#### Eva ALLEN et al. v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, etc., et al.

Civ. A. No. 1333.

United States District Court E. D. Virginia, Richmond Division.

June 14, 1961.

See also, D.C., 28 F.R.D. 358.

S. W. Tucker, Emporia, Va., Robert L. Carter, New York City, Oliver W. Hill, Richmond, Va., for plaintiffs.

St. John Barrett, Asst. U. S. Atty. Gen., for the United States Attorney General.

J. Segar Gravatt, Blackstone, Va., Denny, Valentine & Davenport, Richmond, Va., Frederick T. Gray, Atty. Gen. of Virginia, for defendants.

Joseph S. Bambacus, U. S. Atty., Richmond, Va., for the United States.

LEWIS, District Judge.

This case came on to be heard upon the motions to dismiss the amended supplemental complaint, upon the written briefs and argument of counsel.

The principal contentions of the various defendants in support of their motions to dismiss are summarized as follows :

The amended supplemental complaint is a suit against the Commonwealth of Virginia in contravention of the Eleventh Amendment to the Constitution of the United States.

The Doctrine of Abstention should be invoked.

The injunctive relief requested cannot be granted except by a district court of three judges.

The amended supplemental complaint created a new cause of action.

The paramount question raised by the amended supplemental complaint is, whether or not the defendants, individually or in concert with each other, are deliberately circumventing or attempting to circumvent or frustrate the order of this Court.

On that question the plaintiffs are entitled to be heard.

Therefore, the motions to dismiss are herewith denied, without prejudice to the rights of the defendants or any of them to renew their motions upon the conclusion of the hearing if they are then so advised.

If during the course of the hearing the Court is of the opinion that it will be necessary to construe and/or interpret certain sections of the Constitution of Virginia or the statutes made pursuant thereto, pertaining to the maintenance of a system of free public schools, not here*368tofore passed upon by the Supreme Court of Appeals of Virginia, further proceedings herein will be stayed for a reasonable period to permit the parties or any of them to institute appropriate action in the state courts.

Likewise, if a district court of three judges is deemed necessary pursuant to Title 28, Section 2284, United States Code, further proceedings herein will be stayed until such a court can be convened.

The defendants are granted twenty days from the date of this opinion to file their answer and/or other responsive pleadings to the amended supplemental complaint.

July 24, 1961, at 10:00 o’clock a. m., E.D.S.T., is fixed as the date for the hearing on the merits. A formal pretrial of the issues to be heard will be scheduled for July 10, 1961, at 4:00 o’clock p. m., E.D.S.T., if requested by any of the parties, otherwise counsel for all parties shall ten days before the trial date exchange with each other copies of all exhibits intended to be introduced as evidence. Formal proof of authenticity of such document will be deemed to be waived unless objected to in writing three days prior to trial, in which event the offering party must be prepared to offer the necessary formal proof. All other questions of admissibility such as relevancy, etc., will be ruled upon when and as the exhibit is offered in evidence.

Counsel for all parties shall also within the same time limits exchange lists showing the names and addresses of all witnesses they intend to call. The name and address of later discovered witnesses must be exchanged when and as discovered, otherwise witnesses presented on the date of the trial will not be permitted to testify except by leave of Court for good cause shown.

Counsel for the plaintiffs should prepare an order in accord with the foregoing, submit same to counsel for defendants for approval as to form, and it will be accordingly entered effective this date.