211 F.Supp.2d 543 (2002)
Elaine L. CHAO, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
NORTH JERSEY AREA LOCAL POSTAL WORKERS UNION, AFL-CIO, Defendant.
Civ. No. 01-1536(DRD).
United States District Court, D. New Jersey.
June 27, 2002.
*544 *545 Jeffrey S. Rogoff, Office of the Regional Solicitor, U.S. Department of Labor, New York City, for Plaintiff.
Craig H. Livingston, Samer E. Khalaf, Ball Livingston, Nutley, NJ, for Defendant.

OPINION
DEBEVOISE, Senior District Judge.
This action by the plaintiff Secretary of Labor seeking an order pursuant to § 402(b) of the Labor Management Reporting *546 and Disclosure Act of 1959 nullifying a union election for nine office positions and directing a supervised new election for those offices comes before the court on the plaintiff Secretary of Labor's motion for summary judgment, the Defendant North Jersey Area Local, Postal Workers Union, AFL-CIO's motion for summary judgment, and the plaintiff Secretary of Labor's cross-motion for summary judgment on the defendant's affirmative defenses. For the reasons set forth below, the plaintiff Secretary of Labor's motion for summary judgment will be granted, the defendant North Jersey Area Local, Postal Workers Union, AFL-CIO's motion for summary judgment will be denied, and the plaintiff Secretary of Labor's cross-motion for summary judgment will be granted.

STATEMENT OF FACTS
The defendant, North Jersey Area Local ("NJAL" or "the Local") represents approximately 2,700 employees in postal facilities in northern and central New Jersey. (Rogoff Declaration, Exh. 4, at pp. 42-44, 52-53, and Exh. 6 at p. 17). In 1991, NJAL president Gary Weightman ("Weightman") and NJAL Secretary Treasurer John McGovern ("McGovern") were first elected to their respective offices. (Rogoff Declaration, Exh. 4 at p. 41). Weightman and McGovern were re-elected in 1994, 1997, and a regular triennial election was scheduled for April 2000. (Rogoff Declaration, Exh. 4 at pp. 65-67 and Exh. 6 at p. 31). In past elections, Weightman and McGovern ran on a slate together called the "Real Deal". (Rogoff Declaration, Exh. 4 at p. 41, and Exh. 6 at pp. 31-32). For the election in 2000, the Real Deal slate pooled its campaign funds and distributed joint campaign materials. (Rogoff Declaration, Exh. 4 at p. 81, and Exh. 6 at pp. 37-38). In addition to personally distributing campaign material, the Real Deal slate made three or four official mailings prior to the 2000 election. (Rogoff Declaration, Exh. 4 at pp. 77-78, and Exh. 9).
Dennis Bowie ran for President against Weightman on the "Keepin it Real In the New Millenium" slate (the "New Millenium slate") which fielded candidates for nine out of ten full time office positions which were to be filled. (Rogoff Declaration, Exh. 3 at pp. 37-38, Exh 8, Exh. 10). The New Millenium slate included candidates for the offices of President, Executive Vice President, Secretary-Treasurer, Director of Industrial Relations, Legislative Aide, Administrative Aide, Associate Editor, Chief Steward (NEWARK) and Chief Steward (PATERSON).[1] Like the Real Deal slate, the New Millenium slate campaigned together as a slate and distributed several campaign flyers. (Rogoff Declaration, Exh. 3 at. Pp. 37-38, Exh. 6 at pp. 36-37, and Exh. 10). A third slate led by Eddy Lanoue also fielded candidates in the 2000 election. (Rogoff Declaration, Exh. 3 at p. 38 and Exh. 4 at p. 73).
Nominating petitions for the 2000 election were submitted in February 2000. (Gerchak Affidavit, ¶ 7). The mail ballots were scheduled to be received by the members of the Local by March 31, 2000, and returned by April 18, 2000. (Gerchak Affidavit, ¶ 8). The vote was overseen and counted by the NJAL Election Committee. (Rogoff Declaration, Exh. 3 at p. 38 and Exh. 11). On April 19, 2000, the Election Committee sent a letter announcing the results of the election. Id. Weightman was once again re-elected as President. Weightman received 670 votes, Lanoue received *547 300 votes, and Bowie received 290 votes. (Defendants' Exhibit M). However, of the 1260 votes cast, candidates on the Real Deal slate were elected by voter margins ranging from 4 to 540. (Rogoff Declaration, Exh. 3 at 38 and Exh. 11).
In the 2000 election, the Real Deal slate initially supported Jack Dougherty ("Dougherty") for Executive Vice President. However, the Real Deal shifted its support to another candidate Frank Tie prior to the election after Weightman and Dougherty had a falling out.(Rogoff Declaration, Exh. 6 at pp. 31-36). Frank Tie ultimately won the office. Id.[2]
On or about March 3, 2000, the National Union of the American Postal Workers Union ("the National") announced to its local unions that it would waive the National's portion of an upcoming dues increase and challenged the locals to follow suit. (Rogoff Declaration, Exh. 29) Weightman felt that the Local should waive its portion of the dues increase because "[o]ur members are angry" about "lousy" contracts with low wage increases, and waiving the dues increase "would maybe be the right thing to do to make them happy." (Rogoff Declaration, Exh. 4 at pp. 104-109, and Exh. 6 at 42). Feeling "politically boxed in" and reacting to the pressure, President Weightman and Secretary Treasurer McGovern recommended to the Local's Executive Board that the Local waive its portion of the dues increase. (Rogoff Declaration, Exh. 4 at pp. 104-109, and Exh. 6 at p. 42).
The Local's Executive Board consisted of approximately twenty-five members. (Rogoff Declaration, Exh. 4 at pp. 104-109, and Exh. 6 at p. 42). The Executive Board's voting procedure required the Board members to be polled on various issues either by telephone or in person several times a year. (Rogoff Declaration, Exh. 6 at pp. 26-27). The votes of the individual Executive Board members are usually not identified or announced to the Local's members. (Rogoff Declaration, Exh. 4 at pp. 59-60, and Exh. 6 at p. 28). According to McGovern, everyone on the Executive Board voted in favor of the dues waiver except Bowie. (Rogoff Declaration, Exh. 4 at pp. 118, 124-126). Within a few days of the Executive Board's vote, the Local sent out a mailing to all members of the Local which bore the Local's logo and was written on the Local's letterhead stationary of President Weightman and Secretary Treasurer McGovern ("the Weightman-McGovern mailing"). (Rogoff Declaration, Exh. 4 at pp. 99-100, 114-115 and Exh. 12). All costs associated with this mailing to the 2700 members were paid by the Local. (Exh. 4 at pp. 99-100, and Exh. 6 at p. 45). The mailing's caption announced that the Local's Executive Board "ADOPTS REQUEST OF PRESIDENT & Secretary Treasurer" to waive the dues increase. (Rogoff Declaration, Exh. 12)(emphasis in original). The mailing further announced that the Executive Board had voted "overwhelmingly" to waive the Local portion of the dues increase, and in a footnote in small print stated that "[o]nly Director of Industrial Relations Dennis Bowie voted to raise the dues." Id. The mailing further stated that Weightman and McGovern had recommended the waiver "since the good financial condition of the Local would allow this." Id. The mailing concluded by assuring members that the battle against abusive management and postal privatization would go on. Id. The mention of Bowie's vote in the Weightman-McGovern mailing *548 included the only time an Executive Board member's vote was ever specifically identified and published to the membership. (Rogoff Declaration, Exh. 4 at pp. 59-60, 125-126, and Exh. 33 at p. 2, ¶ 1). On March 10, 2000, John McGovern mailed a letter to Robert Tunstall Secretary Treasurer of the National advising that the Executive Board had voted at the request of Weightman to waive the "local portion" of the dues increase scheduled for April in its entirety. (Rogoff Declaration, Exh. 32). The letter did not mention Bowie's alleged vote against the waiver. Id.
By letter dated March 13, 2000, Bowie protested the Weightman-McGovern mailing to Weightman. (Rogoff Declaration, Exh. 13). On March 14, 2000, Bowie also protested the mailing in a letter to Bruce Iverson ("Iverson"), the Election Committee Chair for the 2000 election ("the March 14th Protest"). (Rogoff Declaration, Exh. 3 at pp. 50, 53-58, and Exh. 14). President Weightman appointed Iverson to be Chair of the Election Committee for the 2000. (Second Rogoff Declaration, Exh. 3 at pp. 33). Iverson considered the March 14th Protest by Bowie to be timely. Id. at 61. Upon receipt of the March 14th Protest, Iverson requested a legal opinion from the local's counsel, Craig Livingston ("Livingston") of the law firm of Ball Livingston. (Rogoff Declaration, Exh. 3 at pp. 54-55). By letter dated April 3, 2000, Livingston wrote to Iverson with a copy to Bowie concluding that Bowie's protest on the dues waiver issue should be denied. (Rogoff Declaration, Exh. 3 at p. 58). Iverson took no further action concerning Bowie's protest of the mailing. Neither Bowie's protest, nor Livingston's April 3, 2000 letter was sent to the leadership. Id. Bowie received Livingston's letter on April 19, 2000. (Rogoff Declaration Exh. 5 at pp. 62-67, Exh. 16, and Exh. 22). On April 19, 2000, Election Chair Iverson sent a letter to the candidates stating:
the Election Committee hereby extends the time in which you may file an objection to or appeal of this election to five (5) days from this date [April 19, 2000]. Any objection(s) must be received at the front desk of the NJAL office by 3:00 p.m. on Monday April 24, 2000.
(Second Rogoff Declaration, Exh. 9). Furthermore, Iverson told the candidates, including Bowie, that all appeals would be considered and not to worry about the time deadline. (Second Rogoff Declaration, Exh. 3 at pp., 39-43). By letter dated April 20, 2000, Bowie appealed the decision denying his March 14th Protest to the National Election Appeals Committee ("NEAC").[3] (Rogoff Declaration, Exh. 5 at pp. 51-53, and Exh. 16). The Weightman-McGovern mailing was also appealed to both the Local and the NEAC by Eddy Lanoue and Salim Ali, members of the third slate running the election. (Rogoff Declaration, Exh. 5 at pp. 77-80, Exh. 26, Exh. 27 at ¶¶ 3, 6 and Exh. 28 at ¶¶ 2, 4).
On March 22, 2000, Tom Martin a candidate on the Weightman-McGovern Real Deal slate filed a one page protest with NJAL Election Chair Iverson seeking to disqualify Bowie "because he is [sic] convicted of narcotics laws." (Rogoff Declaration, Exh. 3 at pp. 64-65, and Exh. 18). The protest about Bowie was not accompanied by an affidavit or supporting documents. (Second Rogoff Declaration, Exh. 3 at. pp. 64-65). Iverson sought and received a legal opinion from the defendant's counsel concerning Tom Martin's protest. (Rogoff Declaration, Exh. 3 at pp. 65-66). Defendant's counsel wrote a letter rendering *549 his opinion on March 27, 2000. (Rogoff Declaration, Exh. 3 at pp. 65-66 and Exh. 17). The opinion letter stated for purposes of the opinion, the following statement would be assumed to be true:
Dennis Bowie was convicted of loitering with the intent to purchase a Controlled Dangerous Substance (CDS) in the vicinity of 12th Avenue and E. 24th Street in Paterson, NJ on September 26, 1997.
(Rogoff Declaration, Exh. 17). The letter further explained that while the Labor Management Reporting and Disclosure Act does not permit someone who has been convicted of violations of narcotics laws within the past thirteen years to serve, it concluded that there was no controlling authority to permit the barring of a candidate for violation of a municipal ordinance. Id. Thereafter on March 28, 2000, Iverson sent a mailing enclosing the opinion letter in it entirety to all Local members. ("The Iverson Mailing"). Id. The Iverson mailing was created and paid for with union funds. Id. The cover letter of the Iverson mailing stated, in part, that the Election Committee had received a protest from Todd Martin contending that "Bowie should not be permitted because of an alleged municipal court violation." Id. The Iverson mailing concluded that "[o]n the basis of the conclusion of counsel and after due deliberations the Committee has decided that Dennis Bowie will be permitted to run for the office of President of the Local." Id.
After the election and on April 20, 2000, Bowie and Karen Ellerbee Robinson, a candidate on Bowie's New Millennium slate, sent a protest ("the April 20th Protest") to Iverson by overnight mail. (Rogoff Declaration, Exh. 1, pp. 91-93, Exh. 4 at pp. 211-212, Exh. 19). The April 20th Protest to the Iverson mailing raised a number of issues including the following:
Weightman inappropriately had the election committee mail out an erroneous letter concerning an alleged criminal conviction. The letter mailed out by the lawyer erroneously stated I was convicted of something I wasn't. Also that was not information that should have been shared with all the members especially at the UNION EXPENSE. This constituted campaigning with union funds and it adversely impacted myself and my whole slate.
(Rogoff Declaration, Exh. 19).[4] Iverson received the April 20th Protest by overnight mail on April 21, 2000 at his home address. (Exh. 30 at Response 15). Thereafter, Iverson mailed it to the NJAL office. Id. Bowie also delivered another protest letter dated April 24, 2000, ("the April 24th Protest") again raising the illegality of the Iverson mailing. (Rogoff Declaration, Exh. 2 at 12-14, and Exh. 20). The April 24, 2000 protest letter was signed for by Rose D'Amato at the Union's offices on April 24, 2000 at 2:35 p.m. Id. The incumbents did not give either the April 20th Protest nor the April 24th Protest to Iverson for consideration. (Second Rogoff Declaration, Exh. 3 at pp., 77-78).
Under the NJAL constitution, any member not paying dues for two executive months shall be notified as being in arrears by the Secretary-Treasurer. (Rogoff Declaration, Exh. 6 at p. 77, and Exh. 7 at Art. IV, Sec. 2) Only members in good standing with the NJAL were permitted to be candidates for office in the election. (Rogoff Declaration, Exh. 4 at pp. 28-29, 37, 50-52). Although McGovern examined the candidates' records to make sure they *550 were members in good standing, he did not check to see whether the members who were voting were in good standing. (Rogoff Declaration, Exh. 4 at pp. 28-29, 37, 50-52, 97-98). Bowie was a member in good standing when he ran for president in 2000. (Second Rogoff Declaration, Exh. 4 at pp. 170-171 and Exh. 6 at p. 69). After he lost the election, Bowie returned to work at the Postal Service in May 2000. (Second Rogoff Declaration, Exh. 4 at pp. 160-161, 169-170). However due to a procedural glitch, Bowie's dues were not deducted when he returned. (Second Rogoff Declaration, Exh. 4 at pp. 173, 215-216, and Exh. 6 at pp. 55-57, 66-67, and Exh. 1 at pp. 16-17, 28-29, 61-62). Bowie was dropped from the Local's rolls for his dues delinquency in September or October 2000. (Second Rogoff Declaration, Exh. 6 at pp. 82-83). Bowie did not discover that his union dues were not being deducted until sometime in June 2001. (Second Rogoff Declaration, Exh. 1 at pp. 27-33). The Local never notified Bowie of his delinquency. (Second Rogoff Declaration, Exh. 39 and Exh. 6 at p. 91, and exh. 4 at p. 203). When Bowie discovered that dues were not being deducted, he tried to payback the dues but the Local refused to accept them. (Second Rogoff Declaration, Exh. 1 at pp. 21-22, 51-52, Exh. 4 at 176-177, and Exh. 29).

STANDARD OF REVIEW
Summary judgment will be granted if the record establishes that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c).
Rule 56(c) imposes a burden on the moving party simply to point out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the burden then shifts to the opposition to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247, 106 S.Ct. 2505. In determining whether there exists a material issue of disputed fact, however, the facts and the inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986).
In addition to being genuine, the disputed facts must be material, as determined by the substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Debate over extraneous issues will not suffice; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

DISCUSSION
Section 401(g) of the The Labor Management Reporting and Disclosure Act of 1959 (the "LMRDA"), 29 U.S.C. § 481(g), prohibits the use of union and employer funds in union election campaigns. United Steelworkers of America, *551 AFL-CIO, CLC v. Sadlowski, 457 U.S. 102, 117, 102 S.Ct. 2339, 72 L.Ed.2d 707 (1982). Section 401(g) states:
(g) Use of dues, assessments or similar levies, and funds of employer for promotion of candidacy of person. No moneys received by any labor organization by way of dues, assessment, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in an election subject to the provisions of this subchapter. Such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for the holding of an election.
However, as a practical matter, incumbent officials must carry on business even in the midst of a heated election, including reporting to the membership on issues of general concern. Donovan v. Metropolitan District Council of Carpenters, 797 F.2d 140, 145 (3d Cir.1986). While publications are permissible to inform the membership, improper publications are those which "... exceed[ed] the bounds of permissible reportage on union matters ..." Dole v. Drywall Tapers and Finishers Local Union 1976, 733 F.Supp. 864, 867 (D.N.J.1990). "Considered under the totality of the circumstances, otherwise permissible statements may take on a different hue when viewed against the backdrop of an election campaign." Dole v. Federation of Postal Police Officers Inc., 744 F.Supp. 413, 418 (E.D.N.Y.1990). To ascertain whether publications constitute promotion of a candidate in violation of section 401(g), the timing, tone, and content of the union's publication is evaluated. Donovan, 797 F.2d at 145; Reich v. Local 843, Bottle Beer Drivers, 869 F.Supp. 1142, 1148 (D.N.J.1994). The general circumstances surrounding the publication may also be considered. Id. at 1148.
The Secretary contends that the Weightman-McGovern mailing violated section 401 of the LMRDA, and submits that the timing, tone, and content of the mailing went well beyond any permissible purpose of informing the membership of the dues waiver. While the Local does not dispute that it created and sent the Weightman-McGovern mailing to the Local's entire membership using union funds in the heart of the campaign season, the Local submits that the mailings were not inappropriate because neither mailing urged members to vote against any particular candidate or slate, neither mailing questioned the qualifications or the ability of any candidate or slate, and neither mailing criticized any slate.
In contrast to the Local's position, the mailing was laudatory to incumbents Weightman and McGovern's position on the dues waiver, and isolated Weightman's opponent as in favor of the dues increase.[5] The mailing, written on the Local's stationary, bearing the names of Gary Weightman and John McGovern, included the statement that the Local's Executive Board "ADOPTS REQUEST OF PRESIDENT & Secretary Treasurer" to waive dues increase, and noted that the Executive Board had voted "overwhelmingly" to waive the local dues increase. The mailing *552 then pointed out in a footnote on the bottom of the page that "[o]nly Director of Industrial Relations David Bowie voted to raise the dues", and explained that Weightman and McGovern had recommended that the Executive Board waive the dues increase "since the good financial condition of the Local would allow this," and informed members that the battle against abusive management and postal privatization would continue. The Weightman-McGovern mailing, as evinced by its timing, tone, and content, is clearly campaign material.
Without the reference to David Bowie's alleged vote, the mailing may not have offended section 401(g) as the mailing does contain information which would be of interest to the union members. Of course, the manner in which members of the Executive Board vote is of interest to the union members. However, the union had never before revealed the individual votes of the Executive Board to the members, and the decision to waive dues could have been communicated to the members without mention of Bowie's vote. The reference to Bowie, although contained in a footnote, changes the nature of the mailing to campaign material. The mention of Bowie's vote viewed in the context of the timing, tone and content of the entire mailing suggests that its purpose was to promote the incumbents slate, and not merely to provide information.
As with the Weightman-McGovern mailing, the Local submits that the Iverson mailing was a wholly appropriate communication to its members. On the other hand, the Secretary argues that the timing, tone and content of the mailing went far beyond any permissible purpose of informing the membership and constituted impermissible campaigning. The Iverson mailing was mailed out on March 28, 2000, twenty days before the election ballots were to be returned. Thus, the timing of the mailing directly coincided with the receipt and return of ballots right in the heart of the campaign season. While the Local asserts that the eligibility of one of the candidates is a matter of concern for its members and the timing of the Iverson mailing was understandable in light of the timing of the protest and the scheduled time period for the election, the tone and content of the mailing provided gratuitous and damaging material against Bowie in the heart of the campaign season. Rather than simply announce a decision that Bowie would be permitted to run, the Local used funds to mail information which suggested that Bowie had a criminal conviction for intent to purchase a controlled dangerous substance in September 1997. Although the letter stated that for purposes of the analysis it would assume the allegation that Bowie was convicted of attempting to purchase drugs on September 26, 1997 was true, the mailing insinuated that the Bowie had a sordid past involved with drugs. The fact that the mailing was generated as a result of a protest does not excuse the violation since the content of the mailing went beyond what was necessary to inform the members of Bowie's eligibility.
The Local has the burden of proof to show that the violation did not affect the election's outcome. 29 U.S.C. § 482(c)(2); Wirtz v. Hotel, Motel Employees Union, Local 6, 391 U.S. 492, 505-509, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968); Chao v. Local 54, Hotel Employees And Restaurant Employees, 166 F.Supp.2d 109, 123 (D.N.J. 2001). The Local has failed to present evidence that the violation did not affect the election results. Accordingly, the election must be set aside and a new election *553 ordered.[6]
Furthermore, "[w]here a union member raises a section 481 challenge to a single election and the Secretary discovers that the same violation affected other elections, the Secretary may seek to set aside all the [affected] elections." Martin v. Local 101, Civ. No. 91-1871(RJD), 1992 WL 394175, *5 (E.D.N.Y. Dec. 9, 1992). The Secretary contends that Bowie's entire slate may have been affected by either violation, and thus a new election for all positions where the New Millennium slate fielded a candidate is required. It is undisputed that the candidates for union office ran together on slates, pooled their resource together as slates, and sent out numerous mailings together as slates. The mailings may have affected the will-ingness of members to vote for Bowie's slate members even though the ballots did not list the candidates by slate affiliation. Thus, a new election will be required for all offices where the New Millennium fielded a candidate for office.
As for the defendant's motion, the Local contends that the complaint must be dismissed because the complainants failed to fully exhaust internal union procedures available or that the protests were in an untimely manner.
The Local contends that both the April 20th and April 24th Protests were not properly appealed to the NEAC. However as pointed out by the Secretary in her brief, this assertion is belied by the NEAC's own documents and the testimony of an NEAC member and National officer actually handling the appeals to which Bowie was a party. Thus, there is simply no basis for the Local's position.
Additionally, the Local contends that all the protests at issue were not properly supported by affidavits and supporting documents. However, the Local never rejected the protests because of the lack of affidavits or supporting affidavits, nor asked for supplementation of the protests. Furthermore, in contrast to the three protests filed by Bowie, Martin's protest about Bowie should have required evidentiary substantiation because it alleged a fact that was not within Iverson's knowledge. Yet, the Martin protest was considered without the evidentiary support the Local claims is required.
In Wirtz v. Local 125, Laborers' Intern Union, 389 U.S. 477, 484, 88 S.Ct. 639, 19 L.Ed.2d 716 (1968), the Supreme Court held that the Secretary has standing to include in her complaint any § 401 violation she has discovered as long as the union has had a "fair opportunity to consider and redress in connection with a member's initial complaint". The Court further opined that "Congress, having given the Secretary a broad investigative power, cannot have intended that his right to relief be defined by a complaining member's ignorance of the law or the facts or by the artlessness of the member's protest." Id. at 485, 88 S.Ct. 639. Furthermore in Hodgson v. Local Union 6799, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971), the Supreme Court held that "in determining whether the exhaustion requirement of § 402(a) has been satisfied, courts should impose a heavy burden on the union to show that it could not in any *554 way discern that a member was complaining of the violation in question." (footnote omitted). In this regard, the defendant has not even argued that it could not in any way have discerned that a member was complaining about a violation in question.
Moreover, the Local contends that the Secretary should be foreclosed from pursuing allegations raised in the April 20th Protest because the protest did not arrive at the union offices until one day after the deadline. However, the Local's contention that the Secretary should be barred from pursuing the complaints contained in the April 20th Protest is untenable. The Court of Appeals has held that the failure to precisely follow procedural requirements relating to service is not dispositive. Shultz v. Local 1291, ILA, 429 F.2d 592 (3d Cir.1970)(filing the complaint with the Local president instead of the Local secretary was sufficient). Iverson received the April 20th Protest by over-night mail on April 21, 2000, well within the deadline. Additionally, the procedural requirements of a union's internal dispute resolution process may be waived by the union's failure to raise them during the protest process. Donovan v. Local 126, IBEW, 728 F.2d 610 (3d Cir.1984). Here, there is no evidence that the Local raised any procedural issues during the appeals process. Accordingly, the Local's defense as to timeliness is rejected.
Finally, the Local contends that the complaint should be dismissed because it alleges that Bowie failed to pay his dues from May of 2000 until late 2001, and as a result lost his good standing status. However, when a member's lack of good standing is as a result of a dues delinquency caused by an act or a failure to act by the employer or the union, the member will not be penalized. Colpo v. General Teamsters Local Union 326, 659 F.2d 399, 401 (3d Cir.1981). The Secretary has demonstrated that Bowie's failure to pay dues occurred as a result of a failure to act by the employer or union, and the Local does not dispute the Secretary's submissions in this regard. Additionally, even assuming arguendo that Bowie lacked good standing with the Local at the time he filed his complaints with the Secretary, it is undisputed that the April 20th Protest was signed by Bowie and Robinson, and there is no dispute that Robinson was a member in good standing at the time the complaint was filed. Because Robinson was unquestionably a member in good standing when she filed her complaint with the Secretary and the complaint Robinson signed encompassed both issues which Bowie had been protesting, the issues were properly before the Secretary. Thus, the Local's argument that the complaint should be dismissed on standing grounds is unavailing.

CONCLUSION
For the reasons set forth herein, the plaintiff's motion for summary judgment is granted, the defendant's cross-motion for summary judgment is denied, and the plaintiff's cross-motion for summary judgment on the defendant's affirmative defenses is granted. An appropriate order will enter.
NOTES
[1]  The New Millenium's candidate for the position of Director of Industrial Relations withdrew from the race and did not appear on the ballot.
[2]  Although the Local relies on Frank Tie's success in support of its contention that not all members of the Real Deal slate were victorious, Weightman unequivocally testified that he supported Frank Tie in the election instead of Jack Dougherty.
[3]  The NEAC is the final authority for internal union appeals. (Rogoff Declaration, Exh. 5 at p. 40).
[4]  The April 20th Protest letter also included a reference to the Weightman-McGovern mailing.
[5]  The design of the Weightman-McGovern mailing to promote one candidacy to the detriment of another is further established by comparing the mailing to McGovern's March 10, 2000 letter to Robert Turnstall, Secretary Treasurer of the National. In that letter, McGovern noted that the waiver was at the request of President Weightman. However it did not identify Bowie as the only member of the Executive Board to vote against the proposal; did not mention that the Local was in good financial health; and did not have a caption in large lettering stating that the Local adopted the request of the President and Secretary Treasurer.
[6]  Generally, courts have held that an immediate new election is required even when the next regularly scheduled election is less than a year away. See e.g., Chao v. Local 54, Hotel and Restaurant Employees, 166 F.Supp.2d at 125-126, n. 23; Reich v. Local 843 Bottle Beer Drivers, 869 F.Supp. at 1154; Dole v. Federation of Postal Police Officers Inc., 744 F.Supp. 413, 420-421 (E.D.N.Y.1990); Brock v. Metropolitan District of Council Carpenters, 653 F.Supp. 289, 293 (E.D.Pa.1986).


12 F.Supp.2d 1311 (1998)
GREATER JACKSONVILLE TRANSPORTATION COMPANY, a Florida Corporation, a/k/a Yellow Cab, Plaintiff,
v.
THE JACKSONVILLE PORT AUTHORITY, a/k/a Jaxport, Defendant.
No. 98-403-CIV-J-16 (A).
United States District Court, M.D. Florida, Jacksonville Division.
July 13, 1998.
*1312 Kevin Schaun Sanders, Jacksonville, FL, for Plaintiff.
Richard A. Mullaney, Ernst D. Mueller, General Counsel's Office, Jacksonville, FL, for Defendant.

ORDER
JOHN H. MOORE, II, Senior District Judge.
This case is before the Court on Defendant's Notice of Removal (Doc. # 1); Plaintiff's Motion to Remand Case Back to State Court (Doc. # 5); Response to Plaintiff's Motion to Remand Case Back to State Court and Incorporated Memorandum (Doc. # 7). The Court hereby remands this Case to State Court.

I. Background
The Plaintiff in this case is the Greater Transportation Company of Jacksonville, more commonly known as the Yellow Cab company ("Yellow"). Yellow complains that Defendant, Jacksonville Port Authority ("Jaxport"), a municipal corporation of Florida responsible for the running of Jacksonville International Airport ("JIA"), failed to follow the proper bid process for licensing of car for hire service at JIA. Yellow complains that Jaxport originally licensed Gator City Taxi as the sole provider of car for hire services at JIA and that when the original contract between Jaxport and Gator Cab expired, the contract was not properly put up for bid. Instead, Jaxport allegedly in violation of various Florida laws continued the contract with Gator Cab. Yellow then brought suit in state court alleging that it had been harmed by this alleged violation. Jaxport removed the case to this Court.

II. Removal under 28 U.S.C. § 1441
The United States Code provides in 28 U.S.C. § 1441(b), "Any civil action of which the district courts have original jurisdictions founded on a claim or right arising under the Constitution ... of the United States shall be removable without regard to the citizenship or residence of the parties." In this instance, the Defendant claims that the Plaintiff's complaint is partially grounded on the United States Constitution and is therefore removable under § 1441. Plaintiff's complaint specifically states:
5. This is a claim for declaratory relief pursuant to Chapter 86 of Florida Statutes.
6. After properly placing such up for bid in accordance with the Florida Statutes, the Defendant entered into a taxi-cab/shuttle franchise agreement with the Jaxport Express, Inc., a/k/a Gator City Taxi, on or about October 2, 1992 .... The term of said agreement was for a period of three years, granting Gator City Taxi exclusive license for passenger transportation from the Jacksonville International Airport.
7. Such exclusive franchise agreement is a restraint of free trade, is beyond the powers of the Defendant as granted by the Florida Statutes, is over-reaching and overly broad in accordance with the Florida Statutes, is illegal under the Sunshine Law, and is unconstitutional with regards to the United States Constitution and its amendments thereto.
The Defendant in this case points to the fact that the Plaintiff has claimed that the franchise agreement at issue, "is unconstitutional with regards to the United States Constitution and its amendments thereto" as supporting a federal question. The Defendant then claims that because a federal question is allegedly presented, the case is suitable for removal under § 1441.
In response to the Removal Notice filed by the Defendant, the Plaintiff filed its "Motion to Remand Case Back to State Court". The Defendant claims that the federal constitutional reference created mere "undertones" of violations of the Constitution. The Plaintiff then goes on to cite Florida state law as giving rise to the Plaintiff's right to choose the venue in which he tries his case, i.e. federal or state court. The Memorandum in Support of the Plaintiff's Motion states, in its entirety:

*1313 Plaintiff would refer this Honorable Court to Florida Statute Section 286.011 and Chapter 86 which govern. At the time of this motion, Plaintiff has not found cases on point but will supplement this memorandum upon further research.
The Court would point to the fact that had Plaintiff finally decided to do some research and wished to supplement its memorandum, it would have violated the Local Rules of this District, specifically Rule 3.01(b).

A. Removal Generally
The Supreme Court noted, at least as far back as 1894, that the jurisdiction of the federal court must appear upon the face of the plaintiff's pleading. State of Tennessee v. Union & Planters' Bank, 152 U.S. 454, 461, 14 S.Ct. 654, 38 L.Ed. 511 (1894). This proposition continues to be valid today and is generally stated with reference to the "Well Pleaded Complaint Rule" derived from Louisville & Nashville Railroad v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); See also Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)(discussing Mottley and its continuing applicability); Wolff v. Archibald, 14 F. 369 (Minn.Cir.1882)(discussing certainty of federal jurisdiction). It has been noted that the Well Pleaded Complaint rule is more useful in defining when jurisdiction is present than in establishing when jurisdiction is not present. T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir.1964).
The time for determining whether a federal question appears which is sufficient to remove a case is at the time of the petition for removal. Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983)(quoting Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939)). Furthermore, the presence of a federal law defense is insufficient to create a removable question of federal law. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986).

B. Removal Avoidance
Generally, the Plaintiff is the master of his complaint and as such, if the Plaintiff chooses to ground his complaint solely in state law, then the action is not usually removable. Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). There are two exceptions to this general rule.
The first exception centers on the issue of when a plaintiff has filed a complaint grounded in state law for the sole purpose of avoiding the federal courts. That is, but for the manner of the plaintiff's pleading, the issue presented is one which properly should be in the federal courts. An illustration of this is presented by Avco Corp. v. Aero Lodge No. 735, Int'l Assn. Of Machinists, 376 F.2d 337 (6th Cir.1967), aff'd, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), the facts of which the Supreme Court favorably examined in Franchise Tax Board, 463 U.S. at 23, 103 S.Ct. 2841. In Avco the plaintiff filed a breach of contract claim complaining that a union had failed to arbitrate a dispute pursuant to an employment contract. The Supreme Court ultimately stated that the case was, in fact, one controlled by the Labor Management Relations Act of 1947, a federal issue. The Court thereupon decided that it was proper for a federal court to exercise jurisdiction in such situations.
This federal question analysis is referred to as "complete preemption". Where Congress has legislated in an area in which their clear intention was to federalize the entire area of the law, then even if the plaintiff were to seek purely state-based redress, the federal court may find a federal question. Complete preemption is atypical here.
The second exception to the plaintiff as master of his complaint idea is the "Artful Pleading Doctrine" in which the plaintiff has stated a cause of action in his complaint in such a manner so as to avoid the plain statement of a federal cause of action. Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). A plaintiff is said to have used "artful pleading" in order to avoid federal jurisdiction in those cases where the pleading is couched in purely state issues but, by implication, substantial issues of federal law must necessarily be decided in order to decide the case. An example of artful pleading *1314 is presented by Burda v. M. Ecker Company, 954 F.2d 434 (7th Cir.1992). In Burda the court pointed to the fact that although the plaintiff had couched the complaint in terms of breach of contract, the real complaint involved the settlement of a federal income tax question. The Burda defendant refused to pay a lump-sum settlement because plaintiff's counsel refused to provide her taxpayer I.D. number for the purposes of the defendant withholding 20% of the attorney's fee portion of the lump sum payment for tax purposes. The court stated that plaintiff's failure to plead the income tax law issue, which would necessarily have to be settled before judgment could be reached on the case, was mere artful pleading and as such the federal court had jurisdiction for removal purposes. See also Four Way Plant Farm v. NCCI, 894 F.Supp. 1538 (N.D.Al.1995)(discussing artful pleading doctrine and its "two" types).

C. Ambiguous Removal Jurisdiction
The case at bar is the converse of the usual question presented in this jurisprudential area. In this case the question is: If a plaintiff brings a complaint in state court alleging predominantly state law issues, but which also pleads a vague federal issue, is that sufficient to create federal jurisdiction? The Court refers to these issues as "ambiguous federal questions." The Fifth Circuit, in 1942, stated:
Not every question of federal law emerging in a suit is the basis of the suit. Even an action that takes its origins in the laws of the United States is not necessarily one arising under those laws. It must really and substantially involve a controversy respecting the validity or construction of such laws, and the determination of the cause must depend upon such validity or construction.
Armstrong v. Alliance Trust Co. Ltd., 126 F.2d 164, 167 (5th Cir.1942). The Eleventh Circuit adopted Fifth Circuit precedent in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981). Other courts have examined this issue. One court stated:
It is equally clear that the federal question, to confer jurisdiction on the federal District Court, must be real and substantial, not colorable or frivolous. The federal question must really appear not by mere inference or suggestion....And the federal question must be an essential or integral part of the plaintiff's case. Mere references to the federal Constitution, laws or treaties and mere assertions that a federal question is involved are not sufficient to confer jurisdiction. The federal courts have been vigilant to protect their jurisdiction against cases in which the alleged federal question is purely fictitious. [internal citations omitted]
McCartney v. State of West Virginia, 156 F.2d 739, 741 (4th Cir.1946); See Ashley v. Southwestern Bell Telephone Company, 410 F.Supp. 1389 (W.D.Tex.1976)(discussing inadequacy or a mere reference to the Federal Constitution to invoke federal jurisdiction); See also Belair v. Lombardi, 828 F.Supp. 50 (M.D.Fla.1993)(discussing mere references to federal causes of action and abstention doctrine), clarified, 151 F.R.D. 698 (M.D.Fla. 1993); Chambers-Liberty Counties Navigation District v. Parker Brothers & Co., 263 F.Supp. 602 (S.D.Tex.1967)(discussing the necessary "essential nature" of the federal claim).
Discussions of ambiguous questions have been noticeably absent in contemporary cases. It is clear in older case law that the circuit courts considered it appropriate to carefully examine the alleged basis' of jurisdiction. Furthermore, the twin doctrines of "artful pleading" and "complete preemption" indicate the continuing vitality of federal court discretion in looking at the true nature of the cases sub judice. The federal courts have always been avid protectors of the jurisdictional ramparts of the federal courts.

III. Discussion
In the case at bar the Defendant claims removal is proper because the Plaintiff has included in his complaint a reference to the Federal Constitution. The Plaintiff responds that this complaint of violation of the Constitution is a mere "undertone" of the entire case. The Court believes that the simple reference is a result of careless pleading and is the type of complaint that the Fifth Circuit was referring to in Armstrong.
*1315 A case in order to be subject to federal jurisdiction, "must really and substantially involve a controversy respecting the validity or construction of such [federal] laws, and the determination of the cause must depend upon such validity or construction." Armstrong, 126 F.2d at 167. The case at bar will not be resolved under federal constitutional analysis. The case will instead stand or fall under state law. The Court does not dispute the fact that the Federal Constitution will, as a matter of course, be present in this case when it is remanded to the state court. This presence, however, is more in the nature of a backdrop to the critical issues presented in the case, that is, the case dispositive issues. The case dispositive issues in this case are quite clearly state issues.
The state courts are quite capable of deciding issues under their own state laws and the use of a vague federal issue in order to escape that state specialization is both a waste of federal judicial resources and also a perversion of federal jurisdiction that the Court is unwilling to abet. The Court thinks that those cases which present themselves as federal questions, because on their face they make furtive grabs at federal issues, are insufficient to yield federal jurisdiction. This case is REMANDED.
It is hereby
ORDERED AND ADJUDGED:
1. Plaintiff's Motion to Remand is GRANTED and this case is REMANDED to the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida.


                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-3026
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                        JAMES BERNARD ARMSTRONG, JR.,
                                         Appellant

                                     ______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 1:11-cr-00089-001)
                     District Judge: Honorable Lawrence F. Stengel
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  October 28, 2019

      BEFORE: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges

                                 (Filed: January 17, 2020)

                                     ______________

                                        OPINION*
                                     ______________

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
HARDIMAN, Circuit Judge.

          James Bernard Armstrong, Jr. appeals an order of the District Court denying his

motion to vacate sentence under 28 U.S.C. § 2255. Armstrong was tried and convicted on

three federal drug and firearm counts. He claims his trial counsel was ineffective in

advising him to reject the Government’s plea offer. For the reasons that follow, we will

affirm.

                                               I

          In 2012, a jury convicted Armstrong of conspiring to distribute and possess with

the intent to distribute 1,000 kilograms and more of marijuana and 500 grams and more

of cocaine hydrochloride; distributing and possessing with the intent to distribute the

same; and possessing a firearm in furtherance of drug trafficking. The District Court

sentenced Armstrong to 180 months’ imprisonment, the statutory mandatory minimum.

Armstrong appealed and we affirmed. United States v. Armstrong, 591 F. App’x 169 (3d

Cir. 2015).

          Armstrong filed a timely motion to vacate under 28 U.S.C. § 2255, alleging

ineffective assistance of counsel at the plea phase. The District Court denied Armstrong’s

motion without an evidentiary hearing and declined to issue a certificate of appealability.

We granted a certificate of appealability to consider whether the District Court erred

when it denied Armstrong’s motion without first conducting an evidentiary hearing.

                                               2
                                             II1

       The issue here is whether the District Court erred in not holding an evidentiary

hearing on Armstrong’s ineffective assistance of counsel claim. By statute, the District

Court must hold a hearing “[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). We

have explained that text as requiring a hearing for unresolved facts: “where a petition

allege[s] any facts warranting relief under § 2255 that are not clearly resolved by the

record, the District Court [is] obligated to follow the statutory mandate to hold an

evidentiary hearing.” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015)

(alterations in original) (emphasis added) (quotations marks omitted). We are not

persuaded that a hearing was warranted here. Even accepting his allegations as true, the

performance of Armstrong’s attorney was not deficient under Strickland v. Washington,

466 U.S. 668 (1984). See Duncan v. Morton, 256 F.3d 189, 200 (3d Cir. 2001) (citing

Strickland, 466 U.S. at 687) (applying “an objective standard of reasonableness, viewed

to the extent possible from the attorney’s perspective at the time”).

       Armstrong argues that his counsel acted objectively unreasonably by

recommending against the plea because: he cooperated with law enforcement at the time

of his arrest; he consented to a search of his residence; he provided self-incriminating

statements; there were cooperating witnesses; and there was harmful evidence. This tells

       1
         We have jurisdiction to review the District Court’s order denying an evidentiary
hearing under 28 U.S.C. §§ 1291 and 2253(a). We review for abuse of discretion. United
States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (citing United States v. Booth, 432 F.3d
542, 545 (3d Cir. 2005)).

                                             3
only part of the story, however. Armstrong glosses over factors—especially on the 18

U.S.C. § 924(c) firearm charge—that either cut in his favor or could have cut either way.

For example, the gun was not found during the drug trafficking crimes, nor was there a

quantifiable amount of drugs in Armstrong’s residence where the gun was found.

Accordingly, Armstrong argued on direct appeal that there was insufficient evidence to

convict him on the § 924(c) count. Armstrong, 591 F. App’x at 170. Although his

conviction was affirmed, the fact that Armstrong’s appeal focused on insufficiency of the

evidence for the § 924(c) count supports the reasonableness of counsel’s recommendation

to proceed to trial. Because Armstrong’s conviction was not a foregone conclusion, we

agree with the District Court that the record conclusively shows that Armstrong’s counsel

did not render deficient performance by advising him to proceed to trial.

       Nor can Armstrong establish prejudice on this first claim, which requires a

showing that there is a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” See Strickland, 466 U.S.

at 694. Had Armstrong accepted the guilty plea, his base offense level would have been

the same level that applied after trial (32). The prosecutor noted that if Armstrong

pleaded guilty, the “range would [have been] reduced by two levels for the acceptance of

responsibility,” taking it down to a range of 97 to 121 months. App. 8–9. But the

prosecutor also opined “[t]here are other enhancements that would possibly apply here.”

App. 8. And as the Government noted in its brief, Armstrong would have received a four-

level enhancement under § 3B1.1(a) for being an organizer or leader (which he also

received after trial) and a two-level enhancement under § 2D1.1(b)(1) for possessing a

                                             4
dangerous weapon once the firearm charge was dropped. Together, these enhancements

would have returned Armstrong to an offense level of 36. The Guidelines range for that

offense level is 188–235 months—higher than the sentence of 180 months Armstrong

received. The record thus conclusively shows that Armstrong was not prejudiced by

proceeding to trial.

       In response, Armstrong presses the possibility of a downward departure for

substantial assistance. Such a departure would have depended on Armstrong’s

cooperation with the Government following his guilty plea. Yet no evidence in the record

suggests Armstrong would have done so, much less that he would have done so to the

Government’s satisfaction, which renders the prospect of a downward departure

speculative at best.

       Armstrong next claims counsel misstated his sentencing exposure if he went to

trial. Even assuming, arguendo, that counsel was deficient in this regard, the record

shows Armstrong was not prejudiced. The possible sentencing outcomes were clearly

reviewed with Armstrong on the record before trial. Both the prosecutor and the Court

discussed the possible reductions for acceptance of responsibility and substantial

assistance, as well as the mandatory minimum that would apply after trial. After

Armstrong expressed confusion over the plea offer’s terms, the District Court took a

twenty-five minute recess. During that time, Armstrong discussed the proposed plea

agreement with both his attorney and the prosecutor. Following the recess, Armstrong

confirmed that he had enough time to discuss the offer with his attorney, that he

understood the offer, that he did not require more time, and that it was his decision not to

                                             5
plead guilty. The record conclusively shows that Armstrong was fully informed of the

sentencing ramifications of his decision before electing to proceed to trial. Any failure by

his attorney in this regard would have been immaterial, so he cannot establish prejudice

under Strickland. The District Court therefore did not err in denying Armstrong an

evidentiary hearing.

                                             III

       We will affirm the District Court’s order denying Armstrong’s motion to vacate

sentence.

                                             6


817 F.Supp. 789 (1993)
Martha HELTON, et al., Plaintiffs,
v.
PHELPS COUNTY REGIONAL MEDICAL CENTER, et al., Defendants.
No. 4:92CV00883 GFG.
United States District Court, E.D. Missouri, E.D.
March 31, 1993.
Robert J. Albair, Clayton, MO, for plaintiffs.
Mark A. Ludwig, Ronald R. McMillin, R. Max Humphreys, Carson and Coil, Jefferson City, MO, Cheryl A. Callis, Ben Ely, Jr., Joseph M. Kortenhof, Kortenhof and Ely, Joseph L. Leritz, President, Leritz and Plunkert, St. Louis, MO, Paul Wacker, Richard Paul Wacker, Daniel and Clampett, Springfield, MO, for defendants.

MEMORANDUM
GUNN, District Judge.
This matter is before the Court on various motions to dismiss and motions for summary judgment brought by defendants Dr. Donald James Curran and Phelps County Regional Medical Center (Hospital). Also before this Court is Dr. Curran's motion to strike and plaintiffs' motion for a more definite statement, directed at Dr. Curran's answer. For *790 the reasons stated below, the Court will sua sponte dismiss Count I of the second amended complaint (the complaint) as to Dr. Curran and grant Dr. Curran's motion to dismiss Counts II and III for lack of subject matter jurisdiction. Consequently, plaintiffs' motion for a more definite statement and Dr. Curran's motions for summary judgment and motion to strike will be denied as moot. The Court will deny the Hospital's motion for summary judgment and its renewed motion to dismiss.
According to the allegations of the complaint, Virgil Lee Helton was admitted to the Hospital on July 15, 1991, with an admitting diagnosis of major depression with anxiety. During the admission, personnel of the Hospital noted, among other things, that Helton displayed confusion, severe depression, paranoia and self-inflicted mutilation. At the time, Dr. Curran was the physician at the hospital responsible for examining, treating and discharging Helton. On July 16, 1991, defendants learned that Helton was apparently indigent and lacked health insurance. As a result of his apparent indigency, defendants decided to discharge him. Helton was discharged the following morning of July 17, 1991. He committed suicide by a gunshot wound to the head in the early morning hours of July 18, 1991.
This action was brought by Helton's surviving wife and children. Count I of the complaint alleges that defendants Dr. Curran, the Hospital and Care Unit, Inc., improperly discharged Helton from the Hospital in violation of 42 U.S.C. § 1395dd, the Emergency Medical Treatment and Active Labor Act (EMTALA), also known as the "anti-dumping" or "patient dumping" act.[1] Count II is a wrongful death claim against Dr. Curran and Care Unit, Inc., and Count III is a lost chance of recovery and survival claim against Dr. Curran and Care Unit, Inc.

Sua Sponte Dismissal
Plaintiffs' claim against Dr. Curran is predicated upon the civil enforcement provision of EMTALA, which states
Any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.
42 U.S.C. § 1395dd(d)(2)(A). Under the above provision, a person injured by a violation of EMTALA may bring a private action against a participating hospital for civil damages. However, no similar private cause of action exists under EMTALA for recovery of damages from a physician. Although the Eighth Circuit has not yet ruled on this issue, this Court is guided in its decision by recent well-reasoned opinions from other jurisdictions. See, e.g., Delaney v. Cade, 986 F.2d 387, 393 (10th Cir.1993) (plain language of statute indicates civil actions can only be brought against participating hospitals, not doctors); Baber v. Hosp. Corp. of Am., 977 F.2d 872, 876-78 (4th Cir.1992) (reaching same conclusion based upon plain language and legislative history of statute); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1040 n. 1 (D.C.Cir.1991) (noting in dicta that civil enforcement provision is "explicitly limited to actions against participating hospitals"); Jones v. Wake County Hosp. Sys., Inc., 786 F.Supp. 538, 545 (E.D.N.C.1991) (no private cause of action against physicians exists under § 1395dd(d)(2)).[2] Accordingly, Count I of the complaint will be sua sponte dismissed for failure to state a claim. Fed. R.Civ.P. 12(b)(6).[3]
*791 Counts II and III of the complaint will be dismissed as to Dr. Curran on grounds that the Court no longer has supplemental jurisdiction over these state law claims under 28 U.S.C. § 1367(a). Additionally, plaintiffs' motion for a more definite statement and Dr. Curran's motions for summary judgment and motion to strike will be denied as moot.

Remaining Motions of the Hospital
The Hospital has separately moved for summary judgment on plaintiffs' EMTALA claim and has renewed its motion to dismiss, which was previously denied by the Court. The Hospital is entitled to summary judgment if it can show "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under Rule 56(e), in order to defeat a properly supported motion, plaintiffs may not simply rest upon the allegations of their complaint but must present affirmative evidence from which a jury might return a verdict in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Ultimately, the burden of proof is on the Hospital as the moving party and this Court will not grant summary judgment unless it is convinced that there is no evidence to sustain a recovery under any circumstances. Foster v. Johns-Manville Sales Corp., 787 F.2d 390, 392 (8th Cir.1986).
In the present case, plaintiffs have alleged violations of 42 U.S.C. §§ 1395dd(a) and (c)(1)(A)(ii). Thus, to prevail on summary judgment, the Hospital must establish that no genuine issue of material fact exists under either provision. The Hospital contends that there is no genuine dispute as to (1) the fact that Helton received an "appropriate" medical screening examination within the capability of the Hospital's emergency department (42 U.S.C. § 1395dd(a)), and (2) the facts that Helton did not have an "emergency medical condition" at the time he was hospitalized and, even if he did, his condition was "stabilized" at the time of his discharge (42 U.S.C. § 1395dd(c)(1)(A)(ii)).
The evidence before the Court includes, among other things, Helton's hospital records, deposition testimony by Dr. Curran, affidavits by Helton's family members, and documents purporting to state the Hospital's policies and procedures for admitting and discharging patients. The Court finds that the evidence, particularly the hospital records, is inconclusive as to the factual issues identified above. In addition, the Court notes that documents obtained by plaintiff from the Hospital through discovery, including one which states "Patients with inadequate financial coverage will be discharged and referred to other resources," raises the possibility that this case involves precisely the type of "patient dumping" that EMTALA was designed to prevent. Upon review of the record as a whole, the Court therefore finds that there are genuine issues of material fact.
Alternatively, the Hospital argues that, under Missouri law, plaintiffs' federal claim is barred by sovereign immunity because EMTALA specifically refers to state law for the measure of damages available in a private action and it does not preempt state law except where there is a direct conflict between the state and federal laws. See 42 U.S.C. §§ 1395dd(d)(2)(A), (f). The Hospital relies on Mo.Rev.Stat. § 537.600 which provides sovereign immunity to public entities to the extent they have no insurance coverage. See State ex rel. Cass Medical Ctr. v. Mason, 796 S.W.2d 621, 623 (Mo.1990) (en banc).[4]
The preemption provision of EMTALA states
The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.
42 U.S.C. § 1395dd(f). In this instance, the Court finds a direct conflict between the state doctrine of sovereign immunity relied upon by the Hospital and EMTALA. Directly on point is Power v. Arlington Hosp., 800 F.Supp. 1384, 1391-92 (E.D.Va.1992) (Power). In Power, the court held that a Virginia *792 statute limiting the liability of charitable hospitals to the lesser of their insurance coverage or one million dollars was preempted by EMTALA.[5] Noting that the touchstone of the preemption analysis is congressional intent, the Power court reasoned:
[A]pplication of the Virginia statute would impede the accomplishment and execution of the purposes underlying EMTALA, namely deterring "patient dumping" and compensating those who are unlawfully "dumped." ... Importing the limits of a charitable immunities statute into EMTALA would, in essence, allow states to limit EMTALA recoveries to very low, or even negligible levels, thus effectively undermining the purposes of the federal law.
Id. at 1392. The Power court's reasoning is equally applicable here. Moreover, the impact of giving effect to the Missouri sovereign immunity statute would be particularly invidious because the most likely patients to fall into the class of persons EMTALA was designed to protect are also more likely to seek emergency medical care at a public rather than a private hospital. Accordingly, the Hospital's motion for summary judgment and its renewed motion to dismiss will be denied.

ORDER
For the reasons set forth in the Memorandum filed on this date and incorporated herein, IT IS HEREBY ORDERED that Count I of the second amended complaint is sua sponte dismissed as to Dr. Curran.
IT IS FURTHER ORDERED that Dr. Curran's motion to dismiss Counts II and III for lack of subject matter jurisdiction is granted.
IT IS FURTHER ORDERED that plaintiffs' motion for a more definite statement is denied as moot.
IT IS FURTHER ORDERED that all of Dr. Curran's outstanding motions for summary judgment are denied as moot.
IT IS FURTHER ORDERED that Dr. Curran's motion to strike is denied as moot.
IT IS FURTHER ORDERED that the Hospital's motion for summary judgment is denied.
IT IS FURTHER ORDERED that the Hospital's renewed motion to dismiss is denied.
NOTES
[1]  The Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, was enacted by Congress as part of the Comprehensive Omnibus Budget Reconciliation Act of 1986 (COBRA).
[2]  But cf. Sorrells v. Babcock, 733 F.Supp. 1189, 1193-94 (N.D.Ill.1990) (although plaintiff may not recover civil damages against physician, district court has subject matter jurisdiction over private action against physician which alleges violations of EMTALA).
[3]  For district court's inherent authority to dismiss plaintiffs' claim sua sponte, see Smith v. Boyd, 945 F.2d 1041, 1042-43 (8th Cir.1991) (district court sua sponte may dismiss a complaint under Rule 12(b)(6) provided the dismissal does not precede service of process).
[4]  In a previous order of this Court, plaintiffs' Missouri wrongful death claim against the Hospital was dismissed on sovereign immunity grounds. Helton v. Phelps County Regional Medical Ctr., 794 F.Supp. 332 (E.D.Mo.1992) (memorandum and order).
[5]  The plaintiff in Power was seeking damages in excess of one million dollars.