author: FORRESTER, District Judge.

text:
    Barry ALLEN, Andrew Despain, Michael McQuillen, John Towns, Stanley Almon, and Jay Jenkins v. CITY OF MARIETTA, Jack Crane, Individually and in his Official Capacity as City Manager, Kemp Dickerson, Individually and in his official capacity as Superintendent of Electrical Distribution of the Board of Marietta Lights & Water, and Larry Thompson, Individually and in his official capacity as Personnel Manager of the City of Marietta, Gene Cantor, Individually and in his Official Capacity as Safety Officer for the Electrical Distribution of the Marietta Board of Lights and Water, Ruppert Ranes, Individually and in his official capacity as Assistant Chief of Police of the City of Marietta, and the Marietta Board of Lights and Water.
    Civ. A. No. C83-1878A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Jan. 4, 1985.

      Ralph Goldberg, Atlanta, Ga., for plaintiffs.
    Dennis J. Webb, Kent T. Stair, Dennis, Corry, Webb, Carlock & Williams, Atlanta, Ga., Lynn A. Downey, Joseph C. Parker, Downey, Cleveland, Moore & Parker, W.R. Robertson, III, Marietta, Ga., for defendants.
   ORDER

FORRESTER, District Judge.

This action is before the court on plaintiffs’ March 1,1984 motion for partial summary judgment; the motion by all defendants except Dr. Williams for summary judgment or partial summary judgment; and plaintiffs’ motion for leave to file an additional brief. The latter motion seeks leave to file a brief addressing the impact of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), on plaintiffs’ claims. As plaintiffs’ motion is unopposed by defendants and as the court believes that the additional brief will be helpful to resolution of the complex issues involved in this case, plaintiffs’ motion for leave to file an additional brief is GRANTED. The brief filed on November 1, 1984 is hereby accepted as filed and will be considered by the court in this order.

The remaining two motions are not resolved so easily and require more extensive discussion.

I. FACTS.

Plaintiffs in this case are all former employees of either the Marietta Board of Lights and Water or of the City of Marietta. Plaintiffs contend they were employed by the City while defendants contend that plaintiffs were employed solely by the Board of Lights and Water. The Board is a corporate body created by state law and has the power to sue and be sued. Its membership consists of various top officials of the Marietta City Government. The precise relationship between the Board and the City has not been made clear to the court. The individual defendants are Jack Crane, Marietta City Manager and Manager of the Board of Lights and Water; Larry Thompson, Personnel Manager of the City of Marietta and the Board of Lights and Water; Kemp Dickerson and Gene Cantor, the Superintendent and Safety Officer of the Electrical Distribution Division of the Board of Lights and Water, respectively; and Rupert Raines, the Assistant Chief of Police of the City of Marietta.

The facts giving rise to plaintiffs' cause of action have not been made particularly clear to the court. As best as the court can determine from the voluminous pleadings in this case, the following facts appear to be uncontested. All of the plaintiffs worked in the Electrical Distribution Division of the Board of Lights and Water and worked around high voltage electric wires. Sometime in late 1980 or early 1981 defendant Crane, who was the City Manager of the City of Marietta and the manager of the Board of Lights and Water, began receiving reports from various sources of drug usage by employees of the Board. Crane formed the belief that such drug usage may have been responsible for what appeared to be a large number of injuries to Board employees. Crane formed the belief that, given the extremely hazardous nature of the work done by the employees, such drug usage on the job constituted a threat to the safety of the employees and the general public, and he commenced an undercover investigation to determine which employees were using drugs on the job. An undercover agent was planted in the Electrical Distribution Division but was quickly recognized by some of the employees as a narcotics agent and was allegedly threatened. Transcript of Proceedings before Marietta Pension Board at 43-44. That agent was replaced by a person named Keith Ranger. Ranger had apparently been an informer for the City on other occasions in the past. Ranger went to work in the Electrical Distribution Division and allegedly smoked marijuana with various employees on and off the job and gathered information about drug use in the division. He kept records of which employees he observed smoking marijuana and the dates on which he observed them. He submitted his reports to Kemp Dickerson, the Superintendent of Electrical Distribution. Dickerson allegedly noticed a correlation between the names turned in by Ranger and people who had had “unexplained” accidents.

Based upon the information he had been provided by Ranger, Dickerson, and Larry Thompson, the Personnel Manager, Crane eventually decided that he had sufficient evidence to terminate some sixteen employees for use of drugs on the job. These employees were called together on July 12, 1983 and given an opportunity to resign. When none of the employees volunteered to resign, Crane advised them that they would be fired unless they chose to take a urinalysis test. Defendants’ July 26, 1984 Statement of Material Facts Not in Issue, II4. All six plaintiffs elected to take the urinalysis test. Each of the plaintiffs went into a bathroom stall and urinated into a glass jar. The jars were labeled and sent away for analysis. The test results were received two days later on July 14, and showed that each of the plaintiffs in this action tested positive for the presence of marijuana in their bodies. All six plaintiffs were fired, although the date on which they were fired is unclear. Because of the confusion concerning the date of termination, it is somewhat unclear whether the test results were considered by Crane in deciding whether to terminate plaintiffs, or whether he terminated them based upon the information he had already received from Ranger.

On September 7, 1983 plaintiffs filed this lawsuit under 42 USC § 1983 for the deprivation of rights secured by the fourth and fourteenth amendments to the United States Constitution. Count I of plaintiffs’ complaint asserts that the urinalysis test administered on July 12, 1983 was an unreasonable search and seizure in violation of the fourth amendment. Count II asserts that the firing of each plaintiff was arbitrary and capricious and denied each plaintiff his substantive due process rights under the fourteenth amendment. Count III appears to assert a claim for libel based on the fact that defendants publicized the fact that plaintiffs had been discharged for use of drugs on the job and did not give plaintiffs an opportunity to clear their names. Count III also appears to assert that the failure to provide a hearing to give the plaintiffs an opportunity to exonerate themselves constitutes a deprivation of procedural due process. Count IV asserts that plaintiffs were deprived of their property interest in their jobs without due process of law. Count V simply asserts a demand for a hearing. Count VI asserts a claim under Georgia law for violation of plaintiffs’ right to privacy and right to be free of unreasonable searches and seizures. Count VII, added by amendment on January 25, 1984, asserts a claim that defendants deprived plaintiffs of their rights to equal protection under the law because “similarly situated employees who had smoked marijuana on the job or [had] been intoxicated on the job were not fired.” Count VIII, added by amendment on June 25, 1984, asserts a claim that defendants deprived plaintiffs of their first amendment rights of free association by prohibiting current Board employees from associating with plaintiffs.

On September 19, 1983, the Board of Lights and Water passed a resolution establishing a formal grievance procedure for its employees. This grievance procedure provided a four-step appeal process starting with the supervisor or department head and culminating, for claims of improper termination, with an appeal to the Pension Board of the Board of Lights and Water (“Pension Board”). The new grievance procedure provided that the decision of the Pension Board should be binding on all parties. Exhibit C to Plaintiffs’ Motion for Partial Summary Judgment filed March 1, 1984; Plaintiffs’ Statement of Undisputed Material Facts Number Three; Defendants’ Response to Plaintiffs’ Statement of Undisputed Material Facts. Despite this provision, it appears that decisions of the Pension Board are appealable to the City Council.

On October 10, 1983 plaintiffs requested through counsel a hearing before the Pension Board and requested that they be given a notice of the cause for their termination and a list of the witnesses who would testify against them at the hearing and a description of the nature of their expected testimony. On October 12, each of the plaintiffs was sent a copy of their notice of termination. The explanation for each termination was the same: “Under influence of drugs while on job.” The notice of termination was printed on stationery bearing the letterhead of the City of Marietta and contained a line for the City Manager’s approval. This line, was initialed by John Crane, the City Manager. On October 12, 1983, each of the plaintiffs was also sent a list of sixteen witnesses who would testify at the hearing and a brief description of the nature of their testimony. Virtually all of the witnesses were expected to offer “testimony relative to drug use on the job.” Several were expected to testify concerning plaintiffs’ job performance, physical appearance, and past accidents.

On October 20, 1983 the Pension Board met to hear the appeal of the plaintiffs. With the exception of Stanley Almon, all of the plaintiffs appeared at the hearing and were given the opportunity to testify in their own behalf and to present witnesses. All of the plaintiffs were represented by counsel. None of the plaintiffs testified in his own behalf or denied the charges against him. Plaintiffs did, however, cross-examine the witnesses against them and present one witness to testify in their behalf. On October 24, 1983 the Pension Board issued its decision finding unanimously that “John M. Crane, Board of Lights and Water Manager, had cause for his decision to terminate (the plaintiffs in this case) based on the information presented to him. Terminations upheld. Vote 8-0.” Plaintiffs have apparently not appealed the decision of the Pension Board to the Marietta City Council.

By their present motion for partial summary judgment plaintiffs ask the court to rule as a matter of law that: (1) Plaintiffs were all employed by the City of Marietta as opposed to the Marietta Board of Lights and Water; (2) that none of the defendants are entitled to assert a good faith defense to any of the claims asserted by plaintiffs; (3) that the urinalysis tests violated plaintiffs’ rights secured by the fourth and fourteenth amendments; (4) that the urinalysis test results should have been excluded from the hearing before the Pension Board; (5) that the hearing before the Pension Board failed to satisfy the requirements of due process; and (6) that the termination of each plaintiff was arbitrary and capricious and was therefore a denial of each plaintiff’s rights to substantive due process. Plaintiffs have not raised on this motion the merits of the claims contained in Count VII or Count VIII of the complaint.

Defendants have opposed plaintiffs’ motion for partial summary judgment and filed their own motion for partial summary judgment. By this motion defendants ask the court to make the following rulings as a matter of law: (1) That plaintiffs were employed by the Board of Lights and Water and not by the City of Marietta; (2) that the individual defendants as well as the City and the Board of Lights and Water are entitled to assert a defense of good faith immunity to plaintiffs’ claims brought under section 1983; (3) that the urinalysis tests did not violate any rights protected by the fourth and fourteenth amendment; (4) that plaintiffs were not deprived of either substantive or procedural due process in their termination; and (5) that plaintiffs have asserted no claims against certain of the individual defendants. Like plaintiffs, defendants have not addressed the merits of Count VII or VIII.

II. WHETHER PLAINTIFFS WERE EMPLOYED BY THE CITY OR BY THE BOARD OF LIGHTS AND WATER.

Defendants have vigorously argued that plaintiffs were employed by the Board of Lights and Water and that the Board of Lights and Water is a completely separate entity from the City of Marietta. Defendants argue, therefore, that the City is not a proper party to this action. Defendants have supported their argument by affidavits of John Crane, the Marietta City Manager, and Larry Thompson, the Personnel Manager for the City of Marietta. Each of these defendants has testified through their affidavits that all of their actions taken in connection with the plaintiffs in this lawsuit were taken in their capacity as manager and personnel manager of the Board of Lights and Water. However, this testimony is rebutted by the fact that the termination notices each plaintiff received bore the letterhead of the City of Marietta and were initialed by John Crane in his capacity as City Manager. That it might be more convenient now to argue that Crane and Thompson were wearing their Board of Lights and Water hats does not change the fact that, by all appearances at least, Crane and Thompson seem to have been acting in their capacity as City employees. In any event, the court finds that a factual dispute exists concerning whether Crane and Thompson were acting in their capacity as City officials or whether they were acting solely in their capacity as employees of the Board of Lights and Water. Such a factual dispute precludes summary judgment on this issue.

Defendants have further argued that even if Crane and Thompson were acting as City employees, the City cannot be held liable to plaintiffs under a theory of respondeat superior. While this is true as an abstract proposition, the court fails to see how a city manager and personnel manager acting within the scope of their official duties could not be said to be persons “whose edicts or acts may fairly be said to represent official policy.” Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978); McLaughlin v. City of LaGrange, 662 F.2d 1385 (11th Cir.1981), reh’g denied, 668 F.2d 536, cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982). In the event that Crane and Thompson are found at trial to have been acting in their capacity as city manager and personnel manager respectively for the City of Marietta, it is clear that their actions would bind the City. Therefore, the City is a proper party to this lawsuit.

Defendants have also argued that plaintiffs were not employed by the City of Marietta and were instead employed by the Board of Lights and Water, which they contend is a completely separate entity. While the precise relationship between the Board of Lights and Water and the City of Marietta has not been made clear to the court, there is clearly a great deal of overlap between the two entities. High officials of the city government perform identical functions for the board. Board employees were apparently covered by the city’s employee benefit and retirement plans and could appeal grievances to the city manager whose decision was final. Finally, the handbook which each employee of the Board of Lights and Water was given contains the following statements:

Welcome.
We would like to congratulate you on your appointment with the City of Marietta. ...
As a City Employee, you are charged with the responsibility of performing your assigned duties to the best of your ability in a courteous and responsible manner. Your attitude and general conduct as observed by the public will reflect directly upon the department, division, and organization which you now represent.
This handbook has been prepared for your benefit as a means by which you may become completely familiar with the various aspects which will affect you as a City Employee.
We sincerely hope that you will succeed in your endeavor as a City Employee and that the City will benefit from your contribution as a member of this organization.
Sincerely,
Mayor and Council City Manager

Exhibit A to Affidavit of Larry Thompson (filed May 4, 1984) (emphasis added). On the second page of the handbook under the heading of “information” appears the following statement:

The City of Marietta and the Marietta Board of Lights and Water comprise a joint operational organization commonly referred (to) as the “City.” This organization of which you are now a member employs in excess of five hundred (500) full-time employees and serves some forty-three thousand (43,000) citizens and customers twenty-four hours a day each and every day of the year. ... As outlined below on the organizational chart, the individual department in which you serve is part of a larger function under the direction of a department or division head. The department or division head is responsible to the City Manager who serves as the organization’s overall Administrator. The City Manager is responsible to the Governing Authority which is made up of the Mayor and Council.

The organizational chart which was supposed to appear on page three of the handbook was not included with the handbook which was made a part of the record in this case. See Exhibit A to Affidavit of Larry Thompson, filed May 4, 1984 in opposition to Plaintiffs’ Motion for Partial Summary Judgment.

The Georgia courts have held that control over the employee “is the prime indicia of an employer-employee relationship.” Employees Retirement System v. Baughman, 241 Ga. 339, 340, 245 S.E.2d 282 (1978); See Griffin v. Hardware Mutual Insurance Co., 93 Ga.App. 801, 803-04, 92 S.E.2d 871 (1956). Although the court believes the evidence weighs heavily toward a finding that under this standard plaintiffs were City employees, the court concludes that the factual dispute as to whether defendants Crane and Thompson were acting for the Board or for the City precludes summary judgment on this issue. Obviously, if Crane was acting in his capacity as City Manager when he ordered plaintiffs to submit to the urinalysis and when he fired them, then the City exercised control over plaintiffs. Employees Retirement System v. Baughman, supra. Such control would be an excellent indicia that plaintiffs were City employees. In any event, both plaintiff’s and defendants’ motions for summary judgment as to this issue are DENIED.

III. WHETHER THE URINALYSIS TESTS WERE AN UNREASONABLE SEARCH AND SEIZURE WITHIN THE MEANING OF THE FOURTH AMENDMENT.

A. Whether a Urinalysis is a Search or Seizure.

The fourth amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

The first question to be determined is whether the urinalysis test administered in this case was a search or seizure within the meaning of this amendment. While the court has some doubts whether requiring a person to provide a sample of his urine for analysis is the kind of “search” contemplated by the framers of the fourth amendment, the court feels constrained by current law to hold that a urinalysis is a search within the meaning of that amendment. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) the Supreme Court held that the extraction of a blood sample from a defendant for purposes of determining his state of intoxication was a search within the meaning of the fourth amendment. While the extraction of blood from an unwilling defendant is qualitatively different from a requirement that an individual provide the government samples of his biological waste products, other courts have applied Schmerber to breathalyzer tests, in which a person is asked to provide samples of his breath, see State v. Locke, R.I., 418 A.2d 843 (1980); State v. Berker, 120 R.I. 849, 391 A.2d 107 (1978); Davis v. District of Columbia, 247 A.2d 417 (D.C.Ct.App.1968). The Eleventh Circuit Court of Appeals has held that detention of persons suspected of smuggling contraband in their stomachs until the contraband is expelled in a bowel movement in a search and seizure within the meaning of the fourth amendment. See, e.g., United States v. Mosquera-Ramirez, 729 F.2d 1352 (11th Cir.1984). Although the search in Mosquera-Ramirez was upheld as reasonable, it was, nevertheless, a search within the meaning of the fourth amendment. Finally, at least two cases have treated urinalysis tests as searches within the meaning of the fourth amendment. See Division 241 Amalgamated Transit Union (AFL-CIO) v. Suscy, 538 F.2d 1264 (7th Cir.), cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632 (1976); Ewing v. State, 160 Ind.App. 138, 310 N.E.2d 571 (1974). Based on the above cases the court holds in the present case that a urinalysis test is a search and seizure within the meaning of the fourth amendment.

B. Whether the Search was Unreasonable.

It is undisputed that no warrant was obtained prior to the administration of the urinalysis test. The Supreme Court has held that warrantless searches “are per se unreasonable under the fourth amendment — subject only to a few specifically established and well-delineated exceptions.” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971). Most of the exceptions to the warrant requirement involve some sort of exigent circumstances, such as an immediate danger to the police officers or to the community, see, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or the risk that the evidence could vanish or be destroyed while a warrant is being obtained. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). One of the exceptions to the warrant requirement which appears to have emerged is a class of cases involving searches of government employees. The cases are not uniform, but all appear to involve a balancing of the individual’s expectation of privacy against the government’s right as an employer (as opposed to the government’s right as a law enforcer) to investigate employee misconduct which is directly relevant to the employee’s performance of his duties and the government’s performance of its statutory responsibilities. Thus, a warrantless search of a Customs’ employee’s jacket was held reasonable where his supervisors had grounds to believe he was pilfering goods coming through customs. United States v. Collins, 349 F.2d 863 (2d Cir.1965), cert. denied, 383 U.S. 960, 86 S.Ct. 1228, 16 L.Ed.2d 303, reh’g denied, 384 U.S. 947, 86 S.Ct. 1469, 16 L.Ed.2d 545 (1966). A warrantless search of a postal employee’s locker for stolen mail was upheld as a reasonable search in United States v. Bunkers, 521 F.2d 1217 (9th Cir.), cert. denied, 423 U.S. 989, 96 S.Ct. 400, 46 L.Ed.2d 307 (1975) and in United States v. Sanders, 568 F.2d 1175 (5th Cir.1978). In United States v. Grisby, 335 F.2d 652 (4th Cir.1964) a warrantless search of a Marine corporal’s living quarters was upheld as a proper exercise of military authority and in United States v. Donato, 269 F.Supp. 921 (E.D. Pa.), aff'd, 379 F.2d 288 (3d Cir.1967), a warrantless search of a United States Mint employee’s locker was sustained as justified in order to maintain the order and security of the Mint.

In other cases, however, the courts have held warrantless searches of government employees to be in violation of the fourth amendment. See, e.g., United States v. Hagarty, 388 F.2d 713 (7th Cir.1968); United States v. Blok, 188 F.2d 1019 (D.C. Cir.1951); United States v. Kahan, 350 F.Supp. 784 (S.D.N.Y.1972), aff'd in part and rev’d in part, 479 F.2d 290 (2d Cir. 1973), rev’d, 415 U.S. 239, 94 S.Ct. 1179, 39 L.Ed.2d 297 (1974). In Blok the District of Columbia police had searched appellee’s desk without a warrant for evidence of petty larceny. The court of appeals concluded that the warrantless search violated the fourth amendment but emphasized that although appellee had a legitimate expectation of privacy in her desk, some warrant-less searches of the desk would be reasonable:

We think appellee’s exclusive right to use the desk assigned her made the search of it unreasonable. No doubt a search of it without her consent would have been reasonable if made by some people in some circumstances. Her official superiors might reasonably have searched the desk for official property needed for official use. But as the Municipal Court of Appeals said, the search that was made was not “an inspection or search by her superiors. It was precisely the kind of search by policemen for evidence of crime against which the constitutional prohibition was directed.” In the absence of a valid regulation to the contrary appellee was entitled to, and did keep private property of a personal sort in her desk. Her superiors could not reasonably search the desk for her purse, her personal letters, or anything else that did not belong to the government and had no connection with the work of the office. Their consent did not make such a search by the police reasonable. Operation of a government agency and enforcement of criminal law do not amalgamate to give a right of search beyond the scope of either. United States v. Blok, 188 F.2d at 1021.

The court in Blok drew a distinction between a search made by the government as employer for things belonging to the government or which were connected with the work of the office and a search undertaken for a law enforcement investigatory purpose. In United States v. Hagarty, 388 F.2d 713 (7th Cir.1968), the court applied a similar logic in ruling that evidence obtained as a result of a warrantless wiretap of a government employee’s conversation was inadmissible in a subsequent perjury trial. The government had argued that “the fourth amendment does not apply to the search of governmental premises in the course of an investigation relating to the conduct of governmental business.” The court rejected this argument and found that the search by the investigators was “part of an effort to secure evidence of crime” and was therefore the kind of search prohibited by the fourth amendment. See 388 F.2d at 717-18.

Finally, in United States v. Kahan, 350 F.Supp. 784 (S.D.N.Y.1972), aff'd in part and rev’d in part, 479 F.2d 290 (2d Cir. 1973), rev’d, 415 U.S. 239, 94 S.Ct. 1179, 39 L.Ed.2d 297 (1974), the court excluded from trial incriminating evidence found in the wastepaper basket underneath defendant’s government desk where the search of defendant’s wastepaper basket had been made by criminal investigators who had searched defendant’s wastepaper basket everyday for more than six months. The court focused on the criminal investigatory nature of the investigation and found that the “criminal investigator’s express purpose in rummaging through the wastepaper basket was to obtain evidence which could be used to prove the defendant guilty of a crime.” Id. at 791. The court pointed out that

[t]his is not a case where an office supervisor or fellow employee in a government office is looking for. some needed document or record and inadvertently happens upon incriminating evidence in the desk or wastepaper basket of another employee. Nor is it a situation where a supervisor is inspecting the area used by a subordinate in order to examine his work or to evaluate his performance on the job. There is no doubt that the government should be able to manage its agencies and offices effectively and without undue restrictions on the supervision of its employees. What would be normal in the supervision and control of employees in a private business should be allowable in government offices as well. Thus, to assure efficiency and honesty, government supervisors have authority to oversee the work of their employees. Id.

Finding the warrantless search of defendant’s wastepaper basket to be in violation of the fourth amendment, the Kahan court excluded from use at trial the evidence obtained as a result of that search. Id. at 789-90.

This court believes that the theme underlying all of the cases discussing searches of government employees can be summarized as follows. Government employees do not surrender their fourth amendment rights merely because they go to work for the government. They have as much of a right to be free from warrant-less government searches as any other citizens. At the same time, however, the government has the same right as any private employer to oversee its employees and investigate potential misconduct relevant to the employee’s performance of his duties. '''Thus, a government employee’s superiors might legitimately search her desk or her locker or her jacket where the purpose of the search is not to gather evidence of a crime unrelated to the employee’s performance of her duties but is rather undertaken for the proprietary purpose of preventing future damage to the agency’s ability to discharge effectively its statutory responsibilities. Because the government as employer has the same rights to discover and prevent employee misconduct relevant to the employee’s performance of her duties, the employee cannot really claim a legitimate expectation of privacy from searches of that nature. Added to this balancing of expectations and interests is the fact that government investigations of employee misconduct always carry the potential to become criminal investigations. As noted above, courts have been unwilling to find that the fourth amendment does not protect government employees from warrant-less searches undertaken for a criminal investigatory purpose.

While an inquiry into the motivations of the government in conducting a warrantless search of government employees will in many cases be a subjective factual question for the trier of fact, in the present case it presents no problem. Defendants’ Statement of Material Facts Not in Issue contains the following statement:

The urinalysis in this case was conducted in a purely employment context and was not done in connection with any criminal investigation or procedure.

Plaintiffs’ response is as follows:

Uncontested except insofar as defendant Raines was present as well as all other officers outside.

While the presence of Officer Raines at the urinalysis might have given rise to an inference of a law enforcement purpose for the urinalysis, plaintiffs have admitted that “his presence there was only to maintain order and more specifically to protect defendant Crane and others from any employee reaction.” Defendants Statement of Material Facts Not in Issue, 1117; Plaintiffs’ Statement of Contested Facts, ¶ 17. Plaintiffs have never been charged with any crime as a result of the investigation, and the court finds no evidence whatsoever that the urinalysis tests in this case were conducted for any criminal investigatory purpose. The only facts before the court establish as a matter of law that the tests were administered in a purely employment context as part of the government’s legitimate inquiry into the use of drugs by employees engaged in extremely hazardous work. The City has a right to make warrantless searches of its employees for the purpose of determining whether they are using or abusing drugs which would affect their ability to perform safely their work with hazardous materials. The court finds, therefore, that the urinalysis tests administered in this case were not unreasonable searches in violation of the fourth amendment. Plaintiffs’ motion for summary judgment on this issue is DENIED and defendants’ motion for summary judgment on this issue is GRANTED.

Because the court concludes that the urinalysis tests administered in this case did not violate the fourth amendment, there is no need to consider whether plaintiffs consented to the search. Warrantless searches of government employees for evidence of misconduct relevant to the employee’s performance of his duties have been upheld even in the absence of consent. See United States v. Collins, 349 F.2d 863 (2d Cir.1965), cert. denied, 383 U.S. 960, 86 S.Ct. 1228, 16 L.Ed.2d 303, reh’g denied, 384 U.S. 947, 86 S.Ct. 1469, 16 L.Ed.2d 545 (1966). It is also unnecessary to consider plaintiffs’ arguments that the test results should have been excluded from use at the hearing before the Pension Board, as the exclusionary rule has no applicability where the evidence was not obtained in violation of the fourth amendment.

IV. WHETHER PLAINTIFFS WERE DENIED PROCEDURAL DUE PROCESS.

Plaintiffs contend that they were deprived of their jobs without procedural due process. Defendants apparently concede that plaintiffs had a protected property interest in their jobs. Marietta City Ordinance No. 3394 provides in pertinent part:

Any employee may be suspended, demoted or dismissed for just cause subject to approval of the City Manager. Just cause shall include, but shall not be limited to: delinquency, negligence, insubordination, work slow-down, inefficiency in performance or inability to perform assigned duties, unauthorized absences, conduct undermining the operations of the city, or violations of the city’s safety regulations.
A permanent employee whose work is not satisfactory over a- period of time shall be notified by his department head as to the problem and deficiency. If, after reasonable notice, the permanent employee fails to perform up to the requirements and standards of the classification held, the incumbent may be demoted or dismissed.
All employees shall be subject to immediate dismissal when the actions of the employee are construed by the City Manager to be so malicious or flagrant as to constitute a hazard to the effective operation of city services.

The employee handbook given to every City employee, including employees of the Board of Lights and Water, contained a Comprehensive Safety Program. Section II of this Comprehensive Safety Program contains the following information:

SECTION II: Safety Rules and Regulations. The purpose of this section is to establish and maintain safety rules and regulations for the welfare and benefit of all City employees, to insure a safe working environment, and maintain efficient services to the citizens and customers of the City of Marietta and the Board of Lights and Water.
A. Application.
1. Every employee shall carefully study (not merely read) those safety rules applicable to his duties. Compliance with these safety rules is mandatory and is considered a requirement for employment.
D. Intoxicating Beverages and Drugs.
Use of intoxicating beverages or drugs on city premises or on the job or during working hours is prohibited and shall be sufficient cause for disciplinary action. Any employee under the influence of intoxicating beverages or drugs shall not be allowed on the job.
E. Conduct of Employees.
2. Any act deemed irresponsible or unsafe on the part of any employee of the City of Marietta or Board of Lights and Water which either causes or develops a potential to cause any form of injury or damage to persons or property either public or private under the normal scope of City or Board employment shall be grounds for immediate dismissal of said employee upon recommendation of the safety committee and approval of the City Manager.

The employment policies stated above make it clear that plaintiffs were employees who could not be dismissed except for good cause. They therefore had a property interest in their jobs. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Brownlee v. Williams, 233 Ga. 548, 212 S.E.2d 359 (1975). Because plaintiffs had a property interest in continued employment with the City, they could not be deprived of their jobs without due process. Since it is apparent that plaintiffs were deprived of their jobs by state action, the question then becomes whether they were deprived of their jobs without due process.

It is clear that plaintiffs did not receive any notice or opportunity to be heard prior to their termination. Plaintiffs were simply called in and informed that the City had evidence they had been using drugs on the job and that they could resign or be fired. It is also clear, however, that plaintiffs were not necessarily entitled to any pre-termination hearing despite the fact that they had a property interest in their jobs. Plaintiffs were subject to immediate dismissal for certain kinds of conduct which threatened the health or safety of other employees or the general public. In any event, even if drug use on the job was not the sort of conduct justifying dismissal without a prior hearing, plaintiffs have conceded that an adequate post-termination hearing would cure the absence of a pre-termination hearing. See Plaintiffs’ Response to Defendants’ Motion for Partial Summary Judgment at p. 3; see also Best v. Boswell, 696 F.2d 1282, 1288-89 (11th Cir.), reh’g denied, 703 F.2d 582, cert. denied, — U.S. -, 104 S.Ct. 103, 78 L.Ed.2d 107 (1983); Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980). The court, therefore, must examine whether the process afforded plaintiffs after their termination was sufficient to satisfy the dictates of the due process clause.

At the time plaintiffs were terminated the City had a three-step grievance procedure. The final step in this procedure was an appeal to the City Manager whose decision was binding on all parties. As it was the City Manager who terminated them, this grievance procedure did not represent much of an opportunity for dispassionate review of the deprivation of plaintiffs’ jobs. After this lawsuit was filed, however, the Board of Lights and Water passed a resolution implementing a new grievance procedure. The first three steps of the new procedure are the same as the old three-step procedure, except that the final appeal is to the Board Manager instead of the City Manager. As the Board Manager and the City Manager are the same person, this does not represent much of a change. The new grievance procedure, however, added an appeal from the decision of the City Manager/Board Manager to the Pension Board of the Board of Lights and Water (“Pension Board”). In light of the fact that plaintiffs did not receive a pre-termination hearing and the fact that the post-termination grievance procedure in place at the time of their discharge was facially inadequate to satisfy the requirements of due process, defendants graciously offered to allow plaintiffs a hearing before the Pension Board and allowed them to waive the first three steps of the grievance procedure.

Each of the plaintiffs accepted the offer to have their terminations reviewed by the board. Each of the plaintiffs was informed that the reason for their termination had been use of drugs on the job and each was given a list of the witnesses who would testify at the hearing and a brief description of the nature of the testimony each witness would offer. While plaintiffs have attacked the sufficiency of the descriptions given, the court finds that the list provided by defendants was sufficient to give plaintiffs fair notice of the charges against them and was sufficient to give plaintiffs an opportunity to prepare to defend themselves against the charges of drug use on the job.

Plaintiffs were represented at the hearing by the same counsel who represents them in this lawsuit. Counsel cross-examined the witnesses who testified against plaintiffs and was allowed to put on any witnesses who could testify in plaintiffs’ behalf. Each of the plaintiffs, with the exception of Stanley Almon who was incarcerated at the time, was present at the hearing and had the opportunity to speak in his own defense and to deny the charges against him. None of the plaintiffs did so. Plaintiffs now contend that they did not testify because they did not feel that the City had made out a case against them and because they felt the hearing was a sham. The essential elements of due process are notice and a fair opportunity to be heard. It is apparent that plaintiffs had reasonable notice of the charges against them prior to the post-termination hearing and were given a fair opportunity to refute the charges. That plaintiffs did not testify or deny the charges against them is not the fault of defendants.

Plaintiffs contend that they were deprived of due process when the Pension Board failed to give them specific reasons for their decision to affirm their termination. The Pension Board’s decision simply states without elaboration the board’s unanimous finding that John Crane had cause for his decision to terminate plaintiffs based on the information presented to him. While greater elaboration would be desirable, and may even be required by Georgia law, see Brownlee v. Williams, 233 Ga. at 556, 212 S.E.2d 359, plaintiffs could have appealed the decision of the Pension Board to the Marietta City Council. Marietta City Ordinance No. 3738. The decision by the City Council affirming or denying the decision of the Pension Board would have been appealable to the Superior Court of Cobb County by a writ of certiorari. See City of Cedartown v. Pickett, 193 Ga. 840, 20 S.E.2d 263 (1942); O.C.G.A. § 5-4-3.

It is apparent to the court that the procedures now in place for appeal of termination decisions are sufficient to satisfy the requirements of notice and a fair opportunity to be heard. Indeed, plaintiffs do not challenge the process itself except insofar as they contend they were entitled to more specific findings by the Pension Board. Plaintiffs’ complaint concerning the findings of the Pension Board and concerning the sufficiency of the evidence presented against them are more appropriately addressed to the Georgia courts. As this court observed in Lee v. Hutson, No. C84-179A (N.D.Ga. October 10, 1984), “it is not the role of a federal district court to act as a court of appeal from decisions of state quasi-judicial bodies where the state has provided avenues of appeal which the litigant did not utilize.” The court’s analysis in Lee v. Hutson of the effect of the existence of adequate state judicial remedies on a procedural due process claim is applicable to this case and is expressly adopted. See also Collins v. Collins, 597 F.Supp. 33 (N.D.Ga.1984). As the Supreme Court stated in Bishop v. Wood, 426 U.S. 341, 349-50, 96 S.Ct. 2074, 2079-80, 48 L.Ed.2d 684 (1976):

The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. We must accept the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs. The United States Constitution cannot feasibly be construed to require federal judicial review for every such error. In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee’s constitutionally protected rights, we must presume that official action was regular and, if erroneous, can best be corrected in other ways. The due process clause of the fourteenth amendment is not a guarantee against incorrect or ill-advised personnel decisions.

Because the court concludes that plaintiffs have been accorded a fair opportunity to rebut the charges against them and that they have failed to utilize avenues of appeal available to them, the court holds that plaintiffs were not deprived of their jobs without due process. Plaintiffs’ motion for summary judgment as to this issue is DENIED, and defendants’ countervailing motion is GRANTED.

V. WHETHER PLAINTIFFS WERE DENIED SUBSTANTIVE DUE PROCESS.

Plaintiffs argue that there was no substantial evidence presented at the hearing that each of the six plaintiffs had smoked marijuana on the job. However, as noted above, it is not the role of this court to engage in an appellate review of the decision by the Pension Board when other avenues of judicial appeal have not been utilized. Even assuming that the evidence presented against plaintiffs was insufficient to justify their termination, plaintiffs have not been deprived of due process because further process was due. Even if this court were disposed to undertake the appellate function of reviewing the evidence presented at the hearing, the court would find that evidence was presented to the effect that each plaintiff had used drugs on the job. It is not the role of this court to evaluate the weight and credibility to be accorded such evidence.

It is important to point out that plaintiffs were not terminated for exercising protected rights. They were terminated for use of drugs on the job in violation of City policy. The City had evidence of such drug use and could reasonably conclude that such drug use constituted a threat to the safety of the community. Plaintiffs were given a full and fair opportunity to attack that evidence and its credibility. The process for the adjudication of the grounds for their termination satisfied the requirements of procedural due process. State judicial avenues of appeal of the errors presently alleged have not been utilized. On these facts the court cannot find that the firing of plaintiffs was arbitrary and capricious or that their due process rights have been violated. Plaintiffs’ motion for summary judgment on their claim for deprivation of substantive due process is DENIED, and defendants’ countervailing motion for summary judgment is GRANTED.

VI. CONCLUSION.

To summarize, the court holds the following: (1) A factual dispute exists as to whether plaintiffs’ were employed by the City of Marietta and as to whether defendants Crane and Thompson were acting in their capacity as City employees or Board employees; until this dispute is resolved, the City of Marietta is a proper party defendant to this action; (2) the urinalysis test administered in this case was a search but was not unreasonable and therefore did not violate the fourth amendment; (3) the exclusionary rule did not require the exclusion of the test results from the hearing before the Pension Board; (4) plaintiffs were accorded a full and fair hearing on the grounds for their discharge and were not deprived of procedural due process; and (5) plaintiffs were not denied substantive due process. Based on the above rulings, the court hereby DISMISSES Counts I, II, III, IV, and V of plaintiffs’ complaint. Count VI of plaintiffs’ complaint, which asserts a cause of action for violation of plaintiffs’ rights under the Georgia Constitution to be free from unreasonable searches and seizures is DISMISSED solely on the grounds that plaintiffs failed to oppose that portion of defendants’ motion for summary judgment. Cf. Simon v. Kroger Company, 743 F.2d 1544 (11th Cir.1984). Counts VII and VIII of plaintiffs’ complaint as amended are not before the court at this time.

In sum, plaintiffs’ motion for leave to file an additional brief is GRANTED. Plaintiffs’ motion for partial summary judgment is GRANTED IN PART and DENIED IN PART. Defendants’ motion for partial summary judgment is also GRANTED IN PART and DENIED IN PART. The consolidated pretrial order, which would normally be due 30 days after the filing date of this order, shall not be due until thirty (30) days after the court rules upon plaintiffs’ motion for partial summary judgment as to their equal protection claim, which motion has not yet been submitted for a ruling by the court.

      . Barry Allen testified that the plaintiffs returned to work after the tests were administered and that they were not fired until after work on July 14. Allen Dep. at p. 36. However, the notice of termination for each of the plaintiffs except Stanley Almon has July 12, 1983, the date the tests were given, as the effective date of termination. However, each of these notices of termination has been altered by hand to provide that the effective date of termination was July 14, 1983, the date the test results were returned. Defendants have not explained why the date on each of these notices of termination was changed.

      . Prior to passage of this resolution on September 19, 1983, it appears that employees of the Board of Lights and Water who had a grievance had no right of appeal beyond the City Manager. Handbook of City Employees at p. 17 (Exhibit A to Affidavit of Larry Thompson filed May 4, 1984 in response to Plaintiffs' Motion for Partial Summary Judgment).

      . "Any person dissatisfied with any decision of the Pension Board shall have the right to appeal the decision to the (Marietta City) Council____ In ruling on any appeal from the Pension Board, the decision of the Pension Board shall be presumed correct and based upon sufficient facts to sustain it." City of Marietta Ordinance No. 3738, Section V (filed on May 4, 1984 in opposition to plaintiffs’ motion for partial summary judgment).

      . This Pension Board appears to be the same entity as the City of Marietta Pension Board, despite its title. When it heard plaintiff’s appeal it met as the City of Marietta Pension Board. See Transcript of Proceedings before the City of Marietta Pension Board, Title Page (filed March 1, 1984).


source: Caselaw Access Project

license: Public Domain

text:
    KINETIC CONCEPTS, INC. (A Texas Corporation), Plaintiff, v. KINETIC CONCEPTS, INC. (A Georgia Corporation), Southern Medical Supply Company, d/b/a Southern Medical, Inc.; Robert A. Lundquist; Edison E. Lyle and Motion Manufacturing, Inc., Defendants. KINETIC CONCEPTS, INC., Plaintiff, v. SOUTHERN MEDICAL SUPPLY COMPANY, d/b/a Southern Medical, Inc.; Kinetic Concepts, Inc.; Robert A. Lundquist; and Edison E. Lyle, Defendants. KINETIC CONCEPTS, INC., Plaintiff, v. MOTION MANUFACTURING, INC., Defendant.
    Civ. A. Nos. C81-875A, C81-1398A and C82-247A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Jan. 4, 1985.

      Randall L. Hughes, Ellwood F. Oakley, III, Dodd, Driver, Connell & Hughes, Atlanta, Ga., Donald R. Comuzzi, Charles W. Hanor, Cox & Smith, San Antonio, Tex., for plaintiff.
    Robert L. Schwind, Atlanta, Ga., Paul S. Weiner, Martin L. Cowen, III, Jonesboro, Ga., Mr. Jay E. Loeb, Atlanta, Ga., for defendants.
   ORDER

FORRESTER, District Judge.

These cases are now pending before the court on three motions filed by defendants Southern Medical Supply Company and Edison E. Lyle. For the reasons which appear herein, all three motions are DENIED.

A. MOTION TO DECLARE LUND-QUIST AND MOTION MANUFACTURING UNREPRESENTED.

In a motion filed in open court on October 2, 1984, defendants Lyle and Southern Medical requested that in the event that neither Lundquist nor Motion Manufacturing, nor any counsel representing them, appeared at the status conference scheduled for that day, this court declare those two defendants to be unrepresented. The basis of this motion appears to be the contention of Lyle and Southern Medical that neither Lundquist nor Motion Manufacturing remains interested in this litigation, such that copies of pleadings should not be served on them. The record of this case reflects that these defendants are represented by Mr. Paul Weiner. Although Mr. Weiner did not appear at the status conference, he has responded to this court’s show cause order (which will be ruled upon in a separate order) and has continued to express his interest in this ongoing litigation. Moreover, defendant Lundquist was present at the hearing on October 2, 1984. It appearing to the court that the motion to declare Lundquist and Motion Manufacturing unrepresented is without basis, given the record of this case, said motion is DENIED.

B. MOTION FOR SEVERANCE.

On October 2, 1984, defendants Lyle and Southern Medical filed a motion for severance. The basis of this motion was the perception of counsel for those two defendants that certain cases had been consolidated with others, when they had not. To review the current status of this case, the following three cases are currently consolidated for all purposes: Civil Action No. C81-875A, Civil Action No. C81-1398A, and Civil Action No. C82-247A. Consolidated with those cases for purposes of pretrial discovery only is Civil Action No. C81875A, a trademark case involving some of the same parties as the foregoing patent actions. To clarify for the benefit of Lyle and Southern Medical’s counsel, this court has never entered an order which would consolidate the trademark case (C81-875A) with the patent cases for trial purposes. See Orders of October 30, 1981, August 4, 1982, and November 1, 1982.

Lyle and Southern Medical also argue with respect to the three patent cases which are currently consolidated that this court should sever those cases for trial pursuant to Federal Rule of Civil Procedure 42(b). The basis of this motion is the assertion that Lundquist and Motion Manufacturing will be in default, and it would embarrass Lyle and Southern Medical to have to defend a ease while being associated in the minds of the jury with non-interested, defaulting parties. The plaintiff has opposed defendants’ motion to sever on the grounds that the complaints in the three patent cases reveal a series of acts which plaintiff alleges to establish ongoing patent infringements by various combinations of the defendants. To permit severance, the plaintiff argues, would permit the present defendants to point the finger of blame at the absent defendants. In addition, plaintiff points out that since the issues in these cases are virtually identical, and that the defendants are claimed to be joint tortfeasors, it would not be economical for this court to order separate trials. The court concurs with this latter point.

As the court pointed out in its order of November 1, 1982, "... all three suits involve identical patents and infringing products. In fact, all three suits involve all of the party defendants as fact witnesses. Thus, common questions of law and fact reside in all the suits.” Order of November 1, 1982, at 2. This court values expeditious resolution of litigation, and can see no purpose in requiring three separate trials with- essentially the same proof and witnesses to be presented at each. The only burden which the movant has asserted in this case is the allegation that it would embarrass Lyle and Southern Medical to be associated with a non-interested defaulting party. This court has never held that Lundquist and Motion Manufacturing are in default in this case. If they are at the time of trial of this case, the court will entertain appropriate motions at the pretrial conference to minimize any “embarrassment” to Lyle and Southern Medical. At this point, however, the motion for severance is DENIED.

C. MOTION TO DISMISS.

The final motion before this court for determination is the motion filed by defendants Lyle and Southern Medical on October 2,1984, to dismiss this action. The basis of this motion is that the plaintiff in all three of these cases, Kinetic Concepts, Inc., does not possess a certificate of authority to conduct business in the State of Georgia, and therefore is barred from bringing suit in this state. The Official Code of Georgia, § 14-2-331(b), provides in pertinent part that:

No foreign corporation that under this chapter is required to obtain a certificate of authority shall be permitted to maintain any action, suit, or proceeding in any court of this state unless before commencement of the action it shall have obtained such a certificate.

Kinetic Concepts does not challenge the fact that it does not have a certificate of authority to transact business in the State of Georgia. Rather, Kinetic proffers a three-pronged argument for why the motion to dismiss should be denied. First, Kinetic argues that the bulk of the issues before this court are federal claims arising under federal law, and state forum-closing statutes should not prevent their resolution in federal court. Second, Kinetic argues that the motion to dismiss on this ground was not timely filed, and finally, Kinetic argues that should it be necessary for it to do so, it will present evidence that it is not “required to obtain a certificate of authority” under the Georgia statute.

There is substantial merit in Kinetic’s position that the state forum-closing statute does not prohibit the maintenance of a federal cause of action in federal court. The United States Supreme Court has held in Woods v. Interstate Realty Company, 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949), that the doctrine of Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), requires that where a plaintiff in federal court in a diversity case would be barred from bringing the action in state court, the federal court is likewise barred from hearing the case. In other words, in a diversity case, a plaintiff who could not sue in the state courts of the forum cannot sue in the federal court. This case, obviously, does not apply to claims arising under federal law. In Re Leeds Homes, Inc., 222 F.Supp. 20 (D.C.Tenn.1963), aff'd, 332 F.2d 648 (6th Cir.1964), cert. denied, 379 U.S. 836, 85 S.Ct. 71, 13 L.Ed.2d 43 (1964). Leading commentators concur with this rule. “[I]f subject matter jurisdiction is not based upon diversity of citizenship, the federal court need not apply forum state restrictions on a corporation’s ability to sue.” 6 Wright & Miller, Federal Practice and Procedure, § 1561, p. 735, and cases cited therein. This court concludes that with respect to plaintiff Kinetic Concept’s federal law claims, Georgia’s forum-closing statute does not apply.

Additional support for this view is found in the fact that these claims arise under the patent laws of the United States. Federal courts have exclusive jurisdiction over patent claims. 28 U.S.C. § 1338(a); United States v. American Bell Telephone Company, 159 U.S. 548, 16 S.Ct. 69, 40 L.Ed. 255 (1895). Thus, the policy of closing the doors to the federal courthouse when the doors to the state courthouse are not open due to operation of state law does not apply in the present case. With respect to the federal claims in this matter, the state courts of Georgia or any other non-federal forum would have had no jurisdiction to consider them. It is therefore difficult to put forward a valid basis upon which this court could defer to Georgia’s forum-closing statute as to Kinetic’s federal claims. As the Fifth Circuit has noted in connection with Florida’s forum-closing statute:

[S]uch provision does not limit the jurisdiction of the federal district courts in Florida. Only Congress has the prerogative of defining the jurisdiction of the lower federal courts.

Norman M. Morris Corporation v. Weinstein, 466 F.2d 137, 142 (5th Cir.1972). The court in Norman M. Morris concluded that where the district court had jurisdiction under federal statutes respecting importation of goods which bear a false designation of their origin, Florida’s forum-closing statute could not limit the court’s jurisdiction. This court concurs and therefore the defendants’ motion to dismiss the plaintiff’s federal claims is DENIED.

The motion to dismiss plaintiff’s pendent state claims stands on a somewhat different ground. As noted above, the United States Supreme Court has held that where federal jurisdiction is based on diversity of citizenship, the court cannot entertain a claim if the courts of the forum state could not entertain the same claim. Woods v. Interstate Realty Company, 337 U.S. 535, 538, 69 S.Ct. 1235, 1237, 93 L.Ed. 1524 (1949). It is settled law in this district that where the plaintiff corporation has not obtained a certificate of authority to transact business in the State of Georgia, claims which are founded on diversity of citizenship should be dismissed without prejudice. Durban Enterprises, Inc. v. Cohutta Banking Company, 501 F.Supp. 350 (N.D. Ga.1980) (Tidwell, J.). On this basis, Southern Medical and Lyle have moved to dismiss plaintiff’s pendent state claims. Kinetic makes two arguments in response. First, Kinetic argues that the right of the defendants to move to dismiss on this ground has been waived by virtue of its not having been included in the first answer filed in this case; and second, if the court concludes that the motion is timely, Kinetic requests additional time to demonstrate that they are not required to obtain a certificate of authority under the Georgia statute. This court finds it necessary to reach only the former of the arguments put forward by Kinetic, as the court has concluded that Southern Medical and Lyle’s right to move to dismiss on this ground has been waived in this case.

In determining whether the motion to dismiss on grounds of non-registration was brought in a timely fashion, the court is guided by the decision of the Fifth Circuit Court of Appeals in Morgan Guaranty Trust Company of New York v. Blum, 649 F.2d 342 (5th Cir.1981). In Morgan, the defendant failed to assert Georgia’s forum-closing statute in his original answer, and later sought leave of court to amend the answer to include that defense. The plaintiff opposed the motion to amend on the grounds that the defense was not pled in a timely fashion as a matter of federal law. The defendant argued that the non-registration defense may be raised at any time prior to judgment under the Georgia statute. See O.C.G.A. § 14-2-331(c). The Fifth Circuit held that the question of timeliness of the defense is subject to a two-part analysis. First, the court must determine the “nature” of the defense under state law; and second, the court must then apply the Federal Rules of Civil Procedure to determine whether the defense has been waived. 649 F.2d at 344. The Morgan court, in applying the first test, concluded that the “nature” of the non-registration defense under Georgia law is that the defense is a “dilatory plea or plea in abatement.” Id. at 344, citing National Heritage Corporation v. Mt. Olive Memorial Gardens, Inc., 244 Ga. 240, 260 S.E.2d 1 (1979). The Fifth Circuit, noting that the phrase “dilatory plea” is somewhat unspecific, concluded that in stating that the defense is a dilatory plea, the Georgia Supreme Court intended to characterize the defense as either an affirmative defense, a question of capacity to sue or be sued, or a question of personal jurisdiction. Id. at 344. Rather than determining which of these three possibilities was the appropriate one, the Fifth Circuit went on to the second step of its analysis, and concluded that as a matter of federal law, the defense had been waived in Morgan. 649 F.2d at 345.

In utilizing the Morgan framework to analyze the facts of the present case, it is necessary for this court to determine which of the three possibilities outlined in Morgan correctly describes the non-registration defense as a matter of Georgia law. If Georgia law would characterize non-registration as an affirmative defense, then, applying federal rules of waiver, it was raised in a timely fashion in this case since it was included in a response to an amendment permitted by this court. Funding Systems Leasing Corporation v. Pugh, 530 F.2d 91 (5th Cir.1976) (affirmative defenses may be raised in amendments permitted by the court). If, on the other hand, the forum-closing statute is analogous under Georgia law to personal jurisdiction and other “threshold” defenses then federal law would deem it waived in the present case since it was not raised in the defendant’s original answer. “The personal jurisdiction defense cannot be raised in an amendment which requires leave of the court.” Morgan, 649 F.2d at 345. See also Glater v. Eli Lilly & Company, 712 F.2d 735, 738 (1st Cir.1983), and cases cited therein. (Threshold defenses such as personal jurisdiction must be raised in the defendant’s “first defensive move.”) This court will limit its consideration of the “nature” of the non-registration defense under the Morgan framework to the question of whether it is an affirmative defense or a threshold defense. Although Morgan raised the possibility of the defense going to capacity to sue or be sued (649 F.2d at 344), the Georgia Court of Appeals has held since Morgan was decided that standing, unlike non-registration, is not a plea in abatement. Cf. National Heritage Corporation v. Mt. Olive Memorial Gardens, Inc., 244 Ga. 240, 260 S.E.2d 1 (1979), and Burry v. DeKalb County, 165 Ga.App. 246, 299 S.E.2d 602 (1983).

In analyzing the nature of a “dilatory plea” under Georgia law, the court notes that the Georgia Supreme Court has distinguished a dilatory plea from a “plea in bar.” National Heritage Corporation, 244 Ga. at 242, 260 S.E.2d 1. The distinction between a plea in bar and a dilatory plea (or plea in abatement; the Georgia courts use those terms interchangeably), was examined in Carter v. Solomon, 54 Ga.App. 517, 188 S.E. 545 (1936). In Carter, the Georgia Court of Appeals noted that a plea in abatement is one which goes to suspend or put plaintiff's action off for the present, while a plea in bar defeats plaintiff’s action absolutely and entirely. Id. See also Theo v. National Union Fire Insurance Company, 99 Ga.App. 342, 347, 109 S.E.2d 53 (1959). (A dilatory plea is a preliminary step in the action prior to its substantial defense, going only to defeat the right to maintain the action at the present time without contesting the merits of the action).

Given the definitions utilized by the Georgia courts for a plea in abatement or a dilatory plea, the court concludes that the plea of non-registration is analogous to a threshold defense such as personal jurisdiction, rather than an affirmative defense. It is permissible for this court to analogize the Georgia statute in question in determining whether the “nature” of a defense under state law is more like an affirmative defense or more like a threshold defense. Funding Systems Leasing Corporation, supra, at 95. In order to engage in this type of analogy in the present case, the court has examined the waiver rules applied in Georgia courts for a plea in abatement or a dilatory plea. This goes not to the ultimate issue of whether the defense was waived as a matter of federal law in this case, but goes toward the first part of the Morgan framework, in determining the nature of the defense under state law. Georgia law treats a plea in abatement or a dilatory plea much like the Federal Rules of Civil Procedure treat threshold defenses such as personal jurisdiction. A dilatory plea must be brought at the first term of court after the complaint is filed or it is waived. Garrison v. McGuire, 114 Ga. App. 665 at 666, 152 S.E.2d 624 (1966); Funderburg v. Farr Furniture Company, 111 Ga.App. 271 at 272, 141 S.E.2d 600 (1965); Southern Railway Company v. Ansley, 8 Ga.App. 325 at 328, 68 S.E. 1086 (1910); and Realty Company v. Ellis, 4 Ga.App. 402 at 405, 61 S.E. 832 (1908).

Indeed, Georgia law treats dilatory pleas as different from affirmative defenses. In Gamble v. Gamble, 204 Ga. 82 at 85, 48 S.E.2d 540 (1948), the Georgia Supreme Court held that a dilatory plea must be filed at the first term of court at which the original petition could be answered, while an affirmative defense may be raised at any time during the trial term of the court. Id. at 86, 48 S.E.2d 540. See also Funderburg, supra, 111 Ga.App. at 272, 141 S.E.2d 600. Georgia law on this point is in line with the general rule, which is that matters in abatement must be pled at the first reasonable opportunity, or they are waived. 1 C.J.S. Abatement and Revival § 193(a), p. 248. The court therefore concludes that since Georgia law draws a distinction between preliminary defenses such as pleas in abatement and affirmative defenses, the “nature” of the non-registration defense as a matter of state law is that it is like a personal jurisdiction defense under federal law.

Having determined that the defense of non-registration is analogous to a personal jurisdiction or threshold defense, the court must now apply, pursuant to Morgan, federal rules of waiver and timeliness to determine whether the defense has been waived in the present case. Pursuant to the Federal Rules of Civil Procedure, threshold defenses such as the absence of personal jurisdiction must be raised in the defendant’s first pleading or in a pleading which is amended without requiring the leave of court. Morgan Guaranty Trust Company of New York, 649 F.2d at 345; Federal Rule of Civil Procedure 12(h)(1). See also Glater v. Eli Lilly, supra. The first answer filed by the moving defendants in this case was filed on June 5, 1981. The defense on which the present motion to dismiss is based was not enunciated until the defendants filed an answer to plaintiff’s first amended complaint on April 2, 1982. The defense was therefore not raised in the first responsive pleading filed by these defendants, and therefore was waived. Thus, the court concludes that defendants’ right to move to dismiss plaintiff’s state law claims on the grounds of non-registration has been waived, and the motion to dismiss on these grounds is untimely.

D. CONCLUSION.

In summary, defendants’ motion to declare Lundquist and Motion Manufacturing unrepresented is DENIED. Defendants’ motion for severance is DENIED. Defendants’ motion to dismiss on the grounds that plaintiff has not obtained a certificate of authority to do business in the State of Georgia is DENIED.

      . The other basis proposed for this motion is that the issues are different in trademark litigation and patent litigation. As noted in the text, these issues will not be tried together, since the trademark action has never been consolidated with the patent cases for purposes of trial.

      . The defense of non-registration first appeared in this case in an answer to plaintiff's first amended and supplemental complaint. The amended complaint was filed with leave of court. Although pursuant to Federal Rule of Civil Procedure 15(a) the defendants were required to respond to the amended complaint, and no special leave of court was required, this court nonetheless concludes that if non-registration is a "threshold" defense, it was not raised in a timely manner under the facts of this case. Nothing in plaintiff’s amended complaint revealed for the first time that Kinetic Concepts had no certificate of authority to do business in Georgia. The defendants certainly could have put forward the defense in their original answer to the original complaint. As the rule in such cases is cited by Professor Moore:
      [The purpose of the waiver rule] ... is to limit waiver under the rule to these preliminary and essentially dilatory defenses and objections, [and] it is to be noted that subdivision (h)(1)(B) [of Rule 12] provides for waiver if the defense or objection is not made in the initial responsive pleading or an amendment thereto permitted as of course by Rule 15(a).
      2A Moore's Federal Practice 2d ¶ 12.23, p. 2455 (1984) (emphasis added). Answering an amended complaint is not the same as amending as of course the original answer. The purpose of these rules is to make defendants put forward for resolution at the earliest date "threshold” or “preliminary” defenses. The non-registration defense in the present case could have been raised in the original answer and was not. All parties have undergone considerable expense, and to grant defendants’ motion now would encourage the “sandbagging” of such defenses, a result the waiver rule exists to prevent. Therefore, the court concludes that this defense was not included in the initial responsive pleading or an amendment thereto permitted as of course, and if as a matter of Georgia law it is properly characterized as a threshold defense, the federal waiver rules would deem it waived in this case.

      . There is authority in this district for the proposition that the defense of non-registration under the Georgia forum-closing statute is analogous to the federal defense of lack of personal jurisdiction. A.S. International Corp. v. Salem Carpet Mills, Inc., 441 F.Supp. 125 (N.D.Ga.1977) (Murphy, J.). There is also authority to the contrary in this district, which was cited by the Fifth Circuit in Morgan Guaranty Trust. At footnote 2 of that opinion, the Fifth Circuit cited the Northern District of Georgia case of McChesney Construction Co. v. Vector Company, Civil Action No. 17073 (N.D.Ga. March 31, 1975) as standing for the proposition that the Georgia forum-closing statute is an affirmative defense. 649 F.2d 344, n. 2. In that same footnote, the Fifth Circuit cited the Norman M. Morris case, discussed above, as being in accord with the proposition that the non-registration defense is analogous to an affirmative defense. However, Norman M. Morris dealt with Florida’s forum-closing statute, which the Florida courts have specifically held is an affirmative defense. 466 F.2d at 142. In the present case, Georgia courts have not held that this is an affirmative defense; rather, they have held that it is a dilatory plea which is distinguishable from an affirmative defense as a matter of Georgia law. See Gamble v. Gamble, supra. The court therefore concludes that the nature of the defense under state law is that it is a threshold defense analogous to personal jurisdiction, following AS. International and declining to follow the unreported opinion in McChesney.

      . See footnote 2, supra.


author: HADEN, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. Roy MALDONADO, Defendant.
    Crim. No. 83-20008-01.
    United States District Court, S.D. West Virginia, Charleston Division.
    Jan. 4, 1985.

      Larry Ellis, Asst. U.S. Atty., Charleston, W.Va., for plaintiff.
    Frederick F. Cohn, Ltd., Chicago, 111., Theodore R. Dues, Jr., Charleston, W.Va., for defendant.
   ORDER

HADEN, Chief Judge.

Pending before the Court is Maldonado’s motion to dismiss the indictment against him on the grounds that the Government has violated 18 U.S.C. § 3161®(1)(B). Maldonado was indicted June 28, 1982, but as he failed to appear for arraignment, a warrant was issued for his arrest. On March 1, 1983, Maldonado was arrested by state authorities in Chicago, Illinois, for murder, and he was held there without bond. On March 11, 1983, a federal detainer was placed against Maldonado. After Maldonado was tried and acquitted of the murder charges, he was released September 14, 1984, to federal custody. Maldonado was arraigned before a federal magistrate November 5, 1984.

The Defendant’s motion states as grounds for dismissal the alleged failure of his custodian to inform him of the need to demand a speedy trial in order to enjoy the benefits of 18 U.S.C. § 3161. Maldonado relies on 18 U.S.C. § 3161(j)(l)(B) as creating the duty upon the Government in this instance to inform him of his right to a speedy trial. That section reads, in relevant part:

“If the attorney for the Government knows that a person charged with an offense is serving a term of imprisonment in any penal institution, he shall promptly ... cause a detainer to be filed with the person having custody of the prisoner and request him to so advise the prisoner and to advise the prisoner of his right to demand a trial.”

The question raised is whether “term of imprisonment” in this context includes pretrial detainees. No authority has been cited to indicate that this phrase has been construed under Section 3161(j)(l)(B), and the Court has found none. Identical language, however, in the Interstate Agreement on Detainers Act, 18 U.S.C. Appendix II, Section 2, Article IV(a), has been interpreted to exclude pretrial detainees. U.S. v. Reed, 620 F.2d 709, 711 (9th Cir.1980); U.S. v. Roberts, 548 F.2d 665, 670 (6th Cir.1977) cert. denied 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246 (1977). Aside from the semantic distinctions between custody pursuant to a “term of imprisonment” and pretrial detainment, two additional reasons justify distinguishing between the two types of custody under § 3161®. First, interpreting “term of imprisonment” as including pretrial detainees would increase the likelihood of friction between the state and federal prosecuting authorities as they attempted to try the Defendant in different places over the same period of time. Secondly, the notice requirement that the incarcerated accused be advised of his right to demand a speedy trial would be useful to the unrepresented convict; whereas, the same notice would not be necessary for the presumably represented pretrial detainee, whose attorney would be capable of advising of his right to a speedy trial.

In the instant case, it is undisputed that Maldonado at the time detainer was placed against him and until September 14, 1984, was a pretrial detainee, and as such was not serving a “term of imprisonment” which would invoke the language of 18 U.S.C. § 3161®(1)(B). The Government and Maldonado appear at odds respecting whether Maldonado had actually received notice of the Speedy Trial Act’s requirement that the Defendant demand a speedy trial in order to obtain one. The Court finds it unnecessary to determine whose version is correct as the Defendant was not entitled to such notice under these facts.

Accordingly, the Defendant’s motion for dismissal for failure to comply with 18 U.S.C. § 3161®(1)(B) is denied.


author: ASPEN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Mark RASHKOW and Seymour Jacobson, Defendants.
    No. 84 CR 683.
    United States District Court, N.D. Illinois, E.D.
    Jan. 7, 1985.
    Ted Helwig, Thomas Durkin, Asst. U.S. Attys., Chicago, III., for plaintiff.
    Thomas R. Mulroy, Richard P. Steinken, Jenner & Block, Chicago, 111., for defendant Mark Rashkow.
    David M. Schneider, Marvin Leavitt, Leavitt & Schneider, Chicago, 111., for defendant Seymour Jacobson.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge.

In an indictment handed down in September of 1984, defendant Mark Rashkow (“Rashkow”) was charged, along with co-defendant Seymour Jacobson, with one count of conspiracy to distribute cocaine and three counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1). The defendants entered pleas of not guilty to each count of the indictment at their arraignment on October 2, 1984, and their trial was scheduled for November 5, 1984. However, when the cause was called for trial on November 5, the defendants advised the Court that they wished to withdraw their pleas of not guilty and enter guilty pleas to all counts of the indictment. The Court informed the defendants of their rights under the law, and they persisted in their voluntary pleas of guilty. The Court then found the defendants guilty on all four counts of the indictment and set their sentencing hearing for January 10, 1985. Presently before the Court is Rashkow’s motion for leave to withdraw his guilty plea filed January 3,1985. For the reasons set forth below, Rashkow’s motion is denied.

Rule 32(d) of the Federal Rules of Criminal Procedure provides that the district court may permit withdrawal of a guilty plea “upon a showing by the defendant of any fair and just reason.” However, withdrawal of a plea before sentencing is not an absolute right but is a matter within the broad discretion of the court. E.g., United States v. Thompson, 680 F.2d 1145, 1151 (7th Cir.1982), cert. denied sub nom. Williams v. United States, 459 U.S. 1089, 103 S.Ct. 573, 74 L.Ed.2d 934 (1982); United States v. Wright, 407 F.2d 952, 954 (7th Cir.1969). In opposing the defendant’s attempt to withdraw a guilty plea, the government is not required to show prejudice. Thompson, 680 F.2d at 1150; United States v. Saft, 558 F.2d 1073, 1083 (2d Cir.1977). Where the government can show prejudice, though, the court should weigh that prejudice against the defendant’s reasons for seeking withdrawal. United States v. Strauss, 563 F.2d 127, 131 (4th Cir.1977); United States v. Savage, 561 F.2d 554, 556-57 (4th Cir.1977). In addition to any prejudice to the government, the court may also consider the defendant’s good faith, credibility and the weight of his assertions. United States v. Becklean, 464 F.Supp. 205, 209-10 (W.D. Mo.1979), aff'd, 598 F.2d 1122 (8th Cir. 1979), cert. denied, 444 U.S. 864, 100 S.Ct. 135, 62 L.Ed.2d 87 (1979).

In this case, Rashkow states that he desires to withdraw his guilty plea because one or two previously unavailable witnesses are now available and willing to testify on his behalf at trial, thus enabling him to present a viable entrapment defense. Rashkow claims that withdrawal of his guilty plea will not prejudice the government because Rashkow informed the government before the original trial date of his plans to raise an entrapment defense and because “the few witnesses which the government originally intended to call at trial are still available to it.”

The government disagrees strongly with this latter claim. It argues that it would be prejudiced substantially if Rashkow were allowed to withdraw his guilty plea now, because one of the key government witnesses was recently shot in the head and will never be able to testify against Rashkow. Thus, the government contends that it would not be “fair and just” to allow Rashkow to withdraw his guilty plea.

We agree with the government that the prejudice to its case justifies denial of Rashkow’s motion. Other courts have properly denied a defendant’s motion to withdraw a guilty plea where government witnesses were no longer available or the government otherwise demonstrated substantial prejudice. Government of the Virgin Islands v. Berry, 631 F.2d 214, 221-22 (3d Cir.1980); United States v. Carden, 599 F.2d 1320, 1322 (4th Cir.1979), cert. denied, 444 U.S. 874, 100 S.Ct. 156, 62 L.Ed.2d 101 (1979); United States v. DeCavalcante, 449 F.2d 139, 141 (3d Cir.1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d 731 (1972).

Although the prejudice to the government is dispositive of Rashkow’s motion, we also note various factors which impair Rashkow’s credibility. In addition to the obvious inaccuracy of the claim that all the government’s witnesses are still available to testify, Rashkow’s affidavit does not square well with the motion drafted by his attorneys. The motion explains Rashkow’s changes in pleas by stressing the availability of witnesses who would support an entrapment defense. The affidavit, on the other hand, says almost nothing about witnesses. Rather, Rashkow states that he pled guilty because he was afraid of being sentenced to jail, and he believed he had a better chance of receiving a lesser sentence if he pled guilty. Rashkow explains his desire to withdraw his guilty plea more as a change of heart than a change in availability of defense witnesses. Other inconsistencies arose in open court on January 4, 1985, during the hearing of Rashkow’s motion. Contrary to the assertion of his attorney, Rashkow has in fact been interviewed already by probation authorities, and the presentence investigation of his case has been completed. Considered together, these misstatements and inconsistencies certainly do nothing to enhance Rashkow’s credibility.

Accordingly, Rashkow’s motion for leave to withdraw his guilty plea is denied. It is so ordered.

      . It is unclear whether the witness’ injury was self-inflicted or caused by another, but there is no question that he will be unavailable to testify at trial or that Rashkow knew about the witness’ unavailability when he presented his motion to the Court.


text:
    UNITED STATES of America, Plaintiff, v. Mark RASHKOW and Seymour Jacobson, Defendants.
    No. 84 CR 683.
    United States District Court, N.D. Illinois, E.D.
    Jan. 14, 1985.
    Ted Helwig, Thomas Durkin, Asst. U.S. Attys., Chicago, 111., for plaintiff.
    Thomas R. Mulroy, Richard P. Steinken, Jenner & Block, Chicago, 111., for defendant Mark Rashkow.
    David M. Schneider, Marvin Leavitt, Leavitt & Schneider, Chicago, 111., for defendant Seymour Jacobsen.
   MEMORANDUM ORDER

ASPEN, District Judge.

In a memorandum opinion and order dated January 7, 1985, 601 F.Supp. 504, the Court denied the motion of defendant Mark Rashkow (“Rashkow”) for leave to withdraw his guilty plea. Rashkow has since filed a motion to correct and clarify the record, in order “to present an accurate representation of the facts of this case.” Rashkow’s motion is hereby granted, and we supplement the January 7 opinion with the following statements.

Rashkow argues that the government will not be prejudiced by the unavailability of a witness who was shot in the head recently because the government repeatedly represented to Rashkow’s attorneys that it did not intend to call that witness at trial. However, the government stated to the Court in the January 4, 1985 hearing on Rashkow’s motion, “Mr. Gordon knows a lot of the details of Mr. Rashkow’s prior involvement in drugs, and now he wants to present an entrapment defense when the Government’s no longer able to bring in Mr. Gordon.” It is therefore apparent that although the government did not plan to call Gordon as a witness in its case in chief, Gordon would be an important witness in rebutting Rashkow’s entrapment defense. Even assuming that the government made representations about not calling Gordon, and assuming further that the government has known for some time that Rashkow planned to raise an entrapment defense, the government nevertheless could not be precluded from calling Gordon as a rebuttal witness — where Gordon’s testimony became essential to rebut evidence presented by Rashkow in his defense. Thus, the government still would be prejudiced if Rashkow were allowed to withdraw his guilty plea and present an entrapment defense at trial.

Rashkow also explains why his attorney told the Court at the January 4 hearing that he did not “believe that the probation officer ever sat down with Mr. Rashkow and talked to him about the events” and that the presentence “report on Mr. Rashkow is not completed,” when actually the contrary was true. It seems that Rashkow’s counsel was told on December 28, 1984, that the presentence report had not been completed yet and that the probation officer would inform them of the report’s availability. When Rashkow’s attorney spoke in court on January 4, the probation officer had not yet reached him with the message that the report was completed. In fact, the probation officer called Rashkow’s counsel with that message while he was appearing before the Court on Rashkow’s motion. The foregoing shows that Rashkow’s attorney did not make the misstatements about the presentence report intentionally. The attorney’s statements were nonetheless incorrect, as the report had been completed on January 3. Rashkow’s attorney’s “belief,” stated in Court on January 4, that the probation officer never “sat down with Mr. Rashkow and talked to him about the events” is also incorrect. On January 4 the probation officer advised the Court that he had indeed conducted a full interview with Rashkow. The probation report itself documents that such an interview took place.

For the foregoing reasons, Rashkow’s motion to correct and clarify the record is granted in the manner as indicated in this opinion. Rashkow has also moved this Court to reconsider our January 7 order denying him leave to withdraw his guilty plea. Since our clarification of the record does not dictate a different disposition of our January 7 order, Rashkow’s motion to reconsider is denied. It is so ordered.