Beal v. Bahan CV-94-526-JD 05/31/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert P. Beal

v. Civil No. 94-526-JD

G. Michael Bahan, et al.

O R D E R

The plaintiff, Robert P. Beal, brought this action against

the defendants, G. Michael Bahan and NYNEX, seeking damages

related to the procurement and execution of a warrant to search

Beal's residence. Before the court are the defendants' motions

for summary judgment (document nos. 2 0 and 21).

Background

On June 20, 1994, Bahan, an investigator for the New

Hampshire Attorney General's Office, obtained a warrant to search

the plaintiff's home in Manchester, New Hampshire, for evidence

that the plaintiff, a private investigator, had gained

unauthorized access to a computer system in violation of New

Hampshire Rev. Stat. Ann. § ("RSA") 638:17. The warrant

permitted Bahan to seize from Beal's residence a variety of

computer eguipment and computer-related items normally employed

to permit unauthorized access to computer networks, as well as

various items and documents related to Beal's business, including rolodexes, day books and journals, notebooks, electronically

printed paper, billing invoices, accounts receivable, accounts

payable, corporate information, and data provided to subscribers

of the plaintiff's information services.

In support of his application for a warrant, Bahan supplied

a lengthy and detailed affidavit describing an investigation that

commenced in 1990, when New England Telephone, NYNEX's

predecessor, learned that Beal's agency was selling unpublished

telephone listings. Bahan Affidavit in Support of Warrant

("affidavit 1"). The affidavit describes several occasions on

which Warren Brown, a NYNEX security manager, acting in concert

with federal and, later, state law enforcement agents, executed

controlled purchases of unpublished telephone listings, toll

records, and criminal records from the plaintiff. The affidavit

indicates that the plaintiff was able to provide unpublished

listings and toll records either by contacting an information

service over the telephone or through "social engineering," a

process through which outsiders gain access to NYNEX listings by

telling NYNEX telephone operators that they are NYNEX employees.

The affidavit also suggests that Beal obtained criminal records

through a source at the Franklin, New Hampshire, police

department. However, the affidavit does not contain any direct

allegations that the plaintiff ever used his own computer to

2 access the NYNEX network or that of the Franklin police

department, and reveals that federal authorities, who had ceased

their investigation in 1993, had concluded that Beal was not

obtaining information through "hacking." Affidavit 1, 55 49-52.

At 8 a.m. on June 23, 1994, Bahan and several state police

officers executed the search warrant. Bahan enlisted Brown and

Peter Schofield, another NYNEX employee, to assist in identifying

any potentially incriminating evidence in the plaintiff's

residence.

After the search began the plaintiff was ordered to stay

away from the cellar of his home, where his office was located.

The plaintiff left the premises and returned with his attorney,

who, after first being denied access to the cellar, made his way

downstairs and found Brown and Schofield in the plaintiff's

office, where Brown was inspecting the plaintiff's files. The

plaintiff's attorney demanded that the NYNEX employees' role

cease, but his reguest was not heeded. The search continued,

both in the office, where at least one state police officer was

present at all times, and throughout the rest of Beal's

residence. The search ended at approximately 11:30 a.m., by

which time virtually all of the plaintiff's office eguipment and

records had been seized. Neither the plaintiff nor the

plaintiff's counsel had an opportunity to inspect the items that

3 were seized. The NYNEX employees also videotaped part of the

search.

The plaintiff has not been charged with any crime involving

a violation of RSA 638:17. He brought this action alleging a

variety of state and federal claims against Bahan and NYNEX

arising out of the application for and execution of the search

warrant. In Count I, he claims that Bahan violated his rights

under the Fourth, Fifth, and Fourteenth Amendments by making

intentional misrepresentations under oath in obtaining a warrant,

by ordering that he be removed from the interior of his home

during the search, by directing NYNEX employees to search through

and inspect his files, and by permitting them to inspect

documents outside the scope of the warrant. In Count II Beal

alleges that the NYNEX employees, who knew that Beal had not

violated RSA 639:17, violated his rights under the Fourth, Fifth,

and Fourteenth Amendments by entering his house and searching his

files without authorization, by inspecting documents and areas

outside the scope of the warrant, and by instructing the police

to seize records not described in the warrant. Count III alleges

that Bahan violated the plaintiff's state law rights under Part

I, Article 19 of the New Hampshire Constitution, committed a

fraud on the plaintiff by failing to identify certain members of

the search team as NYNEX employees, invaded the plaintiff's

4 privacy by publicly portraying him in a false light, and, in

lying in support of his application for a search warrant,

committed a felony for which the plaintiff is entitled to

compensation. Count IV alleges that NYNEX employees communicated

false information to the New Hampshire Attorney General's Office,

committed a fraud by failing to identify themselves at the

search, committed the tort of intrusion, and violated RSA 644:9

by videotaping the search and RSA 635:2 by entering the

plaintiff's property without proper authorization.

Discussion

Summary judgment is appropriate when material facts are

undisputed and the moving party is entitled to judgment as a

matter of law. Rodriguez-Garcia v. Davila,

(1st

Cir. 1990) (citing Fed. R. Civ. P. 56(c)). The burden is on the

moving party to establish the lack of a genuine, material factual

issue, Finn v. Consolidated Rail Corp.,

(1st Cir.

1986), and the court must view the record in the light most

favorable to the nonmovant, according the nonmovant all

beneficial inferences discernable from the evidence. Caouto v.

Boston Edison Co.,

(1st Cir. 1991). However,

once the movant has made a properly supported motion for summary

judgment, the adverse party "must set forth specific facts

5 showing that there is a genuine issue for trial." Anderson v.

Liberty Lobby, Inc.,

(1986) (citing Fed. R.

Civ. P . 56 (e)).

The court addresses the defendants' motions for summary

judgment as they relate to the plaintiff's individual claims.

I. Federal Claims Against Bahan In Count One

A. False Statements and Material Omissions in Support of the Search Warrant

The plaintiff alleges that Bahan made false statements and

material omissions in support of his application for a search

warrant, and that Bahan's misrepresentations violated the Fourth

Amendment and thus give rise to an action under

.

See Franks v. Delaware,

(1978) (finding of probable

cause invalid if based on material misrepresentations); Krohn v.

United States,

(1st Cir. 1984) (recognizing civil

action based on Franks violation). In support of his motion for

summary judgment on the plaintiff's Franks claim, Bahan has

submitted a copy of the search warrant, including affidavit 1

which he prepared in support of his warrant application, along

with an affidavit he prepared in connection with this lawsuit

("affidavit 2") .

Plaintiff asserts that Bahan gave oral testimony under oath

to the state district court judge ("district court") to the

6 effect that the plaintiff used his computer and modem to access

NYNEX data banks. Bahan in affidavit 2 denies that he provided

any oral testimony to the district court. While there is

parenthetical language in what appears to be a standard warrant

form that oral statements under oath were given, plaintiff's

assertion concerning the content of any such statements is at

best conjectural. The plaintiff has been unable to produce the

judge's notes or other concrete evidence concerning the content

of those statements. See RSA 595-A:4. Plaintiff's counsel

represents in his brief in opposition to the motion for summary

judgment at p. 21 that he was informed by the district court that

Bahan had not provided any of his "personal knowledge" by oral

testimony. In light of this representation by plaintiff's

counsel and Bahan's statement in affidavit 2 that he gave no oral

testimony, it appears likely the district court may have

overlooked crossing out the parenthetical reference to oral

statements on the standard warrant form. The plaintiff's

conjectual assertions concerning Bahan's oral testimony are

insufficient to generate a disputed issue of material fact.

Bahan presented the district court with a very detailed

affidavit. As part of the representations he made in the

affidavit, he stated that FBI Special Agent Robert Keane informed

him on April 28, 1993, that the plaintiff had not obtained non­

7 published numbers and telephone toll records through hacking but

through fraud. Affidavit 1, 5 49. When the justice department

decided to close the case because it did not meet certain

prosecutorial guidelines, it had yet to be determined if the

plaintiff obtained non-published numbers by means of social

engineering. Affidavit 1, 5 50. When the federal investigation

ended, Keane said he had not yet determined how or from whom the

plaintiff obtained telephone toll records although the plaintiff

obtained most of his information from computer databases.

Affidavit 1, 5 52. Bahan also states in affidavit 2 that NYNEX

employees did not tell him that the plaintiff was or was not

gaining access to the NYNEX database through his computer.

Affidavit 2, 5 8.

Affidavit 1 was detailed and complete. It contained the

investigative history of the case up to the time the search

warrant was applied for. Bahan did not represent to the district

court that the plaintiff was hacking. The affidavit makes it

clear that it was not known how the plaintiff was obtaining toll

records from NYNEX. The affidavit does state that an individual

involved in computer fraud and long distance toll fraud normally

employs certain eguipment listed in the affidavit. Affidavit 1,

5 94.

8 The court finds that the plaintiff has failed to generate a

material factual dispute over whether Bahan made material

misrepresentations or omissions in affidavit 1 and misled the

district court.

B. Probable Cause for Issuance of the Search Warrant

The plaintiff claims that there was no probable cause for

the issuance of the search warrant. In St. Hilaire v. City of

Laconia,

(1st Cir. 1995), petition for cert.

filed,

(1996), the court states:

Whether or not there was probable cause for the warrant, defendants are entitled to qualified immunity unless "the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Mallev v. Briggs,

, 106 S. C t . 1092, 1098,

(1986).

Bahan's affidavit must be viewed at least in part in the

context of the law defining the criminal offense which he was

investigating. RSA 638:17, I, II, and IV define the computer-

related criminal offenses for which Bahan believed probable cause

existed for the issuance of a warrant. RSA 638:17 states in

relevant part:

I. A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he knowingly accesses or causes to be accessed any computer system without authorization. II. A person is guilty of the computer crime of theft of computer services when he knowingly accesses or causes to be accessed or otherwise uses or causes to be used a computer system with the purpose of obtaining unauthorized computer services. •k -k -k

IV. A person is guilty of the computer crime of misuse of computer system information when:

(A) As a result of his accessing or causing to be accessed a computer system, he knowingly makes or causes to be made an unauthorized display, use, disclosure, or copy, in any form, of data residing in, communicated by, or produced by a computer system.

(Emphasis supplied). It is evident that the broad language of

the statute applies to the actions of any individual who directly

or indirectly gains unauthorized access to a computer system or

its data.

The parties view and interpret the array of facts relating

to the issuance of the warrant differently. While in some

instances there are disputed facts, the court finds that there

are no genuine issues of material fact in dispute. The plaintiff

has viewed the facts from a perspective that is consistent with

his claim of innocence while Bahan has viewed the facts from the

perspective of an investigator who concluded they constituted

probable cause to believe criminal offenses had been committed.

As long as he was acting in an objectively reasonable manner,

Bahan was entitled to bring his knowledge and experience to bear

in interpreting the facts of which he was aware. Bahan states in

10 affidavit 1 that he did bring his knowledge and experience to

bear. While the plaintiff challenges this assertion, he has not

produced evidence to successfully refute it. Taking into account

the statute in guestion and the factual information that Bahan

had available to him, the court finds that the affidavit in

support of the warrant contained reasonable indicia of probable

cause and that Bahan's belief that he had probable cause was

objectively reasonable. Therefore, Bahan is entitled to

gualified immunity in connection with obtaining the search

warrant and acting pursuant to it.

C. Conduct of the Search and Seizure

The plaintiff bases his unreasonable search and seizure

claims against Bahan on his assertions that Bahan (1) ordered him

away from the premises and directed the NYNEX employees to search

his office; and (2) ordered the NYNEX employees to inspect

confidential files in the plaintiff's office, including documents

that were outside the scope of the search warrant. Bahan argues

that summary judgment is warranted on the remainder of the

plaintiff's federal claims against him because he is entitled to

gualified immunity and, in any event, because he did not violate

the plaintiff's rights.

While the plaintiff in his affidavit (Beal affidavit, 55 15-

19) claims that Bahan ordered him out of his house, Bahan in

11 affidavit 2, 5 12, contradicts this. This dispute is not

material because even under the plaintiff's version of the facts,

the plaintiff did not have a clearly established right to be

present at the time of the search or to inspect the items seized.

The Supreme Court has held that the right to search for

contraband pursuant to a valid warrant includes the right to

detain a resident of the place to be searched, Michigan v.

Summers,

(1981). Those executing a warrant

have a legitimate interest not only in their own safety but also

in their ability to complete the search without interference by

the occupant or by his attorney. To the extent that the

plaintiff was instructed to remain outside the residence while it

was being searched, the incursion on his liberty was far less

intrusive than if he had been detained in a police car or at the

police station. Indeed, the plaintiff was at liberty to leave,

as he in fact did, to visit his minister and attorney, and to

return later with his attorney. The plaintiff has cited no case

that supports his contention that he had a right to be present

during the execution of the search warrant and the court has not

found any federal case law standing for the proposition that a

suspect has a clearly established right to be present during the

search of his home. Accordingly, the court finds that defendant

Bahan's behavior was objectively reasonable under federal law at

12 the time and under the circumstances of the action at issue, see,

e.g., Ranieri v. Hillsborough County Pep't of Corrections, No.

93-118-JD, slip. op. at 13 (D.N.H. Jan 9, 1996) (citing Harlow v.

Fitzgerald,

(1982)).

Bahan's enlistment of two NYNEX employees to assist with the

search does not constitute a violation of the plaintiff's Fourth

Amendment rights. The undisputed record indicates that Bahan

invited Brown and Schofield to participate in the search because

of the expertise they could provide in identifying inculpatory

evidence. RSA 595-A:9 provides that "an officer executing a

search warrant may take with him suitable assistants and suffer

no others to be with him." Because of the expertise Brown and

Schofield possessed, they were gualified as "suitable assistants"

under the statute, and therefore Bahan acted properly in

reguesting them to assist him in executing the warrant. The

plaintiff has failed to rebut the testimony in affidavit 2 on

this matter with anything except conclusory allegations. Cf.

United States v. Clouston,

(6th Cir. 1980)

(reversing district court's finding that presence of phone

company employees rendered search unconstitutional where

employees were present pursuant to

in aid of

officers authorized to search for electronic devices pursuant to

search warrant).

13 It is evident from a review of the warrant in this case that

it is quite broad. The First Circuit has recognized that

"seizing business records in a fraud investigation presents

special problems" and that "especially difficult is the case

where the files contain a mixture of 'bad' material (supported by

probable cause) and 'innocent' material." United States v. Diaz,

(1st Cir. 1988). Warrants of this nature are often

acceptably broad by necessity and agents executing them may need

to defer to the greater legal knowledge of a judge or magistrate

in order to know where to "draw the line."

Computer fraud

presents even greater difficulty because files can be generated

and stored on disks or in a memory and there is a variety of

equipment ancillary to the computer that can be used in

connection with the fraud. While the plaintiff and Bahan

disagree over whether attorney-client materials were actually

seized, the plaintiff has failed to generate a genuine issue of

material fact concerning whether Bahan and his assistants acted

unreasonably, even if it is assumed that some attorney-client

materials were seized, given the nature of the charge and the

breadth of the warrant they were executing.

The court finds that Bahan's conduct in executing the

warrant was objectively reasonable and therefore he is entitled

to qualified immunity.

14 Bahan's motion for summary judgment is granted as to count

one.

II. Federal Claims Against NYNEX in Count Two

In count two, the plaintiff claims that NYNEX employees

Brown and Schofield orchestrated and participated in the state's

investigation of the plaintiff, knowing that he was not using his

own computer to violate RSA 638:17, in order to put him out of

business, and further claims they participated in an unauthorized

search of his premises which also exceeded the scope of the

warrant. NYNEX argues that it is entitled to summary judgment on

the ground of gualified immunity because its employees were

performing a public function by assisting with the investigation

and because a reasonable official in their position would not

have understood that his conduct violated the plaintiff's clearly

established rights.

The First Circuit has recognized that in some circumstances

private actors who act under color of state law, and thus are

subject to liability under

, may also enjoy

gualified immunity. In Rodrigues v. Furtado,

(1st

Cir. 1991), the court held that gualified immunity was available

to a private physician who performed a vaginal cavity search

pursuant to a search warrant. In reaching its conclusion, the

15 court noted that the physician was not acting out of self-

interest but, rather, had been pressed into service by the state,

and that granting the physician gualified immunity for his

actions would be consistent with public policy.

;

accord Frazier v. Bailey,

(1st Cir. 1992)

(social workers under contract with government to perform duties

statutorily reguired of state entitled to gualified immunity).

However, in Felix de Santana v. Velez,

(1st Cir.),

cert, denied,

(1992), the First Circuit declined to

extend gualified immunity to a defendant who allegedly conspired

with an assistant district attorney to maliciously prosecute the

defendant's co-worker. The Velez court distinguished Rodrigues,

noting that the defendant acted out of self-interest, and

expressed a "hesitat[ion] to extend gualified immunity carte

blanche to private defendants in malicious prosecution cases

because of the potential abuses and conseguences inherent in

criminal prosecutions." Id. at 20.

Brown testifies in his affidavit that he is the staff

manager of security for NYNEX and in June of 1994 held the same

position with New England Telephone. Brown Affidavit 5 1. As

part of his duties, he refers matters involving potential

criminal activity to law enforcement authorities for

investigation and prosecution. Brown Affidavit, 5 2. In 1993,

16 he presented information to Bahan, an investigator with the New

Hampshire Attorney General's Office, concerning the plaintiff's

"potential involvement in causing the unauthorized access of

proprietary information contained in NYNEX data banks." Brown

Affidavit, 5 3. Any work Brown did on the case was "at the

reguest of and under the direction of" Bahan and all information

provided by him to Bahan was "true and accurate" to the best of

his knowledge and belief. Brown Affidavit, 5 4. Brown did not

participate in preparing, reviewing or obtaining the search

warrant. Brown Affidavit, 55 5, 6, 7. As noted above, Bahan was

not told by NYNEX that the plaintiff was or was not hacking.

Affidavit 2, 5 8. Furthermore, Bahan represented to the district

court that the plaintiff obtained non-published numbers and

telephone toll records through fraud and not through hacking.

Affidavit 1, 5 49. As previously stated, Bahan's conclusion as

to probable cause was based on the facts he set forth in

affidavit 1 and his knowledge and experience.

The undisputed evidence indicates that neither Brown nor

Schofield played any role in obtaining the search warrant. While

the plaintiff makes conclusory statements that NYNEX falsely

accused him of using his computer to enter NYNEX data banks in

order to put him out of business, he has failed to generate a

genuine issue of material fact on this claim. It is not disputed

17 that Brown and Schofield were pressed into service by Bahan to

assist in executing the warrant, and the court has found, supra,

that Bahan's actions in so doing did not constitute a violation

of plaintiff's Fourth Amendment rights. Since the warrant in

guestion was objectively reasonable and facially valid, the

actions of Brown and Schofield in responding affirmatively to

Bahan's reguest were objectively reasonable and not in violation

of any clearly established law.

When the warrant was executed. Brown and Schofield at first

were reguired to wait outside the premises for approximately one

and one-half hours before being asked by Bahan to enter and

provide assistance. Brown Affidavit, 5 11. Brown was directed

to examine documents that had been located by law enforcement

officers and Schofield was directed to examine certain eguipment

and wiring. Id., 55 11-12. Brown understood that the documents

he was examining were within the scope of the warrant. Id., 5

11. Brown identified certain records that had potential interest

to the Attorney General's Office but law enforcement officers

made the final decision on which records to seize. Id. , 5 15.

Brown and Schofield acted under the direction of the Attorney

General's Office at all times. Id., 5 13. Attorney Tefft in his

affidavit testifies that he observed Brown reviewing files in a

filing cabinet in the plaintiff's office and that several state

18 police officers examined and logged documents that were found.

Tefft Affidavit, 55 10, 12, 14. The court finds that Attorney

Tefft's observations are not inconsistent with what Brown has

testified to in his affidavit.

The court relies on its previous rulings, supra, concerning

the execution and scope of the search. The undisputed record

reflects that Brown and Schofield were acting under the direction

of Bahan and the law enforcement officers present. The plaintiff

has failed to generate a genuine issue of material fact

concerning the role of Brown and Schofield and the scope of the

search as conducted by Brown and Schofield. Brown and Schofield

acted in an objectively reasonable manner in performing their

duties during the execution of the warrant and not in violation

of any clearly established law.

Mindful of the chilling effect that declining to extend

gualified immunity to NYNEX might have on private parties in a

position to cooperate with the police, see Rodrigues,

, the court finds that NYNEX is entitled to gualified immunity

against the plaintiff's federal claims. Defendant NYNEX's motion

for summary judgment is granted as to count two.

19 III. State Claims Against Bahan in Count Three

A. Constitutional Claim

The plaintiff claims that the Bahan violated Part I, Article

19 of the New Hampshire constitution by orchestrating an

unreasonable search of his residence and seizure of his

possessions. However, this court repeatedly has declined to

recognize an independent cause of action based on violations of

the New Hampshire constitution without guidance from the New

Hampshire Supreme Court. See, e.g., Kelley v. City of

Manchester, No. 94-358-M, slip op. at 28 (D.N.H. Sept. 29, 1995)

(no cause of action based on violation of state constitution's

guarantees of free speech, free association, and due process);

Penney v. Middleton,

(D.N.H. 1994) (egual

protection); Kimball v. Somersworth, No. 90-477-M, slip. op. at

5-9 (D.N.H. Feb. 17, 1993) (due process; unreasonable search and

seizure). The court finds these precedents persuasive and grants

summary judgment to Bahan on the plaintiff's constitutional

claim.

B. Fraud

Bahan argues that summary judgment is warranted on the

plaintiff's fraud claim because it fails to state a cause of

action. The plaintiff has not supplied and the court has not

20 found any authority for the proposition that an officer executing

a search warrant must identify any assistants who are not law

enforcement personnel, let alone the proposition that an

officer's failure to disclose this information can form the basis

for a fraud claim or any other cause of action. Accordingly, the

court grants summary judgment on the plaintiff's fraud claim

against Bahan.

C. False Light Invasion of Privacy

The New Hampshire Supreme Court has recognized in dicta that

a person's privacy may be invaded when another person generates

publicity that places him in a false light. Hamberger v.

Eastman,

,

(1964); see also

Robinson v. Caronia, No. 92-306-B, slip op. at 20 (D.N.H. Jan. 4,

1996). Here, the plaintiff has failed to allege that Bahan

publicly generated any information about the plaintiff, let alone

that the information generated placed him in a false light. The

plaintiff argues that the mere fact his residence was searched

placed him in a false light in the community. However, the court

declines to extend the false light tort to embrace such a

situation, and grants summary judgment to Bahan on the

plaintiff's false light claim.

21 D. Compensation of Crime Victim

The plaintiff argues that he is entitled to compensation

under RSA 21-M:8-h because is the victim of a felony, namely,

Bahan's lying in a support of an affidavit for a search warrant

in violation of RSA 641. The argument is without merit. Such a

claim should be brought before the victim's assistance commission

under RSA 21-M:8-g. The court grants Bahan's motion for summary

judgment on the plaintiff's claim under RSA 21-M:8.

IV. State Claims Against NYNEX in Count Four

A. Fraud

For the reasons discussed supra, the court grants summary

judgment in favor of NYNEX on the plaintiff's fraud claim.

B. Intrusion

Under New Hampshire law, a person can commit the tort of

intrusion by invading another person's residence. Hamberger,

,

. However, liability only attaches

if the invasion would be highly offensive to a reasonable person.

See Restatement (Second) of Torts § 652A (1977)). Here, the

NYNEX employees entered and videotaped the plaintiff's home at

the reguest of and to assist a law enforcement agent executing a

valid warrant. As a matter of law, such an invasion is not

22 unreasonable. Accordingly, the court grants summary judgment to

NYNEX on the plaintiff's intrusion claim.

C. Violations of RSA 644:9 and RSA 635:2

Where, as here, a plaintiff alleges that the violation of a

penal statute forms the basis for a cause of action, the court

must consider whether the statute contains an express or implied

right of action. Everett v. Littleton Constr. Co.,

,

(1946); see also Marquav v. Eno, 13

, 713-14,

(1995). Neither of the statutes

cited by the plaintiff includes an express right of action based

on a violation of the statute. To the extent either statute

provides an implied right of action, the court notes that neither

prohibits conduct undertaken at the reguest of a law enforcement

agent. See RSA 635:2(1) (person guilty of criminal trespass if

he enters or remains in a place knowing that he is not privileged

or licensed to do so); id. 644:9 (prohibiting unlawful use of

photographic device in private place). Accordingly, the court

grants summary judgment to NYNEX on the plaintiff's claims based

on these statutes.

23 Conclusion

The summary judgment motions filed by the defendants

(document nos. 20 and 21) are granted. There are no remaining

claims. The case is closed.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge May 31, 1996

cc: Stanton E. Tefft, Esguire Stephen J. Judge, Esguire Peter W. Mosseau, Esguire James Caffrey, Esguire

24