author: GENE CARTER, District Judge.

text:
    Russell L. MAWHINNEY, Plaintiff, v. Margaret HECKLER, Secretary Health & Human Services, Defendant.
    Civil No. 84-0190 P.
    United States District Court, D. Maine.
    Jan. 15, 1985.

      Robert Checkoway, Preti, Flaherty & Beliveau, Portland, Me., for plaintiff.
    Paula D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.
   MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR EXTENSION OF TIME AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

GENE CARTER, District Judge.

I.

This is an action brought under 42 U.S.C. § 405(g) for review of the final decision of the Secretary of Health and Human Services, which denied Plaintiff’s application for a period of disability and for disability insurance benefits under 42 U.S.C. §§ 416(i) and 423. An Administrative Law Judge found on December 30, 1983, that Plaintiff was not under a disability. The Appeals Council approved the AU’s decision on May 10, 1984.

Plaintiff filed a Motion for Summary Judgment on November 1, 1984. The Secretary’s Cross-motion for Summary Judgment was due on December 17, 1984. No such motion was filed by that date, and, on December 18,1984, the Secretary moved for an extension of time in which to file her cross-motion with supporting memorandum of law. Plaintiff has objected to the Motion for Extension of Time.

Fed.R.Civ.P. 6(b) provides in pertinent part:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act is the result of excusable neglect.

The only reason given by the Secretary for failure to timely file a motion and supporting memorandum of law was “that the Regional Attorney’s office, Health and Human Services, in Boston, Massachusetts, was not able to complete the brief due to be filed this date because of a backlog cm cases.” This does not amount to a showing of excusable neglect. Cf. McDermott v. Lehman, 594 F.Supp. 1315 (D.Me.1984); Greene v. Union Mutual Life Ins. Co., 102 F.R.D. 598 (D.Me.1984). Although judgment by default is not proper in this case, Alameda v. Secretary of Health, Education and Welfare, 622 F.2d 1044 (1st Cir. 1980), “the Court is not without resources of a compulsory nature to force the Secretary to comply with its statutory and procedural duties with respect to progress of this litigation.” Montrose v. Heckler, 579 F.Supp. 240, 242 (D.Me.1984); Poliquin v. Heckler, 597 F.Supp. 1004 (D.Me.1984). In analogous circumstances, the Court has refused to permit the party who fails to file a timely opposition to a motion for summary judgment under Local Rule 19 to submit materials in opposition and has decided the motion with reference to the moving party’s submissions alone. See McDermott v. Lehman. Accordingly, the Court finds that the Secretary, by failing to timely file a motion and supporting memorandum of law in opposition to Plaintiff’s motion or a motion for extension of time, has waived her right to file an opposing memorandum of law, and the case will be decided based on Plaintiff’s submissions alone.

II.

The standard of this Court’s review is whether the determination made by the Secretary is supported by substantial evidence. 42 U.S.C. § 405(g); Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1st Cir.1981). The determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusions drawn. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

The Court has thoroughly reviewed the transcript of the administrative proceedings, the exhibits presented, the decision of the AU, and Plaintiff’s brief. After careful consideration, the Court finds that there is not substantial evidence to support the Secretary’s decision that the claimant was not disabled within the meaning of the Social Security Act.

The claimant has been diagnosed as having progressive, unstable degenerative disc disease and spondylolisthesis of sections of his spine. Record at 140. He discontinued his work as a maintenance foreman at a paper mill on October 3, 1982. The ALJ found that he is unable to perform his past relevant work, but that he has the residual functional capacity to perform the full range of sedentary and light work. See 20 C.F.R. § 404.1567. Accordingly, the AU. found, based upon the testimony of a vocational counselor and upon the medical-vocational guidelines, 20 C.F.R. Part 404, Appendix 2, Subpart P, Rules 201.11 and 202.-12, that the claimant was able to perform a number of jobs existing in significant numbers in the national economy. See 20 C.F.R. 404.1566.

There is extensive medical evidence to the effect that the claimant has severe lumbar spine problems, and the ALJ so found. The ALJ found, however, and the claimant does not dispute, that the claimant does not have an impairment or combination of impairments listed in or medically equal to one of those listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. The issue reduces to whether there is substantial evidence to support the AU’s conclusion that the claimant’s pain, resulting from his well-documented severe lumbar spine problems, does not prevent him from doing light or sedentary work.

The Court of Appeals' for the First Circuit has described the substantial evidence standard of review as follows:

In reviewing the record for substantial evidence, we are to keep in mind that “[ijssues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the Secretary.” The Secretary may (and under his regulations must) take medical evidence. But the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for him, not for the doctors or the courts. We must uphold the Secretary’s findings in this case if a reasonable mind, reviewing the record as a whole, could accept it as adequate to support his conclusion.

Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir. 1981) (citations omitted).

The claimant testified that he suffers constant back pain. Record at 31, 68. He said he can sit for about ten minutes at a time and stand for no longer than half an hour. Record at 33. After standing for half an hour, he has to bend over in order to relieve the pain. Record at 68. In order to relieve his pain, he must use what he calls “a model lounge chair” at least a dozen times a day for a total of three or four hours a day. Record at 69. He sleeps with his knees pulled up to his chin. Record at 57. When he falls asleep, his legs will stretch out and wake him, and therefore, he sleeps “brokenly” only four to five hours a day. Record at 58.

The claimant testified that before his back pain became severe two years earlier, he skied frequently. Record at 65. He played golf two or three times a week, and had a handicap of eight. Record at 64. He owned a summer camp, and hunted and fished frequently. Record at 61, 62, 63. In the two years prior to his testimony, the claimant testified, he had been unable to pursue any of these activities, except that he had gone fishing two or three times in a boat. Id.

On the other hand, the claimant testified that he was able to perform the basic activities associated with keeping a household. He lives alone. He does grocery shopping two or three times a week. Record at 37. He does his own cooking, dishes and sweeping. Record at 45. However, his sister cleans his house twice a week. Record at 46. He goes out each day to get his mail and morning paper. Record at 47.

The claimant testified that he now spends much of his time bird watching, photographing wild life that comes into his yard, and feeding wild animals near his home. Record at 41, 48, 71. He walks a half mile to his neighbor’s house through the woods approximately once a week. Record at 72.

As the ALJ noted, there is extensive objective medical evidence supporting the claimant’s complaints of pain. The only question is whether the pain is as disabling he says it is.

On March 28, 1983, David Phillips, M.D., a treating physician, stated that the claimant is “unable to carry on the activities of daily living in a comfortable fashion. He has difficulty getting up and down. He has difficulty sitting for any period of time.” Record at 151. Dr. Phillips also stated:

He has been on non-steroidal anti-inflammatories and the use of Amitriptyline at bedtime for pain relief along with Bufferin. He previously has used a corset. He has been unable to tolerate any physical therapy or exercises. Response has been nil. He has also received two epidural blocks with no relief.

Record at 154.

At the request of the Secretary, the claimant was examined by Gerald Abraham, M.D., a psychiatrist. With respect to the credibility of the claimant’s complaints of pain, Dr. Abraham stated:

This apparently healthy man with a history of hard work terminating last year appeared throughout the interview to be suffering from a great deal of discomfort. There seemed to be no dishonesty in his approach with no evidence of embroidering in his story.

Record at 169 (emphasis added).

The claimant was also examined by a clinical psychologist, Nicholas J. Rehagen, Ph.D., for the purpose of evaluating “possible psychological aspects of pain Mr. Ma-whinny [sic] is experiencing.” Record at 191. Dr. Rehagen’s report was admitted into evidence after the AU’s decision. Dr. Rehagen reported:

Mr. Mawhinny [sic] indicates that his interests and activities have been markedly curtailed due to the pain and he finds himself becoming extremely frustrated and sometimes depressed because of the limitations that are imposed upon him by the pain. He stated to me also that he has quite a struggle avoiding becoming bitter and spends a great deal of energy trying to keep up a positive attitude although the future looks grim to him. He is an individual who enjoyed his work and appears to me to be having a difficult time adjusting to an unemployed/disabled status.
Regarding the tests administered, Mr. Mawhinny [sic] took all the tests willingly and during the interview, he presented himself in a candid and honest manner. I found no indication of attempts to exaggerate his claims and, in fact, he has a tendency to present himself in a somewhat “tough poise.

Record at 191 (emphasis added). Dr. Rehagen further stated that the tests he performed “suggested there is no evidence of malingering or attempts to present himself in an unfavorable manner or in a way to exaggerate his claims.” Record at 192. Finally, Dr. Rehagen stated:

On the basis of the interview and test results, it is my impression that Mr. Ma-whinny [sic], both from observation and self report, is experiencing severe pain and this pain is of such a degree that it will interfere with even sedentary work. Mr. Mawhinny [sic] was not able to remain seated for more than about ten minutes without wincing and needing to pace and do so in a genuine and authentic manner.

Record at 192.

The claimant underwent an extensive series of tests performed by Philip B. Haber, a psychologist at Metropolitan Rehabilitation Services, Inc. His report also was admitted after the ALJ issued his decision. The psychologist noted in passing that the claimant was “unable to tolerate more than three hours of evaluation at any one sitting.” Record at 202. The testing included psychological testing, interest evaluations, and performance of “hands on” simulated work tasks. Haber concluded that the claimant was incapable of sustained occupational activity in the regional economy. He explained:

I base this finding on his inability to tolerate light and sedentary work effort for even a half day and the very significant pain behavior which was noted during the evaluation.

Record at 205.

The reports of Dr. Abraham, Dr. Rehagen, and Mr. Haber constitute substantial expert evidence which strongly corroborates the claimant’s subjective complaints of pain. The record contains no evidence that is inconsistent with these reports.

The Court is at a loss to find any substantial evidence in this extensive record to discredit the claimant’s complaints of severe pain. The ALJ did not expressly state upon which evidence he relied in deciding that claimant’s complaints of pain were neither persuasive nor credible. Apparently, however, the AU found it significant that the claimant

is able to walk up to one half mile and does so several times a week when he hikes through the woods around his home. Also it is noted that he is able to perform most household chores.

Record at 15. The ALJ noted also that one physician, Dr. John W. Wickenden, an orthopedic surgeon, stated that there might be a psychological component to the claimant’s problems. Record at 15. This evidence, however, is not inconsistent with the claimant’s assertion that his pain disables him from doing any kind of work on a sustained basis. It does not discredit the claimant’s testimony, nor does it in any way contradict the opinions of the three professionals who examined the claimant with particular attention to the credibility of his complaints of pain.

In sum, there is not substantial evidence to support the AU’s conclusion that the claimant has the residual functional capacity to perform light or sedentary work. The record in this case does not present a picture of a malingerer. Rather, the picture that emerges is one of a formerly extremely active man who enjoyed his work and outdoor activities, who now is struggling to do as much as he can in spite of his pain. The following excerpt from the claimant’s testimony at his hearing illustrates this point:

Q [by claimant’s attorney] When you do walk, you have indicated that you walked to your neighbor’s, and you may walk out to get your mail and the newspaper. How would you describe the method by which you walk and how long it takes you to walk?
A I walk very slow.
Q Why?
A Because I never know what my left leg is going to do for me.
Q Is there any pain associated with the leg?
A Yes, sir.
Q Why do you continue walking if there’s pain associated with the leg?
A You have to do something. You’ve got to do something.

Record at 73-74.

It is ORDERED that the decision of the Secretary is REVERSED, and the Secretary is ORDERED to commence payment of disability insurance benefits to Plaintiff immediately and retroactive to October 3, 1982, in accordance with his entitlement under the Social Security Act.

So ORDERED.


source: Caselaw Access Project

author: PITTMAN, Senior District Judge.

license: Public Domain

text:
    MOBILE COUNTY JAIL INMATES, et al., Plaintiffs, v. Thomas J. PURVIS, et al., Defendants.
    Civ. A. No. 76-416-P.
    United States District Court, S.D. Alabama, S.D.
    Jan. 15, 1985.

      J.U. Blacksher, Mobile, Ala., Steven L. Winter, Deborah Fins, Jack Greenberg, Stanley A. Bass, New York City, for plaintiffs.
    Roderick P. Stout, James C. Wood, Mobile, Ala., Bob Bright, Jack M. Curtis, Montgomery, Ala., Ronnie L. Williams, John Lawler, Mobile, Ala., for defendants.
   ORDER RESCINDING CONTEMPT FINE

PITTMAN, Senior District Judge.

On October 29, 1982 (tab 195), this court entered an order holding the defendants in contempt of court for not complying with this court’s order of April 24, 1981 (tab 137) concerning the jail population. A $5,000-a-day fine was imposed until such time as the defendants were in compliance. 551 F.Supp. 92, affirmed 703 F.2d 580.

Subsequent orders extended the time that the defendants were given to purge themselves of contempt. The last such order was entered July 3, 1984 (tab 259), which gave the defendants until December 31, 1984 to purge themselves of contempt.

On January 4, 1985, the defendant Commissioners of Mobile County filed a motion and report to the court asserting that a new jail facility had been completed which houses 96 prisoners and that the jail facility and the county are now in compliance with this court’s order, and requested the court to purge them of contempt and remit the fines levied against them.

On January 7, 1985, the defendant Sheriff of Mobile County adopted the representations made in the Commissioners’ motion and requested the court to remit the accumulated contempt fines and further requested that in the alternative the accumulated contempt fines be used solely for the construction of additional jail facilities.

These motions were set and a hearing was held on the 10th day of January, 1985. Uncontested evidence was offered that the new jail facility had been completed and that on December 31, 1984 the defendants were in compliance with this court’s order dated April 24, 1981 and have been since that time. It was established that on January 10, 1985 there were 102 non-state prisoners in the old jail facility which has a non-state limit of 125, and 95 in the new jail facility which was constructed to hold 96, totaling 197 inmates in 221 spaces.

The evidence further showed that since July, 1984 the county was in compliance on August 6, 13, 20 and December 24, 1984. The jail population was in excess of the limits set by the court and reached as high as 164 during this period.

THE SHERIFF’S REQUEST FOR ALTERNATIVE RELIEF

The sheriff has requested the court to order additional jail facilities be constructed from the accumulated fines. Such facilities may be needed in the near future, but elected officials should spend the taxpayers money. The court should not be in the business of collecting contempt fines and spending that money.

Contempt proceedings are a tool of last resort. That request is denied.

DEFENDANTS’ REQUEST THAT THE COURT FIND THEM PURGED OF CONTEMPT AND REMIT THE FINES

In the early stages of this litigation, approximately 500 inmates were crowded, almost stacked, in the county jail when only 145 should have been housed there. As late as May, 1981 there were approximately 430 inmates crowded in the jail. In 1982 and 1983 the county jail population ranged as high as 227.

The new jail increases total available space in the county jail facilities from 145 to 241, with non-state inmates at 125 in the old jail and 96 in the new jail, totaling 221. There are presently 197 non-state inmates in the county jail.

The county commissioners and other defendants are now in compliance with this court’s order dated April 24, 1981.

The people of Mobile County are humane and decent. They should take satisfaction in the fact that their brothers, even the least of them, are now housed in a humane and decent manner.

The fine was not punitive. It was not intended to punish anyone, least of all the taxpayers of Mobile County.

It was levied to coerce, to compel the County Commissioners and other defendants to comply with this court’s order to provide constitutionally mandated living space for county jail inmates.

The purpose of this fine has been served.

Beginning in January, 1982, three years ago, there have been six extensions granted to the defendants to meet an order issued in April, 1981.

Although the Commissioners’ actions have been halting, hesitant, and marked by vacillation, they have demonstrated sufficient good faith to purge themselves of contempt. The $5,000-a-day fine, and the approximately $4,000,000 accrued fines assessed and not paid into court are hereby set aside and held for naught.

RE THE DEFENDANTS’ MOTION THAT THE REMAINING MONIES IN THE POR FUND BE REMITTED TO THE GENERAL FUND OF MOBILE COUNTY

Most of the time during the period the defendants have been under court order to reduce the jail population, large numbers of county inmates have been housed in the city jails of Prichard and Mobile, reaching a figure as high as 175 at the same time over 200 were in a jail facility limited to 125 prisoners. Evidence at this hearing indicated that during the last six months an average of 70 prisoners have been housed in those jails, although at this time none are there. After a frank discussion with the defendants on the probability of the present jail facilities being overcrowded unless prisoners are kept in those city facilities when the maximum number is reached in the county jail facilities, the court finds the Jail Monitor and the Prisoner Overcrowding Relief (POR) Fund have been effective in assisting the defendants reduce the overcrowding. There was general agreement the program should continue at least a year to see if the defendants can continue to meet the limits as set in this court’s order of April 24, 1981. The monies paid in by the county are in interest bearing accounts and the interest has materially reduced the cost of this program. It is the court’s hope that the defendants can discharge their duties under the injunctive order of this court and that within a year’s time the remaining monies can be refunded to the county treasury.

Plaintiffs’ attorneys’ fees are to be established at a later time.


author: NAUMAN S. SCOTT, District Judge.

text:
    Richard Troyce ROBERTSON v. SUPERIOR PMI, INC.
    Civ. A. No. 82-0350.
    United States District Court, W.D. Louisiana, Alexandria Division.
    Jan. 15, 1985.

      Daniel E. Broussard, Jr., Broussard, Bolton & Halcomb, Alexandria, La., for plaintiff.
    John G. McLure, Alexandria, La., for defendant.
    Anna E. Dow, Gravel, Robertson & Brady, Alexandria, La., Louis M. Kiefer, Jr., Richard S. Vale, Metairie, La., Howard B. Gist, III, Gist, Methvin, Hughes & Munsterman, Alexandria, La., for intervenors.
   OPINION

NAUMAN S. SCOTT, District Judge.

This is a products liability action brought by Richard T. Robertson (Robertson) against Superior PMI, Inc. (Superior) for injuries sustained by Robertson during his employment at Hunt Plywood Company, Pollock, Louisiana (Hunt). Robertson alleges that he was injured by a flying saw, manufactured by Superior and installed by Hunt in its layup line where Robertson worked.

We have diversity jurisdiction pursuant to 28 U.S.C. § 1332.

FINDINGS OF FACT

1. On July 8, 1981, Robertson was working for Hunt on an assembly layup line in its plywood manufacturing plant in Pollock, Louisiana.

2. The plywood assembly layup line was designed and built for Hunt by Hunt.

3. Hank Clark (Clark), manager of the Pollock facility, who had previously seen flying saws operating in other plants, made the decision to incorporate a flying saw into Hunt’s layup line. This was done because the flying saw reduced waste and automated the layup line which would give Hunt great economic benefit.

4. Hunt purchased and installed a flying saw, manufactured by Superior PMI, Inc. (Superior), along with other machinery needed for the manufacture of plywood. The flying saw was installed by Hunt.

5. Although Superior manufactured entire layup lines, Hunt never considered buying the entire line from Superior.

6. A control panel was furnished by Superior, along with the flying saw. Hunt did the complete installation of the saw and the control panel. Superior, however, did assist in the wiring and start-up of the flying saw.

7. No advice was given by the Superior serviceman regarding safety. Superior only advised Hunt as to mechanical operations of the flying saw and made a mechanical inspection at the first start-up procedure of the flying saw.

8. The control panel (switches) was located approximately two feet upstream from the flying saw which operated automatically. There was no need for an operator to be near the flying saw. Limit switches assured that the flying saw always clamped and cut at the same location on the conveyor.

9. The chain drive, which propelled the layup line conveyor, was attached to the flying saw so that the movement of the layup line and the operation of the flying saw were synchronized. This allowed the flying saw’s upstream and downstream movement to be stopped automatically when the conveyor line was stopped.

10. At the time the saw was purchased, the only application for the flying saw was on a plywood assembly layup line.

11. During the cutting cycle of the flying saw, the flying saw would travel to its furtherest upstream position, clamp and then make its cut as the material traveled downstream on the conveyor. Once at its furtherest downstream position, the clamp, which was also a guard for the saw blade, would raise up and travel back upstream to the starting position. At the same time, the saw blade automatically lowered underneath the conveyor line and traveled back to the starting position.

12. The conveyor line could be stopped and started at several locations along the layup line. At some of the work stations along the layup line, the workers would have foot pedals which would disengage the chain drive to the conveyor. This would indirectly cause the cutting cycle of the flying saw to halt because of its synchronization with the conveyor line. The saw blade would still continue spinning, but the travel and movement of the saw and clamp would be halted by the disengagement of the chain drive.

13. The control panel, furnished by Superior and installed by Hunt, was located at Robertson’s work station. By use of these controls, Robertson could have stopped and started the flying saw or the whole layup line. These were the only controls which could completely shut down the entire layup line and the flying saw.

14. The foot pedals, which were at the core layers’ stations, were used by the core layers to stop the layup line so that the veneer sheets and pieces of core could be straightened on the conveyor.

15. Every 3 to 5 minutes the layup line would be stopped by one of the core layers using the foot pedals. Many times a sheet turner such as Robertson, would yell to a core layer to hold the line. The core layer would step on the foot pedals in order to stop the layup line, so that material could be straightened at his or another worker’s station. This was the standard operating procedure for the workers on the layup line at Hunt, because not all work stations had these foot pedals. The workers stopped the line by use of the foot pedals rather than the control panel because it was more convenient and kept production at a higher level. Despite the high level of noise at the plant, this procedure had been successfully followed for a significant period of time by the employees at Hunt.

16. Before Robertson’s injury, the workers on the layup line, including Robertson, believed that this standard operating procedure was safe. Hunt had no written procedures regarding the straightening of materials on the line.

17. The workers on the layup line, including Robertson, knew that the layup line and the flying saw could be stopped by use of the control panel, but they also knew that stopping the layup line by use of the foot pedals would also stop the cutting cycle of the flying saw.

18. On the day of the accident, Robertson was working as the last sheet turner on the layup line. His work station was closest to the flying saw. Although the flying saw itself required no operator, Robertson’s work station was located within a few feet of the flying saw.

19. Hunt designed the layup line compactly so as to save money and space at their plant.

20. On July 8, 1981, as the material traveled down the conveyor line, Robertson saw a broken piece of core material sticking out from between the veneer on the opposite downstream corner of the material. Robertson thought that the material would cause a jam-up if it went into the flying saw in that condition.

21. Robertson yelled to Allen Hebert (Hebert), who was at the closest core layer’s station, 8 to 10 feet upstream from Robertson, to stop the conveyor line.

22. The layup line had actually been stopped by someone other than Hebert and for reasons other than to allow Robertson to straighten the material. When the other core layer had accomplished his purpose, he freed his foot pedal. Since Hebert had not depressed his pedal control, the eonveyor line began to move.

23. Thinking that Hebert had stopped the conveyor line for him and that all was safe, Robertson stretched across the 4 foot wide sheets of veneer and core lying on the conveyor. Robertson then attempted to straighten the material, on the opposite side of the conveyor and downstream toward the flying saw, with his right hand.

24. The flying saw was in the up position, about 1 to Yk feet downstream from Robertson’s right hand, when the layup line was restarted by the worker who had previously stopped the line for another reason. Robertson, who was leaning on his right hand, lost his balance so that his right hand was pinned between the layers of material. His hand was then pulled toward the flying saw by the downstream motion of the conveyor line. The flying saw moved upstream. The flying saw clamp, which holds the veneer and core for cutting and serves as a guard and shield for the saw blade, came down and clamped Robertson’s hand. The flying saw made its cut exactly at the same place on the conveyor as it always did. Robertson’s right hand was crushed by the clamp and his four fingers were severed by the saw blade. The layup line was running on a fast setting and there was little time to react. When the conveyor line started moving, Hebert tried to stop and did stop the conveyor line with his foot pedal, but the flying saw had already crushed and cut Robertson’s hand. All that Hebert could do was to keep the conveyor line and the flying saw from moving downstream, since the foot pedals could not raise the clamp or stop the saw blade from spinning.

25. After Hebert stopped the line, other co-workers shut down the layup line and flying saw and then proceeded to free Robertson’s hand from underneath the clamp. With some difficulty, co-workers managed to pull the saw clamp off of Robertson’s hand. Robertson was conscious until his co-workers got him off the plywood assembly line. After that, Robertson lost and regained consciousness several times.

26. Thereafter, Robertson underwent multiple hospitalizations and surgical procedures. Efforts to save the severed fingers of Robertson’s right hand were unsuccessful. As a result of this injury, Robertson, who was 19 years old at the time of injury, has suffered and continues to suffer physical pain and mental depression.

27. Robertson has only a 10th grade education. He was right handed and now that hand is only marginally useful to him.

28. Since the accident Hunt has installed a metal safety screen all the way across the layup line, between the head sheet turner and the flying saw. This added feature makes it difficult for a worker in Robertson’s position to reach under the screen and is a visible warning of the danger existing beyond the screen.

CONCLUSIONS OF LAW

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person who, without fault on his part, sustains an injury caused by a defect in design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e. unreasonable dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect. Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754, 756 (La.1971). If the product is proven defective, the plaintiff need not prove any negligence on the part of the manufacturer; for the manufacturer is presumed to know the vices in the things he makes, whether or not he has actual knowledge of them. Weber, supra.

A product is defective, i.e., unreasonably dangerous, when a reasonable seller would not sell the product if he knew of the risk involved or the risks are greater than a reasonable buyer would expect. Porter v. American Optical, 641 F.2d 1128, 1138 (5th Cir.1981); Hagans v. Oliver Machinery Co., 576 F.2d 97 (5th Cir.1978); Daniels v. Albach Co., Inc., 365 So.2d 898 (La.App. 4th Cir.1978).

The flying saw’s only application is on a plywood layup assembly line, such as the one constructed by Hunt. It is reasonably foreseeable that a designer of a plywood layup line, such as Hunt, would design and construct a compact plywood layup line in. order to reduce costs and conserve space. We find that on a compact plywood layup line, such as the one at Hunt, that the last sheet turner is placed so close to the flying saw, that the flying saw is unreasonably dangerous to this worker, in absence of adequate guarding of the clamp and blade.

We hold that a manufacturer of dangerous machinery has a duty to protect a worker stationed near that machinery, where it is reasonably foreseeable that the worker would be placed near the machinery and where it is reasonably foreseeable that the worker would suffer injury from that machinery’s operation. We find that in this particular case, that duty can only be fulfilled by designing the flying saw so that a physical barrier would prevent the worker from reaching too close to the flying saw; from being pulled into the flying saw by the conveyor; or from inadvertently sticking his hand under the path of the clamp on the flying saw.

We conclude that this flying saw, manufactured by Superior, was defective, i.e. unreasonably dangerous, because the clamp and saw blade were not adequately guarded by a physical barrier. The cost of such a barrier would be very small and we cannot find that there would be any production problems caused by such a barrier. We do not think that the manufacture, marketing, shipping or utility of this product will be adversely affected by the production of a flying saw with such a barrier.

We find that this defective product was a cause in fact and a substantial factor in bringing about the foreseeable injury, to Robertson.

DEFENSES

Superior has failed to prove that Robertson knowingly and voluntarily encountered the very risk which caused him harm. Guillotte v. Houston General Insurance Company, 368 So.2d 1026 (La.1979). Therefore, the defense of “assumption of the risk” is not supported by the facts of this case.

This injury occurred on July 8, 1981, almost one year after the effective date of La.C.C. art. 2323. We recognize that the Supreme Court of Louisiana has not given a clear definitive answer to the issue of whether La.C.C. art. 2323 is applicable as a defense to a products liability action in Louisiana. Although this question has been certified to the Supreme Court of Louisiana in Bell v. Jet Wheel Blast, 717 F.2d 181 (5th Cir.1983), we must make our decision without the benefit of their opinion.

While “... precomparative fault jurisprudence on the relevance of contributory negligence in strict liability cases is obviously significant on the question of how a plaintiff’s negligence should be treated in strict liability cases decided under the comparative fault legislation”, David W. Robertson, Ruminations on Comparative Fault, Duty Risk Analysis, Affirmative Defenses, and Defense of Doctrines and Negligence and Strict Liability Litigation in Louisiana, 44 La.L.Rev. 1341, 1352 (1984), we are of the opinion that the prior jurisprudence is not controlling. La.C.C. art. 2323 should not be interpreted as freezing the issue of the applicability of contributory negligence in strict liability cases according to the weight of the precomparative fault cases. Id.

“Unlike some comparative fault statutes that expressly apply only to actions based upon negligence, see, e.g., Kirkland v. General Motors Corp., 521 P.2d 1353 (Okla.1974), Louisiana’s statute applies ‘when contributory negligence is applicable to a claim for damages.' It proportionately reduces recovery when ‘a person suffers injury, death or loss as a result partly of his own negligence and partly as a result of the fault of another person or persons ...’ LSA-C.C. art. 2323.” Lewis v. Timco, Inc., 716 F.2d 1425, 1432 (5th Cir.1983).
[emphasis ours].

The language of LSA-C.C. art. 2323 “... injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons” is interpreted by us to require a balancing of negligence (contributory negligence) of the plaintiff and the fault (including strict liability) of the defendant. Accordingly, we hold that La.C.C. art. 2323 is applicable to a products liability cause of action in Louisiana. To hold otherwise would complicate multiple defendant cases and unjustly treat negligent defendants more favorably than strict liability defendants. Robertson, supra, at 1354. In order to reach a fair and equitable outcome in any case, the fault of all parties must be considered and quantified. “... [G]eneral considerations of fairness and efficiency support a comparative fault defense in products liability actions.” Lewis v. Tínico, Inc., 716 F.2d 1425, 1433 (5th Cir.1983).

Robertson owed himself a duty of reasonable care in the performance of his work. We find that he failed to use reasonable care in that he failed to use the control panel to shut down the flying saw and the plywood layup line when attempting to straighten the material on the line. In addition, Robertson failed to use reasonable care in that he failed to observe and be aware of the placement of his right hand in relation to where the flying saw would make its cut. We find that the breach of the duty which Robertson owed himself was a cause in fact and a substantial factor in bringing about the harm that he suffered. Accordingly, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to Robertson. We find that percentage to be thirty-five (35%) percent.

ATTORNEY’S FEES

We find that La.C.C. art. 2545 and the ruling in Philippe v. Browning Arms Co., 395 So.2d 310, 318-319 (La.1981), regarding the award of attorney’s fees in products liability cases, only grants that remedy in favor of a purchaser of the product. Since Robertson was not the purchaser of the flying saw, attorney’s fees cannot be awarded in the case at bar.

DAMAGES

Robertson usually worked 46 hours a week at Hunt, earning $5.35 per hour for straight time and $8.03 per hour for overtime. Robertson also received fringe benefits consisting of major medical, hospitalization and life insurance.

The unrebutted evidence produced by the plaintiff shows an estimated total loss of earnings, from the date of injury to the date of trial, to be $51,255.86. We find that figure to be accurate.

Robertson was 19 years of age at the time of his injury and had only a 10th grade education. The unrebutted testimony of the plaintiff’s economist, Dr. Jan Duggar, was that Robertson had a work-life expectancy of 37.76 years, at the time of the accident. Robertson has a permanent partial loss of function of his right hand estimated at 65%.

Although it may be a year before Robertson is able to return to work, we do not find Robertson to be totally disabled. It is our opinion that Robertson is partially disabled and should be able to return to work at an entry level in an alternative occupation.

Therefore, we find that Robertson is entitled to future loss of earnings, in the amount of $260,723.00.

Robertson has undergone five extensive surgical procedures and numerous hospitalizations, as well as numerous other medical treatments, as of November 27, 1984. Accordingly, we find that Robertson is entitled to $79,263.02 in past medical expenses. Additionally, we find that Robertson is entitled to $10,000.00 for future related medical expenses which are anticipated by his physician.

Robertson suffered a traumatic amputation of four fingers from his right hand, which was his dominant hand. The record shows that he has endured great pain due to this injury and will continue to suffer because of the neuromas on his hand, which cannot be eliminated by surgery. Robertson also suffers from nervousness and depression as a result of his injury. He can no longer do many simple tasks, involving varying degrees of dexterity, such as buttoning his shirt or tying his shoes. His hand is substantially disfigured and only marginally useful.

We find that Robertson is entitled to $400,000.00 for general damages, including pain and suffering, past and future, permanent disability, disfigurement, mental anguish and embarrassment.

We hold that Superior is liable and indebted unto Robertson in the amount of $520,807.22 ($801,241.88 less 35%, the degree of fault attributable to Robertson).

INTERVENTION

Employers Insurance of Wausau (Wausau) has intervened in this action, seeking to recover workman’s compensation and medical payments made to and on behalf of Robertson, who was an employee of the intervenor’s insured, Hunt, at the time of Robertson’s injury.

We find that Wausau has paid $79,145.02 in medical and related expenses, as of November 27, 1984; and $26,527.36 in workman’s compensation benefits, as of August. 14,1984. We also find that Wausau continues to pay weekly workman’s compensation benefits at the rate of $163.00 per week.

Wausau shall be reimbursed by priority, solely out of the reduced proceeds for the medical expenses and lost wages portion of the judgment awarded to Robertson, for all compensation and medical expenses actually paid by Wausau. Fontenot v. Hanover Insurance, 385 So.2d 238 (La.1980).

A judgment shall be submitted to this court in accordance with this opinion within ten days of the signed date.


author: RYAN, District Judge.

text:
    AETNA CASUALTY & SURETY CO., a corporation, Plaintiff, v. GULF RESOURCES & CHEMICAL CORPORATION, a Delaware corporation; the Bunker Hill Company, a Delaware corporation; Pintlar Corporation, a Delaware corporation, Defendants. CONTINENTAL RE-INSURANCE CORPORATION, a California corporation; Pacific Insurance Company, a California corporation; Fidelity & Casualty Company of New York, a New York corporation; and Northbrook Insurance Company, an Illinois corporation, Plaintiffs, v. The BUNKER HILL COMPANY, a Delaware corporation; and Gulf Resources & Chemical Corporation, a Delaware corporation, Defendants. The STATE OF IDAHO, Plaintiff, v. The BUNKER HILL COMPANY, et al., Defendants. GULF RESOURCES & CHEMICAL CORPORATION, Third-Party Plaintiff, v. The AETNA CASUALTY AND SURETY COMPANY, et al., Third-Party Defendants. GULF RESOURCES & CHEMICAL CORPORATION, et al., Third-Party Plaintiffs, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, et al., Third-Party Defendants. PINTLAR CORPORATION, Third-Party Plaintiff, v. UNDERWRITERS AT LLOYD’S, LONDON, Third-Party Defendant.
    Civ. Nos. 83-3161, 84-1155 and 84-3071.
    United States District Court, D. Idaho.
    Jan. 16, 1985.

      Jim Jones, Atty. Gen., State of Idaho, P. Mark Thompson, Sheila Glusco Bush, Deputy Attys. Gen., Boise, Idaho, for plaintiff.
    James P. Keane, William F. Boyd, Evans, Keane, Koontz, Boyd & Ripley, Kellogg, Idaho, for Gulf Resources & Chemical Corp., Bunker Hill Co. and Pintlar Corp.
    James B. Lynch, Scott W. Marotz, Imhoff & Lynch, Boise, Idaho, for Admiral Ins. Co.
    John P. Howard and Marc A. Lyons, Quane, Smith, Howard & Hull, Boise, Idaho, for Fidelity & Cas. Co., Pacific Ins., Continental Re-Insurance Corp. and North-brook Ins. Co.
    R.B. Kading, Jr., Scott D. Hess, Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, Idaho, for Aetna Cas. & Sur. Co.
   RYAN, District Judge.

The State of Idaho filed the present suit claiming that the defendants’ smelting activities have injured the State’s northern environment. The State’s Complaint alleges causes of action under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601-9657 and 26 U.S.C. § 4611 (1983) (the “Superfund Act”); the Environmental Protection and Health Act of 1972, Idaho Code §§ 39-101 to 39-118; and the Idaho common law of public nuisance. As a result of the State’s action, the defendants, Bunker Hill Company, Pintlar Corporation, and Gulf Resources and Chemical Corporation (hereinafter Bunker Hill) filed numerous Third-Party Complaints seeking indemnification from various insurance companies.

Third-Party Defendant Aetna Casualty and Surety Company (Aetna) moved this court for summary judgment on the State’s second, third, and fourth causes of action which are based on state common law principles of public nuisance. In addition, Aetna moved for summary judgment on any claim for relief based upon Idaho Code §§ 39-101 to 39-118, the Environmental Protection and Health Act of 1972. In support of Aetna’s Motion for Summary Judgment, Aetna maintains that these state-based claims are barred by the applicable statute of limitations. The State of Idaho opposes the motion, arguing that the statute of limitations does not apply to the State in this instance since the State is pursuing this action in its role as parens patriae in fulfillment of its high public duty to protect the State’s environment. The State maintains that this duty is a high public trust and that public policy forbids application of the statute of limitations.

ISSUES PRESENTED

The court perceives two issues raised by Aetna’s motion. First, are the State’s common law and state statutory claims barred by the applicable statute of limitations? In this regard, the court must determine whether the State should be allowed to avoid the statute of limitations when it is acting in its parens patriae capacity in fulfillment of a high public trust. Second, if the court determines that the State is bound by the applicable statute of limitations, the court must then decide what effect that determination has on the claims in question.

APPLICABILITY OF STATUTE OF LIMITATIONS

Idaho Code § 5-225 provides: Limitations apply to state. — The limitations prescribed in this chapter apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties.

The language of Section 5-225 has been in effect in Idaho since prior to the turn of the century. Idaho Code § 5-224 provides:

Actions for other relief. — An action for relief not hereinbefore provided for must be commenced within four (4) years after the cause of action shall have accrued.

It is well settled in Idaho that the four-year statute of limitations provided for by Section 5-224 applies to nuisance actions. See Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 52 Idaho 766, 22 P.2d 147 (1933). There is no doubt that in an action instigated by a private party, Section 5-224’s four-year statute of limitation applies to state-based nuisance claims. Since Idaho’s Environmental Protection and Health Act does not provide its own statute of limitation, the four-year limitation provided by Section 5-224 applies to actions brought under it. A plain reading of Idaho Code § 5-225 would lead one to conclude that Section 5-224’s four-year statute of limitations applies to actions brought in the name of the State or for the benefit of the State. The State disagrees with this analysis and urges the adoption of the rationale employed by the Idaho Supreme Court in a very early case, Elmore County, et al. v. County of Alturas, 4 Idaho 145, 37 P. 349 (1894).

In the Alturas case, Plaintiffs Elmore, Logan, and Bingham Counties petitioned the courts for a writ of mandate. It appears that in 1889 the State legislature partitioned the then existing County of Alturas. As a result of the partition, the Counties of Elmore and Logan were created. Alturas County was made smaller, and Bingham County was enlarged. The legislature also provided that the old debt of Alturas County should be apportioned among the newly created Elmore, Logan, Alturas, and Bingham Counties. The Legislature required that each of these four counties appoint a competent accountant to determine what portion of the debt should be assumed by each of the counties. Elmore, Logan, and Bingham Counties complied with the legislative mandate, but Alturas County refused to appoint an accountant. Plaintiff Counties thereupon filed suit demanding a writ of mandate • which would require Alturas County’s compliance. Alturas answered the Complaint admitting the material allegations and asserting that the statute of limitations barred the plaintiffs’ suit. Upon review, the supreme court addressed the statute of limitations argument put forth by Alturas County. The court noted:

It is a principle of the common law that the government ... cannot be guilty of laches. It is also well settled that a state is not barred by a statute of limitations, unless expressly named____ As respects public rights or property held for public use upon trusts, municipal corporations are not within the operation of the statute of limitations; but with regard to mere private rights or contracts the rule is different, and such corporations may plead, and have pleaded against them, the statutes of limitations.

Id. 37 P. at 350 (citations omitted). The court then engaged in a general discussion, pointing out that, as respects public rights, the State was not within ordinary limitation statutes. In matters involving private rights, the court noted, the State would be subject to applicable statute of limitations. Unfortunately, the court never set forth a test to be used in distinguishing between public rights and private rights. Rather, the court stated that the statute of limitation was “specifically restricted to the limitations ‘proscribed in this title’ ”; that is, to actions of a private nature, and against private individuals. Id. 37 P. at 351. The court then determined that the nature of the Alturas litigation was not private, but rather, concerned public rights between two competing counties. Finally, the court quoted the language of Section 5-225 (then Section 4061) and determined that the county (the State) was not bound by its provisions under, those limited circumstances.

Subsequently, in Blaine County v. Butte County, 45 Idaho 193, 261 P. 338 (1927), the supreme court had another opportunity to address the statute of limitations problem raised in Alturas. The facts giving rise to Butte were substantively identical to those giving rise to Alturas. However, the court in Butte came to an entirely different conclusion without citing or distinguishing the Alturas case. The court in Butte held:

The Legislature, at the time of the enactment of [Idaho Code § 5-224], making the statute of limitations applicable to the state, evidently had in mind and recognized the common-law rule exempting the government from such limitations, and meant and intended to provide a limitation for every kind of an action that could be brought in the courts of the state, and passed the same for the express purpose of making the statutory limitation apply with equal force to actions brought by the state in its sovereign and proprietary capacity, as well as to those brought by private parties, and, being applicable to the state, it is applicable to the counties of the state.

Id. 261 P. at 340 (emphasis added). This court has carefully reviewed the Alturas and Butte cases and determines that it is impossible to reconcile their rather divergent holdings. Since Butte was the latter of the two cases, this court must hold that Butte implicitly overruled Alturas and that Butte, unless later modified, remains the law in Idaho.

In 1939, the Idaho Supreme Court decided State v. Peterson, 61 Idaho 50, 97 P.2d 603 (1939), which appears to be in conflict with the Butte holding. In Peterson, the State of Idaho brought suit to foreclose a mortgage which was executed to secure a loan from the State out of the public school endowment fund. Defendants asserted the statute of limitations, and the State countered, arguing that the statute of limitations could not be applied to the State under the circumstances of the case. The supreme court noted that the public school endowment funds are trust funds of the highest and most sacred order, made so by an act of the legislature and by the Idaho Constitution. The supreme court, then citing Alturas, noted that, “ ‘it is also well settled that a state is not barred by a statute of limitations, unless expressly named____ As respects public rights or property held for public use upon trusts, municipal corporations are not within the operation of the statute of limitations ____Id. 97 P.2d at 604-605. Additionally, the court noted that the doctrine announced in Alturas remained the law in Idaho. The court did not specifically address the holding in Butte nor did it distinguish Butte or give its rationale for determining why Butte had not overruled Alturas.

A close reading of the Peterson opinion reveals that the supreme court was more concerned with avoiding any constitutional problem which might arise if the statute of limitations was applied to bar the State’s cause of action. The court recognized the constitutional mandate declaring that the public school funds should “forever remain inviolate and intact” and noted that by holding that the statute of limitations did not apply to the State, they thus avoided the cul-de-sac of unconstitutionality forecast in Bannock County v. Bell, 8 Idaho i, 65 P. 710 (1901). In the present case, though there is no doubt the State is charged with the important public duty of protecting the State’s environment, this public duty is not akin to the State’s duty to preserve the public school fund. Though this court does not imply that the preservation of the public school fund is more important than the preservation of Idaho’s environment, the Idaho Constitution has not required the latter in its provisions.

After careful review, this court determines that the holding in Butte is controlling and that its facts are distinguishable from the facts in Peterson. Absent a showing that the application of a statute of limitations to the State would result in an unconstitutional outcome, or absent a statute immunizing the State from the statute of limitations, this court must hold that the State may not avoid the limitation imposed by Idaho Code §§ 5-224 and -225.

APPLICATION OF THE STATUTE OF LIMITATIONS

Initially, it must be noted that courts have traditionally recognized two distinct types of public nuisances: temporary and permanent. The distinction is important since the characterization of the nuisance has direct impact on the application of the appropriate statute of limitations. In this case, the applicable statute of limitations for nuisance actions is four years. It is well settled that where the complained of nuisance is “permanent,” the cause of action must be commenced within four years from the date the permanent nuisance was created or occurred. If the action is not so maintained, the statute of limitations bars any recovery for the nuisance. Where the nuisance is temporary and continuing in nature, the statute of limitations does not run and an action may be brought at any time to recover damages occurring within the previous limitation period. In this case, there are a myriad of factual disputes relating to the exact nature and cause of the nuisance complained of. There are many factual disputes relating to whether the nuisance is permanent or temporary and continuing. Since resolution of these factual disputes is necessary before the court may determine whether all of the State’s claims are barred, the court may not grant Aetna’s motion completely. However, the court may grant Aetna’s motion in part. That is, where the State is pursuing damages for injuries caused by permanent nuisances which were created prior to December 9, 1979, Aetna’s Motion for Summary Judgment should be granted. The four-year applicable statute of limitations bars any remedy for injuries caused by permanent nuisances which were created prior to that date. As for any continuing and temporary nuisance, Aetna’s Motion for Summary Judgment should be granted for injuries and damages which occurred prior to December 9, 1979. For injuries occurring after December 9, 1979, as a result of any continuing and temporary nuisance, Aetna’s motion should be denied. The court, having read the briefs of counsel and having reviewed the pleadings in the file, and being fully advised in the premises,

IT IS HEREBY ORDERED that Aetna’s Motion for Summary Judgment should be, and hereby is, GRANTED in the following respects:

(1) The State’s second, third, and fourth causes of action, to the degree that they state claims based on public nuisance or upon violations of the Environmental Protection and Health Act of 1972, Idaho Code §§ 39-101 to 39-118, for injuries resulting from any permanent nuisance created by the defendants prior to December 9, 1979, are DISMISSED.

(2) The State’s second, third, and fourth causes of action, to the degree that they state claims based on public nuisance or upon violations of the Environmental Protection and Health Act of 1972, Idaho Code §§ 39-101 to 39-118, for injuries resulting from any temporary or continuing nuisance created by the defendants prior to December 9, 1979, are DISMISSED.

(3) Notwithstanding paragraphs (1) and (2) above, this order shall not be deemed to preclude the State’s recovery for injuries and damages resulting from any permanent nuisance created by defendants between December 9, 1979, and December 9, 1983. Nor shall this order be deemed to preclude the State from recovering for injuries resulting from any temporary or continuing nuisance caused by defendants occurring after December 9, 1979, through the date of trial.

      . Section 3, Art. IX, Idaho Constitution, declares that the public school fund "shall forever remain inviolate and intact____”


text:
    Frances L. SWANSON, individually and as a member of Bonner County Shoreline Property Owners and Taxpayers Protective Association, Inc., an Idaho non-profit corporation, and Bonner County Shoreline Property Owners and Taxpayers Protective Association, Inc., an Idaho non-profit corporation, Plaintiffs, v. The UNITED STATES of America; Clifford L. Alexander, Jr.; Lieutenant General John W. Morris, Jr.; Brigadier General Richard M. Wells; and Colonel Leon K. Moraski, Defendants.
    Civ. No. 80-2069.
    United States District Court, D. Idaho.
    Jan. 16, 1985.

      Steven L. Herndon, McAdam, Herndon & Harrison, Sandpoint, Idaho, for plaintiffs.
    Michael W. Neville, Atty., Environmental Defense Section, Land & Natural Resources Division, U.S. Dept, of Justice, Washington, D.C., Siri Nelson, General Atty., U.S. Army Corps of Engineers, Seattle District, Seattle, Wash., Jeffrey G. Howe, Asst. U.S. Atty., Boise, Idaho, for defendants.
   MEMORANDUM OPINION

RYAN, District Judge.

This action arises from a dispute concerning the United States Army Corps of Engineers’ (Corps) power to regulate the use of the underlying lands and waters of Lake Pend Oreille. Plaintiff Swanson is a property owner of land located adjacent to the lake. Plaintiff Bonner County Shoreline Property Owners and Taxpayers Protective Association, Inc., is an Idaho nonprofit corporation, organized for the express purpose of uniting owners of land located adjacent to Lake Pend Oreille. Named as defendants are the United States; the current Secretary of the Army; the Chief of the United States Army Corps of Engineers; the Division Engineer for the North Pacific Division of the United States Army Corps of Engineers; and the District Engineer for the Seattle District of the United States Army Corps of Engineers.

Following the completion of discovery, counsel for the respective parties agreed to submit the issues presented to the court upon stipulated facts. A lengthy stipulation of facts, together with supporting exhibits, was submitted to the court and a briefing schedule was established. After the required briefing had been completed, the court scheduled and entertained the oral argument of counsel.

FACTS

According to the stipulated facts, during the early 1950’s the Corps constructed the Albeni Falls Dam on the west end of Lake Pend Oreille pursuant to the Rivers and Harbors Act of 1899. As a direct result of the project, the ordinary high water mark of Lake Pend Oreille was raised from 2,051 to 2,062.5 feet above mean sea level (MSL). As the level of the lake rose, adjacent fast lands were flooded. In August of 1952, the United States filed before this court a Declaration of Taking, seeking flowage easements in lands now owned by Swanson lying between the old ordinary high water mark and the new ordinary high water mark. On December 21, 1956, a Judgment was entered by the court condemning the flowage easements sought by the United States.

For purposes of this proceeding only, the parties agree that prior to the construction of the Albeni Falls Dam, Lake Pend Oreille in its entirety was a navigable water of the United States with an ordinary high water mark at 2,051 feet above MSL. It was also stipulated that prior to the construction, Lake Pend Oreille (1) was navigable in fact; (2) was a navigable water of the United States; (3) was a water of the United States; and (4) had an ordinary high water mark at 2051 feet above MSL. After the dam was completed, the parties dispute whether the waters of Lake Pend Oreille lying above lands situated between 2,051 and 2,062.5 feet above MSL are waters of the United States and/or navigable waters of the United States.

In 1971, a Regulatory Function Section was initiated in the Seattle District Office of the Corps of Engineers. On February 18, 1971, representatives from the Corps met with concerned property owners. A Public Information Brochure was distributed by the Corps at that time. The brochure notified concerned individuals that the Rivers and Harbors Act required the acquisition of permits prior to the instigation of any work in the navigable waters of Lake Pend Oreille. It was the Corps’ position that all waters at or below the new ordinary high water mark established at 2,062.5 feet above MSL were navigable waters of the United States. The parties dispute whether public notice of the permit requirement was given prior to the 1971 brochure.

In 1971, Swanson caused a concrete retaining wall, a pier, a boat lift, and a concrete boat launching ramp to be constructed on lands situated under Lake Pend Oreille below the 2,062.5 feet above MSL ordinary high water mark. Swanson had not applied for a Section 10 permit from the Corps as allegedly required by the Rivers and Harbor Act, 33 U.S.C. § 403. On November 23, 1979, Swanson received a “stop work” letter from the Corps notifying her that her property had been inspected by the Corps. The letter indicated that the Corps considered the improvements to be in violation of federal law. The Corps cited Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, and Section 404 of the Clean Water Act, 33 U.S.C. § 1344. The letter directed Swanson to desist from any further work in violation of the federal statutes and to submit certain drawings and other requested information.

Following Swanson’s receipt of the “stop work” letter, plaintiffs filed suit before this court requesting declaratory and injunctive relief. Plaintiffs cited federal jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 2201. Specifically, plaintiffs request a decree declaring that the waters of Lake Pend Oreille, being stored on lands above elevation 2,051 feet MSL, are not navigable waters of the United States subject to Section 10 or Section 404 regulation. In addition, plaintiffs request that defendants be enjoined from maintaining that these waters are navigable waters of the United States and from enforcing or attempting to enforce any public right of access.

ISSUES

After carefully studying the pleadings and briefs in this matter, the court believes that three distinct issues emerge. First, the court must determine whether plaintiffs have properly exhausted the available administrative remedies. Second, the court must determine which claims brought by the plaintiffs are ripe for judicial review. Third, the court must pass on the merits of the claims properly presented.

EXHAUSTION

In State of California ex rel Christensen v. F.T.C., 549 F.2d 1321 (9th Cir.), cert. denied, 434 U.S. 876, 98 S.Ct. 227, 54 L.Ed.2d 156 (1977), the court of appeals for this circúit noted the following rule which requires a litigant to exhaust his administrative remedies:

A familiar rule of administrative law provides that judicial relief for a supposed or threatened injury does not become available until the prescribed administrative remedy has been exhausted. Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). The rule recognizes that agencies are created to apply their statutory authority in the first instance and that considerations of agency expertise and efficiency counsel the courts not to interfere before the agency has acted.

Id. at 1323. The exhaustion requirement applies to an agency’s determination of its own jurisdiction. Id. at 1324. In the present case, defendants argue that plaintiffs have not exhausted their administrative remedies since plaintiffs may apply for and most likely receive an after-the-fact Section 10 permit from the Corps. Defendants maintain that plaintiffs have not fully exhausted their administrative remedies until they have applied for the “after-the-fact” permit and been denied its issuance. At first glance, defendants’ argument appears persuasive. However, upon closer scrutiny, it is clear that defendants’ position begs the question presented by plaintiffs. Plaintiffs are not before this court requesting an “after-the-fact” Section 10 permit. Rather, plaintiffs are denying the Corps’ jurisdictional power to require the permit in the first instance. The issue is whether the Corps has jurisdiction to require plaintiffs to apply for and obtain the permit. Defendants have not cited any case law, nor have they identified any federal regulations that establish an administrative procedure available to plaintiffs during which the Corps’ jurisdiction to require Section 10 permits may be raised and litigated. The Corps made its jurisdictional determination in this matter when it sent Swanson the “stop work” letter. Absent an identifiable administrative procedure available for challenging this asserted jurisdiction, this court must hold that plaintiffs have no administrative remedies left to exhaust. Under these circumstances, plaintiffs must be allowed to proceed before the court.

RIPENESS

Having determined that plaintiffs are properly before this court, the court must next determine which of the plaintiffs’ claims for relief are ripe for judicial review. The present case seeks declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. Cases brought under the Declaratory Judgment Act must present an actual case in controversy within the meaning of the Constitution. The Supreme Court has explained that for a case to be justiciable and ripe under the Declaratory Judgment Act, it must present facts that establish that there is a “substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” See Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941) (emphasis added). The Court recognized that “[t]he difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy.” Id. at 273, 61 S.Ct. at 512.

When determining whether a dispute rises to the level of a justiciable controversy, the court must determine whether the issues presented are currently ripe for judicial intervention. Just as a case may be brought too late and thereby be moot, it may also be brought too early and not yet be ripe for adjudication. There are various policy considerations supporting the ripeness doctrine. Until a controversy has become concrete and focused, it is difficult for a court to evaluate the practical merits of the position taken by each of the parties. In addition, there may be a possibility that if the court waits for an actual controversy to ripen, the whole problem may be eliminated by later developments.

In the present case, the court discerns two distinguishable disputes raised by the pleadings. The first dispute concerns whether the Corps has statutorily authorized regulatory power over the recently created outer perimeter of Lake Pend Oreille. Specifically, the court must examine whether the whole of Lake Pend Oreille is subject to the Corps’ Section 10 permit requirements. The second dispute concerns whether, as an integral part of the Corps’ regulatory powers, it has obtained the right of public access to the perimeter areas in dispute. In this respect, a related, but unarticulated, issue arises concerning whether, if the Corps has secured the right of public access, the United States has paid for these rights under the provisions of the 1956 Judgment entered by the court in response to the Declaration of Taking filed by the United States.

In reference to the first dispute, the court has little difficulty finding that the issues raised are ripe for judicial determination. Swanson has constructed improvements on a portion of the lake in dispute and defendants have asserted their regulatory authority in the form of the “stop work” letter sent to Swanson. These facts give rise to an actual and present controversy concerning the authority of the Corps to regulate the outer perimeter of Lake Pend Oreille. Since defendants have actually asserted their jurisdiction and Plaintiff Swanson has opposed it, the matter is ripe for judicial determination.

Turning to the second dispute before the court, the posture of plaintiffs’ Complaint is distinguishable. As noted, the issue is whether the defendants may require public access to the waters in dispute and, if they may, whether fair compensation was previously paid for this privilege. After reviewing the stipulated facts and other pleadings in this matter, the court is unaware of any action taken by the plaintiffs to exclude public access or by the defendants to force public access. There are no facts in the record which indicate that defendants have claimed the right to public access. Indeed, at this point, it would be mere speculation to assume that defendants anticipate such a claim. In the event that defendants take some affirmative action in the future to assert this right, then a justiciable controversy would arise. In addition, should that eventuality occur and should a court determine that defendants have obtained the right to public access, then, and only then, would the issue of whether fair compensation was paid for that right under the Declaration of Taking and Judgment arise.

Based on the foregoing, the court finds that the only issue ripe for determination is the nature and extent of the Corps’ regulatory power over the waters of Lake Pend Oreille under Section 10 of the Rivers and Harbors Act and under Section 404 of the Clean Water Act.

CORPS’ REGULATORY POWER

It is plaintiffs’ position that, by way of the Declaration of Taking and Judgment, the defendants condemned only a “flowage easement” over the lands in question. Plaintiffs assert that the defendants’ rights in these lands are limited by the terms of the flowage easement and that Idaho’s common law relating to real property applies to determine the rights of the parties. Specifically, Plaintiff Swanson maintains that she holds title to the disputed lands in fee subject only to the flowage easement condemned by defendants. Plaintiff maintains that so long as her improvements do not interfere with defendants’ ability to exercise their rights under the flowage easement, defendants have no right to regulate plaintiff’s use of these lands. Defendants, on the other hand, maintain that their power to regulate plaintiff’s use of the lands is independent of the tenets of common law property. Defendants maintain that their power to regulate stems from the ability of Congress to regulate interstate commerce pursuant to the United States constitution.

There is little dispute that Congress has wide constitutional power to regulate interstate commerce and activities touching thereon. It has long been settled that Congress has extensive authority over this nation’s navigable waters under the commerce clause. Early in this country’s history, the Supreme Court held that the power to regulate commerce necessarily included power over navigation. See Gibbons v. Ogden, 9 Wheat (22 U.S.) 1, 189, 6 L.Ed. 23 (1824). As stated in Gilman v. Philadelphia, 3 Wall (70 U.S.) 713, 18 L.Ed. 96 (1866):

Commerce includes navigation. The power to regulate commerce comprehends the control, for that purpose and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress.

Id. 3 Wall. (70 U.S.) at 723-725, 18 L.Ed. at 99. In Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), Justice Blackmun dissenting on other grounds noted that:

[T]he navigational servitude symbolizes the dominant federal interest in navigation implanted in the Commerce Clause____ To preserve this interest, the National Government has been given the power not only to regulate interstate commerce by water, but also to control the waters themselves, and to maintain them as “common highways ... forever free.”

Id. at 186, 100 S.Ct. at 396 (citations omitted). In United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956), the Supreme Court recognized that:

The interest of the United States in the flow of a navigable stream originates in the Commerce Clause. That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one. The power is a privilege which we have called “a dominant servitude” ... or “a superi- or navigation easement.”

Id. at 224, 76 S.Ct. at 260. Based on the foregoing authority, it is clear that Congress has broad constitutional power to regulate and control activities affecting navigable waters. This power stems from the constitution and eclipses state established common law property rights. According to the stipulation filed in this case, the parties agree that for purposes of this proceeding, Lake Pend Oreille was a navigable water of the United States prior to the construction of the Albeni Falls Dam. Post-construction, the parties agree that the waters of the lake, including those above the old high water mark, are capable of commercial interstate transportation. Thus, Lake Pend Oreille continues to be a navigable water under the general regulation adopted by the Corps. The regulation provides:

Navigable waters of the United States are those waters that ... are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody and is not extinguished by later actions or events which impede or destroy navigable capacity.

33 C.F.R. § 329.4 (1983). Since Lake Pend Oreille was a navigable water of the United States prior to the Albeni Falls project, and since it is currently capable of being used to transport interstate commerce, under the Corps’ definition it remains a navigable water. The only issue which arises is whether the newly created outer perimeter waters of the lake are included as navigable waters of the lake subject to regulation. In Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570 (1912), the Supreme Court held, in determining the extent of Congress’s power to regulate navigable waters, that:

Nor is the authority of Congress limited to so much of the water of the river as flows over the bed of forty years ago. The alterations produced in the course of years by the action of the water do not restrict the exercise of Federal control in the regulation of commerce. Its bed may vary and its banks may change, but the Federal power remains paramount over the stream, and this control may not be defeated by the action of the state in restricting the public right of navigation within the river’s ancient lines. The public right of navigation follows the stream ... and the authority of Congress goes with it.

Id. S.Ct. at 350 (citations omitted). Under the Stimson rationale, Congress’s power to regulate commerce extends as the bounds of navigable waters are altered.

Section 10 of the Rivers and Harbors Act of 1899 establishes a permit requirement for activities which take place in “navigable waters” of the United States or which affect the navigable capacity of such waters. That section provides:

The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

The language of this statute unambiguously establishes that the work done by Swanson was in violation of the Act “unless the work [was] recommended by the Chief of Engineers and authorized by the Secretary of the Army prior” to its beginning. In other words, Swanson’s activities were prohibited absent a Section 10 permit.

The Clean Water Act was enacted in 1972 and is a comprehensive effort by Congress to restore, and to maintain, the chemical, physical, and biological integrity of the nation’s waters. The cornerstone of the regulatory scheme established by the Act is Section 301, 33 U.S.C. § 1311, which prohibits the discharge of pollutants into “navigable waters” of the United States, except when in compliance with various other sections of the Act, including Section 404, 33 U.S.C. § 1344. Section 404 establishes a program for the issuance of permits regulating the discharge of dredge and fill materials. Pursuant to Section 404(a), the Corps has responsibility for administering the permit program.

Under both of these statutory schemes, the Corps’ regulatory power extends to “navigable waters” of the United States. The court has previously ruled in this case that all of the waters of Lake Pend Oreille are “navigable waters” of the United States. It follows then that the Corps was exercising proper jurisdiction and authority when it sought to require Section 10 and Section 404 permits from Swanson.

Having found that the whole of Lake Pend Oreille, up to its new high water mark, is subject to Congress’s commerce clause power to regulate, the court wishes to note by way of dicta that its’ holding does not attempt to establish whether defendants have obtained the right of public access to the waters in question or whether just compensation has been paid for that right. In Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), the Supreme Court noted that the concept of “navigable waters of the United States” does not have a fixed meaning that remains unchanged in whatever context it is being applied. The court stated that all of its cases dealing with the authority of Congress to regulate navigation and the so-called “navigational servitude” could not simply be lumped into one basket. Id. at U.S. 170, 100 S.Ct. at 387. A careful reading of the Kaiser opinion reveals that though a body of water is a navigable water of the United States subject to Congress’s regulatory authority under the commerce clause, it does not necessarily follow that the body of water in question is also subject to the public right of access. Id. U.S. at 172-73, 100 S.Ct. at 388-89. In so holding, the Supreme Court reversed the court of appeals’ determination that federal regulatory authority over navigable waters and the right of public access could not consistently be separated. See United States v. Kaiser Aetna, 584 F.2d 378 (9th Cir.1978).

Indeed, in the present case, though the whole of Lake Pend Oreille is subject to the Corps’ regulatory powers, such a holding does not necessarily mean that defendants may acquire or exercise a right to public access. As indicated in the “ripeness” portion of this opinion, the court does not believe the issue of public access is yet ripe for determination.

An order consistent with this opinion shall be entered.


author: SHABAZ, District Judge.

text:
    COMPUTRONICS, INC., Plaintiff, v. APPLE COMPUTER, INC., and The Board of Regents of the University of Wisconsin System, Defendants.
    No. 84-C-837.
    United States District Court, W.D. Wisconsin.
    Jan. 16, 1985.

      Stafford, Rosenbaum, Rieser & Hansen, Madison, Wis., for plaintiff.
    Foley & Lardner, Milwaukee, Wis., Kevin J. O’Connor, Asst. Atty. Gen., Madison, Wis., for defendants.
   MEMORANDUM AND ORDER

SHABAZ, District Judge.

Before the Court is a motion by defendant Apple for summary judgment. Also pending is a renewed motion by the defendant Board of Regents for dismissal grounded in Eleventh Amendment immunity, which was filed in response to plaintiff’s amended complaint. The Court previously dismissed the claims against the Board of Regents in the original complaint. As the amended complaint does not change the theories pertaining to the Board of Regents, the Court’s previous opinion is dis-positive of this motion and it will be granted. The amended complaint also adds several misrepresentation claims against Apple which did not appear in the original complaint. These claims are not addressed in the pending motion. Both the original complaint and the amended complaint contain claims against Apple based on the Robinson-Patman Act, 15 U.S.C. § 13(a); and the Wisconsin Fair Dealership Law, § 135.-01 et seq., Wis.Stats.; and on contract. It is toward these claims that the motion is directed.

FACTS

The facts of this case will be discussed throughout this opinion. The background is as follows: Plaintiff, Computronics, Inc., is a Wisconsin corporation engaged in the retail sale of personal computer hardware and software in Madison, Wisconsin. Apple Computer, Inc., the remaining defendant, is a major manufacturer and seller of microcomputers and related items nationwide from its offices in Cupertino, California.

On March 1, 1984 plaintiff and defendant entered into an “Authorized Apple Dealer Sales Agreement” wherein plaintiff would purchase Apple products for resale to retail customers in the Dane County, Wisconsin area. The contract provides, in pertinent part, as follows:

Preamble, at paragraph D.
D; Accordingly, Apple sells such Products for resale to retail customers only to authorized Apple dealers who have demonstrated and continue to demonstrate to Apple’s satisfaction that they have the technical capability to explain, demonstrate, service and support Apple Products properly, maintain adequate display and demonstration facilities for that purpose, possess the ability to develop and serve the respective marketing areas in which they conduct their businesses, and otherwise discharge the responsibilities described in this Agreement.
NOW, THEREFORE, Apple and Dealer hereby agree as follows:
1. APPOINTMENT AS AUTHORIZED APPLE DEALER.
* * * * * *
(b) Dealer’s appointment as an authorized Apple Dealer shall be non-exclusive and such appointment does not constitute a grant of any specific territory, geographical area or particular market. Apple reserves the right to appoint other authorized dealers and resellers, and to make direct sales to anyone at any time without notice or liability to Dealer.

In 1983 and 1984, the University of Wisconsin, principally through its Office of Information Technology, investigated methods by which it could equip its students and staff with personal computers. At its Academic Computing Center (MACC), the University displayed and gave hands-on experience to students and staff in personal computers manufactured by IBM, Digital Equipment Corporation and others. It also entered into agreements providing discounts to students and staff, although the University was never in the chain of title of the hardware. A similar program with Apple, the University Consortium, was in place in early 1984.

Negotiations and planning concerning a more ambitious program took place during 1984, and on October 3,1984, Apple and the University entered into an agreement whereby the University agreed to purchase not less than $10 million worth of computers (specifically the Macintosh and Lisa models) by June 30, 1986. The purchase price to the University was at a significant discount, and the contract allowed resale to staff and students conditional on no further resale by them. According to the complaint and lists submitted by Apple, several of the products sold to the University are delivered at prices below that charged to the plaintiff. In fact, the prices charged by the University for resale to students and staff are often lower than those charged by Apple to plaintiff.

MEMORANDUM

1. Robinson-Patman Act

A prima facie case of price discrimination under the Robinson-Patman Act is not of concern at this time. The motion of Apple presents two affirmative defenses which assume the existence of price discrimination: the business necessity defense, found at 15 U.S.C. § 13(b); and the Nonprofit Institutions Act, found at 15 U.S.C. § 13c.

The business necessity defense, discussed generally in Falls City Industries, Inc. v. Vanco Beverage, Inc., 460 U.S. 428, 103 S.Ct. 1282, 75 L.Ed.2d 174 (1983), is clearly not amenable to summary judgment at this stage despite plaintiff’s less-than-adequate responses to Apple’s proposed findings of fact. As the Court in that case stated, citing Continental Baking Co., 63 F.T.C. 2071, 2163 (1963):

At the heart of Section 2(b) [15 U.S.C. § 13(b)] is the concept of “good faith.” This is a flexible and pragmatic, not a technical or doctrinaire, concept. The standard of good faith is simply the standard of the prudent businessman responding fairly to what he reasonably believes is a situation of competitive necessity.

Id. 103 S.Ct. at 1292. In the circumstances of this case, which are different than both Falls River and FTC v. Staley Mfg. Co., 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1338 (1945) which the Court in Falls River distinguished, there is perhaps an element of subjective judgment necessary to decide the question of business necessity. In addition, it is possible that the differences in marketing program between Apple and its competitors could be shown to be necessary by virtue of Apple’s market position vis a vis IBM, for instance. Assuming that the price offered by Apple for Apple’s competitive product in the target market was necessary to gain entry, a lower price might still be said to “meet, but not beat,” the competition.

But it is clear that the facts regarding business necessity cannot be said to be sufficiently established to support summary judgment.

Alternatively, summary judgment on the Robinson-Patman claim could be granted if the application of the Nonprofit Institutions Act were clear. But it is not. Even if it is assumed that providing faculty and students with computers serves an educational purpose, the Apple-University contract allows non-instructional staff, such as janitors, to purchase the product at a discount. Although purchasers through the University are forbidden to resell merchandise, there is no realistic way to forbid such purchasers from using the merchandise in other than an educational sense. After all, a student could purchase a computer shortly before leaving the University with the intention of using it in business after graduation.

With respect to the question of educational purpose, Abbott Laboratories v. Portland Retail Druggists, 425 U.S. 1, 96 S.Ct. 1305, 47 L.Ed.2d 537 (1976) provides significant support for the proposition that the sales by Apple to the University are exempt under § 13c. For the reasons set forth above, however, there is a question, not answerable on this motion, whether the limitations on the program are sufficient. Further, Abbott leaves some room to doubt that some of its more sweeping language is fully applicable to nonconsumables sold by a University. It is evident that the expansion of the functions of a hospital over time had significant influence on the Court. A University, on the other hand, is blessed with the ability to make almost anything serve an educational purpose. For instance, putting stereo equipment in the hands of students could contribute to their appreciation of music. The educational purpose served by putting computers into the hands of students and staff are arguably quantitatively more educationally beneficial, but not different, in kind. Finally, the Court in Abbott cited with approval the decision in Students Book Company v. Washington Law Book Co., 232 F.2d 49 (D.C.Cir.1955), cert. den. 350 U.S. 988 (1956). In the context of this discussion, it must be noted that the existence of educational purpose to these sales is important as it relates to the phrase “for its own use” in § 13c. The resale of books for a profit by a campus bookstore was held, in Students Book Company, to be outside of the ambit of § 13c. While it is not clear from the decision or the comments of the Supreme Court about the case (96 S.Ct. at 1316-17, note 10), this Court does not believe that the profit motive was determinative, but rather that the resale was.

Accordingly, if for no other reason than the existence of material factual disputes, summary judgment on the Robinson-Pat-man Act claim must be denied.

II. Contract and Fair Dealership

In the Court’s decision on plaintiff’s request for a preliminary injunction, the Court noted that the contract terms respecting exclusivity were nonambiguous. Without room for equivocation, it is clear that Apple reserved to itself the broadest possible latitude to sell to whomever it pleased under whatever terms it chose.

In its imaginative, but ultimately unpersuasive, discussion of paragraph (l)(b) of the contract, plaintiff correctly refutes Apple’s argument that the sale of the merchandise to the University is a direct sale, if only because the agreement between Apple and the University contemplates resale to students and staff. And it is conceded that the University is not an “authorized dealer” within the meaning of the Apple-Computronics dealership contract.

And, finally, it is also true, as plaintiff points out, that the terms “authorized dealer” and “reseller” must be mutually exclusive so that the rule of construction against surplusage can be observed. Capital Investments, Inc. v. Whitehall Packing Co., Inc., 91 Wis.2d 178, 280 N.W.2d 254, 261 (1979). It is at this point that plaintiff’s argument breaks down. The attempt to read ambiguity into the word “reseller” in the context of this contract is hopelessly fraught with overreaching. Plaintiff has made no showing that the term has some meaning of art in the industry, but only suggests that the term could mean “value added reseller” (the University is not selling at a profit).

The contract is plain and unambiguous on its face. Apple could market its merchandise in two general ways (aside from, perhaps, giving it away): selling direct and selling to those who would resell. Direct sales are taken care of, in no uncertain terms, by the last clause of paragraph (l)(b). However, no less certain is the language used in the previous clause regarding resale. Authorized dealers are one kind of reseller and “reseller” is clearly meant to cover, within the broadest possible reservation of rights, any other kind of retailer or wholesaler who is not an authorized dealer. The failure to use the term “to anyone at any time” (which is used in conjunction with direct sales) in no way undercuts the clarity of the contract.

Furthermore, plaintiff’s attempt to create implied agreements not to do what Apple has done are doomed to failure in light of the integration clause of the contract (at paragraph 17). It clearly and unambiguously cancels any pre-existing agreements, requires that modifications must be in writing, and provides:

Dealer acknowledges that it is not entering this Agreement on the basis of any representations not expressly contained herein.

Accordingly, the contract claim is without merit.

It is also clear that the Fair Dealership claim falls for precisely the same reason. If Apple’s conduct conforms to what it expressly reserved the right to do in the agreement, then that conduct cannot be said to “change the competitive circumstances of the dealership agreement.” (§ 135.04, Wis.Stats.) This is the explicit holding of the oft-cited case of Ed Phillips & Sons, Madison, Inc. v. Ed Phillips & Sons Co., 1975 Trade Cases (CCH), ¶ 60,106 (Dane County, Wisconsin, Cir.Ct.1975). Therefore, the Fair Dealership is equally without merit.

Accordingly,

ORDER

IT IS ORDERED that the motion of defendant Apple Computer, Inc. for summary judgment is GRANTED with respect to plaintiff’s claims under the Wisconsin Fair Dealership Law and contract, and is otherwise DENIED.

IT IS FURTHER ORDERED that the motion of the defendant Board of Regents of the University of Wisconsin System to dismiss the complaint as to it is GRANTED under the terms of the Court’s previous order of December 24, 1984.

      . Apple contends that its prices were justified by "due allowance for differences in the cost of sale and delivery to the University ...” and that sales to a state agency are exempt from the Act. Both of these defenses put into dispute the fact of a prima facie case, but are not advanced in this motion.

      . Plaintiff’s plea that it lacks access at this time to the information needed to rebut the defense has some merit, but its repeated reference to over 50 pages of testimony from the preliminary injunction hearing sadly lacks the specificity required by the Court’s instructions concerning summary judgment motions. Although not addressed in this Court's order denying preliminary relief, the possibility of Apple’s success on this defense had some influence in that decision.

      . In this regard, it is important to note that the University recognized that this was not a direct sale within the generally understood meaning of that term. It understood that it holds title to the goods, and then transfers that title to an end user. See testimony and affidavit of Tad Pinkerton, head of the Office of Information Technology.


author: TELESCA, District Judge.

text:
    Alfredo COLON, Plaintiff, v. Robin COLON, Defendant.
    No. Civ-85-001T.
    United States District Court, W.D. New York.
    Jan. 17, 1985.
    Alfredo Colon, pro se.
   DECISION and ORDER

TELESCA, District Judge.

Plaintiff, Alfredo Colon, instituted this civil rights action pursuant to 42 U.S.C. Section 1983 against his wife, Robin Colon, “in her personal individual capacity” for alleged violations of his constitutional rights. According to the complaint, “The plaintiff alleges that his wife has violated all the agreements implement [sic] in their marriage licence [sic]. His wife refuses to write him while in prison or to communicate with him by telephone, visits, etc.”.

The facts alleged by plaintiff are admittedly moving, but they most certainly do not amount to a violation of any rights protected by the United States Constitution. The First Amendment unquestionably protects the right of a prison inmate to receive mail, Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), but only if there is someone outside the prison who is interested in writing to him.

Plaintiff’s wife may someday be moved to write or call him, perhaps out of a sense of natural affection, or in recognition of the sacred intimacy they share through the bonds of marriage. (The likelihood of that prospect may be diminished, however, now that plaintiff has sued her for a total of $200,000 in compensatory and punitive damages.) Although her conscience may one day compel Robin Colon to write to her husband, the Constitution will never do so. On the contrary, the Constitution guarantees that defendant need never write or call anyone against her will. The right of freedom of thought protected by the First Amendment “includes both the right to speak freely and the right to refrain from speaking at all”. Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977). Criminal defendants are not the only Americans who enjoy the celebrated constitutional “right to remain silent”.

A District Court is empowered by 28 U.S.C. Section 1915(d) to dismiss sua sponte a pro se civil rights complaint which is frivolous on its face. Fries v. Barnes, 618 F.2d 988 (2d Cir.1980). The Court of Appeals for this Circuit has cautioned that “a federal judge should not dismiss a prisoner’s pro se, in forma pauperis claim as frivolous unless statute or controlling precedent forecloses the pleading, liberally construed.” Cameron v. Fogarty, 705 F.2d 676, 678 (2d Cir.1983). Such is the case here, even if all the allegations of plaintiff’s complaint are construed liberally in his favor. Accordingly, plaintiff’s complaint is dismissed.

ALL OF THE ABOVE IS SO ORDERED.