to the end that the district court judge could have more time to preside at the trial of cases.” H.R.Rep. No. 1609, ...
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*30 MEMORANDUM OPINION I. Introduction In March of 1989, Defendant Artcraft Electrical Supply (“Artcraft”) hired Plaintiff Douglas McDonald (“McDonald”) as a sales representative. One year later, in March of 1990, Artcraft terminated McDonald’s employment. Plaintiffs allege, and Defendants do not dispute, that while McDonald was employed by Artcraft, his compensation include...
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ORDER GRANTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION This cause came before the Court on May 15 through 16,1991, on plaintiff Burger King Corporation’s (“BKC”) Motion for a Preliminary Injunction to enjoin the defendant Carole Hall from using BKC’s registered trademarks and service marks (the “BKC Marks”) at her restaurant. Having considered the papers filed in support of and in o...
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MEMORANDUM OPINION AND ORDER This taxpayer action suit was brought in state court on August 16, 1990 against then state treasurer Cosentino and the Cosmopolitan National Bank of Chicago to recover interest the state allegedly lost when Cosentino deposited excessive state funds in non-interest-bearing accounts in return for loans to Cosentino’s financially-troubled company. On January 11, ...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Plaintiffs bring this suit under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. §§ 1001 et seq., and the common law of the state of Illinois, seeking a declaration of entitlement to retirement benefits, as well as compensatory damages, prejudgment interest, and costs. Their claims arise out ...
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OPINION AND ORDER Presently before this Court are cross motions by plaintiffs, Charles and Brian Ridgeway and defendants, Union County Commissioners, Union County Sheriff John G. Overly and Deputy David Roberson, Deputy Grote and Deputy Elmore, for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiffs commenced this action alleging deprivation of *1108 their rights under...
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DECISION AND ORDER I. INTRODUCTION This opinion addresses issues raised in the damages phase of a bifurcated patent infringement action. On March 22, 1983, Rite-Hite Corporation (“Rite-Hite”) commenced this action in which it alleges that Kelley Company, Inc.’s (“Kelley”) Truk Stop vehicle restraint infringed Rite-Hite’s U.S. Patent 4,373,847 (“the ’847 patent”). The ’847 patent was ...
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*1328 MEMORANDUM AND ORDER This case is now before the court on the following: Defendants James P. Kleoppel’s and Oseo Drug, Inc.’s Motion for Summary Judgment (Doc. 194); and Defendant DeGoler’s, Inc.’s Motion for Summary Judgment (Doc. 196). Plaintiff has responded and opposes these motions. For the reasons stated below, defendants’ motions for summary judgment are gr...
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ORDER Plaintiff brought this action under 29 U.S.C. § 1132(a)(1)(B) after the Defendants denied her claim for long-term disability benefits under the Hewlett-Packard Company Employee Benefits Organization Income Protection Plan (the Plan) on December 16,1988. This matter comes before the court on: (1) Defendants’ Motion for Summary Judgment on Plaintiff’s First Amended Complaint; and (2) ...
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MEMORANDUM OPINION AND ORDER The parties to this action are involved in selling component parts to the trucking industry. The present dispute arises from the demarkation between the heavy-duty truck and light truck markets. The plaintiff, Truck Components, Inc. (TCI), sells brake parts and other wheel components for heavy-duty trucks and trailers through its wholly-owned subsidiary, Gunit...
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ORDER On July 29, 1991, this Court ordered the plaintiffs, Armin Nankin (“Nankin”) and William Hoffmann, to pay into court pendente lite $280,590, the amount of the security deposit which had been given to them nine years and six months ago by the defendant, Beverly Enterprises (“Beverly”). Now before the Court is the plaintiffs’ motion to partially vacate the July 29 order and...
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OPINION This is an action brought by National-Standard Company (“National-Standard”) against Clifton Avenue Corp. (“Clifton”) and Hartz Mountain Industries, Inc. (“Hartz”) (collectively, “Defendants”) to enforce a real estate purchase contract. Jurisdiction is alleged pursuant to 28 U.S.C. § 1332 and appears to be appropriate. Currently before the court is the motion of Defendants fo...
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ORDER GRANTING MOTION TO REMAND For the reasons set forth below, the Court REMANDS this action to state court, pursuant to 28 U.S.C. § 1446(c)(4), for want of jurisdiction. I. BACKGROUND Plaintiffs filed an action against American Red Cross in Superior Court on June 16,1989. They claimed that Lovada Faust, who died of AIDS, contracted the disease from a blood transfusion she rec...
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ORDER This matter is before the court on various dispositive motions brought by both parties. A hearing was held on June 17 and 18, 1991. At the hearing, the court took the motions under advisement and sanctioned both law firms pursuant to Rule 11, Federal Rules of Civil Procedure and the inherent power of the court. See Chambers v. Nasco, Inc., — U.S. —, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Th...
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OPINION This is an employment discrimination suit brought by plaintiff George B. Ponzoni (“Ponzoni”) against defendant Kraft General Foods, Inc. (“Kraft”). Jurisdiction is alleged pursuant to the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626, et seq. (“ADEA”), and 28 U.S.C. § 1331 and 1337. Kraft now moves for summary judgment pursuant to Fed.R....
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OPINION AND ORDER Defendant Sands Hotel, Casino & Country Club, Inc. (“Sands”) has moved the Court to transfer this action to the District Court of New Jersey. For the reasons stated below, the motion is denied. FACTS The complaint alleges that on August 8, 1989, plaintiff Brian Boronstein (“Boron-stein”), then fourteen years old, slipped and fell in the area around the indoor pool at the Sands h...
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ORDER AND MEMORANDUM OF OPINION This matter is before the Court on defendant Jean Taylor’s motion to suppress incriminating statements she made to two law enforcement officers. A hearing on the motion was held on September 20,1991. For the reasons stated below, defendant’s motion is DENIED. On July 17, 1991, the Bureau of Intergovernmental Drug Enforcement (“BIDE”) sought and obtained a search war...
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In the above-referenced action, plaintiffs sue defendant pursuant to the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq., alleging discrimination with respect to rental housing. In an Order dated April 5, 1991, United States Magistrate Judge David F. Jordan denied plaintiffs’ motion to compel discovery of defendant’s income tax returns for the last two years. Currently before the court is plain...
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Plaintiffs John Fickling (“Fickling”) and the Estate of Florence Fickling (“the estate”) (collectively “plaintiffs”) bring the above-referenced action against defendants the Commonwealth of Australia (“Australia”), the State of Victoria (“Victoria”), and Tony Lyons (“Lyons”), in his official capacity as Registrar of Titles of the Victorian Government (collectively “defendants”). Plaintiffs alle...
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OPINION The matters before the court are: 1) the motion for summary judgment of plaintiff, the United States of America (#52); 2) the motion for summary judgment of plaintiff-intervenor, the Klamath Tribe (# 55); and 3) the motion for summary judgment of defendants, the Water Resources Department of the State of Oregon and William H. Young, its Director (# 54). In its ...
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DECISION AND ORDER On March 23, 1990, the plaintiffs, Carl M. Jersild and Marilyn J. Jersild filed this action alleging securities fraud, statutory fraud, and common law fraud by the defendants George E. Aker and John J. Kalfahs. Federal jurisdiction is based upon diversity of citizenship, see 28 U.S.C. § 1332(a)(1), and the parties have agreed that Wisconsin law governs. On Ju...
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ORDER AND MEMORANDUM OF OPINION Defendants Michael and Jean Taylor were indicted on July 23, 1991 under 21 U.S.C. § 841 and 18 U.S.C. § 2 for knowingly and intentionally manufacturing a quantity of marijuana and aiding and abetting the commission of that offense. The Taylors have moved to suppress the marijuana plants and drug paraphernalia seized when law enforcement officers executed a search wa...
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MEMORANDUM OPINION AND ORDER Plaintiff Televideo, Inc. (“Televideo”) brought this diversity action against defendant John J. Mayer (“Mayer”) d/b/a John J. Mayer & Associates, in connection with a contract to sell various computer wares to a Hawaiian firm called John J. Mayer & Associates (“Mayer-Hawaii”). Televideo sought to recover an amount allegedly due under the contract from Mayer as a partn...
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DECISION AND ORDER The petitioner, Ronald A. Keith, Sr., is currently incarcerated in the Waupun Correctional Institution where he is serving a ten-year sentence resulting from a March 8, 1984, conviction of second degree sexual assault. This sentence was imposed on September 10, 1989, following the revocation of Mr. Keith’s probation. Other actions filed by Mr. Keith in this court disclose tha...
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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 Consent Decree pr...
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MEMORANDUM AND ORDER In the above-referenced action, plaintiffs, Trustees of the Local 282 Welfare, Pension and Annuity Trust Funds (“the Funds”), move for entry of judgment against defendants Split Rock Associates Inc. (“Split Rock”), and Eileen Werner or, alternatively, for sanctions against defendants and Hauppaüge Equipment Leasing Corp. (“Hauppauge”), an affiliate of Split Rock, in order to ...
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DECISION AND ORDER On November 16, 1990, the pro se plaintiff, Craig T. Bates, presently incarcerated at the Fox Lake Correctional Institution [FLCI], filed an action seeking redress under 42 U.S.C. § 1983 for various constitutional violations alleged to have been committed by numerous Waupun Correctional Institution officials and employees. The plaintiff had been an inmate at Waupun prior to his ...
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*16ORDER AND MEMORANDUM OF OPINION This matter is before the Court on plaintiffs’ motion for leave to file a second amended complaint. For the reasons stated below, plaintiffs’ motion is GRANTED. On October 15, 1990, plaintiffs Vivian Winslow and Judith Lambert filed a class action lawsuit in state court against the Commissioner of the Maine Department of Human Services (“DHS”) charging that the ...
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775 F.Supp. 353 (1991) OREGON ENVIRONMENTAL COUNCIL and the Sierra Club, Plaintiffs, v. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY and Fred Hanson, Director, Defendants. Civ. No. 91-13-FR. United States District Court, D. Oregon. September 27, 1991. *354 *355 David Paul, Portland, Or., Victor M. Sher, Todd D. True, Sierra Club Legal Defense Fund, John B. Arum, Ziontz, Chestnut, Varnell, Berley &a...
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ORDER On March 29, 1990, the UWM Post, Inc. and others (“plaintiffs”) filed this action seeking that this Court enter a declaratory judgment that Wis.Admin.Code § UWS 17.-06(2) (the “UW Rule”) on its face violates: (1) plaintiffs’ right of free speech guaranteed by the First Amendment to the United States Constitution and by Article I, Section 3 of the Wisconsin Constitution and (2) plaintiffs’...
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770 F. Supp. 1419 (1991) KLICKITAT COUNTY, a municipal corporation; City of Washougal, a municipal corporation; SDS Lumber Co., a Washington corporation; Klickitat County Livestock Growers Association, a Washington unincorporated association; Ellett Construction Co., an Oregon corporation; and Dan Gunkel, an individual, Plaintiffs, v. COLUMBIA RIVER GORGE COMMISSION, an agency of the States of Wa...
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MEMORANDUM Ben Elfman & Son, Inc. (“Elfman”), has distributed carpeting and other floor covering, since 1907, from offices in Chelsea, Massachusetts. 1 Elfman purchases carpeting from suppliers and sells it to retailers under its own labels. 2 Defendant Criterion *685 Mills, Inc. (“Criterion”), a Georgia corporation, supplied carpeting to Elfman from 197...
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MEMORANDUM AND ORDER This is an appeal of a bankruptcy court order denying appellant Dickinson’s motion to remand and abstain. This court questioned the nature of review of the bankruptcy court’s order in light of the Judicial Improvements Act of 1990. For the reasons set forth below, this court finds it has appellate jurisdiction over the order of the Bankruptcy Court. PROCEDURAL BA...
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OPINION AND ORDER Defendant Mahmood Choudury has moved the Court to dismiss this action for lack of personal jurisdiction, or, in the alternative, for a transfer to the United States District Court for the Eastern District of Pennsylvania. Plaintiff Generale Bank (“Generale”) opposes the motion to dismiss and has filed a cross-motion for summary judgment. For the reasons stated below, Cho...
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ORDER AND REASONS Appellant, Gulf Electroquip, Inc., has appealed from the bankruptcy court’s dismissal of its complaint seeking a declaration that a debt owed it by appellees, Wilbert A. Rodriguez and Thomas J. Wetta, III, was not dischargeable. For the following reasons, the judgment of the bankruptcy court is REVERSED, and the case is remanded to the bankruptcy court for further procee...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the court on Defendant’s Motion to Stay Proceedings and Compel Arbitration, filed December 14, 1990 and Defendant’s Amended Motion to Stay Proceedings and Compel Arbitration, filed January 3, 1991. Pursuant to the Federal Arbitration Act, 9 U.S.C. § 4, Defendant requests the court to compel the Plaintiff to arbitrate all disputes between the p...
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MEMORANDUM OPINION and ORDER This matter is before the Court on cross motions for summary judgment (Filing Nos. 29, 33, and 50). The parties have agreed that there are no genuine issues as to any material facts, that this case can be resolved on the pending motions for summary judgment without a trial, and that all evidence which would have been presented at trial is already before the Co...
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MEMORANDUM This matter is before the Court on two motions filed by Robert Darvin (“Darvin”), one of the defendants, a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and a motion for sanctions under Fed.R.Civ.P. 11. Darvin’s motion to dismiss pertains to Counts I and II of the plaintiff’s five-count amended complaint, while the motion for sanctions pertains to the plaintiff’s initial ...
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ORDER AND MEMORANDUM OF OPINION This matter is before the Court on Defendant Frederick Thurston’s Motion to Suppress evidence obtained on the night of his arrest, including incriminating statements and a .25 caliber semi-automatic pistol. Defendant is charged as a felon in possession of a firearm and with knowingly making false or fictitious statements in the acquisition of a firearm. 1 A hea...
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MEMORANDUM and ORDER Presently before the Court is the petitioner’s prayer for a writ of habeas corpus in a proceeding brought pursuant to 28 U.S.C. § 2254. The Petition is bottomed on claimed excessive delay experienced by the petitioner awaiting the perfection and the resolution of his appeal from a state court conviction. For the reasons set forth below, this Court will deny the Petiti...
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MEMORANDUM BACKGROUND Plaintiffs John F. Perry, M.D. and U.S. Taxpayers Party of Pennsylvania (“U.S. Taxpayers”) 1 challenge the constitutionali *823 ty of ballot access requirements imposed on independent party candidates in Senatorial elections by sections 2776 and 2911 2 of the Pennsylvania Election Code. 3 Perry attempted to qualify for a position on the ballot as a candidate of t...
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Third-party defendants Pushpinder J. Dhingra, Jet Set Investments Ltd., and A.C. John (Third-party defendants) have asked for reconsideration of their motion to dismiss the Third-party complaint of defendant and Third-party plaintiff Sina Essary. Said motion was denied by the Honorable Mary Johnson Lowe on July 24, 1991. The motion for reconsideration is denied. The allegations contained in Essary...
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MEMORANDUM DECISION Plaintiff, William D. Young, has commenced this suit against the Town of Falls-burg Police Department (“Police Department”) based upon a series of incidents occurring while he was a part-time officer serving on the Fallsburg police force. His complaint alleges that the Police Department was responsible for acts of racial discrimination against Young by its Police Chief and o...
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MEMORANDUM OPINION AND ORDER Plaintiffs Indiana Coal Council, Inc., National Coal Association, American Mining Congress, (collectively, “Industry plaintiffs”); National Trust for Historic Preservation in the United States; Society of Professional Archeologists; National Conference of State Historic Preservation Officers; Kentucky Organization of Professional Archeologists; Council for Wes...
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MEMORANDUM OF DECISION At the Court’s request, the parties in the above-captioned matter appeared before it on September 23, 1991 to argue whether recent United States Supreme Court and Second Circuit case law with respect to the appropriate statute of limitations for actions brought under § 10(b) of the Securities and Exchange Act of 1934 barred this securities fraud case from proceeding...
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MEMORANDUM OPINION I. Introduction A. Background Plaintiff, Neal Van Schouwen, has moved this court to dismiss under Rule 12(b)(6) the counterclaim brought by the defendant, The Connaught Corporation (“Con-naught”). He has also moved under Rule 12(f) to strike many of the numerous affirmative defenses that Connaught has pleaded in its answer. Van Schouwen is a forme...
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OPINION Plaintiff, Cooper Industries, Inc. (Cooper), commenced this suit against the United States Environmental Protection Agency (EPA or Administrator), the Michigan Department of Natural Resources (MDNR), and various individuals of those agencies acting in their official capacities, challenging defendants' actions pertaining to the development of a remedial plan under the Comprehensive...
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MEMORANDUM and ORDER Presently before the Court is the petitioner’s application for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. 1 This Petition arises out of the claimed excessive delay experienced by the petitioner awaiting the perfection and the resolution of his appeal from a state court criminal conviction. For the reasons set forth below, this Court will ...
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ORDER Introduction On June 14, 1991, Plaintiff Antrim Mining, Inc. (Antrim) filed a complaint against Defendants Arthur A. Davis, Secretary, Pennsylvania Department of Environmental Resources; the Pennsylvania Department of Environmental Resources; and “all other persons known or unknown acting for or on behalf of the named Defendants in their official capacity.” On June 26, 1991, An...
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MEMORANDUM AND ORDER This case presents the question of whether the Resolution Trust Corporation (RTC), as receiver of the American Savings and Loan Association, properly removed a foreclosure action from state court. For the reasons explained below, the Court denies the defendant’s motion to remand the case to the Chancery Court of Pulaski County, Arkansas. The RTC originally filed ...
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OPINION Before this court is a motion by plaintiff, Elena Zahos Burd, to deny the United States’ motion for summary determination and in support of plaintiff’s motion for summary determination. The issue presented in this action is whether the Internal Revenue Service’s jeopardy assessment pursuant to 26 U.S.C. § 6862 was reasonable under the circumstances. For the following reasons, the court ...
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MEMORANDUM AND ORDER Plaintiffs Edward C. Fechter, Evelyn Hoffman, and Roderick M. Jackson, individually and on behalf of approximately 650 individuals similarly situated, and defendant Connecticut General Insurance Company (“Connecticut General”) have filed cross-motions for summary judgment on both counts of plaintiffs’ Third Amended Complaint pursuant to Fed.R.Civ.P. 56. Both parties h...
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MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS In this patent invalidity and noninfringement action, Defendant, owner of a patent allegedly infringed upon by Plaintiff, has moved to dismiss Plaintiff’s Complaint for lack of in personam jurisdiction under *25Federal Rule of Civil Procedure 12(b)(2) and improper venue under Federal Rule of Civil Procedure 12(b)(3). Alternat...
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DECISION AND ORDER The plaintiff, Charles Ferguson, currently incarcerated at the Waupun Correctional Institution, seeks redress under 42 U.S.C. § 1983 from Gary McCaughtry, the warden of Waupun, and Cindy O’Donnell, a com *535 plaint examiner, for their alleged mishandling of his monetary funds and audio tapes. Mr. Ferguson has filed a petition for leave to proceed in forma pauperis. For the...
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OPINION AND ORDER This is an action for injunctive relief and damages alleging violations of the Employee Retirement Income Security Act of 1974 (ERISA). Defendant Washington National Life Insurance Company (Washington National) moves to dismiss the claims against it pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant’s m...
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OPINION AND ORDER In this action, the plaintiffs allege securities fraud in violation of section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. § 78j [1988]), and Rule 10b-5 of the Securities Exchange Commission. The defendants Total Health Systems, Inc. and Jay A. Fabrikant now move to dismiss the Complaint, pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil proce...
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ORDER On April 30, 1991 the court entered an order granting defendants’ (“White Cap’s”) motion for summary judgment. 762 F.Supp. 814. Plaintiff Farr filed a motion to reconsider on May 17, 1991. The court also asked the parties to file supplemental briefs discussing whether, in light of Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir.1990), cert. denied, — U.S...
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ORDER Defendant UPS’s motion to dismiss is granted without prejudice. Plaintiff is given leave to refile her complaint in conformity with the Carmack Amendment, 49 U.S.C. § 11707. The plaintiff’s motion to remand is denied since this suit is governed by federal law. *1150 I. FACTS In early September of 1987, Plaintiff, Ulwyn Pierre, entered into an agreement with United...
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ORDER AND REASONS This matter is before the Court on Motions for Summary Judgment filed on behalf of defendants, Exxon Corporation ("Exxon”) and Baker Oil Tools, Inc. (“Baker Oil”), to wit: (1) Exxon has moved for summary judgment dismissing plaintiff’s claims against *420 it based on its status as “statutory employer” pursuant to L.S.A.-R.S. 23:1061; and (2) Baker ...
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MEMORANDUM-DECISION AND ORDER I. OVERVIEW This consolidated motion arises from litigation over two families’ (plaintiffs) plans to install and/or maintain satellite television receive-only dish antennas (“TVROs”) on the rooftops of their respective homes in Niskayuna, New York (defendant). The defendant has prevented one family from installing the satellite dish and is threatening legal actio...
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MEMORANDUM OF DECISION This bankruptcy appeal presents the question whether a federal bankruptcy court has the authority to enjoin a state court products liability suit brought against the purchaser of a bankruptcy debtor’s assets when the only theory of recovery is successor liability to the debtor. The bankruptcy court (Goodman, J.) here enjoined the action because it had previously ord...
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ORDER AND MEMORANDUM OF OPINION Plaintiff, claiming disability benefits under the Supplemental Security Income (SSI) program established by Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq., was found by an administrative law judge (ALJ) not to be disabled within the meaning of the Act. After the Appeals Council denied review of the ALJ’s decision, the claimant sought judicial rev...
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OPINION AND ORDER Petitioner Sen Mar, Inc. (“Sen Mar”) is a New York corporation with its principal place of business in New York. Tiger Petroleum Corporation (“Tiger”) is a Netherlands Antilles corporation with its principal place of business in London, England. Both Tiger and Sen Mar are buyers and sellers of oil. Sen Mar has petitioned this Court for an order compelling Tiger to procee...
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OPINION AND ORDER In this action, plaintiff Hedman, Gibson, Costigan & Hoare, P.C. (“Hedman”) seeks to recover unpaid legal fees from William Sullivan, Sr. (“Sullivan”), one of three guarantors for the fee obligations of Hedman’s client, Rates Technology Inc. (“RTI”). The day after this action was filed, RTI sued Hedman and one of its name partners, Thomas Gibson, in New York state court, allegin...
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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 Consent Decree provided f...
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MEMORANDUM This action arises out of a dispute over a settlement agreement in resolution of a prior lawsuit between plaintiff ITT Corporation (“ITT”) and defendant LTX Corporation (“LTX”). ITT sought money damages from LTX for an alleged breach of the settlement agreement to sell electrical cable assemblies. This Court, in 732 F.Supp. 1225 (D.Mass.1990), denied ITT’s breach of contract claim, gran...
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MEMORANDUM This case involves an alleged breach of a licensing agreement between plaintiff Cottman Transmission Systems (“Cottman”) on the one hand, and defendants Lehwald, Inc., Bernhard Lehwald, and Diane Lehwald on the other. Jurisdiction exists by virtue of diversity of citizenship: Cottman is incorporated and has its principal place of business in Pennsylvania, while defendants are all cit...
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ORDER Plaintiff, Dr. Elizabeth Evan, filed this suit against Jorge Morales and the community group, Centro Para Desarrollo Comunitario Y Liderato (“Centro”) alleging state tort violations of assault, battery and intentional infliction of emotional distress. She has also brought this suit against Commander Curtin and Officer Todaro of the Chicago Police Department and the City of Chicago alleging ...
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MEMORANDUM RE SENTENCING Defendant is before the court for imposition of sentence on Count I of the Indictment in this case, charging a conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 371, 1014, & 1344. The facts of the offense are essentially undisputed. Defendant conspired with Richard Mittelman to cause three women to present falsified loan applications to federally ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This is a civil action brought by the Plaintiff, Raul C. Sanchez, a Hispanic male citizen of the United States and a resident of the State of Oklahoma, against the Defendants, Philip Morris Incorporated, d/b/a Philip Morris USA (“Philip Morris”), and Ralph Rayburn, for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ...
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OPINION This matter is before the Court on motions to dismiss by defendant Donald J. Quigg, Commissioner of Patents and Trademarks (the Commissioner), and by in-tervenor Allied-Signal, Inc. (Allied), and on a motion for summary judgment by plaintiff, Hitachi Metals, Ltd. (Hitachi). The Court dismisses Hitachi’s complaint with respect to both the defendant and the inter-venor in this actio...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW But fresh lilaced moorland fields cannot hide the stolid stench of death. -Morrissey, Suffer Little Children. 1. On April 21, 1988, James A. Marullo (“James”), enrolled in a group life insurance policy, issued by the Plaintiff, Prudential Insurance Company of America (“Pru *632 dential”), as part of a employee benefit ...
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MEMORANDUM OF DECISION ON APPEAL This matter is before the Court on appeal from an order of the Bankruptcy Court approving the nunc pro tunc employment of a real estate broker for purposes of selling real estate which was an asset of the estate in bankruptcy. The Court has fully reviewed the record on appeal and finds that there is no clear error nor any abuse of discretion in the decision of...
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OPINION AND ORDER Steinberg & Lyman (“S & L”) is a Delaware partnership with its principal place of business in New York that is engaged in the business of buying and selling securities for itself and customers. The defendants Takacs, Anthony, Sal and Gary Pal-ma, Davi, Beren, Cogniglio, Ogburn, McDanile, Morgan and Bar are residents of California; defendants Solomon and Bier-man appear t...
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OPINION On February 26, 1990, the United States Bankruptcy Court for the Eastern District of Pennsylvania entered a Final Judgment and Order in the matter of Rheam of Indiana, Bankruptcy No. 87-06459S. That order awarded the law firm of Ciardi, Fish-bone & DiDonato, (“CF & D”), and the auctioneer, William F. Comly & Son, Inc., (“Comly”), reimbursement for services pr...
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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 Consent Decree pr...
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MEMORANDUM AND ORDER I.INTRODUCTION Before the Court are objections by defendant City of North Adams (“North Adams” or “the City”) to recommendations of Magistrate Judge Michael A. Ponsor (“Magistrate Judge”). The Magistrate Judge recommended that the Court grant the government’s motion for partial summary judgment, and deny the City’s motion for summary judgment. United States...
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ORDER AND NOW, this 8th day of October, 1991, after hearing, the defendant, William Mele, will not be required as a condition of probation to go to Illinois to respond to a warrant charging him with intimidation. In connection with this order, I make the following findings: 1. William Mele was convicted in this court of mail fraud. After a period of incarceration, he began a period of probation on...
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*798 MEMORANDUM OPINION AND ORDER Plaintiffs Sara Stump and Andrew Ocrant commenced this action asserting claims under 42 U.S.C. § 1983 and state tort law. Defendants are: (1) Sueann Ocrant; (2) the Arapahoe County Coroner’s Office, and Dr. Jill Gould in her official capacity as Arapahoe County Coroner (collectively "Arapahoe County”); and (3) the City of Greenwood Village, Rolli...
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MEMORANDUM AND ORDER Before the court is the defendants’ motion to dismiss for lack of personal and subject matter jurisdiction. Background In June of 1986 the plaintiff, Anthony Norling, worked as a cement truck driver for the defendants, Valley Contracting and Pre-Mix, a construction subcontractor and cement vendor engaged in a federal construction project at the Grand For...
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MEMORANDUM I. Introduction. We are currently considering the plaintiffs’ petition for a writ of mandamus and the defendants’ motion to dismiss or, in the alternative, for summary judgment. The fifteen plaintiffs are providers of services within the meaning of Part B of the Medicare program. See 42 U.S.C. § 1395j-1395w. They filed this action to contest a recent unilateral decision by defendant, Pe...
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OPINION Before this court is a motion for summary judgment as to defendant’s liability brought by plaintiff, Scott Lee Rustay (“Rustay”), against defendant, Consolidated Rail Corp. (“Conrail”), and a cross-motion for summary judgment brought by Conrail. For the reasons stated below, both motions for summary judgment are denied. On April 30, 1988, at about 9:30 P.M., the defendant’s t...
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MEMORANDUM OPINION AND ORDER Dr. John J. Farber filed this diversity action against defendant Zenith Laboratories, Inc., pursuant to Zenith’s by-laws and New Jersey law. Zenith is a New Jersey corporation that manufactures and markets generic pharmaceutical products. Farber, a New York resident, served as chairperson of the board of Zenith, from 1979-1990. He seeks indemnification for leg...
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MEMORANDUM AND OPINION This is a negligence and product liability case involving the use of the oral contraceptive Demulen 1/35. The plaintiff, Ms. MacPherson, obtained Demulen 1/35 after her obstetrician/gynecologist, defendant Dr. Meek, prescribed it at his office in Chevy Chase, Maryland. Dr. Meek is a Maryland citizen. Ms. MacPherson, who was a student at Howard University in the Dist...
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OPINION The plaintiffs, the Attorney Generals of the fifty States and the Corporation Counsel of the District of Columbia (“Attorney Generals”), and the defendant, Nintendo of America, Inc. (“Nintendo”), have moved for an Order granting final approval of the settlement agreements between the parties filed with this Court on or before June 20, 1991 (“Settlement Agreements”). A number o...
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MEMORANDUM-DECISION AND ORDER There are two motions presently before the court. The first is a motion for summary judgment by defendant, Carolina Freight Carriers Corporation (“Carolina Freight”), and the second is a cross-motion by plaintiff, Davis Accoustical Corporation (“Davis”), to amend its complaint. The court will address those motions in reverse order. I. Cross-Motion to Amend Backgrou...
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ORDER AND INJUNCTION In this action the plaintiffs allege that the defendants’ refusal to allow plaintiffs to place newsracks in the terminal of the Greenville-Spartanburg Airport violates the plaintiffs’ rights of free speech and press under the United States and South Carolina Constitutions. The plaintiffs seek an injunction ordering the defendants to allow newsracks in the terminal. The Co...
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MEMORANDUM OPINION AND ORDER In this action involving a claim on a subordinated convertible bridge note, defendants have moved, pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure, for an order dismissing plaintiffs first, second and third claims based on § 10(b) of the Securities Exchange Act of 1934 and § 12(2) of the Securities Act of 1933. In addition, defendan...
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MEMORANDUM AND ORDER The case comes before the court on the motion for partial summary judgment filed by defendant Coleman Company, Inc. Plaintiff, William J. Marsh (“Marsh”), alleges his termination from Coleman Company on or about January 20, 1988, was taken in connection with certain fraudulent misrepresentations, was in breach of an implied contract of employment, and was in violation...
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*1560 ORDER ADOPTING IN FULL OMNIBUS REPORT AND RECOMMENDATION THIS CAUSE comes before the court on the Omnibus Report and Recommendation (“R & R”) of the Honorable Linnea R. Johnson, see docket entry 100, which recommended the following: (1) that defendants Haddad, De Cardenas, Izquierdo and Sanchez’s motions to dismiss the complaint, see docket entries 40,...
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This diversity action involves a dispute between an insurer and its insured concerning coverage for environmental clean-up costs mandated by the U.S. Environmental Protection Agency (“EPA”), pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Specifically, the Village of Morrisville Water & Light Department (“Morrisville”) seeks an injunction and a ...
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OPINION AND ORDER This diversity action arises out of the collapse of the ceiling of the Murray Hill Cinema (“Murray Hill” or “Cinema”) on July 15,1986. The case is currently before the Court on the parties’ cross-motions for summary judgment. Plaintiff Sutton Hill Associates (“SHA”), a California general partnership, seeks summary judgment in its action to recover the proceeds of an insurance se...
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*928MEMORANDUM OPINION Before this Court is plaintiff Equitable Life Assurance Society of the United States’ (“Equitable’s”) Motion for Summary Judgment. For the following reasons we will deny Equitable’s motion. Background For the purposes of its Summary Judgment Motion, Equitable does not dispute the facts as alleged by defendant Orlando J. Salata. Before explaining our reasoning for denying E...
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775 F.Supp. 1173 (1991) UNITED STATES of America, Plaintiff, v. Norby WALTERS, Defendant. No. 88 CR 709. United States District Court, N.D. Illinois, E.D. October 11, 1991. *1174 Robert Gold, New York City, Tyrone C. Fahner, Mayer, Brown & Platt, Chicago, Ill., for defendant. Howard Pearl, U.S. Atty., Chicago, Ill., for plaintiff. MEMORANDUM OPINION AND ORDER LEINENWEBER, District Judge. Def...
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*1161 DECISION AND ORDER This removal action is brought under the Wisconsin Fair Dealership Law, Wis.Stat. § 135.01 et seq. Federal jurisdiction is based upon diversity of citizenship, see 28 U.S.C. § 1332(a). At a hearing on September 25, 1991, the court entertained the plaintiffs motion for a preliminary injunction. At the conclusion of the hearing, the court denied the plaintiffs motion....
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ORDER DENYING MOTION FOR RULE 60(B) RELIEF AND LIMITING THE FILING OF MOTIONS FOR RECONSIDERATION On September 16,1991, Rainsford J. and Winifred W. Winslow filed a “Verified Motion to Prevent Morgan County/Williams Class from Getting a Million Dollar Reward after Committing Two Serious Fraudulent Federal Felonies as per Title 18 USC §§ 152 and 1001 which is Projected to be the Biggest and Most I...
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MEMORANDUM OPINION AND ORDER This cause is before the Court on the Motion of Plaintiff for Partial Summary Judgment. The Court, having considered the Motion together with responses, memoranda and other supporting documents, is of the opinion that the Motion of Plaintiff Exxon Corporation (“Exxon”) for Summary Judgment should be granted in part and denied in part. I. Facts and Proce...
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RULING ON DEFENDANT’S MOTION TO DISMISS Plaintiffs, Celestina Roma, et al., allege that defendant, Daisy Manufacturing Company, Inc. (“Daisy”) is liable under Connecticut’s Product Liability Statute, Conn. Gen.Stat. § 52-572m et seq., for an eye injury sustained by plaintiff Franco Roma, Jr. (“Roma”). Defendant Daisy has moved, pursuant to Fed.R.Civ.P. 12(b)(7), to dismiss this action for the fai...
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RULING ON RESPONDENT’S MOTION FOR CLARIFICATION OR RECONSIDERATION Petitioners are alleged “Mariel” Cuban detainees challenging the legality of their prolonged custody as excludable aliens. This court ordered the consolidation of these cases and appointed the Federal Public Defender as counsel for the petitioners. Respondents filed the instant motion for reconsideration of this court’s or...
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DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT Plaintiff, Frank Sperry, was terminated by defendant, Post Publishing Company, (“Post”) on January 19, 1989. At the time of his termination the plaintiff accepted the terms of the Post’s voluntary separation program and signed a release. In compensation for his release the plaintiff received severance pay totaling $28,840 and a six month con...
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OPINION AND ORDER On April 11, 1991, defendant Celin Jewelry, Inc. (“Celin”) filed a notice removing this case from the Supreme Court of Bronx County, New York to this Court. Plaintiffs Brian and Irma Flood and their minor children (the “Floods”) have moved to remand the action back to state court on the grounds that the notice of removal was untimely. For the reasons set forth below, plaintiff...
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ORDER AND REASONS This matter is before the Court on Cross-Motions for Partial Summary Judgment of plaintiff Independent Fire Insurance Company and defendants, Robert Lea, Jr., J. Randall Lea and Elizabeth Lemoine Lea, on the issue of whether defendant Richard D. Guffey was acting as agent of the Leas in connection with his attempt to procure a fire policy for them in December of 1989. I. Procedu...
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MEMORANDUM AND ORDER This matter is presently before the Court on defendants’ motion to transfer the case *80 to the United States District Court for the Northern District of Texas pursuant to the federal change-of-venue statute, 28 U.S.C. § 1404(a). American Universal Insurance Company (“AUIC”) is a Rhode Island corporation presently in receivership and represented in t...
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ORDER Before the Court is the motion of the defendant, Resolution Trust Corporation (“RTC”), for summary judgment based on the federal common law’s D’Oench, Duhme doctrine and 12 U.S.C. § 1823(e) (1988). As explained below, the Court agrees with RTC’s position and GRANTS summary judgment in its favor. Also pending is the motion for summary judgment of the defendants William W. ...
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ORDER The usufructuary rights retained by plaintiffs as a consequence of the treaties they entered into with the United States of America in 1837 and 1842 include rights to those forms of animal life, fish, vegetation and so on that they utilized at treaty time, set forth in the facts sections of the opinions entered herein on February 18, 1987 and February 21, 1991. Also, plaintiffs have the r...
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ORDER AND OPINION Plaintiff Errol Bryan (“Bryan”) filed this action pursuant to 42 U.S.C. § 1983, claiming that he was assaulted by defendant James Stewart (“Stewart”) and other unknown correction officers at the dining hall at the George Motchan Detention Center, Rikers Island. Defendant City of New York (the “City”) has moved to dismiss all claims against it on the grounds that Bryan failed to i...
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775 F.Supp. 1227 (1991) DANELLA SOUTHWEST, INC., Plaintiff, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant. No. 88-0578-C-5. United States District Court, E.D. Missouri, E.D. October 16, 1991. *1228 *1229 Thomas F. Jones, Clayton, Mo., John E. Price and Joseph D. Sheppard, Woolsey, Fisher, Whiteaker & McDonald, Springfield, Mo., for plaintiff. Thad Hollie, Jr., Southwestern Bell Telephone ...
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MEMORANDUM This matter is before the court on defendants’ motion to dismiss. Plaintiff, a Missouri inmate, was convicted in 1979 of first-degree murder, rape and kidnapping for which he was sentenced to life imprisonment to be followed by sixty years imprisonment. In this action for damages brought under 42 U.S.C. § 1983, plaintiff claims that two parole officers violated his eighth and fourteent...
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ORDER Defendant Procter & Gamble Company (“P & G”) has filed a Motion To Compel *137Production of Withheld Infringement Tests under Fed.R.Civ.P. 37(a). P & G has also filed a Motion to Compel Binding Election on the Issue of Privilege. Pursuant to Rule 602(A) of the Local Rules of Practice of the United States District Court for the District of Colorado, Defendant’s motions have been referred to ...
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MEMORANDUM OF DECISION Plaintiff brings this diversity action seeking payment on an insurance contract, pursuant to Connecticut General Statutes § 38-175. Plaintiff alleges that defendant is contractually liable for the payment of prejudgment interest, post-judgment interest, and court costs, all arising out of a personal injury action in which a judgment was entered in 1988. Plaintiff has made...
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ORDER This matter is before the court on the motion of the defendant for judgment of acquittal, or in the alternative, for a new trial. For the reasons set forth below, the motions of the defendant must be denied. I. FACTS On May 11, 1991, a jury convicted Paul Derrick on two counts of Hobbs Act violations in connection with what has popularly become known as “Operation Lost Trust.” On May ...
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MEMORANDUM BACKGROUND Defendant Stephen Knox has been charged in a two-count indictment with violations of 18 U.S.C. § 2252(a)(2) and (4). The indictment alleges that Knox “knowingly received through the mail visual depictions of ... minor females lasciviously displaying their genitals and pubic area” and that he “knowingly possessed three or more [of the above-mentioned] matter that...
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MEMORANDUM OPINION On April 11, 1991, this court granted the motion of Regina Thomas Walton, plaintiff in the above-entitled cause, for a stay pending action by the Supreme Court of the United States on her petition for writ of certiorari directed to the Court of Appeals for the Eleventh Circuit. On October 7, 1991, the Supreme Court denied Walton’s petition, automatically lifting the sta...
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ORDER This matter is before the court on Defendant Wayne Burdette’s motion for summary judgment. Plaintiff filed opposition to Defendant’s motion and oral argument was entertained by this court on September 9, 1991. Plaintiff filed suit against the defendants asserting claims for common law fraud, violation of the state deceptive trade practices act (SCUTPA), the federal motor vehicl...
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MEMORANDUM AND ORDER Plaintiff General Accident Insurance Company of America (“General Accident”) brought this action against defendant J.K. Chrysler Plymouth Corp. (“J.K. Chrysler”) to recover unpaid premiums on two insurance policies that the plaintiff had provided for the defendant between 1986 and 1988. Plaintiff has moved for partial summary judgment, and, for the reasons stated below, that ...
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MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTIONS TO SUPPRESS EVIDENCE I. INTRODUCTION Defendants Dharamdeo Babwah and Deodath Maharaj are charged with money laundering and violation of the federal currency reporting statutes. The charges against Defendants arise out of a United States Customs Service investigation, surveillance and subsequent search of residential premises located at 10...
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MEMORANDUM AND ORDER These three personal injury actions by plaintiff Patrick Lagudi against defendant/third-party plaintiff Long Island Railroad Company (“LIRR”) have been consolidated for trial. LIRR has moved this court for a bifurcation of the trial — with one trial for liability and a second t, :al, if necessary, for damages. Mr. Lagudi opposes the motion; third-party defendant Harold Sawy...
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MEMORANDUM AND ORDER Defendants Polytechnic Institute of New York (“Polytechnic”) and Cullen & Dykman move to dismiss plaintiff’s amended complaint for failure to state a claim. 1 *77 The following allegations can be discerned from the amended complaint. Plaintiff is an orthodox muslim. Polytechnic is a private university against which plaintiff litigated with partia...
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MEMORANDUM OPINION This action alleges medical malpractice in the diagnosis and treatment of plaintiff Chris Brunea during a stay at Hamot Medical Center in Erie, Pennsylvania. The case was originally filed in the Western District of New York. By order of that court dated June 6, 1991, the action was transferred to the Western District of Pennsylvania due to lack of personal jurisdiction ...
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INTRODUCTION Plaintiff Robert Burke commenced this action on September 9, 1987, alleging that defendant ITT Automotive, Inc. (“ITT”), had discharged him on the basis of his age and had denied him employee benefits in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., and the New York State c...
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MEMORANDUM I. BACKGROUND Plaintiff Sheila Garvey alleges in this Title VII action 1 that she was sexually harassed and subjected to discrimination from 1985 to 1987 while she was employed as a professor of drama at Dickinson College (“Dickinson”) in Carlisle, Pennsylvania. In addition to Dickinson, Garvey names George Allan, Ph.D., as a defendant. Garvey alleges that Dicki...
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I. INTRODUCTION This case raises an equal protection challenge, based upon the Fourteenth Amendment of the United States Constitution and provisions in the Wyoming Constitution, to the validity of Wyoming’s 1991 Legislative Reapportionment Act. 1 Plaintiffs Sarah Gorin, Bern Hinckley, Chelsea R. Kesselheim, John M. Faunce, Linda Kirkbride, Jesse Guidry, Verna Crusch, Ernest A. Roybal, Chris...
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MEMORANDUM AND ORDER In the above-referenced action, plaintiffs Bharat D. Agarwal (“Bharat”) and Pramila Agarwal (“Pramila”), who assert claims against defendants Ashok K. Agrawal (“Ashok”) and Mira Agrawal (“Mira”), seek to enforce an arbitration award entered pursuant to an agreement between the parties. Currently before the Court are plaintiffs’ motions for judgment on the pleadings pu...
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ORDER Because the majority’s ruling in this case requires that the Court retain jurisdiction over this matter pending the drawing of new district lines for the Ohio House of Representatives districts, this case now presents the potential for a conflict of interest for me. Accordingly, I hereby recuse myself from any further participation in the matter, and I have this day advised the Chief Judg...
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MEMORANDUM OPINION With this litigation, the court has had to venture again into the often complex and controversial area of teacher testing. Plaintiffs Gregory Groves, Floretta L. Coley, and Arnita Holder brought this civil-rights action in 1988, challenging the requirement imposed by defendant Alabama State Board of Education that college sophomores seeking admission to undergraduate te...
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OPINION Plaintiff Federal Home Loan Mortgage Corporation has commenced this action against Dutch Lane Associates, et al for foreclosure on a mortgage, sale of the mortgaged property, and collection of rents past due and as yet unreceived from defendants. I. FACTUAL BACKGROUND In May 1985, defendant Dutch Lane Associates (“Dutch Lane”) executed a Consolidated Mortgage ...
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MEMORANDUM DECISION On the eve of trial in this diversity action, defendants move to strike plaintiff’s demand for punitive damages in this case. Plaintiff claims her employment was terminated in violation of the New York State Human Rights Law, N.Y.Exec.Law § 296(l)(a) (“HRL”). Conan alleges that her employment was terminated due to discrimination against her because of her sex, age, and physi...
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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 Debtor’s Motion for Order of Contempt in Case No. 90-7264-8B3, entered March 22,1991, by U.S. Bankruptcy Judge Thomas E. Baynes, Jr. 125 B.R. 317. ISSUES I. Whether the Bankruptcy Court erred in finding that the United States Of Ameri...
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MEMORANDUM OPINION Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e through 2000e-17, proscribes certain employment practices that have a “disparate impact” on employees — that is, that have a discriminatory effect but for which there is no evidence of the employer’s subjective intent to discriminate. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S....
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ORDER ON MOTION FOR FINAL JUDGMENT This cause of action is before the Court on Plaintiff Action Orthopedics, Inc.’s (hereafter “AOI”) motion for final judgment filed on August 6, 1991, and amended response thereto, filed August 30, 1991. FACTS On August 25, 1989, AOI filed a complaint against Defendant Techmedica, Inc. (hereafter “Techmedica”), alleging breach of contract, breach of the covenant o...
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*287 OPINION This is a declaratory judgment action in which the plaintiff, Oritani Savings & Loan Corporation, (“Oritani”), seeks a ruling that the 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 partial summary judgment dismissing the Third ...
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ORDER ON DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION This cause comes before the Court on Defendants SPACECOAST SUPPLY CORPORATION’S (SPACECOAST) and STEPHEN P. GORDON’S (GORDON) motion to dismiss on the grounds of lack of diversity subject matter jurisdiction, filed July 23, 1991; memorandum in opposition to motion to dismiss, filed August 23, 1991 and affidavit...
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MEMORANDUM BACKGROUND: On July 11, 1991, Delta Quarries and Disposal, Inc., (“Delta Quarries”) filed a petition to perpetuate testimony pursuant to Fed.R.Civ.P. 27(a). The petition, however, failed to comply with the requirements of Rule 27(a), and the court directed Delta Quarries to file an amended petition. The amended petition, filed July 29, 1991, was found to comply with the requirements of ...
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In the above-referenced action, plaintiffs sue defendants for violations of their constitutional and civil rights based on a claim of excessive force allegedly committed in the course of arresting plaintiff Karin Savino. Named as defendants are Suffolk County and certain individual police officers of the Suffolk County Police Department. The present motion stems from a claim by plaintiffs that th...
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OPINION AND ORDER Plaintiff investors charge defendants with fraudulent conduct in connection with the sale of interests in an oil and gas limited partnership. Plaintiffs allege as a first cause of action “Prospectus and Brochure Fraud” under § 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”). Second Amended Complaint ¶¶ 6-35. Plaintiffs also assert claims of common law fraud...
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MEMORANDUM Thomas Oses brings this petition for a writ of habeas corpus alleging that his 1977 convictions in the Norfolk County Superior Court for armed assault in a dwelling and kidnapping were obtained in viola *446 tion of his constitutional rights. He challenges both the decision of the pretrial motions judge to permit him to proceed pro se and the conduct of ...
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MEMORANDUM OPINION AND ORDER Plaintiffs Merrill Ferguson, Stephen Dils, Gail Dils, and Steven Givot brought this action against defendants Richard Roberts and Roberts & Ellsworth, Ltd. for aiding and abetting an alleged securities fraud scheme committed by defendants Richard Lurie, James Jamieson, and Land Acquisition Co. in connection with Valley Two, a real estate limited partnership. The plain...
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MEMORANDUM I. PROCEDURAL HISTORY Plaintiffs initially filed the instant action in the Philadelphia Court of Common Pleas on January 4, 1991, seeking damages for injuries allegedly sustained during plaintiff Rodney Zeger’s operation of a sheet metal bending machine manufactured by defendant Joseph Rhodes, Ltd. (“Rhodes”). On May 10, 1991, Rhodes removed the action to the United States District Cour...
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775 F.Supp. 803 (1991) MATTERN HATCHERY, INC., et ux., Plaintiffs, v. BAYSIDE ENTERPRISES, INC., Defendant. No. CV-90-0403. United States District Court, M.D. Pennsylvania. August 29, 1991. *804 Ronald M. Katzman, Gerard M. Mackarevich, Goldberg, Katzman & Shipman, P.C., Harrisburg, Pa., for plaintiffs. Charles W. Rubendall, II, Keefer, Wood, Allen and Rahal, Harrisburg, Pa., Rufus E. Brown, ...
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MEMORANDUM DECISION Defendants move pursuant to Rules 34 and 37 of the Federal Rules of Civil Procedure seeking an order directing plaintiff to produce certain documents. Plaintiff has withheld the requested documents claiming executive privilege as well as attorney-client and work product privileges. FACTS Plaintiff Department of Economic Development (“DED”), a department of the British Governme...
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ORDER ON MOTIONS This cause came before the Court on Defendant Transamerica Rental Finance Corporation’s Motion to Dismiss, or in the Alternative, to Strike and its Motion to Compel Separation of Counts, served December 31, 1990, and responses thereto filed January 25, 1991. Subsequently, Plaintiff amended its complaint, and as a result the Court considers the motion to dismiss in light o...
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MEMORANDUM-DECISION AND ORDER I. INTRODUCTION The motions before this court today involve two separate, but related, actions. The first is an appeal of the Bankruptcy Court’s (Hon. Judge Gerling) decision granting appellee’s, Northland Associates’ (“Northland”), motion to lift the automatic stay to allow it to proceed in this court to seek a determination of its rights as against Abrantes C...
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ORDER INTRODUCTION We are presented with concurrent motions for summary judgment and application for default judgment by plaintiff Allstate Insurance Company (“Allstate”). The defendants in this action are Frank Tankovich, an Allstate Homeowner's Policy holder, and the Ahls, who have received a civil judgment in State Court against Mr. *1395 Tankovich for injuries...
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OPINION AND ORDER Before the court are defendant WH-TV Broadcasting Corporation’s (“WH-TV”) objections to the Magistrate’s Report and Recommendation filed on June 12, 1991. I. BACKGROUND This is a suit involving a contract entered into by the parties on January 14, 1987 for the sale of cable equipment units and related components. Plaintiff Comband Technologies, Inc. (“Comband”) alleges that WH-T...
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775 F.Supp. 857 (1991) James J. LIESENER, et al. v. WESLO, INC., et al. Civ. No. S 90-2152. United States District Court, D. Maryland. October 17, 1991. *858 Jacob A. Stein, Gerard E. Mitchell, Stein, Mitchell & Mezines, Warren L. Miller, Washington, D.C., for plaintiffs. Joseph G. Finnerty, Jr., John J. Kuchno, Piper & Marbury, Baltimore, Md., for defendant Weslo. William D. Coston, John...
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MEMORANDUM AND ORDER Before the Court is an appeal of the bankruptcy court’s dismissal of the previously confirmed Chapter 13 petition and plan pursuant to 11 U.S.C. § 1307(c). This Court ADOPTS the findings of fact made by Bankruptcy Judge Basil Coutra-kon. As the bankruptcy court noted, the major factual dispute was whether appellant’s unsecured debt totalled more than $100,000. ...
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OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PETITIONER’S MOTION FOR SUMMARY JUDGMENT INTRODUCTION This matter is before the Court on Respondent’s Motion for Summary Judgment filed March 15, 1991. On March 28, 1991, Petitioner also filed a Motion for Summary Judgment. On May 22, 1991, Respondent filed a brief in opposition to Petitioner’s Motion for Summary Judg...
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MEMORANDUM The parties have submitted this matter to the court on the following Statement of the Case: Paradise Mutual Insurance Company, pursuant to homeowners policy no. H0118881, insured Michael Ellis and his residence premises located at 1102 Pembroke Avenue, East Lansdowne, Pennsylvania. The applicable policy period was May 30, 1984 through May 30, 1985. On May 26, 1985, while Michael Ellis a...
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MEMORANDUM OPINION This appeal concerns the propriety of the bankruptcy court’s confirmation of the reorganization plan of Debtor Bryson Properties XVIII (hereinafter “Bryson”). Following a decline in the demand for office space and the discovery of asbestos in three Omaha, Nebraska, office buildings owned by the Debtor, the Debtor sought bankruptcy relief to enable it, among other things...
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OPINION AND ORDER Before the Court at this time is the re-sentencing of the defendant Paul Chartier (“Chartier”), which raises an issue apparently not yet considered by the courts of this Circuit: whether a string of armed robberies concededly committed to support a heroin addiction constitutes a single “common plan or scheme” to avoid “career offender” status, when the prior crimes were committe...
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ORDER This matter is before the Court upon defendant Touche Ross’ motion to dismiss the complaint (Doc. no. 24). For the reasons set forth below, defendant’s motion is hereby GRANTED in part and DENIED in part. Procedural Background Plaintiffs bring claims against defendants for violations of Section 10(b) and Rule 10b-5 (Count I); aiding and abetting violations of Rule 10b-...
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MEMORANDUM AND ORDER On July 15, 1991 this court by Memorandum and Order granted defendant’s motion for summary judgment dismissing the complaint, and on July 22, 1991 a final judgment was entered. Plaintiff now moves under Rules 52(b) and 59(e), Fed.R.Civ.P., “to set aside and vacate the fact-findings set forth in the Memorandum and Order”; under Rules 60(b)(1), (2), (3), and (6) to set ...
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ORDER The Plaintiffs in these cases have filed similar motions for partial summary judgment, Fed.R.Civ.P. 56(c), against the Defendant, Northwest Airlines, Inc. (Northwest) (filed on 6/26/91 (Ratliff); 6/27/91 (Corona); and 7/2/91 (Bystander Plaintiffs)).2 The issue is whether these Plaintiffs, who were not parties to the underlying joint liability trial in which Northwest was found liable by a j...
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MEMORANDUM OPINION Among the state’s many powers, none is more fearsome than the power to take a child away from a parent. Challenged exercises of this power deserve close judicial scrutiny. This, in general, describes the case at bar. It is a case in which a mother and her children claim that -the state violated their federal constitutional rights when it removed the children from their ...
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ORDER Before the court is defendants’ motion to dismiss, without prejudice, the action filed by one of the plaintiff on the ground that under Section 32 of the Puerto Rico’s Workmen’s Accident Compensation Act (the “Act”), 11 L.P.R.A. § 32, plaintiff Roberto Diaz Mojica’s action is premature. Plaintiffs oppose defendants’ motion by arguing that under Section 32 of the Act, a third-party, such as ...
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MEMORANDUM I. BACKGROUND On November 15, 1990 David Nahodil was indicted in a four-count indictment charging firearms violations. Count I alleged that on or about April 13, 1989, Na-hodil used and carried a Savage combination .22 caliber rifle/20 gauge shotgun during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Count II charged that Nahodil, a convicted f...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Petitioner Albert Johnson (“Johnson”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is Thomas Roth (“Roth”), the warden of the prison in which Johnson is incarcerated.1 *82The petition arises out of Johnson’s conviction on December 13, 1985 by a jury in the Circuit Court of Cook County, Illinois on two counts of attempted murder...
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MEMORANDUM BACKGROUND Plaintiffs Mark and Colleen Hotchkiss filed this products liability action against Emerson Electric Company (“Emerson”) and Sears, Roebuck, & Co., Inc. (“Sears”) to recover for injuries allegedly sustained by Mark Hotchkiss while operating a Craftsman 10" radial arm saw sold by Sears and manufactured by Emerson. Trial is scheduled to commence September 17, 1991. Before the c...
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OPINION Plaintiff, Interpublic Group of Companies, (“Interpublic”), has filed a motion for summary judgment pursuant to Fed. R.Civ.P. 56. Defendant, Michael S. Lesser, (“Lesser”), opposes the motion and cross-moves for partial summary judgment. For the reasons stated by the Court at the conclusion of oral argument and herein, Interpublic’s motion is granted. FACTS Construing the record in the lig...
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ORDER This matter is before the court on the motions of the defendants for judgment of acquittal, or in the alternative, for a new trial. FACTS On March 8, 1991, a jury convicted Benjamin Gordon on two counts of Hobbs Act violations and Larry Blanding on three counts of Hobbs Act violations in connection with what has become popularly known as “Operation Lost Trust,” an F.B.I. s...
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ORDER Defendant’s motion for judgment notwithstanding the verdict (jnov) or in the alternative, a new trial, and plaintiff’s motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), plaintiff’s and defendants’ motion to review the Clerk’s taxation of costs bring this matter before the court. After careful consideration of the written and oral argument the court d...
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This matter is before the court on several motions raised by the parties. The defendants have moved for partial summary judgment and for a denial of class certification. The plaintiffs have moved to have an order by the magistrate judge set aside. Briefs were submitted by the parties and arguments were heard at hearing held on May 21, 1991. I. FACTS The Court begins with the facts tha...
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OPINION Before the Court is the motion of Public Citizen, Inc. (“Public Citizen”), Essential Information, Inc. (“Essential Information”), and Dr. Jorge Emmanuel (“Emmanuel”) (collectively, “the Intervenors”), to intervene, to modify the protective order regarding future pleadings and to unseal court records in the action brought by the Republic of the Philippines (“the Republic”) and the National...
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RULING ON CLAIMANT GUREVICH’S MOTION TO DISMISS BACKGROUND On October 30, 1990, the United States (“Government”) filed a Verified Complaint of Forfeiture alleging that Two Parcels of Property (“Property”), located at 185 and 191 Whalley Avenue in New Haven, Connecticut, were used, or intended to be used, to commit or facilitate the commission of a felony in violation of 21 U.S.C. § 801 et se...
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ORDER ON MOTION TO DISMISS This cause of action is before the Court on Defendant KSH Systems, Inc.’s (hereafter “KSH”) motion to dismiss Counts II, IV, and VI of the Amended Complaint, filed on August 16, 1991, and opposition thereto, filed August 29, 1991. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set ...
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ORDER This matter is before the Court on Plaintiff’s motion to remand this action to the Wilmington, Ohio Municipal Court. The Defendant (Prudential) removed the action from that court pursuant to 28 U.S.C. § 1441(a)-(b). For the reasons set forth below, Plaintiff’s motion to remand is granted with reasonable costs, including attorney fees. FACTUAL BACKGROUND Plaintiff (Lovelace...
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OPINION AND ORDER This is an admiralty action that arises out of a dispute between defendant Neptunia Insurance Company (“Neptunia”), a marine insurer, and plaintiff American Marine Insurance Group (“American Marine”), its reinsurer. American Marine has brought suit under the Declaratory Judgment Act, 28 U.S.C. § 2201, seeking a declaration that it is not liable under its reinsurance cont...
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MEMORANDUM OPINION AND ORDER Came on to be considered the motion of defendant, American National Fire Insurance Company (“American”), for summary judgment. On the basis of the summary judgment record, including the facts that are set forth under the heading “Facts Established by Pleadings, Stipulation or by Admission” in the pretrial order signed by the court October 7, 1991, the court ha...
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MEMORANDUM DECISION AND ORDER This matter came on for expedited hearing on September 23, 1991, on motions of non parties to intervene, to modify an existing protective order and various other motions aimed at gaining access to documents and other materials which had been produced in pre-trial discovery and lodged with the court under seal prior to dismissal of the underlying action. The non parti...
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MEMORANDUM Plaintiffs are general partners of South County Venture, L.P., a limited partnership that owns a parcel of real estate improved with a building commonly used as a super market. In 1979 the building was leased to defendant National Super Markets, Inc. After National assigned the lease to defendant Topvalco, Inc., plaintiffs filed a five count second amended complaint against defendants a...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for consideration of Ford Motor Company’s Motion to Dismiss, filed May 9, 1991. The Court has reviewed the Fourth Amended Complaint, the memoranda submitted by the parties and the relevant authorities. The Court finds the plaintiff has sufficiently identified a right arising under federal statute, 18 U.S.C. § 1964, such that this Court has subject-...
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ORDER RE: PLAINTIFFS’ MOTION TO FILE AMENDED COMPLAINT (DOCKET ENTRY # 69) The Plaintiffs’ Motion to File an Amendment to Plaintiffs’ Complaint (Docket entry # 69) was filed on May 30, 1991. The plaintiffs seek to amend their complaint under Mass.Gen.L. ch. 229, §§ 1 and 2 to include claims by the decedent’s three adult children for loss of consortium and for punitive damages relating thereto. (Do...
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MEMORANDUM AND OPINION Plaintiff, an inmate at Potosí Correctional Center, brought this action pursuant to 42 U.S.C. § 1983 against various prison officials. Plaintiff’s first amended complaint claims that defendants violated his constitutional rights by 1) beating him; 2) refusing him medical treatment after the beating; and 3) confining him for more than forty minutes in an outdoor recreation ya...
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MEMORANDUM AND ORDER The Plaintiffs S. Charles Modell and Charles J. Steingold were purchasers of shares of the Defendant Eliot Savings Bank (“Eliot” or “Bank”), either pursuant to an initial public offering, made on July 22,1987, or on the open market. The plaintiffs allege that the Bank, through certain named officers, directors, and senior managers (the “Individual Defendants”), issued an Offe...
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ORDER The nonbankrupt parties in this class action securities fraud case move to prevent the bankruptcy court from transferring the proceeds of certain director’s and officer’s liability policies to Daisy Systems Corp.’s Chapter 11 trustee in bankruptcy. To accomplish this, the parties first move this court to withdraw the bankruptcy court’s jurisdiction over the trustee’s action for turnover o...
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ORDER AND REASONS The Court was presented with dual motions for summary judgment, in the above captioned case, by both defendants, Aetna Finance Company (“Aetna”) and Credit Bureau, Inc. of Georgia (“CBI”). For the reasons stated below, this court grants summary judgment in favor of both defendants. *491 FACTS ITT Consumer Finance Corporation (“ITT”) was listed on plain...
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RULING ON HOUSEHOLD’S MOTION TO DISMISS, MOTION FOR LEAVE TO FILE AMENDED PLEADINGS, AND TRAVELERS’ MOTION FOR LEAVE TO FILE AMENDED COMPLAINT This is a breach of contract action in which Travelers Indemnity Company *520 (“Travelers”) sues Household International, Inc. (“Household”) and National Car Rental Systems, Inc. (“National”) for the recovery of the $2,000,000 Traveler...
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OPINION AND ORDER Plaintiff Bankers Trust Company, as Security Trustee for holders of Equipment Trust Certificates used to finance the purchase of rail cars, sued defendant Manufacturers National Bank of Detroit (“MNB”) for a declaration nullifying MNB’s termination of a rail-car management agreement because MNB allegedly failed to provide proper notice to either Bankers Trust or the correct hold...
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ORDER Plaintiff, Danny Davis (“plaintiff”), filed this action in the Superior Court of Bibb County, Georgia on June 24, 1991, alleging that he was wrongfully discharged from his job by his employer, Texprint, Inc. (“Texprint”) and its executive vice president, Terry Harris (“Harris”), the two defendants in this action. Count two of plaintiff’s complaint further alleges that plaintiff was defame...
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MEMORANDUM OPINION AND ORDER Before the Court is Defendant Mitsui Mining & Smelting Co.’s (“Mitsui”) Motion to Compel Compliance With Subpoena, pursuant to Fed.R.Civ.P. 37. By its motion Mitsui seeks an order compelling the United States Department of Commerce (“DOC”) to produce certain documents that Mitsui claims are relevant to civil litigation between it and Gould, Inc. (“Gould”) currently pe...
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MEMORANDUM OPINION AND ORDER Pending before the Court is plaintiffs, James Sanders, motion for an award of attorneys’ fees and costs, pursuant to the Civil Rights Attorney’s Fee Award Act of 1976, 42 U.S.C. § 1988, for services rendered by counsel in this civil rights proceeding. This lawsuit was filed on August 19, 1974, by Sanders on behalf of himself and all other black employees of the Arkansa...
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OPINION AND ORDER Plaintiff Anthony Roman (“Roman”) filed this action pursuant to 42 U.S.C. § 1983, claiming that Richard Koehler (“Koehler”), former Commissioner of the Department of Corrections, and defendant James Deegan (“Deegan”), former Warden *696of Rikers Island, unnamed corrections officers, and the Rikers Island Health Service violated his civil rights by failing to ensure that he receiv...
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Plaintiff Joyce Fischman brings this action against defendant Blue Cross & Blue Shield of Connecticut, Inc. (“Blue Cross”) to recover medical expenses incurred in the treatment of her late husband, Sidney Fischman (“Fischman”). Contending that Fischman’s treatment related to a pre-existing condition excluded by the employee welfare benefit plan it issued, Blue Cross now moves for summary judgme...
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ORDER Defendant was indicted for a violation of 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted felon on August 28, 1990. He had previously been convicted of three felonies: two burglaries and involuntary manslaughter. Under § 4B1.1 of the Sentencing Guidelines, defendant will be considered a career offender if the crime of possession of a firearm by a convicted felon is a “crime of ...
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ORDER This matter comes before the Court on Defendant’s objection to Plaintiff’s use of leading questions on direct examination of witness Teresa Cox during trial. This case involves breach of contract claims and Title VII cause of action arising out of Stephanie Stahl’s employment as a Sales Representative for Defendant Sun Microsystems. Trial began on June 10, 1991. On June 18, 1991, th...
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MEMORANDUM The government moves for review of the orders setting conditions of release entered on July 26, 199Í. 1 18 U.S.C. § 3145(a)(1). 2 I. The following facts are found from the evidence received at hearing: 3 On July 23, 1991 at 6:00 a.m., DEA agents and local police went to 522 West Venango Street, Philadelphia, with a warrant to arrest a p...
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ORDER AND REASONS Before the Court is the plaintiffs’ motion to remand or in the alternative to stay these proceedings. For the reasons that follow, the plaintiffs’ motion to remand is GRANTED. On May 21, 1991, the plaintiffs filed suit in state court against Cutter Biological, A Division of Miles, Inc., the Administrators of the Tulane Educational Fund, Tulane Medical School, and Dr...
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ORDER THIS MATTER comes before the court on defendant Sun’s Motion for Partial Summary Judgment, filed March 22, 1991. For the reasons stated below, the Motion is denied. Background: Plaintiff Stephanie Stahl was employed as a sales representative by defendant Sun Microsystems, Inc., in June, 1987. 1 During the course of her employment, the sales territory for whi...
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RULING Counsel for defendant has asked for an expedited decision on a motion to compel the plaintiff to submit to a physical examination in New Orleans. Plaintiff, a LaSalle Parish resident, filed a suit for damages sustained after slipping in a Wal-Mart store. Wal-Mart removed the case to the federal court in the Western District of Louisiana, Alexandria Division. Defendant would like plaintiff e...
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RULING ON PLAINTIFF’S MOTIONS FOR RECONSIDERATION AND FOR RECUSAL CONTENTS INTRODUCTION............................................................. 1508 BACKGROUND.............................................................. 1509 DISCUSSION................................................................ 1521 A. The Discretion of the Court in Addressing Recusal Motion...
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ORDER AND REASONS Before the court is the plaintiffs' Motion for Attorneys’ Fees and Costs Pursuant to 42 U.S.C. § 1988. After reviewing the motion, memoranda of counsel, the record, and the law, the court grants the motion. BACKGROUND The plaintiffs, Hyundai Motor America (“Hyundai”) and Nissan Motor Corporation in U.S.A. (“Nissan”), brought this action under 42 U.S.C. § 1983, seeking to permane...
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ORDER DENYING MOTION TO DISMISS This matter comes before the court on Defendant United States of America’s Motion to Dismiss, filed June 24, 1991. For the reasons set forth below, the motion to dismiss is hereby DENIED. I. BACKGROUND On April 6, 1989, Defendant Raymond G. Wilson (“Wilson”) executed and delivered to plaintiff a contract for the purchase of real estate descri...
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*1537 RULING ON PLAINTIFF’S SECOND MOTION TO RECUSE Well after Plaintiff’s Motion for Recusal of Hon. José A. Cabranes (filed May 20, 1991) (“Plaintiff’s First Recusal Motion”) had been submitted for decision, and shortly before the court’s decision was to enter, the court received a letter from Attorney James J. Murray that raised new issues— issues that, in Mr. Murray’s view, “...
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MEMORANDUM This matter is before the Court on the parties’ cross motions for summary judgment. Plaintiff filed this diversity action seeking monetary damages as a result of defendant’s alleged breach of the exclusive listing agreement. Plaintiff has also invoked Rule 9(h) of the Federal Rules of Civil Procedure. At the Court’s request, the parties submitted the following joint statement of stipul...
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MEMORANDUM AND ORDER Presently facing this Court is what appears to be an issue of first impression in the Fourth Circuit. Defendant in this case is charged by way of a Criminal Complaint and Affidavit with the offenses of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d) (in this case a sawed-off shotgun), and being a felon in possession of a firearm in violation of 18 U.S...
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ORDER Shirley McBride, a black woman, has brought suit against Loyola University of Chicago (“Loyola”). She claims that the hospital operated by Loyola and located in Maywood, Illinois discriminated against her on the basis of race by suspending and terminating her when similarly situated white employees were not. Loyola allegedly suspended her for insubordination and discharged her for excessive ...
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MEMORANDUM OPINION AND ORDER Plaintiff Robert H. Ketchum is a former mental patient at Spanish Peaks Mental Health Center (the “center”), a private nonprofit corporation in Pueblo, Colorado, and at Colorado Mental Health Institute (the “hospital”) in Pueblo, formerly Colorado State Hospital. He initiated this action by filing a pro se civil rights complaint pursuant to 42 U.S.C...
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MEMORANDUM OPINION AND ORDER Plaintiffs Donna Koch and Marlene Rodriguez commenced this action asserting claims under 42 U.S.C. § 1983 for violations of their rights under the First and Fourteenth Amendments (first and second *1276 claims, respectively), for breach of contract and wrongful discharge (third claim) and for intentional interference with contractual relations (fourth claim). Defe...
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MEMORANDUM AND ORDER Plaintiffs filed this action against ComFed Savings Bank and its affiliates (collectively “ComFed”), as well as an individual loan officer, asserting various lender liability claims. The case was originally filed in Middlesex Superior Court on April 14, 1989. On December 13, 1990, the Office of Thrift Supervision appointed the Resolution Trust Corporation (“RTC”) as C...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS This is an action to recover monies paid to the Internal Revenue Service by a taxpayer who erroneously assumed that she was personally liable for the taxes of a corporation of- which she was an officer and shareholder. The plaintiff bases jurisdiction on 28 U.S.C. § 1346(a)(1). The United States moves to dismiss the complaint, arguing ...
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MEMORANDUM OPINION This matter is before the court on the defendant’s motion to dismiss plaintiffs’ *624 complaint for breach of contract. Defendant seeks dismissal pursuant to 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant’s motion is denied. BACKGROUND The plaintiffs are Zack Stamp, Illinois’ Director of Insurance and ...
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ORDER ON APPEAL AND MEMORANDUM OF OPINION The question presented in this bankruptcy appeal is whether a Maine statute— since superseded — designating the county registries of deeds as the office(s) in which the Internal Revenue Service was required to file notices to perfect tax liens on a taxpayer’s “property” applied to personal as well as real property. This case is before the Court on a stipu...
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OPINION AND ORDER Plaintiff ICC Primex Plastics Corp. (“Primex”) brings this action against defendants LA/ES Laminati Estrusi Termoplastici S.P.A. (“LA/ES”), CO-EX Corporation (“CO-EX”) and individual defendant Cosimo Conterno. The action stems from a failed joint venture allegedly entered into by Primex and LA/ES, and includes allegations that the defendants breached their obligations un...
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MEMORANDUM AND ORDER In this multidistrict litigation, a number of civil actions have been coordinated and consolidated for pretrial purposes pursuant to 28 U.S.C. § 1407. Since the Transfer Order of the Judicial Panel on Multidistrict Litigation dated February 8, 1990, various pretrial proceedings in these cases have been held in this Court, and, pursuant to Pretrial Order No. 2, the par...
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MEMORANDUM Pending before the Court in the above styled action is Timothy F. Finley’s motion to withdraw the reference to bankruptcy court pursuant to 28 U.S.C. § 157(d). Finley is the court-appointed trustee in the above named jointly administered bankruptcy cases. For the reasons stated below, the Court denies Finley’s motion to withdraw the reference to bankruptcy. I. BACKGROUND ...
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Plaintiff commenced this common law tort action in Massachusetts Superior Court on December 22, 1989. On June 11, 1991, defendant filed a petition for removal under 28 U.S.C. § 1441, alleging diversity jurisdiction under 28 U.S.C. § 1332(a). Now before this court are the following: Plaintiffs Motion for Remand (Docket No. 2, filed June 26, 1991) and Plaintiffs Memorandum in Support of Motion to R...
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775 F.Supp. 839 (1991) John HELLER v. CACL FEDERAL CREDIT UNION, National Credit Union Administration, and John Doe, et al. Civ. A. No. 91-2870. United States District Court, E.D. Pennsylvania. October 21, 1991. *840 Richard F. Stevens, Stevens and Johnson, Allentown, Pa., Joel B. Wiener, Wiener and Wiener, Allentown, Pa., for John Heller. David Zalesne, Asst. U.S. Atty., Philadelphia, Pa., Paul ...
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MEMORANDUM AND ORDER On May 2, 1990, plaintiff filed this suit against Signet Bank/Maryland, asserting breach of an obligation of good faith. Pending before this Court is defendant’s Motion to Dismiss for failure to state a claim for which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 1 *851 Plaintiff, Quality Automotive Com...
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MEMORANDUM OPINION AND ORDER Plaintiff Simon M. Harrison commenced this action for damages asserting claims under 42 U.S.C. § 1983 for alleged deprivations of a constitutionally protected property interest (first claim) and liberty interest (second claim). Defendants the Board of County Commissioners for Adams County and the Adams County Sheriff, Edward J. Camp, have moved for summary judgment....
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OPINION RE PRELIMINARY INJUNCTION FINDINGS OF FACT AND CONCLUSIONS OF LAW I. Introduction This case came before the court on a motion from plaintiff, American Express Travel Related Services Company, Inc., to enjoin its competitor, defendant MasterCard International, Inc., and MasterCard’s advertising agency,' defendant Lintas: N.Y., from broadcasting a television commercial...
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MEMORANDUM OPINION AND ORDER Currently pending before this Court are plaintiff’s motion to remand this case to the New York State Supreme Court, New York County, plaintiff’s motion for Rule 11 sanctions, and defendants’ cross-motion to transfer this case to the United States District Court for the District of Maryland. For the reasons that follow, plaintiff’s motion to remand is granted, his mo...
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MEMORANDUM OPINION AND ORDER Defendant Douglas County School District RE-1 (the School District) moves for reconsideration of my prior ruling that plaintiffs sixth claim for relief under 42 U.S.C. § 1983 is a claim against defendant Heilman in his official capacity. Alternatively, defendant moves to strike or dismiss plaintiffs sixth claim for relief. Plaintiff moves for entry of default judgme...
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*1302 MEMORANDUM OPINION AND ORDER Plaintiff Lynn Martin, Secretary of Labor (the Secretary) brings this action alleging defendant Parker Fire Protection District (the District) violated section 6 of the Fair Labor Standards Act of 1938 (the Act), 29 U.S.C. §§ 201 et seq., by not paying four trainees minimum wage while they attended the District firefighter’s academy. ...
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ORDER Plaintiffs1 have brought a two-count medical malpractice action against defendant for his alleged negligent treatment of Judith Trout’s right foot on or about August 24, 1988. Judith Trout is seeking recovery for nerve and ligament damage suffered as a result of defendant’s alleged misdiagnosis of her injury and improper placement and retention of her right foot in a cast. Jim Trout is seek...
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MEMORANDUM OPINION AND ORDER Michael Zabelle (“Zabelle”) brings this action pursuant to 42 U.S.C. § 1983 (“Section 1983”) seeking relief on behalf of himself and all other similarly situated prisoners held in the Will County Detention Center (“Detention Center”) for alleged violations of their right to meaningful access to the courts. Named as defendants are Will County Sheriff Thomas Fitzgerald, ...
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*631 MEMORANDUM OPINION AND ORDER I.INTRODUCTION Plaintiff Home Life Insurance Company (“Home Life”) has filed a complaint for foreclosure relating to property located at 300 North Michigan Avenue in Chicago, Illinois. Plaintiff alleges that defendants American National Bank and Trust Company (“American National”) and 300 Michigan Associates Limited Partnership have defaulted on a Mortgage ...
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ORDER This matter comes before the court pursuant to plaintiff Kathleen Meyerson’s motion for summary judgment, defendant Keith Miller’s motion for summary judgment, and defendant United State’s motion for summary judgment. After careful review of the oral and written argument, the United State’s motion for summary judgment is sustained in part, Keith Miller’s motion for summary judgment is sus...
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OPINION AND ORDER This opinion emanates from the voluntary settlement in the action commenced by *1135 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 C...
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MEMORANDUM AND ORDER The Court has considered Defendants’ Motion for Summary Judgment against Plaintiffs Stanley and Stanley Engineering (Stanley) (Instru. # 41, 42). After reviewing the record and applicable law, the Court finds that Defendants’ motion should be GRANTED. I. Relevant Facts Defendant GTE Mobilnet (GTEM) is in the business of providing cellular mobile radi...
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ORDER Currently pending before the court in the above-captioned matter are motions to dismiss the complaint on the basis of qualified immunity filed by all of the individual defendants herein: Charles A. Greenlee, Barbara L. Blankenship, Mike Fugo, Bruce Dobbins, Thomas Stetka, Shelli Niederle, Michael L. Satola, L. James Juliano, and James Varga. 1 Plaintiff Donald J. Bettio h...
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MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Plaintiffs filed this suit on Monday, August 5, 1991, alleging the defendant Board of Education of the School District of the City of Detroit (“Board”) violated the Fourteenth Amendment to the United States Constitution, Article 1, § 2 of the Michigan Constitution, Title IX, the Equal Educational Opportunities A...
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ORDER Before the Court are Plaintiffs’ motion for injunctive relief, Defendants’ motions to dismiss, Plaintiffs’ motions to add new parties, for an expeditious ruling, and to file additional pleadings. For the reasons set forth below, the Court grants Defendants’ motions to dismiss. Plaintiffs’ miscellaneous motions are moot. FACTS This case arises out of a disciplinary proceeding brought b...
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MEMORANDUM OPINION AND ORDER Plaintiffs and defendant both move for summary judgment, asserting that there is no genuine dispute of material fact and that judgment can enter as a matter of law. The issues were adequately briefed and oral argument will not materially assist their resolution. Defendant contends that plaintiffs have an “absolute and unconditional” obligation to pay rent. I agree and...
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ORDER GRANTING MOTION TO DISMISS APPEAL This matter is before me on the motion by the trustee for the liquidation of Blinder, Robinson & Co. (“trustee”) to dismiss this appeal for lack of jurisdiction. The trustee contends that (1) the appeal of the February 15, 1991 Disqualification Order (“Disqualification Order”) by Intercontinental Enterprises, Inc. (“Intercontinental”) was untimely, ...
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ORDER For over ten years, this Court has been attempting to require the Administration of Corrections of the Commonwealth of Puerto Rico to operate institutions that comply with constitutionally required norms. With isolated exceptions, the record of compliance with this Court’s orders has been dismal. Large fines have been levied with seemingly little effect. The lack of resolution and, at lea...
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MEMORANDUM AND ORDER The defendant, Leroy M. Schweitzer, stands charged with four counts of willfully failing to file income tax returns for the calendar years 1984 through 1987, in violation of 26 U.S.C. § 7203. Schweitzer has presented the court with a motion requesting the court to dismiss the Information filed against him, upon the ground the “Instructions booklet” prepared by the Internal Rev...
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MEMORANDUM OPINION AND ORDER Plaintiff United States of America (the government) brings this action to recover $592,838 in tax refunds. The refund checks were payable to Sinton Food Companies, Inc. (Old Sinton), but were cashed by defendant Sinton Dairy Foods Company, Inc. (New Sinton). A hearing on the parties’ cross motions for summary judgment was held September 20, 1991. For the reaso...
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ORDER Before the Court are Defendant’s Motion for Summary Judgment, Plaintiff’s Motion for Summary Judgment and their corresponding briefs. For the reasons stated *1092herein, Defendant’s motion is granted and Plaintiff’s motion is denied. I. FACTS On November 2,1981, Plaintiff Mary Hill (“Hill”) was hired as a Receptionist/Switchboard Operator at Defendant Judson Retirement Community’s (“Judson”...
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS MOTION FOR PARTIAL AND TEMPORARY RELIEF FROM FINES I. INTRODUCTION This court yet again is confronted with an effort by the Commonwealth of Puerto Rico to evade the coercive force of contempt sanctions and, in so doing, to continue its long resistance to rectifying pervasive unconstitutional conditions of confinement in Puerto Rican prisons. In thei...
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ORDER This order concerns defendant, The Kershaw Manufacturing Company, Inc.’s, motion to dismiss for improper venue under 28 U.S.C. § 1391(a)(3), or in the alternative, to transfer to the United States District Court for the Southern District of Indiana pursuant to 28 U.S.C. § 1406(a). For the reasons stated herein, defendant’s motion to dismiss is denied. The court defers judgment on de...
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MEMORANDUM AND ORDER BACKGROUND Plaintiff, Diane Neumann, is the daughter of the other named plaintiff, Helmut Neumann. For many years Diane was a named insured on a family health insurance policy procured by Helmut and issued by an insurance company which is not a party to this action. That particular policy covered all members of the Neumann family, including children under the age, of 25. ...
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MEMORANDUM Judy A. Deitrich was killed in an automobile accident which occurred on April 30, 1987. Deitrich was a passenger in an automobile operated by Nancy Deiter. The Deiter vehicle was attempting to turn left into the Deitrich driveway when the Deiter vehicle was struck on the passenger side by an automobile operated by George S. Kotkiewicz. In July of 1987, the Deitrich estate settled with ...
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DECISION AND ORDER On February 1, 1991, the plaintiff, Vitas Thomas, filed this patent infringement action under 35 U.S.C. § 271 against defendants Tomco Acquisitions, Inc., United Technologies Automotive, Inc., Maryland National Industrial Finance Corp., and B.R. Holdings, Ltd. The plaintiff never served defendant Maryland National Industrial Finance with the summons and complaint; accordingly...
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DECISION DENYING DEFENDANT LOTHIAN’S PETITION FOR WRIT OF ERROR CORAM NOBIS This matter came on for hearing before the Court on October 16, 1991 on Defendant Lothian’s Petition For Writ Of Error Coram Nobis. The Court has considered the Petition and the supporting papers, the government’s response thereto, together with all the files and records herein, including materials file...
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MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT In this action arising from the conversion of Peoples Heritage Bank from a mutual savings bank to a stock savings bank, Plaintiffs have asserted both federal and state claims against the Defendants. The federal claims, which allege constitutional violations and are brought under 42 U.S.C. § 1...
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ORDER This matter is before the Court for consideration of plaintiff’s motion for preliminary injunction. At issue is the mandatory retirement policy enacted by the defendant Board of Regents for Oklahoma Colleges, which mandates retirement of tenured professors at age 70. Although plaintiff was allowed an additional year past mandatory retirement to enhance Central State University’s centennia...
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MEMORANDUM AND ORDER BACKGROUND From 1946 through 1984, Montana Pole & Treating Plant (“Montana Pole”) owned and operated a wood-treating facility in Butte, Montana. Montana Pole’s wood-treating process utilized the preservative pentachlorophenol (“penta”), which was mixed with various petroleum products. The process generated waste penta, which Montana Pole disposed of in a manner t...
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ORDER On August 28, 1991, this Court heard defendant’s motion for summary judgment and plaintiffs’ motion for partial summary judgment. Paul E.B. Glad of Sonnenschein, Nath & Rosenthal appeared for defendant American Guarantee & Liability Insurance Company. Raymond C. Oleson appeared for plaintiffs James B. Lunsford, Regina T. Charboneau, and Bay Vista Enterprises, Inc. Having considered ...
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OPINION This action is yet another piece of litigation concerning AIA Industries, Inc. and its demise. See In re AIA Industries, Inc. Securities Litigation, Master File No. 84-2276 (E.D.Pa.). Here, plaintiffs charge an accounting firm produced fraudulent audits and financial statements. Plaintiffs claim they relied on these materials when purchasing AIA stock, and therefore all...
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MEMORANDUM OPINION AND ORDER INTRODUCTION In Mid-1988, in an effort to ameliorate the increasing divisiveness and tension in the nursing staff of the Mother/Baby Unit (“M/B Unit”) of the Pomona Valley Community Hospital, certain members of management announced a rule prohibiting the use of Tagalog, the native language of the Phillipines, by Filipina nurses during the evening shift of the M/B ...
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MEMORANDUM AND ORDER Plaintiff commenced this action in 1984, challenging the denial of disability benefits by the Secretary. After a seven year history, plaintiff moves for Entry of Final Judgment in this action. While the entry of such a judgment may at first seem academic, this Court realizes plaintiffs ability to recover attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C...
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ORDER The plaintiff, Waldoboro Bank, F.S.B., and the defendant, American Casualty of Reading, Pennsylvania, have filed cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. The Bank is insured under a Directors’ and Officers’ Liability Policy issued by American Casualty. Wesley E. Richardson was the Bank President and a member of its Board of Directors. The Bank arranged for a for...
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DECISION AND ORDER INTRODUCTION Plaintiff Michael J. Doyle filed this action on September 28, 1990, alleging that defendant Vintners International Company, Inc. (Vintners) failed to award him severance pay in violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. Plaintiff further alleges, pursuant to the court’s pendant jurisdiction, that “the defendants Vint...
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The Secretary of Health and Human Services determined in 1989 that Roberto Ma-lave was disabled as of March 8, 1987, and awarded him Supplemental Security Income (“SSI”) and Social Security Disability Insurance (“SSDI”) benefits from that date forward. Malave seeks review of this decision, asserting that the evidence presented to the Secretary establishes an earlier disability onset date of Jun...
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MEMORANDUM OPINION AND ORDER In this action, Plaintiffs allege that the FDIC and the Resolution Trust Corporation, both in their capacities as successor in interest to the Federal Savings and Loan Insurance Corporation as receiver for Majestic Savings Association, charged a usurious amount of interest on loans Plaintiffs received from the now-insolvent Majestic *284 Savings A...
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ORDER This diversity dispute was tried to a jury on May 14th, and 15th, 1991. Among the issues tried was whether the corporate veil of Michaelson Properties, Inc. (“MPI”) should be pierced so as to impose personal liability on MPI’s controlling individual, defendant Aaron Michaelson (Michaelson). The parties presented substantial conflicting evidence on this issue and the Court instructed...
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MEMORANDUM Plaintiffs and Mission Gas and Oil Products, Inc. (“Mission”) are being sued in various state court actions arising out of an explosion and fire on property adjoining plaintiffs’ service station. Plaintiffs in three of the underlying suits are inter-venors here: Adolf and Gladys DeFinizio and DeFinizio Imports, Inc. own the property on which the explosion and fire occurred; Lin...
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MEMORANDUM AND ORDER This civil rights action was filed February 25, 1986 on behalf of children in foster care under the supervision of the Louisiana Department of Health and Human Resources (“DHHR”). An amended complaint was filed on April 28,1986. Plaintiff children challenged the adequacy of Louisiana’s child welfare system under the Adoption Assistance and Child Welfare Act of 1980 (“...
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OPINION & ORDER BACKGROUND This action arises out of defendant’s alleged failure to make certain payments on behalf of her employee, Jose A. Deleu, as required by federal and state law. Because Mr. Deleu has died since initiating this action, his sister-in-law Cynthia Deleu is now prosecuting this action as executrix of his will. While the parties provide contrasting accounts of the ...
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MEMORANDUM ENTRY DISCUSSING COURT’S DISPOSITION OF DEFENDANTS’ MOTIONS TO DISMISS COUNTS III, IY AND Y OF PLAINTIFF’S AMENDED COMPLAINT Each of the matters discussed below is before the court on defendants’ motions to dismiss, filed May 30, 1989 and August 5, 1991. I. Motion to Dismiss Count III Count I of plaintiff’s complaint states a claim for damages resulting from d...
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ORDER This matter comes before the court on class counsel’s motion to modify the January 28, 1980 protective order in this case. Class counsel requests that the court modify the protective order to release from its coverage documents which pertain to State Farm’s recruitment and selection of trainee agents on the basis of their age so that those documents may be used in a separate age discriminat...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT JURISDICTION Rolane P. Carr, plaintiff, applied for Social Security disability insurance benefits (“DIB”) on March 25, 1982. (Tr. 103-106). The application was denied initially and on reconsideration. (Tr. 123,132). Represented by counsel, Ms. Carr appeared before Administrative Law Judge (“AU”) Marvin Harmatz, who issued a decision on Ju...
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MEMORANDUM AND ORDER The defendant Locascio once again petitions this court for reconsideration of its order detaining him based upon a finding that the government has established by clear and convincing evidence that the defendant is a danger to the community and that there are no conditions or combination of conditions that would protect the community against the threat he poses to them...
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MEMORANDUM RULING GRANTING MOTION TO REMAND The pending Motion to Remand confronts us again with the question as to when and under what circumstances may personal (as contrasted with technical or vicarious) fault be imposed upon the manager and supervisor of a store under Louisiana law. After reviewing the pleadings, memoranda, the record and the perceptive analysis of the issue by Judge Tate in ...
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ORDER This matter came before the Court on July 15,1991, on plaintiffs’ motion for summary judgment and defendant’s cross-motion to dissolve the preliminary injunction. Having carefully considered the parties’ written and oral arguments, the Court defers ruling on both motions and directs the parties to proceed as set forth below. BACKGROUND The background to this litigation has...
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ROBERT P. PATTERSON, Jr., District Judge. This action arises from a transaction involving the sale and leaseback of an electric generating plant and certain other utility facilities. Plaintiff Philip Morris Capital Corporation (“Philip Morris”), an investor in the transaction, seeks recovery from defendants Century Power Corporation (“Century Power,” previously known as Alamito Company, “A...
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MEMORANDUM OPINION AND ORDER On June 20, 1991, we denied various motions to dismiss filed by defendants Pasquale Marcy and Fred Roti, including Mar*1399cy’s motion to dismiss racketeering act 3 and Count XIII. United States v. Marcy, 777 F.Supp. 1393 (N.D.Ill.1991). We rejected Marcy’s contention that as a private citizen he “must be legally incapable of committing extortion ‘under color of offici...
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MEMORANDUM OPINION AND ORDER The defendant in this adversary suit, Mellon Bank, moves for an order withdrawing reference of the suit from the United States Bankruptcy Court. Claiming entitlement to a jury trial of the claim against it, see Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), Mellon Bank contests both the statutory and constitutional authority ...
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MEMORANDUM DECISION AND ORDER Plaintiffs, female inmates incarcerated at the Nevada Women’s Correctional Center (NWCC), filed a civil rights complaint (# 17), pursuant to 42 U.S.C. § 1983. Therein, they allege that Defendants discriminate against them because of their gender, thereby violating their right to equal protection of the laws under the Fourteenth Amendment of the Constitution. Accord...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT BORDEN, INC.’S MOTION FOR DISMISSAL OF CERTAIN CLAIMS AND FOR PARTIAL SUMMARY JUDGMENT AS TO OTHERS INTRODUCTION On September 16, 1991, the court held a hearing on defendant Borden, Inc.’s (“Borden’s”) motion for partial summary judgment, filed on June 24, 1991. Defendant Bromar, Inc. filed a joinder in this motion on August 29, 199...
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*905 ORDER Before the court is an appeal from the United States Bankruptcy Court for the Central District of Illinois, the Honorable William V. Altenberger presiding. For the reasons set forth below, the opinion of the bankruptcy court is affirmed. BACKGROUND On August 4, 1989, the Defendant-Ap-pellee Security State Bank of Hamilton (“Bank”) loaned the Plaintiffs-Appell...
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MEMORANDUM OPINION AND ORDER Defendants Pasquale “Pat” Marcy and Fred Roti have filed a motion to dismiss the indictment and to suppress all wiretap evidence against them. Marcy and Roti submit various theories as to the impropriety of certain wiretap authorizations secured by the government in connection with its investigation underlying this case. Specifically, they argue that the government ...
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MEMORANDUM AND ORDER The plaintiff brought this action against the City of Cranston, three police officers (Enrico Maccarone, Samuel Schlageter and Salvatore DeCesare), and Robert A. DiMeo, a civilian, and his corporation, Time Plating, Inc. Since the complaint includes a false arrest allegation, federal jurisdiction is premised on 42 U.S.C. § 1983; pendent to this case are state claims o...
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MEMORANDUM AND ORDER I. INTRODUCTION This case raises a variety of novel and complex issues involving the interstate ex *23 tension of consumer credit via credit cards and the concomitant regulation of the issuers of such credit cards by the several states. As the parties and the amici 1 point out, this appears to be a case of genuine first impression, both in...
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MEMORANDUM Plaintiffs filed this action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”) and the Labor Management Relations Act of 1947, 29 U.S.C. § 151 et seq. (“LMRA”). Plaintiffs seek to recover from defendant amounts allegedly due employee welfare, pension and training benefit funds pursuant to the terms of a collective bargaining agreement. This a...
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OPINION AND ORDER The question before the Court is whether, pursuant to the Rehabilitation Act of 1973, an employee who alleges discrimination based on her physical disability may seek compensatory damages for mental anguish. Plaintiff Iris Velia Rivera Flores (Rivera), an employee with the Puerto Rico Telephone Company (PRTC), alleges that PRTC discriminated against her because of an oph...
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OPINION AND ORDER This decision arises from the implementation of the rules for the International Brotherhood of Teamsters (“IBT”) International Union Delegate and Officer Election (the “Election Rules”), promulgated by the Election Officer and approved as modified by this Court and the Court of Appeals. July 10, 1991 Opinion & Order, 742 F.Supp. 94 (S.D.N.Y.1990), aff'd, 931 F...
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This case is before the court on cross-motions for summary judgment by defendant and third-party plaintiff Randolph Trucking Company, Inc. (“Randolph Trucking” or “Randolph”) and third-party defendant Carolina Casualty Insurance Company (“Carolina”). In order to justify granting summary judgment to a party under Federal Rule of Civil Procedure 56(c), the record must “show that there is no genui...
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MEMORANDUM OPINION AND ORDER The Plaintiffs seek declaratory and in-junctive relief from the Comptroller of the Currency’s approval of NCNB National Bank of North Carolina’s plan to sell annuities through a wholly owned subsidiary, NCNB Securities, Inc. The Defendants have moved to dismiss the Plaintiffs’ complaint on the grounds of lack of standing and improper venue and, alternatively, ...
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ORDER At issue in this declaratory judgment are various provisions of an insurance policy. Before the Court are the parties’ cross-motions for summary judgment. There are no genuine issues of material fact, and the case is ripe for decision. As a matter of law, the Court holds that State Farm’s motion should be GRANTED and the defendant’s, DENIED. Background The parties do not disagree about many ...
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ORDER, DECLARATORY JUDGMENT AND PERMANENT INJUNCTION I. BACKGROUND Plaintiff filed suit on behalf of himself and others similarly situated seeking injunctive and declaratory relief concerning a certain Medicaid policy issued by Secretary Louis Sullivan, M.D. (the Secretary) of the United States Department of Health and Human Services (HHS) and followed by the Nevada Department of Hum...
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MEMORANDUM Plaintiff brought action under Section 5 of the Pennsylvania Human Relations Act ("Act"), 43 P.S. § 955(a). Plaintiff alleged that she was discriminated against because of her disability. Defendant removed action to this court's jurisdiction under Section 25(b) of the Federal Reserve Act, 12 U.S.C. § 632. Under 12 U.S.C. § 632, "any Federal Reserve bank which is a defendant in [suits...
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DECISION AND ORDER This matter came before the Court on May 9, 1991, and June 18, 1991, on plaintiffs’ Motion for Contempt, or in the Alternative, Summary Judgment Regarding Transportation Control Measures, and the Metropolitan Transportation Commission’s (“MTC”) Cross-Motion for Partial Summary Judgment. The Court subsequently ordered supplemental briefing. Now, having considered all of ...
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OPINION AND ORDER Nutri/System, Inc., moves to dismiss Counts II and III of plaintiffs’ Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state claims of breach of implied and express warranties. For the reasons discussed herein, this court agrees with defendant and DISMISSES Counts II and III of plaintiffs’ Amended Complaint. I. BACKGROUND Plaintiffs are residents of Vermont wh...
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*1375 ORDER On July 14, 1988, plaintiff filed a complaint (document # 1A) in Nevada state court against defendant and various does alleging various tort causes of action. On December 16, 1988, defendant filed a Notice of Removal (document # 1) in this court, properly removing the case on the basis of diversity of citizenship and in conjunction with Congress’ November 1988 amendme...
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OPINION AND ORDER Plaintiff Leslie Shaw commenced this action against defendants Rolex Watch U.S.A., Inc. and Rolex Industries, Inc. (collectively “Rolex”) on June 30, 1986, claiming that he suffered injuries resulting from defendants’ alleged violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) and (d). On June 5, 1990, Leslie Shaw died. Plai...
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ORDER This case came before the court for a nonjury trial on March 25, 1991, after default judgment was granted for plaintiff Jesse L. Harper (Harper) in his lawsuit under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA). After careful consideration, the court awards plaintiff costs and statutory damages in the amount of $1,000. The court reserves ruling on plainti...
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775 F.Supp. 495 (1991) UNITED STATES of America v. Carlos A. GAVIRIA. Crim. No. 91-060-P. United States District Court, D. Rhode Island. October 18, 1991. Zachariah Chafee, Asst. U.S. Atty., Providence, R.I., for petitioner. Joseph Bevilacqua, Providence, R.I., for respondent. *496 MEMORANDUM AND ORDER PETTINE, Senior District Judge. Petitioner Carlos Gaviria filed a Motion to Suppress Physical...
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ORDER Pending before the Court is Defendants’ Motion for Summary Judgment, or, to Dismiss for Failure to State a Claim for which the Court can Grant Relief. On May 17, 1991, the FDIC brought a legal malpractice lawsuit against Shrader & York. The FDIC’s claims are based on the law firm’s alleged negligence in failing to advise two savings and loan associations, City Savings and Loan ...
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OPINION AND ORDER Plaintiff Lanvin, Inc. (“Lanvin”) and third-party defendant Lanvin Parfums, S.A. (“Lanvin Parfums”) have moved this Court for summary judgment on all claims asserted by or against Lanvin in this action. For the reasons stated at oral argument on October 21, 1991 and below, the motion for summary judgment is denied. FACTS In 1981, Lanvin, exclusive licensee of various Frenc...
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MEMORANDUM OPINION AND ORDER The court visits this cáse for the second time, and remarkably, the case is in somewhat the same procedural posture as it was before. For all the parties’ litigatory machinations, the court detects no progress in bringing this lawsuit to a just disposition. This action was brought by plaintiff, Baxter Healthcare Corporation (“Baxter”), a Delaware corporation, ...
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OPINION I. INTRODUCTION This is a medical malpractice case brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., by plaintiff Donna Marie Walton, administratrix of the estate of Curtis Walton, against the United States of America. Plaintiff alleges that Frank M. Sikora, a dentist at the Veterans Administration Hospital in Northampton, Massachusetts (“Northam...
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OPINION AND ORDER On October 3, 1991, 139 F.R.D. 291, this Court denied Mr. Theodore Kheel’s (“Kheel”) motion to intervene in the above-captioned action on the grounds that Kheel had not satisfied the requirements for intervention set out in Fed.R.Civ.P. 24. Kheel now moves for reconsideration of that ruling pursuant to Fed.R.Civ.P. 60,1 claiming that the Court “mistakenly applied Rule 24 in disr...
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OPINION AND ORDER Defendant Leslie K. Wells has filed an objection to Magistrate Judge Jerome J. Niedermeier’s Report and Recommendation to deny her motion for summary judgment. We review the Magistrate Judge’s recommendations pursuant to 28 U.S.C. § 636(b).1 The complaint alleges that the defendants participated in a series of fraudulent schemes to defraud the plaintiff, a corporation engaged in ...
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MEMORANDUM ORDER Presently before the Court is the motion of Movant Rocco Bucci to Return One Hundred Fifteen Thousand Five Dollars in United States Currency to his possession and the Motion of the United States Government to Dismiss Movant’s motion. I. Background On February 12, 1991, the Pennsylvania State Police, citing violations of the Pennsylvania gambling laws, obtained a search warrant for...
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775 F.Supp. 1358 (1991) The STATE OF MONTANA; Stan Stephens, Governor of the State of Montana; Marc Racicot, Attorney General for the State of Montana; Mike Cooney, Secretary of State for the State of Montana; Max Baucus, United States Senator; Conrad Burns, United States Senator; Pat Williams, United States Representative; and Ron Marlenee, United States Representative, Plaintiffs, v. UNITED STA...
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MEMORANDUM OF DECISION AND ORDER RE: AWARD OF ATTORNEY FEES TO PLAINTIFF In this case, under the Civil Rights Act of 1871 [42 U.S.C. § 1983], trial was heard by the court sitting with a jury. The trial time was three days. The verdict of the jury was in favor of the plaintiff Rosa Rodriguez against the City of Los Angeles for $3,575 in general damages and $500 in punitive damages and against Mark...
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OPINION AND ORDER This case is presently before this Court on plaintiff’s motion to remand the case to the Superior Court of Puerto Rico pursuant to 28 U.S.C. § 1447(c). Plaintiff the Administrator of Guaranty Insurance Company (“Guaranty”) originally commenced this action against the FDIC in the Superior Court of Puerto Rico seeking payment of a certificate of deposit. Said action was brought as ...
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ORDER Plaintiff in the above captioned action has moved for attorney’s fees and expenses. Defendant timely opposed the motion. The matter was set for oral argument on March 25,1991 at 9:00 a.m. After review of the papers filed, the Court determined that all of the issues had been adequately briefed and removed the matter from the Court’s law and motion calendar pursuant to Federal Rule of Civil...
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MEMORANDUM AND ORDER This case comes before this Court on Defendant Ronald Pasqualino’s Motion to Suppress all evidence in support of the indictment against him as the fruit of an illegal search. After an evidentiary hearing on the motion, the Court finds the following facts: 1. On the evening of November 14, 1990, the defendant Ronald Pasqualino was a registered guest of the Susse Chalet Hot...
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775 F.Supp. 30 (1991) CADILLAC INDUSTRIES, INC., Plaintiff, v. AMALGAMATED CLOTHING & TEXTILE WORKERS UNION, Defendant. Civ. No. 90-2210 GG. United States District Court, D. Puerto Rico. August 30, 1991. Ivette González Buitrago, Goldman Antonetti Ferraiuoli & Axtmayer, San Juan, P.R., for plaintiff. José Carreras Rovira, Hato Rey, P.R., for defendant. OPINION AND ORDER GIERBOLINI, Distr...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Pending before the Court are the defendants’ objections to the government’s tape designations in this case. The Court takes the objections in turn below. II. ANALYSIS A. DeLeo’s Motion to Play Tapes in their Entirety The government has for the most part limited its tape designations to conversations which fall within...
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MEMORANDUM OPINION This case, arising under the Federal Deposit Insurance Act, 12 U.S.C. § 1821(e), comes before the court on the motion of defendant Resolution Trust Corporation (“RTC”) to dismiss the complaint of plaintiff Unisys Finance Corporation (“Unisys”) (No. 91 C 1884). For the reasons stated below, RTC’s motion is granted. FACTS In June 1987, Concordia Federal Bank for Savings (“C...
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MEMORANDUM AND ORDER Plaintiff Wanda Wright brings this action under 42 U.S.C. § 1983, alleging that defendants deprived her, without due process, of property and liberty interests guaranteed her under the Fourteenth Amendment. Plaintiff was director of the Winning Experience Program of the City Colleges of Chicago (CCC). Defendants are members of the Board of Trustees of CCC, and the cha...
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MEMORANDUM OPINION This is a products liability action brought pursuant to 28 U.S.C. § 1332. Currently pending is the motion of defendant Honda Motor Company, Ltd. for dismissal for insufficiency of process or insufficiency of service of process pursuant to Rules 12(b)(4) and (5), Federal Rules of Civil Procedure [Court File #4], Defendant is a Japanese corporation with its principal place of b...
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MEMORANDUM OPINION On January 16,1991, Plaintiff Waste Distillation Technology, Inc. (“WDT”) filed C.A. No. 91-027-JLL (#27) against Pan American Resources, Inc. (“PAR”) alleging unfair competition 1 , conspiracy to defraud, misappropriation of trade secrets and copyrights, and copyright infringement. (# 27 Docket Item [“D.I.”] 1.) Approximately four months la...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff has brought this survival action under the Federal Tort Claims Act against the United States government. The plaintiff represents the estate of Robert Groves. Robert Groves died as a result of an automobile accident that occurred on December 8, 1988. The collision involved a BMW, driven by Mr. Groves, and a United States Park Police cruiser driven ...
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MEMORANDUM OPINION AND ORDER This cause is before the Court, pursuant to Rules 15 and 65 of the Federal Rules of Civil Procedure, on Plaintiffs’ Motions to Amend the Complaint and for Preliminary and Permanent Injunctive Relief to enjoin *980 the enforcement of certain orders of the Chancery Court of Adams County, Mississippi, establishing an election schedule for 1991 Adams County Board of S...
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*1061 MEMORANDUM OPINION AND ORDER I. INTRODUCTION The government alleges in this criminal prosecution that defendant David J. Shields, formerly the Chief Judge of the Chancery Division of the Circuit Court of Cook County, Illinois, accepted bribes from his co-defendant, Pasquale F. DeLeo, an attorney, in exchange for favorable treatment in a case pending before Shields. Tha...
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OPINION This is an action brought by two real estate limited partnerships and their managing general partners against a host of defendants, alleging violations of the federal securities laws and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), arising from a threatened proxy contest. This is not the first suit between the parties, and possibly not the last. The facts of th...
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ORDER DECLARATORY JUDGMENT AND PERMANENT INJUNCTION The plaintiff National Railroad Passenger Corporation (hereinafter “Amtrak”) filed its complaint (document # 1) on January 17, 1990, requesting declaratory relief and preliminary and permanent injunctions against the State of Nevada, and some of its subdivisions, and against the County of Washoe, and some of its subdivisions. Am-track alleges th...
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OPINION AND ORDER Before the court are motions for summary judgment filed by the parties. The issue is whether plaintiff is entitled to be reinstated to his alleged career position pursuant to Puerto Rico’s Public Service Personnel Act (the “Personnel Act”), 3 L.P.R.A. § 1301 et seq. I. BACKGROUND A brief sketch of the lengthy, tortuous history of this case is necessary ...
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776 F.Supp. 465 (1991) 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 AND ORDER BACKGROUND This is an appeal of the Bankruptcy Court decision in In re: APC Construction, Inc., (Town of Colchester v. Hinesburg Sand and Gravel, Inc.), 112 B.R. 89 (Bankr.D.Vt.1990) in which the Bankruptcy Court denied the trustee’s and Town of Colchester’s joint motion seeking avoidance of Hinesburg Sand and Gravel’s mechanics liens and writs of attachm...
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CORRECTED SUPERCEDING OPINION This case requires resolution of complex issues regarding the scope of liability under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA). “The meager. legislative history available [for CERCLA] indicates that Congress expected the courts to develop a federal common law to supplement ...
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MEMORANDUM AND ORDER This is a motion to review a final determination of the Secretary of Health and Human Services ordering cessation of Social Security benefits to the plaintiff. The record before the administrative agency establishes the following. Plaintiff, Dennis Wonica, was found to be eligible for social security benefits due to a herniated lumbar disc as of October 1982. However, bas...
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ORDER This subpoena enforcement action arises out of Applicant EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S (the “EEOC”) investigation of an alleged violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-9, by Respondent LAS VEGAS METROPOLITAN POLICE DEPARTMENT. The subpoena at issue was served on Respondent as part of the EEOC’s investigation of a charge of race discrimination fil...
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OPINION AND ORDER Plaintiffs Bennett Silvershein Associates, Bennett Silvershein, Joan Wolfson, and Marilyn E. Silvershein move to disqualify Kronish, Lieb, Weiner & Heilman from acting as trial counsel for defendants Jay Fur-man, Joseph Ades, Albert Ades, Robert Ades, Walter Samuels, several other family members of the foregoing individuals, and several partnerships and corporations cont...
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*1053MEMORANDUM OPINION AND ORDER I. INTRODUCTION The defendants in this case, a former state court judge. and an attorney, are charged with having engaged in bribery in the context of a fictional lawsuit which the federal government had filed in an effort to ferret out alleged corruption within the Illinois courts. Defendant David J. Shields has filed two motions regarding the notice which the go...
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OPINION AND ORDER Before this Court are the motions of defendants Eli Lilly & Co. (“Lilly”), PaineWebber, Inc. (“PaineWebber”), and Ronald Nordmann (“Nordmann”) to dismiss the above-captioned action pursuant to Fed. R.Civ.P. 12(b)(6). For the reasons set forth below, the motion of Lilly is granted, and the joint motion of PaineWebber and Nordmann is denied. BACKGROUND Procedur...
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ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGEMENT AND MOTIONS TO DISMISS INTRODUCTION Defendants’ Motions for Summary Judgement and Motions to Dismiss were scheduled to be heard on September 5, 1991. Defendants KPMG Peat Marwick (“Peat Marwick”) and the Winthrop Defendants 1 moved for summary judgement and for dismissal. Defendants General Electric Company, General ...
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MEMORANDUM OPINION On November 28, 1990, plaintiff, Harry Behrle, filed suit against defendant, Melvin Olshansky, alleging that in 1981 he contracted with the defendant to sell controlling interest in a corporation 81% owned by plaintiff. He alleges that defendant, in entering into such agreement and in purchasing the corporate stock, “intentionally employed devices, schemes and artifices to defr...
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OPINION AND ORDER In this action, plaintiffs Christine and Hasan Alkatabi claim that the Immigration and Naturalization Service (the “INS”) and several INS examiners discriminated against them on the basis of race in violation of the 5th Amendment by delaying the granting of Mrs. Alkatabi’s immediate relative petition on behalf of her husband, Ha-san.1 (Complaint ¶ 18)2. Defendants have moved for...
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OPINION AND ORDER Before this court is plaintiff Saritejdiam, Inc.’s (“Saritejdiam”) motion for summary *149judgment pursuant to Fed.R.Civ.P. 56. Defendants Excess Insurance, et al. (“The Underwriters”) oppose this motion. BACKGROUND Saritejdiam is a company engaged in the wholesale trade of diamonds, other gems and jewelry. Affidavit of Yogesh K. Madhvani, at 1 (hereinafter “Madhvani Aff”). In J...
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*1092MEMORANDUM OPINION AND ORDER I. INTRODUCTION In Counts One through Four of the superseding indictment in this case, defendants David J. Shields (formerly Chief Judge of the Circuit Court of Cook County, Chancery Division) and Pasquale F. DeLeo (an attorney) are charged with attempting and conspiring to interfere with interstate commerce through the commission of extortion in violation of the ...
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MEMORANDUM OPINION Before the Court are plaintiff Saratoga Development Corporation’s motion for partial summary judgment, defendant United States’ motion for summary judgment, their respective replies, and defendant-in-tervenor Delta Partnership’s opposition to plaintiff’s motion. I. The parties do not dispute the following facts. This is a “disappointed bidder” case in which pl...
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OPINION AND ORDER The Court has heard oral argument and reviewed all of the pleadings and letter submissions filed by the parties in this action. Pending before the Court are (1) defendant Henry Faragalli’s (“Faragalli”) motion to dismiss plaintiffs first amended complaint for lack of personal jurisdiction; (2) Faragalli’s alternative motion for summary judgment on the grounds that all cl...
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ORDER GRANTING PLAINTIFF’S MOTION FOR DECLARATORY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY AND DECLARATORY JUDGMENT INTRODUCTION This Order is the latest decision in a case filed in 1980 between Frank Briscoe Company, Inc. (“Briscoe”) and Clark County (“the County”). Currently pending before this court are Briscoe’s Motion for Declaratory Judgment (doc. no. 1560), and the ...
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MEMORANDUM Factual Background: The above-captioned matter is a negligence/products liability action. Between 1952 and 1956, P. Lorillard, Inc., predecessor to defendant Lorillard, Inc., manufactured Kent cigarettes with an asbestos-containing filter — the “Micronite” filter. Defendant Hollingsworth & Vose (“H & V”) supplied the asbestos containing filter med...
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OPINION AND ORDER Before this court is plaintiff United National Insurance Co.’s (“UNI”) motion for summary judgment pursuant to F.R.C.P. 56, and for a declaratory judgment stating that UNI has no duty to defend or indemnify the defendant Waterfront Realty Corp. (“Waterfront”), and the Tunnel, Inc. (“Tunnel”) in the pending state court action entitled Lourdes Ortiz v. The Tunnel, Inc. and Waterfr...
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MEMORANDUM OPINION AND ORDER This cause is before the court on three motions. The first is a motion for a preliminary injunction filed by plaintiffs Frances Margaret Stack and J.E. Stack, Jr. The second is a motion to dismiss filed by defendant Whitney National Bank (Whitney), and the third is a motion, filed by plaintiffs, to strike portions of an affidavit submitted by the defendant. Ea...
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OPINION The Court, on February 6, 1991, denied Defendant’s motion to dismiss for lack of jurisdiction and for improper venue. On February 22, 1991, Defendant moved, pursuant to Rule 60(b)(6), for the Court to alter or amend the February 6, 1991 Order because, according to the Defendant, the challenged procedure has been revised and this action effectively disposed of all of the Plaintiffs’ claims...
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*385ORDER AND OPINION RE DEFENDANTS’ MOTION TO COMPEL AND PLAINTIFF’S MOTION FOR RECONSIDERATION On May 14,1991, the court ordered plaintiff’s expert witness, Dr. Bruch, to respond to deposition questions and produce documents regarding communications between plaintiff’s counsel and Dr. Bruch which relate to subjects about which Dr. Bruch is expected to testify. Subsequently, plaintiff filed a mo...
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ORDER AND OPINION This is a diversity action for libel, business disparagement, and unfair competition, based on allegedly defamatory statements made in a publication carried on a computerized database. Defendant CompuServe Inc. (“CompuServe”) has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, CompuServe’s motion is gr...
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MEMORANDUM OPINION AND ORDER This ease comes before the Court on defendants’ motion to dismiss for failure to state a cause of action upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Because plaintiff, The Committee to Defend the United States Constitution (“Committee”) has failed to state any cognizable federal claim, the motion is granted with respect to all defendants.1 Background: O...
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ORDER AND OPINION In this case, the Air Line Pilots Association, International (“ALPA”) appeals a February 28, 1991 decision of the Bankruptcy Court for the Southern District of New York (Lifland, C.J.) denying ALPA’s motion to modify the automatic stay of litigation against debtor Eastern Airlines, Inc. (“Eastern”) to allow a 1987 suit against Eastern to proceed. For the reasons stated below, ...
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*1449 ORDER RE MONTROSE AND STAUFFER’S MOTION FOR SUMMARY JUDGMENT I. Introduction Montrose Chemical Corporation of America (“Montrose”) and Stauffer Chemical Company (“Stauffer”), defendants in these consolidated actions, move this court for partial summary judgment pursuant to Fed.R.Civ.P. 56 on the issue of their liability. Claims are filed against Montrose and Stauffer u...
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MEMORANDUM AND ORDER In the above-referenced action, third-party plaintiff F & H Manufacturing (“F & H”) seeks recovery of defense costs against third-party defendants American Motorists Insurance Company (“AMICO”), American Protection Insurance Company (“AMPICO”), Michigan Mutual Insurance Company (“Michigan Mutual”), Fireman’s Fund Insurance Company (“Fireman’s *705 Fund”),...
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MEMORANDUM AND ORDER This is a personal injury action with parties of diverse citizenship. The defendants have moved for summary judgment and to dismiss the complaint on the ground that the plaintiffs have failed to establish a pri-ma facie case of “serious injury” under Section 5102(d) of the New York Insurance Law. For the reasons set forth below, the motion of the defendants is granted, and the...
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MEMORANDUM AND ORDER This ease, in which a union representing employees of the United States Customs Service challenges the constitutionality of a random drug testing program, is before the court on cross motions for summary judgment. The parties have prepared an extensive Stipulation of Facts, and it is on that submission which the court primarily relies for the factual basis of its decision. ...
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OPINION AND ORDER This case began with an illegal scheme in which a company called Engineered Assemblies Corp. purchased from Duracell un-packaged batteries in bulk at substantially discounted prices on condition that these batteries not be resold. Plaintiff Gautam Sharma, with others, arranged to divert the batteries to two Singapore companies which packaged them in counterfeit Duracell packagin...
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ORDER AND OPINION In this action, plaintiff Irving Parnés (“Pames”) seeks to recover on behalf of himself and all others similarly situated for losses incurred in real estate limited partnerships organized and sold by defendants. 1 Parnés has moved for class certification pursuant to Fed.R.Civ.P. 23. Defendants Mast Property Investors, Inc., Mast Capital Investors, Ltd. (collec...
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MEMORANDUM This matter is before the Court on two motions to dismiss the complaint for failure to state a claim. Plaintiff, a Missouri state prisoner, filed this action under 42 U.S.C. § 1983. He alleges that while at a K-Mart store in Bridgeton, Missouri, he was detained, questioned, searched and arrested by Bridgeton police officers who had been called by K-Mart employees. Plaintiff alleges that...
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*1056 MEMORANDUM This action arises out of a contract for disability income insurance between plaintiff American Franklin Life Insurance Company (“American Franklin”) and defendant Ronald L. Galati. American Franklin seeks a declaratory judgment declaring that it has the right to rescind the policy for which Galati contracted, a policy that American Franklin claims it entered on ...
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OPINION Defendants Jerry Schneiderman (“Schneiderman”), Jerry Ranallo (“Ranal-lo”), Larry Butler (“Butler”) and Insertion Advertising Corp. (“Insertion Advertising”) have been charged in a fourteen count indictment with selling and conspiring to sell drug paraphernalia through the services of an interstate conveyance under 21 U.S.C. § 857 and with laundering and conspiring to launder the ...
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OPINION Feliberto Capellán (“Capellán”) petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988). Capellán was convicted, upon a plea of guilty, in the New York State Supreme Court, New York County, of criminal possession of a controlled substance in the second degree, N.Y. Penal Law § 220.18(1) (McKinney 1984) (“Penal Law”), and was sentenced to a term of imprisonment...
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ORDER OF DISMISSAL This personal injury diversity case was improvidently brought in this court under 28 U.S.C. § 1332(a)(1) claiming a monetary controversy in excess of $50,000.00. It is quite apparent now that no such amount is in controversy and plaintiff has not carried her burden to show it. The action was dismissed in court at pretrial conference on October 17, 1991, when plaintiff failed to ...
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ORDER The Court has for consideration the Report and Recommendation of the United States Magistrate Judge filed March 15, 1991 in which the Magistrate Judge recommended that Defendants’ Motion to Vacate Default Judgment be granted due to the defect in service, and further that Defendants be given twenty (20) days in which to file their Answer. No excepti...
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ORDER This action began in Waukesha County circuit court in 1989 when Brian and Susan Pitsch were sued by the first of several medical groups. It was removed to this court by third-party defendant Employers Health, but Brian and Susan Pitsch have now motioned for remand to the state court. The Pitsches were seriously injured in an automobile accident in August 1988. As an employee, Brian Pits...
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ORDER The United States of America, through its agency, the Internal Revenue Service *903 (“IRS”), appeals from an order of the Bankruptcy Court for the Eastern District of Oklahoma, claiming that court erred in its determination of the amount of the IRS’s secured claim. The IRS objects to the bankruptcy court’s classifying a portion of its claim attributable to penalties on unpaid taxes as u...
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MEMORANDUM This matter is before the Court on defendant’s motions to dismiss and to stay discovery. Plaintiff Patricia Ann Sanders, a former federal employee at the United States Army Aviation Systems Command (“AVSCOM”), seeks “relief ... from adverse employment action.” (Petition, ¶ 2). AVSCOM placed plaintiff on enforced leave effective August 24, 1987. Plaintiff appealed this agency action to t...
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MEMORANDUM AND ORDER This matter is before the Court on plaintiff’s motion for default judgment, defendants Glover and Brotherhood of Maintenance of Way Employees’ motion to quash service of process and dismiss, and defendants Office & Professional Employees International and Swadner’s motion to dismiss. All motions will be denied. FACTS Plaintiff, who appears pro se, was hired as a stenographer ...
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*2 ORDER The plaintiff, James Ryan, is a federal prisoner currently in the custody of the United States Bureau of Prisons in Fort Worth, Texas. Due to his incarceration on a felony conviction, any Social Security benefits to which he is entitled were suspended for the duration of his incarceration. The plaintiff seeks to bring a class action on behalf of all incarcerated felons who are entitl...
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MEMORANDUM Hildegard Helen Davenport (Davenport) appeals from a judgment of the Bankruptcy Court for the Western District of Kentucky in which the Bankruptcy Court found that Davenport’s homestead exemption in property seized and sold by the appellee, The United States of America d/b/a Internal Revenue Service (IRS), did not take priority over a tax lien, properly filed by the IRS. Title ...
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MEMORANDUM OPINION On April 16-19, 1991, this court held a bench trial in the above-captioned matter. Plaintiff / Counter-claim-defendant Shearson Lehman Brothers, Inc., was represented by Terry Ross and Shannon McDougald of Keesal, Young & Logan, Long Beach, Cali*1491fornia, and Jeffrey Robinson of Moyle & Draper, Salt Lake City, Utah, as local counsel. Defendants/Counter-claimants M & L Investm...
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OPINION AND ORDER On September 9, 1991 plaintiffs moved this court for a new trial pursuant to Fed. R.Civ.P. 59(a) on the grounds that the court erred in instructing the jury on Vermont’s Sports Injury Statute and the doctrine of assumption of risk and that the verdict of the jury was contrary to the weight of the evidence. For the reasons stated herein, plaintiffs’ motion is denied. Backgro...
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ORDER Introduction Plaintiff, Saint Marys Hospital (“the Hospital”), filed suit against defendant, International Union of Operating Engineers, Local 756 (“the Union”), seeking to vacate an arbitrator’s award to the Union. The issue before the Court on the parties’ cross motions for summary judgment is whether the issue submitted to the arbitrator was arbitrable. For the reasons set forth below, t...
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ORDER AND REASONS The court has before it two motions in the above case. The plaintiff has filed a motion to transfer pursuant to 28 U.S.C. section 1404(a). The defendant has filed a motion to dismiss and vacate attachment. Although the defendant’s motion was filed first, the court will consider the plaintiff’s motion to transfer first. Central Hudson Gas and Electric Corp. (Central ...
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775 F.Supp. 1211 (1991) Rodney L. COOPERMAN and Rodney L. Cooperman Manufacturer's Representatives, Inc., a Minnesota corporation, Plaintiffs, v. R.G. BARRY CORPORATION, an Ohio corporation, Defendant. Civ. No. 4-91-633. United States District Court, D. Minnesota, Fourth Division. October 11, 1991. *1212 Joseph A. Thomson, Lindquist & Vennum, Minneapolis, Minn., for plaintiffs. Carolyn Chalme...
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ORDER In the above-referenced action, George P. Lahm, Jr. and Margaret Lahm (“plaintiffs”) sue John Wagner (“defendant”) for negligence based on an accident which occurred on March 7, 1989. More particularly, on that date defendant, while driving his car in Arlington, Virginia, struck plaintiff George Lahm. Currently before the court is defendant’s motion to dismiss for improper venue, pursuant to...
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ORDER The parties having submitted memoran-da, the court heard oral argument on Plaintiff’s Motion for Authority to Conduct Ex Parte Interviews on September 13, 1991. The court has carefully considered the arguments presented by both parties and now renders its order granting plaintiff’s motion. I. Factual Background Although the parties have indicated some differences between their respective ...
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MEMORANDUM OPINION The plaintiff, Jon W. Ackerson (hereinafter “Ackerson”), is a candidate for election to the office of Judge of the Kentucky Court of Appeals. He has brought this action against the Kentucky Judicial Retirement and Removal Commission (hereinafter “Commission”) pursuant to 42 U.S.C. § 1983, alleging that his freedom of speech, guaranteed by the First, Fifth and Fourteenth...
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ORDER GRANTING DEFENDANTS’ MOTIONS FOR JNOV ON THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS JURY CLAIM, FINDINGS OF FACT AND CONCLUSIONS OF LAW ON TITLE VII NON-JURY CLAIM, AND JUDGMENT I. INTRODUCTION Plaintiff, Deborah Marshall (“Marshall”), after being laid off by her employer, Nelson Electric, filed the instant action alleging violation of Title VII of the Civil Rights Act of...
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MEMORANDUM AND ORDER Plaintiff William H. Greenfield (“plaintiff”), individually and as Administrator of the Estate of Marcia D. Greenfield, the *700 deceased, brings this action against defendants Suzuki Motor Co. Ltd. (“Suzuki”), American Suzuki Motor Corporation (“American Suzuki”), Whittle’s Old Mystic Marina, Inc. (“Whittle’s”), and Whittle’s Marina, Inc. (“Whittle’s Mar...
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ORDER Before the Court is the motion of defendant Federal Deposit Insurance Corporation (FDIC) for summary judgment against plaintiffs and against third-party defendant. This action began in state court, with plaintiffs seeking to have various financial instruments which plaintiffs executed declared void. Plaintiffs asserted that Union Bank and Trust of Bartlesville (Union Bank) violated 12...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND PERMANENT INJUNCTION ORDER On October 15, 1991, this matter came before the Court on Plaintiff’s motion for a preliminary injunction. The Court has considered the Stipulated Findings of Fact submitted by the parties, the Exhibits List for Hard Rock Cafe’s Preliminary Injunction Motion, the Exhibits described therein, the Declaration of Merissa S. ...
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ORDER Before the Court is the Report of the Magistrate Judge recommending certifying the issues raised in this case to the Oklahoma Supreme Court. After careful consideration of the pleadings, the Court concludes that the issues herein can be resolved in the following manner without certification. On May 8, 1986 Gayle Jean Segroves had surgery for a hysterectomy at the Broken Arrow Medical Center....
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MEMORANDUM OPINION AND ORDER Introduction Plaintiff Zurek Express, Inc. (Zurek) commenced this action against defendant Intermetro Industries Corp. (Intermetro) to recover $130,771.02 in freight undercharges it alleges are owed by Intermetro. The *1216 cause is before the court upon motions of both parties. Intermetro moves the court to refer this matter to the Interstate Commerce Commissio...
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By judgment filed in this case on December 1, 1989 and amended on January 30, 1990, the undersigned, acting pursuant to 28 U.S.C. § 636(c), found the Bureau of Prisons policy regarding mail to federal prisoners from attorneys, courts, and government officials to infringe the prisoners’ rights of access to courts and of freedom of expression and not to be rationally related to any valid , penologic...
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MEMORANDUM OPINION This matter is before the court upon defendant Duke University’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The parties have fully briefed their positions, and the matter is now ready for a ruling. The court grants the defendant’s motion as to 42 U.S.C. § 2000d et seq. (1988); 42 U.S.C. *1072 § 1981; ...
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ORDER AND REASONS This matter is before the Court on motion of defendants, Delgado Community College (“Delgado”), the Board of Trustees for State Colleges and Universities (the “Board”), Dr. James Callier, Tommy Smith, and Dr. C.B. Ellis, 1 for summary judgment pursuant to F.R.C.P. Rule 56 seeking dismissal of plaintiff’s claims against them. The several basis of the defendants...
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*1213MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’ MOTIONS FOR PARTIAL SUMMARY JUDGMENT This case involves an allegedly fraudulent scheme to obtain one public contract for sewage disposal services without competitive bidding and to maintain and extend an earlier public contract on favorable terms without open price competition. This alleged fraudulent scheme caused damage to the Counties of O...
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Defendants move for partial summary judgment dismissing all non-Warsaw Convention claims on the ground that any claim brought against defendants in this action must lie, if at all, under the Warsaw Convention 1 . For the reasons set forth below, defendants’ motion is granted. BACKGROUND On December 21, 1988, Pan Am Flight 103 crashed near Lockerbie, Scotland; all 243 passen...
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ORDER Pending before this Court is a supplemental counterclaim (attached to Document # 24) and first amended supplemental counterclaim (filed October 10, 1991) filed by the defendant City of Houston (“the City”). The parties appeared before the Court on October 9, 1991, at 10:00 a.m. for a scheduled hearing on the counterclaim. Additionally, the Court granted leave for two nonparties to partici...
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ORDER This cause is before the Court on Defendant Trustees of Tufts College’s 1 motion *1544 for summary judgment, filed August 19, 1991, and on Plaintiff Jacksonville Electric Authority’s [“JEA”] cross-motion for summary judgment, filed September 6, 1991. Timely responses have been filed. Facts This is an action brought pursuant to the Comprehensive ...
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MEMORANDUM I. INTRODUCTION Allen-Myland (“AMI”) moves for limited reconsideration of my decision in Allen-Myland, Inc. v. International Business Machines Corp., 746 F.Supp. 520 (E.D.Pa.1990) (“AMI v. IBM II”) in light of the Supreme Court’s recent decision in Feist Publications, Inc. v. Rural Telephone Service Co., — U.S.-, 111 S.Ct. 1282, 113 L.Ed.2d...
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ORDER Before the Court are Plaintiff’s Motion to Remand and Defendants’ Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the Court is of the opinion that Plaintiff’s Motion should be GRANTED, and therefore Defendant’s Motion is not reached. I. BACKGROUND Plaintiff initiated this Action in the District Court of Harris County, Texas, 281st Judicia...
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ORDER MOTIONS This cause came before the Court on Defendants’ Motion to Dismiss Plaintiff's *420Second Amended Complaint; and Plaintiff’s response which contained his request to amend his Second Amended Complaint, the former being served September 18, 1991, and the latter response being served September 3, 1991. The Court finds that Defendants’ motion to dismiss, excluding Count III which Plainti...
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MEMORANDUM OPINION AND ORDER Pro se petitioner Ira D. Lustgarden commenced this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. Pursuant to D.CO.LR 605, the case was referred to Magistrate Judge Richard M. Borchers who has reviewed the matter and prepared a recommendation. Copies of the recommendation and Local Rule 605 were mailed to the petitioner on...
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OPINION In 1989, the defendants in this case purchased a network of automobile dealerships from the plaintiffs. The transaction did not go smoothly and the resulting disputes have been presented to this court for resolution. The complaint tells the story of a trusting seller who, after yielding possession of his business to the buyer, was asked to pay over a large sum of money in *...
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MEMORANDUM OPINION, RULING GRANTING MOTION TO DISMISS, AND ORDER Plaintiffs Greg Titus, et al., bring a class action suit for declaratory and injunctive relief against defendant Louis Sullivan, Secretary of Health and Human Services (Secretary), alleging that certain policies of the Secretary violate portions of Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq., 1381 et ...
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OPINION The plaintiff-patentee Imperial Chemical Industries, PLC (“ICI”), is a British corporation having its corporate offices and principal place of business in Imperial Chemical House, Millbank, London, England. Consolidated Pretrial Order (“P.T. Order”) filed March 6, 1991 at p. Ill — 1. The defendant Danbury Pharmacal, Inc., (“Danbury”), is a corporation organized and existing under ...
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MEMORANDUM OPINION AND ORDER Defendants Robert and Eleanor Isham (the Ishams) move for judgment on the pleadings, contending that plaintiff’s action for negligence and breach of fiduciary duty is preempted by 12 U.S.C. § 1821(k) of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA). The Ishams also contend that C.R.S. § 11-5-107 requires dismissal. Defendant ...
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MEMORANDUM OPINION This matter is before the Court on defendant’s motion for summary judgment, pursuant to Fed.R.Civ.P. 56. The defendant has also made a motion to quash the plaintiff’s notices to depose. As discussed more fully below, the defendant’s motion for summary judgment is GRANTED and the case is hereby DISMISSED WITH PREJUDICE. The motion to quash is, therefore, MOOTED. FAC...
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ORDER ON MOTIONS TO ALTER OR AMEND, MOTION TO VACATE CONTEMPT HEARING, MOTION FOR CLARIFICATION, MOTION FOR THE CONSTRUCTION OF JURY BOXES AND OBJECTION TO THE APPOINTMENT OF ATTORNEY KATCH Debtors have for the second time moved to alter or amend my judgment of September 4, 1991, 131 B.R. 171, in these cases, contending that I overlooked several of their arguments. I address their content...
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MEMORANDUM OPINION AND ORDER This legal malpractice action turns on the intricacies of antitrust law. A.O. Smith Corporation (“Smith”) and 16752 Corporation, formerly known as Sterling Electric, Inc. (“Sterling”), lost an antitrust tying case in which members of the firm of Lewis, Overbeck & Furman (“Law Firm”) served as Sterling’s trial counsel. Law Firm failed to raise a certain legal a...
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MEMORANDUM OPINION AND ORDER In this official-capacity lawsuit, Illinois Health Care Association (“IHCA”) and Heartland Manor Nursing Center, Inc. (“Heartland”) sue Director Philip Bradley (“Bradley”) of the Illinois Department of Public Aid (“IDPA”) 1 under 42 U.S.C. § 1983, 2 charging violations of the Medicaid Act (“Act”), Sections 1396-1396u. 3 Plainti...
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MEMORANDUM OPINION AND ORDER At the conclusion of the government’s redirect examination of its cooperating witness, Robert Cooley, counsel for defendant David J. Shields expressed his intent to question Cooley regarding certain out-of-court statements he had previously made regarding the purported trustworthiness of defendant Pat DeLeo. Cooley made these statements in a covertly recorded conversat...
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MEMORANDUM OPINION AND ORDER The City of Chicago has made several attempts to dispose of Dennis Brennan’s claim that the City improperly considered political affiliation in filing the position of hoisting engineer apprentice in violation of Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (7th Cir.1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1383, 28 L.Ed.2d 650 (1971). This Court de...
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MEMORANDUM OPINION AND ORDER The plaintiff, Richard B. Hensley [“Hensley”], filed this action against defendants, Soo-Line Railroad Company (“Soo-Line”) and Mid-South Corporation (“Mid-South”) pursuant to the Federal Employers’ Liability Act, 45 U.S.C. § 51 [“FELA”], and the Federal Safety Appliance Act, 45 U.S.C. § 2 [“FSAA”], for damages arising out of injuries suffered on June 1,1988. Originall...
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MEMORANDUM AND ORDER This court has carefully reviewed a written transcript in 94 pages of the proceedings in the above cases held before Magistrate Robin D. Pierce on August 14, 1991, at the Indiana State Prison. To the extent that it is necessary to do so, this court confirms the dismissal of cause number S87-660, and it is now SO ORDERED. Also, the following Order should be entered in ...
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*1140 OPINION Plaintiff, Alaska Textile Co., (Alaska), seeks $95,538 in damages from Chase Manhattan Bank, N.A., (Chase), for the alleged wrongful dishonor of two letters of credit issued by Chase to Alaska as beneficiary. As Chase is a corporation organized under the laws of the United States the court has subject matter jurisdiction pursuant to 12 U.S.C. § 632. Alaska is a small business ...
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ORDER Currently before the court are cross-motions for summary judgment filed by the plaintiff and defendant pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiff filed this action seeking a declaratory judgment that, while preferably Ohio law governs the issue of whether an umbrella insurance policy includes underinsured motorist coverage, an application of either Oh...
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This is an action for damages and preliminary injunctive relief to remedy the alleged refusal of defendant Aetna Life Insurance Company (Aetna) to comply with the Health Maintenance Organizations (HMO) law, as codified at 42 U.S.C. § 300e-9, and New York Public Health Law § 4407 concomitant with a request from The Health Care Plan, Inc. (HCP), plaintiff, to be included as an option in defendant’s ...
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MEMORANDUM AND ORDER Plaintiff, National Labor Relations Board (NLRB), brings this action against defendant, State of Illinois Department of Employment Security (IDES), for injunctive relief, pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, declaratory relief, pursuant to 28 U.S.C. §§ 2201 and 2202, and costs, claiming Section 900 D of the State of Illinois Insurance Act (Ill.Rev. ...
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BACKGROUND This suit is brought by the executrix of Barbara Babcock, who died on July 5,1989, of Acquired Immune Deficiency Syndrome (“AIDS”) allegedly as a result of receiving tainted blood from defendants on April 23, 1984. Plaintiff claims the blood transfused to Mrs. Babcock—unit 31F69863—was infected with the Human Immunodeficiency Virus (“HIV”), the causative agent of AIDS. Unit 31F69863 wa...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came on for trial before the court sitting without a jury on the claim of the Plaintiff, Pamela K. Ferguson, for the recovery of accrued benefits under the provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461, for the failure of the Defendants to provide medical insurance benefits under a group poli...
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ORDER AND OPINION Defendant Holt-Dow, Inc. (“Holt”) has moved the Court for sanctions against plaintiff Route Messenger Services, Inc. (“Route”) and its counsel, Kenneth Piken, Esq. (“Piken”). Holt asserts that Piken failed to make the “reasonable inquiry” required by Fed.R.Civ.P. 11 and filed a baseless suit against Holt. Holt also claims that Piken has been grossly negligent in his conduct with...
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FINDINGS OF FACT I. Background Evidence in this non-jury case is now closed. The parties have submitted proposed findings of fact and conclusions of law, and the court has considered summation. The following constitutes the court’s findings of fact and conclusions of law. Plaintiff Louise K. Nolley, a former inmate at the Erie County Holding Center (“ECHC”), has brought ...
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OPINION AND ORDER The instant action arises out of the sale of limited partnership units in Jefferson Hotel Associates Limited Partnership (“Jefferson Hotel Partnership” or “Partnership”), a Connecticut limited partnership. The plaintiffs, Sarah Cohen and Leopold Cohen, investors in the Jefferson Hotel Partnership, bring this suit individually and on behalf of all others similarly situate...
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OPINION AND ORDER Invoking diversity jurisdiction, plaintiff brings this action to recover damages resulting from defendants allegedly fraudulently inducing it to invest in Genesis Marketing Corporation (“Genesis”), a clothing manufacturing company which became worthless one month after plaintiff purchased 49% of its common stock. Defendants Roy Levy, Larry Silverstein and Republic Factors Corp...
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MEMORANDUM OPINION AND ORDER Plaintiff Dennis Creese (Creese) seeks an order directing defendant Elizabeth Dole, Secretary, United States Department of Labor (the Secretary) to bring suit on his behalf against a labor union. In Creese v. Dole, 751 F.Supp. 1487 (D.Colo.1990), I denied without prejudice the Secretary’s motion to dismiss, or, alternatively, motion for summary judgment because the Sec...
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ORDER The matters before the Court are the Motion for Partial Summary Judgment of the debtors AHF Corporation and Adams Hard-Facing Company (“debtors”), and the Cross-Motion for Partial Summary Judgment of the Pension Benefit Guaranty Corporation (“PBGC”). By a letter dated May 17, 1991, the debtors and the PBGC notified the Court that all of the issues in the motion and cross-motion had been s...
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MEMORANDUM OPINION This lawsuit arises out of a fatal accident allegedly caused by the defendant’s negligent oversight of a contractor’s tree removal operations in the Ozark-St. Francis National Forest. 1 Ronnie Richardson was crushed and killed on September 24, 1986, by a beech tree he was attempting to cut down. Mr. Richardson was employed by Eddy Heydenreich, with whom the Forest Service h...
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MEMORANDUM OF DECISION Plaintiff, Ronald E. Davenport, brings this action under 42 U.S.C. § 1983 along with a pendent state law claim of civil conspiracy in response to his alleged discharge from his position as an employee of the North Carolina Department of Transportation on account of his political affiliation. The North Carolina Department of Transportation (“DOT”), Tommy Harrel-son, ...
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ORDER THIS MATTER is before the Court on Motions of Intervening Defendant Federal Deposit Insurance Corporation (“FDIC”), filed on 2 and 3 October 1991, to Transfer Venue; to Dismiss, Without Prejudice, for Lack of Subject Matter Jurisdiction, or, in the Alternative, for Stay of Action and All Associated Proceedings; and to Continue Preliminary Injunction Hearing. Also before the Court is...
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ORDER THIS MATTER is before the Court on a Memorandum and Recommendation, entered 5 September 1991, by United States Magistrate Judge Paul B. Taylor. FACTUAL AND PROCEDURAL BACKGROUND Magistrate Judge Taylor entered the above-noted Memorandum and Recommendation in response to the Motion of the Government, filed 6 August 1991, for Stay of Proceedings. On 28 August 1991, the Claim...
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MEMORANDUM OPINION This case is before the Court on defendant, Avaughn Bernard Green’s (“Green”) motion to suppress physical evidence and statements obtained on July 16, 1991 by officers of the Metropolitan Police Department. Because I find that the officers acted legally in seizing the physical evidence, the defendant’s motion to suppress that evidence is denied. However, because the police di...
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Pending before the court is defendant Outboard Marine Corporation’s motion for summary judgment. Under Rule 56(c) of the Federal Rules of Civil Procedure, the party moving for summary judgment bears the initial burden of showing there are no genuine issues of material fact that should be decided at trial and that it is entitled to judgment as a matter of law. When this has been done, the burden...
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MEMORANDUM The Court has already ordered attorney’s fees paid out of the plaintiff’s recovery, pursuant to 42 U.S.C. § 406(b)(1). Plaintiff also seeks fees and costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. For the reasons stated below, the Court will order the defendant to pay plaintiff $5,841.55 pursuant to the EAJA. I The Court, described the back...
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ORDER Having read and reviewed the Report and Recommendation of United States Magistrate Judge Michael Orenstein dated June 4, 1991, the Government’s motion, pursuant to 18 U.S.C. § 981(g), for a stay of this civil forfeiture proceeding pending the termination of the related criminal prosecution now before this Court, is granted to the extent set forth below. Accordingly, it is hereby ORDERED tha...
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MEMORANDUM OPINION AND ORDER Before the Court is a motion for summary judgment brought by the Township of Hamburg and the Township’s Chief of Police, Robert Krichke. Defendant DeBot-tis filed a motion for partial summary judgment as well. A hearing was held on both motions. Defendant DeBottis’ motion was granted at the hearing. During argument of the Township’s motion, the plaintiff argued that de...
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In this civil action, the court must decide whether ad valorem tax penalty liens that attach to real property prior to a Federal Deposit Insurance Corporation (“FDIC”) receivership are extinguished by the receivership. The court concludes the liens are not extinguished and that they remain upon the property until released in accordance with applicable state or local law. *1182 I ...
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MEMORANDUM AND ORDER The above-referenced action was originally brought in New York State court to recover the death benefit under an insurance policy issued on the life of Anna Gur-sky’s (“plaintiff”) now deceased husband. The case was subsequently removed to this Court by Northwestern Mutual Life Insur: *280anee Company (“NML”), the named defendant. Currently, plaintiff moves, inter alia, to am...
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DECISION ON MOTION FOR BIFURCATION Plaintiff, Derek Marryshow, alleges that on June 10, 1989 three officers of the Bladensburg, Maryland Police Department (James Flynn, Matthew Rhomba, and Robert Cowling, the “active Defendants”), violated his constitutional rights and committed State law torts against him by arresting him without a valid reason to do so and by using excessive force in making the...
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In the above-referenced action, Rachel Filaski (“plaintiff”) seeks damages arising out of an automobile accident with Angelo Buonconsiglio, a revenue officer for the Internal Revenue Service (“IRS”). Although plaintiff commenced a lawsuit against Buonconsiglio individually in state court, the United States (“defendant”) thereafter removed the action to this Court and substituted itself as the p...
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MEMORANDUM AND ORDER This action involves the scope of arbitration under a Working Agreement between plaintiffs, Oil, Chemical & Atomic Workers International Union, AFL-CIO, and its Local 4-227 (“the Union”), and defendant, Phillips 66 Company. The Union alleges that Phillips 66 violated the Working Agreement by unilaterally enacting a substance control policy and seeks to compel arbitrat...
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MEMORANDUM OPINION This is an action by Cynthia Fairchild and her son, Robin Fairchild, seeking damages for injuries sustained in a collision between an automobile being driven by Cynthia Fairchild and a cargo truck owned by the United States of America. Liability has been stipulated and the only issue remaining for the court is the amount of damages sustained by the plaintiffs. The following f...
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MEMORANDUM AND ORDER REGARDING MOTION FOR ORDER ESTABLISHING ATTORNEY’S LIEN1 I. INTRODUCTION. On September 15, 1989 the plaintiff, James D. Salvini, suffered devastating brain injuries as a result of a collision with a tractor trailer. He and his family were represented for some time by Attorney Martin O’Connell of the law firm Morisi & O’Connell. In July of 1990 the plaintiffs discharged Attorn...
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MEMORANDUM AND ORDER This matter is presently before the court upon defendants’ motions to dismiss or transfer for lack of venue. The supplemental briefs requested by the court have now been submitted, and the court is now prepared to rule. 1 The court must first determine whether venue is permitted by 28 U.S.C. § 1391(b). In resolving this issue, we must first consider wheth...
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MEMORANDUM This case arises out of a contractual dispute over an employment contract. Employee-plaintiff Moss, former Director of Sales at TACC International Corporation (“TACC”), alleges that TACC terminated him on November 2, 1990 because his contract, which provided for his retention in the event of a sale of the corporation, was detrimental to a proposed sale of the corporation. In hi...
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ORDER This matter is before the Court on the Motion to Strike of defendant Guy Hunt [Doc. #4], the Motion to Dismiss of the defendant State of Alabama [Doc. # 6], and the plaintiff’s Motion to Amend Complaint [Doc. # 12], A hearing was held in this Court on the State of Alabama’s Motion to Dismiss on October 17, 1991. The Court has fully reviewed the Motion to Dismiss, the briefs and ...
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MEMORANDUM AND ORDER I will grant the defendants’ motion to dismiss because: (a) the statute precludes judicial review; and (b) the political question doctrine forecloses judicial intervention. A. THE STATUTE PRECLUDES JUDICIAL REVIEW Plaintiffs have asserted that their right to judicial review for Counts I and II arises under the Administrative Procedure Act, 5 U.S.C....
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT AGAINST DEFENDANT JAMES R. WINING Findings of Fact 1) Omaha Indemnity Company (“Omaha Indemnity”) is an insurance company incorporated under the laws of Wisconsin with its principal place of business in Omaha, Nebraska. Omaha Indemnity is a wholly owned subsidiary of Mutual of Omaha, an insurance company incorporated under the laws of Nebras...
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MEMORANDUM OPINION I. Introduction This case grows out of a dispute between a carrier and a union over whether the carrier may unilaterally offer a lump-sum severance payment to senior employees represented by the union. This dispute was submitted to an arbitrator, who ruled in the union’s favor. Presented here is the question whether the arbitrator has the power to preclude such unilateral offer...
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MEMORANDUM AND ORDER This action arises out of the attempt by the National Credit Union Administration (“Administration”) to enforce an administrative subpoena against Mullen & Co. (“Mullen”), an accounting firm. The targets of the Administration’s investigation have been permitted to intervene to assert an attorney-client privilege in certain of the documents on the ground that two out o...
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RULING ON PENDING MOTIONS Plaintiff seeks to remand this case to the Hartford Superior Court pursuant to 28 U.S.C. § 1447(c). Defendant moves to dismiss on the basis that (1) plaintiffs state law claims are preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.; and (2) the action is not ripe and will become moot upon the conclusion...
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MEMORANDUM OPINION This is an action for compensatory damages allegedly caused by the medical malpractice of the medical staff of the Veterans Administration Hospital (hereinafter “the VA”) in Shreveport, Louisiana. VA personnel discharged Elmer L. Maddox from the VA emergency room and Mr. Maddox suffered a stroke several hours later that ultimately took his life. The plaintiffs, Ginger F. Maddox,...
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ORDER Through its counsel Chung and Stein, on September 17, 1987 Refac International, Ltd. (“plaintiff” or “Refac”) commenced this action against 118 named defendants, *284alleging infringement of its specified patents. Assigned then, as now, by District Court Judge Terry J. Hatter, Jr. to manage discovery disputes, the undersigned Magistrate Judge (then a Magistrate) first sanctioned plaintiffs ...
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MEMORANDUM OPINION This is a patent infringement action involving a dispute over U.S. Patent No. 4,497,520 as narrowed by reexamination certificate B1 4,497,520 (collectively the ’520 patent). After a two week trial, the jury returned a verdict for the plaintiffs. The defendant now moves for a judgment notwithstanding the verdict (JNOV) on the issue of lost profits, willful infringement, ...
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ORDER RE: DEFENDANT’S MOTION FOR ORDER STAYING DEPOSITION (DOCKET ENTRY #57) and DEFENDANT’S MOTION FOR PROTECTIVE ORDER (DOCKET ENTRY #58) The defendant has filed two motions: (1) Motion for Order Staying Deposition (Docket Entry # 57); and (2) Motion For Protective Order (Docket Entry # 58). The defendant, Internal Revenue Service (“IRS”), contends, in support of the motions in question, that fu...
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OPINION AND ORDER BACKGROUND This case has been referred to me to hear and determine discovery motions. Presently before the court is a motion for a protective order filed by the United States of America barring the disclosure of certain documents sought by plaintiff based upon an assertion of the state secrets privilege. For the reasons set forth below I grant the protective order as requested. ...
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ORDER RE: MOTION TO DISSOLVE EX PARTE ATTACHMENTS OF DEFENDANTS ARSENAL AUTO REPAIRS, INC., ZAREH TIRINKIAN, LENA TIRIN-KIAN, JACK MARKARIAN, PETER MARKARIAN, TARJA MARKARIAN, AND HAROUTIOUN MARKARIAN (DOCKET ENTRY # 217) The Aetna Casualty & Surety Company (hereinafter “Aetna”) brought this action *331against numerous defendants, consisting of individuals and autobody shops, for violation of the...
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MEMORANDUM The plaintiffs are former independent insurance agents who served a complaint on defendant Nationwide Mutual Insurance Company (“Nationwide”) in March, 1991. The plaintiffs’ claim involves the percentage rate of commission that Nationwide paid to them for selling Nationwide motor vehicle insurance policies during the years 1982 through 1989. The plaintiffs argue that, under Mas...
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OPINION Courtland C. Pitts brought this application for federal habeas relief from his state court conviction. Pitts was convicted in February 1983 of ten counts of felony theft and five counts of misdemeanor theft, but acquitted of one count of felony theft and sixteen counts of third degree burglary. He was sentenced to two years imprisonment for each felony count and one year imprisonm...
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OPINION Petitioner Floyd Murray Bruce, who has been held in the custody of the Immigration and Naturalization Service (“INS”) at their detention center in New York City for the past twenty-nine months, brings this petition for habeas corpus under 28 U.S.C. § 2241 (1988). For the reasons discussed below, the petition is denied. BACKGROUND Petitioner Bruce arrived at JFK Internati...
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ORDER For the reasons stated herein, petitioner’s motion for attorney fees under Sec. *1303206 of the Social Security Act is granted in the amount of $11,361.50. I. FACTS Petitioner, Dorie Budlow has acted as attorney for the plaintiff, Paul Rallo in his quest to gain social security benefits due to his disability. Although he was ultimately successful, his claim was at first denied at the adminis...
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ORDER Plaintiff Michael Stewart has brought suit against Aurora police officers Kary Roe and Robin Trettenero; the Mayor of Aurora, David Pierce; and the City of Aurora claiming that they engaged in or sanctioned conduct that deprived him of his constitutional rights in violation of 42 U.S.C. § 1983. Plaintiff’s suit is based upon allegations of excessive force used by police officers of the ...
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ORDER For reasons stated herein, ATX’s motion to dismiss this complaint for lack of personal jurisdiction is denied. ATX’s motion to transfer this case to the Northern District of California is granted. I. FACTS The plaintiff, Sky Valley Limited Partnership (“Sky Valley”) is a limited partnership formed solely to acquire and develop the Sky Valley Project (“the project”), a mass...
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MEMORANDUM OPINION Plaintiff Wayne Baker has brought this lawsuit claiming that the application of one of the State of Alabama’s obscenity statutes, § 13A-12-131 of the 1975 Code of *1513 Alabama, as amended, to a bumper sticker on his truck violates his right to freedom of expression protected by the first and fourteenth amendments to the United States Constitution as enforc...
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CONSOLIDATED RULING ON DISCOVERY MOTIONS The background to these lawsuits is set forth in the Court’s November 9, 1990 Ruling on defendants’ motion to dismiss, 754 F.Supp. 264. To summarize, these suits were initiated following the February 14, 1990 public announcement that quantities of benzene, a possible carcinogen, had been identified in Perrier Water. Plaintiffs have asserted claims for viol...
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MEMORANDUM On June 28, 1989, Internal Revenue Service (“I.R.S.”) special agents seized garbage from the curb in front of defendant’s home in West Roxbury. Finding much of the trash shredded, the agents “painstakingly reconstructed” it. Application for Search Warrant, Aff. of Agent Dennis J. Wlodyka dated August 15, 1991 ¶ 5F (hereinafter “Wlodyka Aff.”). The agents later relied upon the r...
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MEMORANDUM Before the Court is plaintiff Algemene Bank Nederland, N.V.’s (“Algemene”) motion for summary judgment against defendant Hailwood Industries, Inc. (“Hall-wood”). Algemene is a Netherlands corporation which has brought this collection action under this court’s diversity jurisdiction to recover approximately $238,000 that it alleges Hailwood and Retail Acquisition Corporation (“R...
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MEMORANDUM I. INTRODUCTION. Before the court is defendants’ motion for summary judgment, plaintiff’s response, and defendants’ reply. Before addressing the merits of defendants’ motion, the court will set forth the relevant facts. Defendants in this action served as members of the Pennsylvania Real Estate Commission ("PREC”) in 1988. One of the duties of the PREC is to approve o...
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This matter comes before the court on the Defendant’s, DONALD L. BRADY (“BRADY”), Motion for Remand (DE 5) and the Plaintiff’s, RESOLUTION TRUST CORPORATION (“RTC”), Motion for Rehearing and to Vacate Final Judgment and Order Denying Motion to Strike Inadmissible Parol Evidence in Accordance with the Eleventh Circuit’s Order of Remand (DE 14). Having reviewed the record, the mem-oranda of counsel ...
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ORDER This action is before the court on defendant’s motion for summary judgment and plaintiff’s cross-motion for summary judgment. Background At issue in the case is whether plaintiff’s receipt of punitive damages from settlement of a 42 U.S.C. § 1983 action comprises gross income under I.R.C. § 104(a)(2) (1986). Count I of the complaint seeks a refund of $68,516.00 and sta...
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776 F. Supp. 290 (1991) Johnny DUPREE, et al., Plaintiffs, v. Ray MABUS, Governor of Mississippi, et al., Defendants, The Lamar County Board of Education and Trustees, in their official capacities and Forrest County School District and the Members of the Board of Trustees in their official capacities, Defendants/Intervenors. Civ. A. No. H90-0043(W). United States District Court, S.D. Mississippi,...
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OPINION This case involves Capital Data Corporation’s (“CDC”) efforts to foreclose on a mortgage it was allegedly given by Capital National Bank (“CNB”) as collateral to secure CNB’s performance on a stock purchase agreement. Because CNB was declared insolvent in July 1990, the Federal Deposit Insurance Corporation (“FDIC”) and Resolution Trust Corporation (“RTC”) were named as defendants...
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MEMORANDUM OPINION AND ORDER Petitioner, Elite Inc., (“Elite”) moves to vacate an arbitration award issued by the American Arbitration Association (the “AAA”) on November 14, 1990. Respondent, Texaco-Panama Inc. (“Texaco”) cross-moves to confirm that award. For the reasons that follow, petitioner’s motion is denied, and respondent’s motion is granted. BACKGROUND On or about May ...
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MEMORANDUM OPINION AND ORDER This cause is before the court on the motion of defendant The Prudential Insurance Company of America (Prudential), and the cross-motion of plaintiff Sylvia King Chambers for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Each party has responded to the motion of the other and the court has considered the memoranda of authorities...
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OPINION AND ORDER Background Plaintiff Arnold Levy has brought this action to obtain a tax refund from the United States. He alleges that he overpaid taxes in 1983 because the Internal Revenue Service (the “IRS”) awarded a tax credit to his former wife, Carole Levy, that it should have awarded to him. The dispute concerns payments relating only to tax year 1983. In that year, whi...
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MEMORANDUM AND ORDER This case comes before the court, pursuant to 18 U.S.C. § 3145(b), upon Gerald Carlos’ petition to review the order of detention entered by Magistrate John B. Wooley on March 5, 1991. In that order, Magistrate Wooley concluded that the defendant had not rebutted the presumption that he posed a flight risk and a danger to the safety of the community and ordered the defendant...
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ORDER In this diversity action, plaintiffs Orono Karate, Inc. (“Orono, Inc.”), a Maine corporation, and its president and sole stockholder, Maine resident Roger Fagan, seek damages from defendant Fred Villari Studio of Self Defense (“Villari”), a Massachusetts corporation. Under both tort and contract theories, plaintiffs seek recovery for the alleged breach by Villari of a licensing agre...
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MEMORANDUM OPINION This matter is before the court on the plaintiffs’ motion for summary judgment and on the defendants’ motion for summary judgment. These cross-motions for summary judgment have been fully briefed and were orally argued on September 13, 1991. They are ripe for a decision. For the reasons expressed below, plaintiffs’ motion for summary judgment will be granted, in part, a...
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OPINION AND ORDER Carlos Pizarro petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the writ is denied and the petition is dismissed. I On May 2, 1979, petitioner Carlos Pizarro was convicted in New York State Supreme Court, New York County, for robbery in the first degree. See N.Y. Penal Law § 160.15 (McKinney 1988). ...
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*1222ORDER This matter is presently before the Court on the Government’s motion for partial summary judgment and defendant Sarah B. Tranakos’s motion for summary judgment. For the reasons stated below, the Court will grant the Government’s motion and grant in part and deny in part defendant’s motion. DISCUSSION 1. Summary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure provide...
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MEMORANDUM OPINION AND ORDER This diversity action arises from injuries that plaintiff sustained from a rhinoceros attack during the filming of an African wildlife documentary. Presently before the Court is defendants’ motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting them partial summary judgment dismissing the complaint’s fourth and fifth neglige...
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MEMORANDUM AND ORDER On July 26, 1991, the court held a hearing on a number of pretrial motions filed by the defendants. The purpose of this memorandum and order is to memorialize the rulings made by the court at the hearing and to address the unresolved motions. In resolving these motions, the court recognizes, pursuant to the order of the magistrate judge, that each defendant is deemed ...
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MEMORANDUM OPINION AND ORDER GRANTING FDIC’S MOTION FOR SUMMARY JUDGMENT and GRANTING PEOPLES HERITAGE SAVINGS BANK’S MOTION FOR SUMMARY JUDGMENT These consolidated actions 2 are presently before the court on (1) the motion of the Federal Deposit Insurance Corporation (FDIC), one of the defendants in the 88-75033 action, 3 for summary judgment, filed November 28, 199...
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ORDER WITHDRAWING THE REFERENCE TO THE BANKRUPTCY COURT This matter having been opened to the Court upon application of William E. Ban-don, P.C., attorney for defendant Volvo North America Corporation and Pitney, Hardin, Kipp & Szuch (Frederick L. Whit-mer, Esq.) of Counsel, for an Order withdrawing the reference of the above-captioned matter to the United States Bankruptcy Court for the ...
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ORDER Before the Court is an appeal by William J. Wimmer and Cynthia S. Wimmer, Debtors, from a final order of the Bankruptcy Court for the Central District of Illinois. This Court has jurisdiction to hear the appeal pursuant to 28 U.S.C. § 158(a). This Court affirms the order of the bankruptcy court. BACKGROUND The Debtors filed their voluntary petition under Chapter 7 of the B...
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ORDER Plaintiffs move for class certification. Defendants oppose the motion. Based on an examination of the relevant law, the court denies plaintiffs’ motion. I. Facts In May 1988, American Pioneer Savings Bank issued unsecured subordinated capital notes. American Pioneer offered the notes to obtain financing to meet federal regulations. The bank sold the notes in the lobbies of its branch office...
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MEMORANDUM AND ORDER On this 22nd day of May 1991, for decision by the court, is “Defendant Caton’s Motion to Compel” (Dkt. # 299) and Memorandum in Support thereof (Dkt. #300), both filed November 21, 1990. On December 10, 1990, plaintiff filed its Response thereto (Dkt. #304) and on January 4, 1991, Catón filed a Reply (Dkt. # 309). Plaintiff is represented by W. Gordon Dobie, Dan K. Webb and S...
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MEMORANDUM AND ORDER This case comes before the court upon the motion of American Bankers Insurance Company of Florida (American Bankers) to reconsider the court’s order denying its motion to set aside the judgment for bond forfeiture, or in the alternative motion for remission. American Bankers contends that it did not receive notice of the government’s motion to amend the judgment of bond for...
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MEMORANDUM AND ORDER On February 27, 1987, Frank Rosile, a Boeing employee, died. This ease arises out of Carolyn Rosile, Frank Rosile’s wife’s, action to recover life insurance benefits under a group plan life insurance policy issued by Aetna Life Insurance Company (Aetna) to The Boeing Company (Boeing). Rosile’s claim for benefits arises out of the Employee Retirement Income Security Ac...
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ORDER THIS MATTER comes before the Court on Defendant United States Department of State Foreign Service Grievance Board’s Motion to Dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Defendant also has moved for attorney’s fees under Fed.R.Civ.P. 11 (“Rule 11”). The motion has been fully briefed by the litigants. Jurisdiction is based on 22 U.S.C.A. § 4140 (West 1990). For the reas...
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MEMORANDUM OPINION AND ORDER Evelyn Pettyjohn is forty six years of age. She has suffered from a variety of ailments for in excess of fifteen years: obesity, hypertension, heart murmurs and significant bouts of depression. Most of her afflictions are minor, and insufficient to ground a claim for a disability allowance; however, her muscular and spinal disorders are chronic and severe. They *14...
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SUPPLEMENT TO MEMORANDUM OPINION AND ORDER This belated supplement to this Court’s September 10, 1990 memorandum opinion and order (the “Opinion,” 758 F.Supp. 1218) has been triggered by one party’s just having pointed out an inadvertent error in the Opinion — but an error that, as the discussion here will make plain, in no way affects the substantive decision reached in the Opinion. What has giv...
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