author: GERRY, District Judge.

text:
    Lynwood J.R. HERRING, Plaintiff, v. PRINCE FOODS-CANNING DIVISION, Defendant.
    Civ.A. No. 84-3680.
    United States District Court, D. New Jersey.
    June 12, 1985.

      Joseph Asbell & Associates, P.A. by Joseph Asbell, Camden, N.J., for plaintiff.
    Robert J. Borrelle, Haddon Heights, N.J., Morgan, Brown & Joy, by William F. Joy, Jr., Laurence J. Donoghue, Boston, Mass., for defendant.
   GERRY, District Judge.

The plaintiff was an employee of the defendant. On March 8,1983, plaintiff was injured during the course of his employment. Shortly thereafter, Mr. Herring began receiving workmen’s compensation benefits. On July 12, 1984, the complaint alleges, the defendant was notified by plaintiff’s doctor that plaintiff could return to work on August 1, 1984. On July 16, 1984, however, the defendant sent plaintiff a telegram informing him that he had been discharged. (The defendant alleges that it had earlier communicated this information via registered mail — in mid-June, prior to learning of plaintiff’s intention to return to work — but that plaintiff had not picked up the letter, and it had been returned unopened.) From the time plaintiff first left work until his discharge, he was out of work approximately 16 months.

During his employment with Prince Foods, the plaintiff was a member of the Prince Employees’ Union, and his relationship with Prince Foods was covered by a series of collective bargaining agreements. The agreement in effect at the time of plaintiff’s accident provided that Prince could discharge employees for “just and proper cause.” On August 1, 1983, a new agreement went into effect. This agreement also contained a “just cause” provision. It also contained the following provision:

An employee’s seniority shall terminate and he shall no longer be considered an employee upon____
Absence of 12 consecutive months in the case of an industrial illness or accident arising out of or in the course of employment with the employer herein.

The defendant relied on this provision in discharging the plaintiff. The plaintiff alleges, however, that his discharge was actually in retaliation for his having collected workmen’s compensation benefits.

The plaintiff has filed a six count complaint. The plaintiff alleges in count one that the retaliatory discharge is violative of N.J.S.A. 34:15-39.1, which makes it unlawful to discharge an employee because he has claimed or attempted to claim workmen’s compensation benefits. Count two is substantially identical to count one and alleges in more general terms that the retaliatory discharge “is contrary to the clear mandate of public policy.” (No other public policy than that evinced by 34:15-39.1 is proposed.) Count three alleges that the termination is violative of N.J.S.A. 34:15-44, a provision limited by its terms to public employees. Count four is a claim under 42 U.S.C. § 1983, and count five likewise is a generalized claim of constitutional deprivations. Finally, count six is a demand for punitive damages.

The defendant has moved for summary judgment on all six counts of the complaint.

The defendant argues that counts four and five of the complaint should be dismissed because there was no state action implicated in the decision to discharge plaintiff. The plaintiff now concedes the point, and these counts, therefore, will be dismissed. The plaintiff also concedes that N.J.S.A. 34:15-44 is inapplicable, as he was not a public employee, and this count will also be dismissed.

That leaves counts one and two. Initially, the court must address briefly the question of subject matter jurisdiction, since the federal constitutional claims have been dismissed. Ordinarily, federal jurisdiction in an employer-employee dispute where there is in place a collective bargaining agreement may be grounded in § 301 of the Labor-Management Relations Act (LMRA). Here, however, the plaintiffs suit is not based on any collective bargaining agreement; indeed, it is predicated on the availability of extra-contractual causes of action. Accordingly, § 301 does not furnish the jurisdictional basis for suit. It would appear, however, that the court may exercise diversity jurisdiction over counts one and two. Although the face of the complaint does not demonstrate diversity, the later submissions of the parties satisfy the court that diversity exists, and the court will proceed on that basis.

In Lally v. Copygraphics, 85 N.J. 668, 428 A.2d 1317 (1981), the New Jersey Supreme Court held that an employee who has been discharged in retaliation for claiming workmen’s compensation benefits has a common law right of action for wrongful discharge. The cause of action for wrongful discharge had been recognized by the court the previous year in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980).

The defendant agrees that a violation of N.J.S.A. 34:15-39.1 gives rise to an action pursuant to Pierce. But, the defendant argues, Pierce only provides a remedy for at-will employees, otherwise unprotected against discharged, and has no application to employees covered by a collective bargaining agreement. Employees of the latter category, it is argued, must pursue their contractual remedies and resort initially to arbitration if the contract so provides.

We first address the applicability of the Pierce wrongful discharge doctrine to the plaintiff, an employee covered by a collective bargaining agreement. The Pierce court held that “an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy.” 84 N.J. at 72, 417 A.2d 505. The court stated that such a cause of action could be maintained in contract — predicated on the breach of an implied provision prohibiting the discharge of an employee who refused to perform an act that violates public policy — or in tort — based on a duty of the employer not to discharge an employee under such circumstances. Id. Under the latter theory, punitive damages are available. Id.

The decision in Pierce involved an at-will employee, and the entire discussion leading up to the holding dealt with the need to provide some protections for at-will employees; that is, employees who could be terminated with or without cause at any time, due to the absence of contractual provisions restricting termination to “just cause” or otherwise providing a definite term of employment. The decision is predicated, it seems, on the absence of any other remedies for this class of employees and the realization that, in limited circumstances, there must be limits to an employer’s authority over its employees.

Thus, courts (albeit not yet the courts of New Jersey) have frequently held that the existence of a statutory remedy for redress of a violation of public policy (for example, race or sex discrimination) precludes the injured employee from asserting a common law wrongful discharge claim. See, e.g., Bonham v. Dresser Industries, 569 F.2d 187, 195 (3d Cir.1977); Wehr v. Burroughs Corp., 438 F.Supp. 1052, 1054 (E.D.Pa.1977); Wolk v. Saks Fifth Avenue, 728 F.2d 221 (3d Cir.1984).

The defendant argues that, likewise, the existence of a contractual remedy bars the employee from asserting the common law claim. It appears that the New Jersey Supreme Court has not yet addressed this issue, and so we must predict what its decision would be.

Taking into account the premises on which Pierce is based, this court agrees that one whose employment is governed by a collective bargaining agreement prohibiting discharge except for “just cause” may not invoke the common law cause of action. Such an employee is not in need of the protections established in Pierce, because he already has these protections, and more. “Just cause,” whatever else it incorporates, is surely broad enough to incorporate a prohibition on terminations violative of clear mandates of public policy; i.e., retaliatory terminations.

Moreover, to permit one to maintain an action for wrongful discharge may allow the employee to circumvent the procedures for dispute resolution which the parties to the agreement have bargained for. Cf. Bruffett v. Warner Communications, 692 F.2d 910, 919 (3d Cir.1982) (rejecting wrongful discharge claim, where to permit claim would allow one to circumvent the statutory remedy). In the instant case, the collective bargaining agreement contains a grievance procedure culminating in arbitration. The employer, we believe, has a right to rely on that procedure, exclusive of any other, for any disputes arising under the agreement.

The plaintiff argues, however, that the language of Pierce should be read to permit a wrongful discharge claim even where there exists a contract remedy. Reliance is placed on the following statement:

Our holding [recognizing the cause of action] should not be construed to preclude employees from alleging a breach of the express terms of an employment agreement.

84 N.J. at 73, 417 A.2d 505.

This statement, the court believes, cannot be read as expansively as plaintiff would have it. The employee in Pierce was not covered by a collective bargaining agreement. The opinion alludes to the possible existence of an oral contract, and not a contract providing for arbitration. The statement in Pierce may simply be a statement of the obvious: that one may plead, in the alternative, a claim of wrongful discharge along with a claim for breach of an express contract. Where there is no alternative (let alone, exclusive) remedy, the employee will be bringing both claims to court in the first instance. The Pierce court provides no guidance on how a court should dispose of these multiple claims, assuming both are valid and coextensive. It may be that relief should be granted on both theories, or it may be that the common law wrongful discharge claim should be dropped.

Alternatively, the Pierce court may have been recognizing that one may have an express contract which gives one certain protections, against termination perhaps, but protections different from those recognized in Pierce itself. For example, one may be an at-will employee having a contract covering salary or accrued commissions. “A breach of this agreement may be separately recognized as a basis for compensatory damages, even under Pierce, notwithstanding that plaintiffs discharge must be upheld if he does not meet the Pierce abusive discharge test.” Cappiello v. Ragen Precision Industries, 192 N.J.Super. 523, 471 A.2d 432, 435-36 (App.Div.1984). Similarly, one may be covered by a collective bargaining agreement providing that one may not be terminated for certain specific acts, but otherwise not restricting the employer’s authority to discharge. If one were terminated for an act beyond those specifically protected by the agreement, one should still be permitted to bring suit pursuant to Pierce and bypass what would only be an irrelevant set of grievance procedures provided under the agreement. However, if one were terminated in violation of public policy for an act also specifically protected by the agreement, the court believes one would have resort only to the remedies provided in the agreement. The crucial factor under Pierce, we believe, is the absence of other remedies. See Smith v. Greyhound Lines, 614 F.Supp. 558, 117 L.R.M. 2253 (W.D.Pa.1984) (same result, under Pennsylvania law); Bertrand v. Quincy Market, 728 F.2d 568 (1st Cir.1984) (same result, under Massachusetts law).

Having concluded that plaintiff’s claim is for breach of an express contract prohibiting termination absent “just cause,” we must determine whether that claim must be dismissed for failure to exhaust extrajudicial remedies. We will assume, in the discussion that follows, that the complaint has been properly amended to reflect that plaintiff is proceeding on this basis, under § 301.

The defendant argues that the complaint must nevertheless be dismissed, as the August, 1983 agreement (and its predecessor) provides for the arbitration of all grievances (including discharges) arising out of the agreement. There can be no doubt that the courts favor arbitration, and that in most circumstances § 301 actions cannot be brought prior to exhaustion of arbitration procedures.

The plaintiff makes a couple of arguments against the exhaustion requirement here. First, it is argued, there is a question whether the provision of the August, 1983 agreement permitting termination after twelve months of illness should apply retroactively to illnesses, such as plaintiff’s, preceding the inception of that contract. The plaintiff questions the arbitrator’s capacity to decide this question.

However, based on the allegations of the plaintiff’s complaint, the arbitrator may not — should not — reach this question. If the discharge was, in the arbitrator’s judgment, retaliatory and the reason proffered was merely pretextual, then the retroactivity question would not arise, and the arbitrator would simply fall back on the “just cause” standard. If the arbitrator were to find that the reason proffered was the actual reason for discharge, only then would he have to address the temporal scope of the new provision, but an agreement’s scope is clearly an issue an arbitrator can decide, absent strong indications to the contrary. The arbitrator might well decide not to apply the new provision, and again simply fall back on the “just cause” standard.

The plaintiff next argues that the new provision permitting termination after twelve months of illness is void and unenforceable as violative of public policy, and that an arbitrator, if called upon to apply the provision, would be unable, within the scope of his authority, to declare it void. This is probably correct, as the agreement states that the arbitrator “shall have no ... power to nullify, delete, or add to the provisions of this Agreement.”

Here, then, there may be some ground for permitting the plaintiff to bypass arbitration, as the contract does not provide an alternative remedy for the setting aside of the discharge allegedly in violation of public policy. Yet, while there would be no “jurisdictional” bar to the bringing of this claim here in the first instance, it would seem appropriate nevertheless to stay any consideration of this claim until the completion of arbitration, which could well obviate the need for judicial resolution. The arbitrator might find, after all, that the discharge provision was irrelevant to the employer’s decision. We note, of course, that the complaint, as presently drafted, only alleges retaliation, not an employer reliance on an unenforceable provision. Aceordingly, there is nothing in the complaint to survive dismissal anyway.

We find plaintiff’s remaining arguments concerning the unavailability of grievance procedures unmeritorious.

For all the reasons stated above, the motion for summary judgment will be granted. The accompanying order will be entered.

      . The section provides the remedies of restoration to employment and recovery of lost wages. It further provides, however: "if such employee shall cease to be qualified to perform the duties of his employment, he shall not be entitled to such restoration and compensation."

      . But see footnote 3, infra.

      . We take no position, of course, on whether the provision in question indeed violates public policy. But see Galante v. Sandoz, Inc., 192 N.J.Super. 403, 470 A.2d 45 (Law Div.1983); aff'd, 196 N.J.Super. 568, 483 A.2d 829 (App.Div.1984) (suggesting no violation of N.J.S.A. 34-15:39.1 under analogous circumstances). We further note that plaintiffs union agreed to the provision, which factor may also figure in any consideration of public policy. Finally, because this particular allegation is not part of the instant complaint, we need not decide whether such a claim would be preempted by federal labor law. If preemption were appropriate, however, it might be that the proper vehicle for challenging the provision would be through an action to vacate an arbitration award (subject to the limits on vacation of awards contrary to public policy). See Kane Gas Light v. IBF & O, 687 F.2d 673, 681-82 (3d Cir.1982).


source: Caselaw Access Project

author: WARREN, District Judge.

license: Public Domain

text:
    Allen CZERNIAK, Ronald Higgins, individually and on behalf of others similarly situated, Plaintiffs, v. CITY OF MILWAUKEE, a municipal corporation of the State of Wisconsin; Harold A. Breier, Chief of Police of the City of Milwaukee Police Departhtent; Richard Heder, Captain of the Vice Squad of the City of Milwaukee Police Department; Milwaukee Police Officer Michael Erdman; and their agents, employees, assistants, successors and all other persons acting in concert with them or at their control, Defendants.
    No. 84-C-0259.
    United States District Court, E.D. Wisconsin.
    June 13, 1985.

      James M. Shellow, Milwaukee, Wis., for plaintiffs.
    Rudolph M. Konrad, Asst. City Atty., Milwaukee, Wis., for defendants.
   MEMORANDUM AND ORDER

WARREN, District Judge.

BACKGROUND

This action was initiated on February 24,1984, when the plaintiffs, both adult residents of the City of Milwaukee, Wisconsin, filed their complaint on their “own behalf and on behalf of all persons who have been arrested and imprisoned by City of Milwaukee police officers for engaging in private, consensual sexual activities in private bookstore booths in the City of Milwaukee, Wisconsin.” Plaintiffs’ Complaint at 2 (February 24, 1984). The specific claim articulated by plaintiff Allen Czerniak springs from his arrest on September 20, 1983, for engaging in sexual activity in a private bookstore booth at the Paradise Bookstore. The complaint states that, following his arrest, this plaintiff was interrogated, harassed, abused, and jailed by the City of Milwaukee Police until his release on September 21, 1983. Plaintiff Czerniak charges that although the arresting officer, defendant David Conroy, sought charges of disorderly conduct, the City Attorney’s Office declined prosecution.

Similarly, plaintiff Ronald Higgins charges that he, too, was arrested on September 20, 1983, for engaging in sexual activity in a private bookstore booth at the Paradise Bookstore. Like his co-plaintiff, this party was allegedly interrogated, harassed, abused, and jailed until his release on the following day; according to the complaint, the City Attorney’s Office likewise refused to prosecute him, despite the attempt of the arresting officer, defendant Michael Erdman, to secure charges of disorderly conduct against him.

According to the two named plaintiffs, their arrests and subsequent imprisonments were undertaken willfully, wantonly, maliciously, and with reckless disregard for the their rights and the rights of others. They further charge that the conduct of the arresting officers was in furtherance of a policy, custom, or practice of the City of Milwaukee Police Department to arrest persons for engaging in sexual activities in private bookstore booths. Purportedly formulated and implemented at the direction of defendants Harold A. Breier, formerly the Chief of Police, and Richard Heder, Captain of the Vice Squad, this arrest policy is, according to the plaintiffs, contrary to the position adopted and advanced by the City Attorney against prosecution of individuals apprehended while engaging in such sexual conduct. Accordingly, it is the plaintiffs’ principal allegation that neither of the arresting officers had probable cause to arrest or imprison them on September 20, 1983, for engaging in sexual activities at the Paradise Bookstore.

Furthermore, the complaint charges that the City of Milwaukee Police Department intends to continue its policy and practice of arresting and incarcerating persons for such sexual conduct, as follows:

Several persons have been arrested and jailed for such activities in 1984. When the Office of the City Attorney declined to prosecute for any violation of law, these persons were discharged from custody.
Despite their knowledge of the illegality and unconstitutionality of the policy and practice described above, the individual defendants and the City of Milwaukee as a matter of policy have not taken steps to terminate this conduct, have not disciplined or otherwise properly supervised the individual officers engaged in the above-described practices, and have instead sanctioned the above-described practices through deliberate indifference to the rights of others, including the plaintiffs.

Plaintiffs’ Complaint at 8 (February 24, 1984).

The plaintiffs claim that the Police Department’s policy violates their rights under the Fourth, Ninth, and Fourteenth Amendments to the United States Constitution in that they were arrested and imprisoned without probable cause to believe that they had violated any law; that they were subjected to summary punishment by the arresting officers without due process, notwithstanding the fact that those officers knew that the subject conduct would not be prosecuted; and that they were effectively punished in the exercise of their constitutional rights to privacy, as protected under the state and federal constitutions. They further claim that the acts of arresting officers Conroy and Erdman constituted false arrest, false imprisonment, and intentional infliction of emotional distress, all purely state law claims incorporated in this action pursuant to the Court’s pendent jurisdiction.

Based on these allegations, the plaintiffs seek a preliminary and permanent injunction preventing the defendants from arresting and imprisoning persons for engaging in private, consensual activities in private bookstore booths; declaratory judgment that the particular arrests upon which this lawsuit is premised were, indeed, unconstitutional; and compensatory and punitive damages for each plaintiff in the amount of $150,000.00. They also seek their reasonable attorney’s fees incurred in the prosecution of this matter and such other relief as the Court deems just and proper.

On March 28, 1984, the defendants moved to dismiss the complaint in its entirety on the basis that it fails to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In support of their motion, the defendants argue, first, that probable cause existed for the plaintiffs’ arrest on September 20, 1983. In particular, it is the movants’ position that the movie-viewing booths in the Paradise Bookstore are public — and not private— places in which the long-established laws regulating public conduct are properly enforced. In this context, the defendants direct the Court’s attention to several state court decisions arguably supporting this critical contention that adult bookstore movie booths are, indeed, public places. See, e.g., Cammack v. Texas, 641 S.W.2d 906 (Tex.Ct.App.1982); People v. Adult World Bookstore, 108 Cal.App.3d 404, 166 Cal.Rptr. 519 (Cal.Ct.App.1980).

Moreover, the defendants argue that the named plaintiffs were not deprived of their rights under the due process clause of the Fourteenth Amendment since Wisconsin state law — in particular, Wis.Stat. § 893.80, prescribing the procedure for initiating damages claims against municipalities or their employees — provides these parties with an adequate remedy. Citing the United States Supreme Court’s opinion in Parratt v. Taylor, 451 U.S. 527,101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), for the central proposition that the negligent deprivation of a person’s property does not violate due process if an adequate state remedy is available to redress the alleged wrong, the defendants argue for application of that doctrine to the deprivation of liberty purportedly effected in this case:

If the plaintiffs were arrested without probable cause, they have available to them adequate post-deprivation remedies for the reasons that sec. 893.80, Wis. Stats., permit them to file a claim for damages against the City of Milwaukee or its employes or both. In the event the claim is denied, they have the right under the statute to have a hearing before the Common Council of the City of Milwaukee. In the event the Council denies the claim, they have the right to bring an action for money damages in the state court under a false arrest theory. See sec. 893.57, Wis.Stats.

Defendants’ Memorandum in Support of Motion to Dismiss at 7-8 (March 28, 1984).

Finally, the defendants maintain that no liability may be ascribed to the City of Milwaukee or any of the employees of the Milwaukee Police Department merely as a result of the prosecutorial decision not to charge the plaintiffs with any violation of law in the wake of their arrests on September 20, 1983. Noting that the decision to charge a person with a violation of the law is solely within the discretion of the prosecutor, see, e.g., Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Powell v. Katzenbach, 359 F.2d 234 (D.C.Cir.1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966), the defendants maintain that recognition of the present civil rights cause of action would prove both unwarranted and unwise, as follows:

To create a theory of liability which would support a lawsuit against the employer of the prosecuting attorney, the police chief and supervisory officers in the police department, when a lawful arrests occurs but the person arrested is not charged, would seriously undermine the freedom of the prosecutor to use his discretion for the public good, and introduce needless confusion on the part of police officials over what laws should be enforced and what laws should not be enforced. Section 62.09(13)(a), Wis. Stats., states in pertinent part: “The chief and each policeman ... shall arrest with or without process and with reasonable diligence take before the municipal judge or other proper court every person found in the city engaged in any disturbance of the peace or violating.any law of the city or ordinance of such city ...” If a disagreement exists between the prosecuting attorney and the chief of police over whether or not a specific law should be enforced, the proper arena for resolving that difference is the legislative body which enacted the law. For the courts to create a cause of action arising out of the failure to issue charges would give the prosecutor authority not only over who should and should not be charged, but also who should and should not be arrested. That plainly is not the result contemplated by the legislature when it gave prosecutors and police officers their respective authority.

Defendants’ Memorandum in Support of Motion to Dismiss at 9-10 (March 28, 1984).

To establish with greater specificity the factual basis upon which their dismissal request moves, the defendants have submitted the affidavits of the arresting Milwaukee Police officers. By his affidavit of March 16, 1984, Officer David Conroy states that he arrested Allen Czerniak after observing him masturbating in an adjoining movie-viewing booth and following this plaintiff’s insertion of his erect penis through a hole into the booth occupied by the affiant. According to his companion affidavit of March 19, 1985, defendant Michael Erdman arrested Ronald Higgins on the same day and at the same place, likewise after looking through the oblong-shaped hole in the adjoining movie booths and observing this plaintiff masturbating his penis. The defendants have also supplemented their motion with a certified copy of the Paradise Bookstore’s coin-operated theater license and a copy of Section 83-5 of the Milwaukee Code of Ordinances, governing the operation of such theaters and requiring, in particular, that they be open for inspection by police officers or other city authorities during operating business hours. Based on the several factual averments set forth in the arresting officers’ affidavits, the legal arguments articulated in their supporting memorandum, and the supplemental licensing documents described above, the defendants conclude that there are no material issues of fact for trial and that they are entitled to judgment as a matter of law.

By its letter of May 29, 1984, the Court notified counsel for all parties that it would construe the defendants’ pending motion as one for summary judgment, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure and, in this context, would review all of the supplemental materials, filed in support of that motion. Consistent with this statement of intention, the Court afforded the plaintiffs the opportunity to file supporting affidavits and miscellaneous materials in addition to their responsive memorandum of law.

The principal position articulated by the plaintiffs in their answering brief of September 25, 1984, is that summary judgment in the defendants’ favor is not appropriate based on the City Attorney’s announced policy against prosecutions for sexual conduct in adult bookstore movie booths — conduct purportedly protected from warrant-less police surveillance and arrest because of its innately private nature. The plaintiffs summarize their apparent difficulty in understanding the defendants’ position as follows:

... [I]n defense of this suit, the ... City Attorney’s Office takes the view that such surveillance practices and arrests are reasonable and do not infringe upon any Fourth Amendment privacy protections.
In essence, the City Attorney’s Office now argues that Vice Squad officers acted reasonably when, on hundreds of occasions, they repeatedly defied the legal advice and warnings of their own legal counsel that these arrests were illegal. It is paradoxical for the very same Office of the City Attorney, which warned that it would not be able to defend police officers who are sued for illegal arrest because of their defiance of the City Attorney’s legal advice, to now appear in this matter as defense counsel and seek to justify police misconduct which he had steadfastly condemned prior to the filing of this suit.

Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment at 2 (September 25, 1984). In principal support of their position, the defendants have provided the Court with the deposition transcript of one David Felger, a former Deputy City Attorney for the City of Milwaukee. Mr. Felger testifies, among other things, that the policy against prosecution of persons for sexual activities in adult bookstore booths was instituted in 1981, following discussions among representatives of both the City Attorney’s Office and the Milwaukee County District Attorney’s Office and based principally on state court authority suggesting that such movie-viewing booths are properly regarded as private places for purposes of Fourth Amendment privileges.

In this context, the plaintiffs have also appended to their brief a memorandum written by Mr. Felger in October of 1983, describing the police practice with respect to arrests for sexual activity in adult bookstore booths and explaining the position of the City Attorney — based on both public policy and existing case law — against the prosecution of individuals engaging in such conduct. This nonprosecution policy is further evidenced by the affidavit of one Margaret Montagnino, whose review of public records of citations for disorderly conduct or indecent exposure occurring in adult bookstores in the Milwaukee area in the years 1982, 1983, and 1984, confirms both the incidence of arrests and practice of nonprosecution described in the plaintiffs’ complaint; see footnote 2, infra at 23.

Significantly, plaintiffs Czerniak and Higgins have also submitted affidavits contradicting in some respects those submitted by arresting Officers Conroy and Erdman. While plaintiff Czerniak does not deny that he engaged in certain sexual acts while viewing a movie in the bookstore booth, he maintains that his conduct was undertaken at the invitation of defendant Conroy, who subsequently invited the plaintiff to his truck and arrested him using unnecessary force. Plaintiff Higgins contends that he did not engage in any sexual conduct at all while viewing a movie in the bookstore booth and that he specifically refused Officer Erdman’s request to do so some ten or fifteen minutes prior to his arrest.

The plaintiffs rely on these several items of documentary evidence in arguing against the propriety of summary judgment in this case, as follows: First, they identify in the testimony and memorandum of former Deputy City Attorney David A. Felger support for their contention that the defendant officers had no reasonable basis for arresting them for any sexual activity undertaken in the movie booths at the Paradise Bookstore; in fact, the plaintiffs contend that the police practice “is totally inconsistent with the policy adopted by the City Attorney’s Office for the three or so years preceding the filing of this lawsuit,” and allege affirmatively that Mr. Felger’s comments, particularly as set forth in his memorandum of October 27, 1983, “constitute admissions by the defendants in 1983 that they considered adult bookstore movie booths to be private places.” Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment at 9-10 (September 25, 1984). The plaintiffs thus conclude that because the defendants acted in defiance of the legal advice provided by the City Attorney’s Office and instead continued their practice of unconstitutional surveillance and arrest of persons engaging in sexual activity in the privacy of locked movie-viewing booths, these parties may have acted without reasonable cause — a position neatly summarized as follows:

... Plaintiffs do not claim that simply because the city prosecutor refused to bring charges against the plaintiffs, the plaintiffs have established automatically the liability of the arresting officers for constitutional violations. Instead, the prosecutor’s decision not to prosecute the named plaintiffs, as well as the City Attorney’s policy over a period of three years, as reviewed by the Appeals Committee, and as approved by the City Attorney himself, is substantial evidence which may be weighed in determining the reasonableness of the arresting officers’ conduct. In fact, the written memorandum of Deputy City Attorney Felger on this subject, with its damaging admissions for the defendants’ case, definitely can be considered as admissions of a party opponent through his authorized agent. The same treatment should be afforded the deposition testimony of Attorney Felger.

Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment at 20 (September 25, 1984).

In any event, the plaintiffs take issue with the defendants’ central belief that movie booths in adult bookstores are public and not private places and, as such, are subject to police surveillance for disorderly conduct and indecent exposure. In this context, the plaintiffs contend that they had a subjective expectation of privacy throughout the period of their presence in the movie-viewing booths, as explained in their personal affidavits; they also invoke both federal and state court authority arguably suggesting that society now regards adult bookstore movie booths as private places, see, e.g., People v. Dezek, 107 Mich.App. 78, 308 N.W.2d 652 (Mich.Ct.App.1981); State v. Bryant, 287 Minn. 205, 177 N.W.2d 800 (1970).

In addition, the plaintiffs suggest that the city ordinance requiring availability for police inspection during business hours cannot serve as any sort of justification for clear violations of Fourth Amendment privileges. Similarly, in response to the movants’ contention that they should be relegated to their state court remedies under a theory of false arrest, the plaintiffs cite authority for the proposition that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), is inapplicable when the constitutional rights allegedly violated are of a substantive — as opposed to procedural —nature. Finally, the plaintiffs argue against the present motion for summary judgment on the simple basis that there are genuine issues of material fact in dispute— most notable among them, whether plaintiff Ronald Higgins actually engaged in sexual conduct in the movie-viewing booth.

As the Court's extensive discussion of the parties’ opposing positions indicates, the central issues presented by the pending motion for summary judgment — among them, the import of a discretionary decision not to prosecute actions for which individuals are arrested and the precise nature and scope of any right to privacy while engaging in sexual conduct in an adult bookstore movie booth — are not susceptible of simple resolution. At the same time, the Court concludes, based on its careful review, analysis, and consideration of the several arguments articulated in support of and in opposition to the present Rule 56 request, that the motion must be denied, if only because, on the record compiled to date, the defendants have not demonstrated their unmistakable entitlement to judgment as a matter of law.

RULE 56 AND THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The Court of Appeals for the Seventh Circuit has recently articulated again those well-established standards to be applied by the trial court judge in resolving a motion for summary judgment like the present:

It is well accepted that the purpose of summary judgment is to prevent an unnecessary trial where, on the basis of the pleadings and supporting documents, there remains no material issue of fact to be tried. Kirk v. Home Indemnity Company, 431 F.2d 554, 559 (7th Cir.1970). Summary judgment is appropriate only if it appears that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir.1976); Fed.R.Civ.P. 56(c). The burden is upon the moving party to show that there is no issue of material fact in dispute, Rose v. Bridgeport Brass Company, 487 F.2d 804, 808 (7th Cir.1973), and all doubts as to the existence of an issue of material fact must be resolved against movant. Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573, 577 (7th Cir.1961).

Moore v. The Marketplace Restaurant, Inc., 754 F.2d 1336, 1339 (7th Cir.1985) (citing Dreher v. Sielaff, 636 F.2d 1141, 1143 n. 4 (7th Cir.1980)); see also Brown University v. Kirsch, 757 F.2d 124, 129 (7th Cir.1985) (noting that “summary judgment is to be cautiously invoked to the end that parties may always be afforded a trial where there is a bona fide dispute of facts between them”); Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985) (“By entering summary judgment for a party, the district court is concluding that based on the evidence upon which the plaintiff intends to rely at trial, no reasonable jury could return a verdict for the plaintiff”).

Applying these general standards to the circumstances of the present case, the Court, as indicated above, simply cannot conclude that the defendants are entitled to entry of the favorable judgment they seek. As a preliminary matter, the Court notes that the opposing affidavits submitted by the individual plaintiffs and the arresting officers plainly reveal several factual disputes. Among other things, plaintiff Czerniak states that the individual occupying the adjoining movie-viewing booth, later identified as Police Officer Conroy, requested that they participate in sexual activity in their respective booths. Defendant Conroy, on the other hand, reports that no sexual conduct was initiated at his request and, in fact, that he specifically stated that he would not engage in any sexual activity when plaintiff Czerniak inserted his penis through the hole in the adjoining booths.

More significantly, co-plaintiff Higgins expressly denies in his affidavit that he committed any act of indecent exposure in his movie booth and further recounts his explicit refusal of defendant Erdman’s invitation to engage in sexual conduct. Yet arresting Officer Erdman testifies unequivocally that he heard heavy breathing in the adjoining movie booth, looked into that cubicle through the oblong-shaped hole, and observed the individual therein, later identified as plaintiff Higgins, masturbating.

While these factual discrepancies with respect to the circumstances of the plaintiffs’ arrests are plainly not insignificant, the Court is inclined to believe that they may not be sufficiently material, standing alone, to preclude the entry of summary judgment in the defendants’ favor. See Western Transportation Company v. Wilson and Company, Inc., 682 F.2d 1227, 1229 (7th Cir.1982) (holding that an issue of fact must have legal probative force as to some controlling issue in the lawsuit in order to be genuine); Searer v. West Michigan Telecasters, Inc., 381 F.Supp. 634, 638 (W.D.Mich.1974), aff'd without opinion, 524 F.2d 1406 (6th Cir.1975) (“A dispute as to immaterial facts does not bar summary judgment”). At the same time, the Court is unable to conclude, on the basis of the record compiled to date, that the arrests of the named — and perhaps other — plaintiffs for engaging in sexual activity in adult bookstore booths were not violative of their substantive rights under the federal constitution but were, instead, based on probable cause to believe that the law had been violated.

Perhaps most damaging to the defendants’ position is the memorandum prepared by former Deputy City Attorney David A. Felger on or about October 27, 1983, discussing options for the reevaluation of city policy with respect to the arrest and subsequent prosecution of individuals apprehended for engaging in sexual conduct in movie-viewing booths. According to Mr. Felger, the Vice Squad “concedes that those who masturbate in their own booth enjoy a right to privacy”; however, vice officers apparently justify arrests for indecent exposure or disorderly conduct on the basis that “their right to privacy is invaded when their neighbor’s penis enters their booth.” Attachment 5 to Plaintiffs’ Memorandum In Opposition to Motion for Summary Judgment at 1-2 (September 25,1984). Facially, these comments appear to be admissions by the defendants in 1983 that they viewed such booths as private places.

The apparent difficulty with the defendants’ position is underscored further by the unequivocal statement of current policy of the Office of the City Attorney, as articulated by Mr. Felger in his October 27,1983, memorandum, as follows:

Our current office policy is based in part on public policy; in part on existing case law. We believe that the pursuing of these cases by our office fosters poor police work and should ■ not be encouraged. We feel that police officers should not be sitting in movie booths peeping through holes or waiting for a penis to arrive. We believe this endeavor to be a waste of already limited police resources.
Our policy is also based upon existing case law. (See Attached). The cases that have dealt with this area have relied in part upon Katz vs. United States 389 U.S. 347, 351, 352 [88 S.Ct. 507, 511, 512, 19 L.Ed.2d 576] (1967). The two fold requirement of Katz is that a person have an expectation of privacy and that that expectation be reasonable. The cases state that this type of conduct is protected by that doctrine. The District Attorney’s Office no longer prosecutes these types of cases based upon the same legal theory. However, in informal discussions with our three Municipal Court Judges, they feel that these cases should be prosecuted and that they would convict such “offenders”.

Attachment 5 to Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment at 2 (September 25, 1984). The import of the City Attorney’s non-prosecution policy is also confirmed by Mr. Felger’s deposition testimony, in which he describes both the nascence of the practice and its practical implementation, as follows:

We have a procedure when we refuse uniformed municipal citations that when we review a case, on the back of the citation we write the reason why we are refusing on the back of those citations. We explain the reason that it was both our office policy which was based in part upon existing law in other jurisdictions. So, [Milwaukee police officers] would have been informed that way and, of course, in reading the first [newspaper] article by [reporter] Mary Zahn it was quite apparent that the police knew about it since they were quoted, and I think it was the same officer who was quoted at that time, Inspector Leroy Jahnke, who was quoted in the September, 1983 article.

Attachment 4 to Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment at 6 (September 25, 1984). As indicated above, the City Attorney’s non-prosecution policy is further evidenced in the extensive notes on disorderly conduct and indecent exposure citations, as compiled by Margaret Montagnino under her affidavit of March 1, 1984.

To be sure, this apparently uncontested discrepancy between the arrest policy of the Milwaukee Police Department and the prosecution practice of the City Attorney’s Office does not perforce establish the illegality of the arrests made for sexual conduct in adult bookstore movie booths; indeed, in order to succeed on their principal claim of violations of their rights under the Fourth, Ninth, and Fourteenth Amendments to the federal constitution and their pendent claims for false arrest, false imprisonment, and intentional infliction of emotional distress, the plaintiffs will surely need to develop a complete and convincing record with respect to the particular circumstances of their individual arrests, the reasonableness of the arresting officers’ conduct, and, more generally, the precise nature and scope of the constitutional privacy right that forms the centerpiece of this litigation. With respect to this latter issue, the Court need not and, indeed, specifically declines to make at this stage in the proceedings any substantive ruling. with respect to the right of individuals to engage in consensual sexual activities in movie-viewing booths in adult bookstores. That critical issue and several others identified in today’s opinion are best left to resolution upon a complete development of the factual record and a thorough exposition of the legal theories upon which the opposing parties rely.

What the Court does, however, decide by today’s ruling is that the apparent practice of the Milwaukee City Police Department in arresting individuals for sexual conduct in such booths, with the knowledge that those individuals will not likely be prosecuted by the City Attorney, should be considered and weighed carefully in determining the reasonableness of the officers’ conduct in apprehending the individual plaintiffs now prosecuting this lawsuit. If, based on the totality of the circumstances, it appears at trial that the police department did, indeed, have reasonable cause to believe that violations of the law had occurred, both the federal constitutional and pendent state claims articulated in the plaintiffs’ complaint will likely be dismissed. If, on the other hand, the evidence tends to show that these and other plaintiffs were arrested and imprisoned without probable cause, the Court may be inclined to award them the injunctive and declaratory relief and compensatory and punitive damages they now seek. For the present, however, the several mixed questions of fact and law presented by this case preclude the Court from determining that either set of parties is entitled to judgment as a matter of law.

CONCLUSION

For the reasons articulated above, the Court hereby DENIES the defendants' motion for summary judgment, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.

In order to ensure that the prosecution and defense of this action now proceed apace, the Court will conduct a pretrial conference at 9:30 a.m., on Wednesday, August 7, 1985. Counsel for the parties are instructed to come to that hearing fully prepared to discuss the further litigation of this matter, including, as appropriate, their intentions for the completion of discovery, their plans for the filing of any additional pretrial motions, and their expectations for the trial of this case. Counsel should also be in positions to discuss their respective clients’ perspectives on settlement, if any.

      . Although the plaintiffs have thus framed their complaint as a class action, the issue of certification remains unresolved. Indeed, the Court will certify a class only upon a proper motion under Rule 23(c) of the Federal Rules of Civil Procedure, empowering the trial judge, "[ajs soon as practicable after the commencement of an action brought as a class action, ... [to] determine by order whether it is to be so maintained.”

      . In further support of their charge that the Milwaukee Police Department's arrest policy in these matters is inconsistent with the practice of nonprosecution followed by the City Attorney, the plaintiffs state that of the 76 persons arrested and jailed in 1982 for engaging in sexual activities in private bookstore booths, none was prosecuted for any violation of the law; they also allege that of the 41 persons so arrested and imprisoned in 1983, all were released without prosecution. Plaintiffs’ Complaint at 5-6 (February 24, 1984).


author: WILKINS, District Judge.

text:
    Carroll L. AUSTIN, Charles S. Glaser, Judy C. Howard, Nancy Brown, Anthony L. Duckett, Josephine Hill, David R. Frick, Ronnie Dean Duckett, James A. McAbee, Jr., John Edward Ward, Robin W. Caldwell, Plaintiffs, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Defendant.
    Civ. A. Nos. 7:84-763-14, 7:84-999-14, 7:84-1531-14, 7:84-2062-14, 7:84-2076-14, 7:84-2182-14, 7:84-2257-14, 7:842279-14, 7:84-2322-14, 7:84-2323-14 and 7:84-2324-14
    United States District Court, D. South Carolina, Greenville Division.
    June 13, 1985.
    J. Kendall Few, Greenville, S.C., for plaintiffs.
    Jack H. Tedards, Jr. and Thomas L. Stephenson of Leatherwood, Walker, Todd & Mann, Greenville, S.C., Robert L. Thompson, Elizabeth F. Reveley, Stephen M. Paskoff, and Thomas A. Pogue of Elarbee, Thompson & Trapnell, Atlanta, Ga., for defendant.
   ORDER

WILKINS, District Judge.

This matter is before the Court on Defendant’s motion for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, for a new trial, and for stay of execution. For the reasons stated herein, Defendant’s motion for judgment n.o.v. or a new trial is denied, and Defendant’s motion for stay of execution is dismissed for mootness.

PROCEEDINGS

Plaintiffs were all formerly employed by Defendant, The Torrington Company (Torrington), at its Tyger River plant in Union, South Carolina. Plaintiffs alleged that Torrington, through its personnel manager, Paul Love, slandered and blacklisted them. During the trial, Torrington moved for a directed verdict at the close of Plaintiffs’ case and at the close of all evidence. The motions were denied. The jury returned a verdict of actual and punitive damages for each Plaintiff.

FACTS

On a motion for a directed verdict or on motion for judgment n.o.v., the evidence must be considered in the light most favorable to the party against whom the directed verdict or judgment n.o.v. is asked; any conflict in evidence must be resolved in his favor and every conclusion or inference that can be legitimately drawn therefrom in his behalf must be drawn. Burcham v. J.P. Stevens & Co., Inc., 209 F.2d 35, 37 (4th Cir.1954).

Plaintiffs’ claims arose from a telephone conversation between Torrington’s personnel manager Love and Bill Dowd, the personnel manager of Webb Forging Company, which operates a plant in Carlisle, South Carolina. Dowd testified that in this conversation, Love said that he could not recommend Plaintiffs for employment. Love referred to Plaintiff Austin as having an emotional problem, to Plaintiffs Anthony and Ronnie Duckett as being militants, and to Plaintiff Howard as being an organizer for NOW and ERA. A reasonable inference was that the remaining Plaintiffs all fell into an “undesirable” category. Dowd typed the information given him by Love and retained it at his desk. Dowd’s testimony effectively established that this conversation could not have occurred later than the end of August, 1982.

Plaintiff Austin learned of this list from a security guard who testified that he saw it on Dowd’s desk, made a copy, and delivered it to his cousin Austin in March, 1984. Plaintiff Austin filed his Complaint in April, 1984 charging, inter alia, blacklisting and defamation. There is no evidence indicating that any of the other Plaintiffs could have reasonably discovered the existence of the blacklist prior to the filing of Austin’s Complaint. Between May 7, 1984 and September 28, 1984, suits by the other Plaintiffs were filed. It is undisputed that the statute of limitations could only operate to bar the slander claim contained in the seven Plaintiffs’ suits which were filed after September 1, 1984 (A. Duckett, Hill, Frick, R. Duckett, McAbee, Ward, Caldwell).

DISCUSSION

Torrington’s motion is based on 14 grounds. Only the contention that Plaintiffs’ lawsuits were time-barred by the statute of limitations warrants extended discussion.

Provisions governing the limitation of civil actions under South Carolina law are found in S.C.CODE ANN. § 15-3-10, et seq. (Law.Co-op.1976 & Supp.1984). The general rule is that civil actions must be commenced within the stated period after the cause of action has accrued. § 15-3-20. A cause of action is said to have accrued at the moment when the plaintiff has a legal right to institute and maintain the action. Brown v. Finger, 240 S.C. 102, 111, 124 S.E.2d 781, 785 (1962). The length of the governing period varies with different causes of action, from those of 20 years for actions by the state, § 15-3-310, or upon a bond or other writing secured by a mortgage of real property, § 15-3-520, to 10 years for first and second actions for recovery of land, § 15-3-340, or founded on title or for rents or services, § 15-3-350. A six-year statute governs actions on contracts, § 15-3-530(1), and “any other injury to the person or rights of another, not arising on contract” and not otherwise expressly enumerated by statute, § 15-3-530(5). A recent statute provides also that actions (other than medical malpractice actions) governed by Section 15-3-530(5) shall be commenced within six years after the person “knew or by the exercise of reasonable diligence should have known that he had a cause of action.” § 15-3-535. The “exercise of reasonable diligence” means that “an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.” Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301, 303, 278 S.E.2d 333, 334 (1981).

The statute governing causes of action for slander and libel is notably one of the shortest, requiring that an action be commenced within two years from the date it accrues. § 15-3-550(1). A cause of action for blacklisting is of common law origin in South Carolina. It exists separately from the elements of conspiracy or defamation. See Parker v. Southeastern Haulers, 210 S.C. 18, 28, 41 S.E.2d 387, 391-92 (1947); Rhodes v. Granby Cotton Mills, 87 S.C. 18, 42-44, 68 S.E. 824, 833-34 (1910). As such, it is independent of these other causes of action, not merely an outgrowth of another traditional tort, and is controlled by the six-year limitation period of Section 15-3-530(5). Cf. Ford v. Hutson, 276 S.C. 157, 167, 276 S.E.2d 776, 781 (1981) (tort of outrage is independent of other torts, and not merely an outgrowth thereof, so that the six-year statute of Section 15-3-530(5) is applicable).

The jury’s verdict in the instant case did not specify whether damages were based upon the slander of Plaintiffs by Defendant’s employee Love, or upon the “blacklist” which was created separately therefrom. It was obvious to the Court that a special verdict separating the award of damages under the two causes of action would not have been helpful to Torrington because the facts supporting the two causes of action were so inextricably intertwined that a verdict and an award of damages on blacklisting would have compelled the same result on slander. Therefore, the question of whether damages were based upon slander, governed by a two-year statute of limitations, or blacklisting, governed by a six-year statute, is now effectively mooted, rendering the statute of limitations issue academic. Nevertheless, the Court does address the issue of when the slander cause of action accrues, commencing the running of the two-year statute of limitations. While the Supreme Court of South Carolina has never spoken on this issue, this Court is confident that if presented with this same question it would rule that Plaintiffs’ slander actions were not time-barred.

The South Carolina legislature has seen fit to allow varying lengths of time before a particular wrong must be pursued through the courts. In affixing a particular length of time to a cause of action it may be presumed that the legislature has acted rationally and according to a fixed and informed purpose. See Bradley v. Hullander, 277 S.C. 327, 330, 287 S.E.2d 140, 141 (1982). The logic of statutes of limitations is that litigation must be commenced within a specified time in order that evidence be readily available and that controversies be ended within a reasonable period of time. Webb v. Greenwood County, 229 S.C. 267, 276, 92 S.E.2d 688, 691 (1956). However, the legislature has enacted a tolling statute to protect litigants in particular situations where they could not have reasonably had notice of a claim against another or of an invaded right. As such, these statutes reflect an appropriate balance in policy of discouraging a plaintiff who sleeps on his rights, and yet not unreasonably shielding a wrongdoer.

The logic behind a shorter statute of limitations for defamatory utterances is apparent under most circumstances. The gist of defamation lies in the injury caused to one’s reputation, the feeling entertained toward him by others in his community or in the public eye. Wardlaw v. Peck, 282 S.C. 199, 205, 318 S.E.2d 270, 274 (S.C.Ct.App.1984). Unlike most torts, defamation is defined in terms of the injury, damage to reputation, and not in terms of the manner in which the injury is accomplished. Morrison v. National Broadcasting Company, Inc., 19 N.Y.2d 453, 458, 227 N.E.2d 572, 574, 280 N.Y.S.2d 641, 644 (1967). However, reputation and harm thereto tend to be fluid rather than constant. One can consciously “live down the lie,” assuming one knows of its existence, by simply confronting it with conduct which plainly says, “It is not so.” Thus, in the general course of events the public nature of this intangible asset, or damage to it, makes the harm readily discoverable in the first instance, and in the second instance renders the harm committed more temporary in its effect than other harms. The legislative enactment of a short two-year limitation is, therefore, fully justified in the normal course of events.

Torrington argues that the slander of Plaintiffs was a defamation to be treated as any public utterance and that the date of publication or first utterance, a private telephone conversation, should commence the running of the statute of limitations. Torrington argues, in effect, that a surreptitious publication, willfully kept secret from those it harms, which is false and malicious in its origins, and which inflicts actual and reasonably undiscoverable harm to reputation, is a slander to be time-barred because the secret was kept hidden until the two-year statute of limitations had run. This logic would allow a wrongdoer to injure someone by slanderous statements without being subject to meaningful retribution. The argument does not impress the Court and is not consistent with the law of South Carolina and other jurisdictions.

Under other circumstances, fraudulent concealment of a defamatory statement has been held to toll the running of the statute of limitations. See, e.g., Weinberger v. Retail Credit Company, 498 F.2d 552, 555 (4th Cir.1974). Three elements are necessary to toll the statute under this doctrine: (1) fraudulent concealment by the party raising the statute, (2) the failure of the innocent party to discover the facts which are the basis of his cause of action, and (3) the exercise of due diligence on his part. Further, the rule that the statute commences on the date of “discovery” of the harm, rather than the more common rule of the date of “publication,” has been applied by some courts in instances of false credit reports which have harmed the consumer and come to light only after the statute had expired. Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976); Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill.2d 129, 136, 334 N.E.2d 160, 164 (1975). The courts which have applied the “date of discovery” rule have done so out of a concern for the potential abuse in allowing the “date of publication” rule to shield undiscovered wrongdoing, Kelley, 532 S.W.2d at 949, and because such a result is inconsistent with the reasoning behind such statutes:

To hold here that the plaintiff’s cause of action accrued, if at all, at the time the credit report was received by the defendant’s subscribers would be to follow an abstract and mechanical reasoning in deciding when the cause of action accrued. The purpose of a statute of limitations is certainly not to shield a wrongdoer; rather it is to discourage the presentation of stale claims and to encourage diligence in the bringing of actions.

Olesker, 61 Ill.2d at 136-37, 334 N.E.2d at 164.

It should be noted that the Olesker decision distinguished the privately damning utterance of a credit report from the publication for public attention and knowledge where the person commented on has had access to the statement. Id., 61 Ill.2d at 138, 334 N.E.2d at 164. Both Olesker and Kelley expressly excluded the “date of discovery” rule from application where the defamation is made a matter of public knowledge through such agencies as newspapers or television. Olesker, 61 Ill.2d at 137, 334 N.E.2d at 164; Kelley, 532 S.W.2d at 949.

In Atwell v. Retail Credit Company, 431 F.2d 1008 (4th Cir.1970), the Fourth Circuit Court of Appeals declined to apply the “date of discovery” rule in a Maryland cause of action for libel committed in the dissemination of a confidential credit report. The decision is based, however, on the then existing Maryland statute of limitations for libel or slander and the failure of the record on review to evidence any fraudulent intent by the defendant in concealing the wrong done the plaintiff. Id. at 1010-11. In short, the Court found no Maryland exception as to particular causes of action and the time at which they accrue, and found the defendant essentially blameless in plaintiff’s delay in bringing the time-barred action.

Subsequent to Atwell, the Maryland Court of Appeals in Sears, Roebuck and Co. v. Ulman, Md., 287 Md. 397, 401, 412 A.2d 1240,1242 (1980), recognized that fairness to a plaintiff who has not slept on his rights justifies adopting the “discovery rule” and held that a cause of action for a defamatory credit report accrues when the plaintiff knew or reasonably should have known that the defendant committed a wrongful act which injured or damaged the plaintiff.

A surreptitious slander which results in harm is close akin to a false credit claim which injures, although unknown to the injured party. In this case, the secrecy surrounding the harm done to Plaintiffs, the real and permanent effect of the harm, and the conduct of Love and Dowd in concealing the act and the injury all warrant the application of a “date of discovery” rule for commencing the statute of limitations. This exception is limited to the facts of this case and does not abrogate the date of utterance rule which applies in the traditional slander case. The other grounds upon which Defendant seeks judgment n.o.v. or a new trial are without merit and are accordingly denied. Further, Defendant’s motion for an order staying execution of the judgment pending disposition of Defendant’s motion for judgment n.o.v. or for a new trial is also dismissed.

AND IT IS SO ORDERED.


author: McMILLEN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Stephen FAILLA, Defendant.
    No. 84 CR 454.
    United States District Court, N.D. Illinois, E.D.
    June 14, 1985.

      Gillum Ferguson, Asst. U.S. Atty., Chicago, Ill., for the U.S.
    James Halloway, Chicago, Ill., for Stephen Failla.
   DECISION ON DEFENDANT’S MOTION TO SUPPRESS

McMILLEN, District Judge.

On April 3, 1985 the magistrate filed her thorough report recommending that defendant’s motion to suppress be granted. Thereafter, the parties filed objections and incorporated their arguments and authorities in the objections. The defendant’s document was not filed until April 30, 1985. Since this motion requires a de novo review of the magistrate’s foregoing report, we find that the running of the Speedy Trial Act was suspended until at least thirty (30) days after April 30, 1985. 28 U.S.C. § 636(b)(1).

The most strenuous objections are those filed by the government, since its prosecution of the defendant would probably be terminated by the magistrate’s recommendation. The prosecution contends that a finding that the defendant’s flight bag was detained for one hour and fifteen minutes on the officers’ suspicion that it might contain a controlled substance is not supported by the record (Report pp. 3-7). There are other objections also which we will allude to.

The question of when the detention occurred is controlled by United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Therein the Court stated that a suspect’s luggage is seized, for purposes of the Fourth Amendment, when, following a suspect’s refusal to consent to a search, the agent tells the suspect that he is going to take the luggage to a federal judge to secure issuance of a warrant. In that case a sniff test occurred after 90 minutes of detention. This was held to be unreasonable under Terry because it was more than “minimally intrusive” on the defendant’s rights (at p. 709, 103 S.Ct. at p. 2645).

Actual surrender of physical possession is not required, but no cases have distinguished between detention of the suspected luggage and detention of the suspect. In this case the suspect left the airport at some time not specified in the evidence, but this apparently makes no difference. See also United States v. Sharpe, — U.S. -, 105 S.Ct. 1568, 1575-76, 84 L.Ed.2d 605 (1985). The test is whether the detention was minimally intrusive under all the circumstances.

The defendant was notified that his bag was going to be held for a sniff when he was en route to Gate E-2 in O’Hare Airport. C.P.D. Officer Burzinski made the request in the presence of Drug Enforcement Agent Ekman. This seems to have occurred at 12:45 o’clock p.m., although the magistrate found it to be at 12:40 o’clock p.m. The difference is between the time when defendant exited the men’s room (12:40) and when he arrived at the vicinity of Gate F-7 (about five minutes later).

Agent Davis did not go to the D.E.A. office in the airport to call for a dog until 1:10 o’clock p.m. The dog did not arrive until 40 minutes later, at approximately 1:50 o’clock p.m. This is at least as much time as it would take to bring the dog out from the Loop. It sniffed out the defendant’s bag at 1:55 o’clock p.m. The difference between the magistrate’s finding of elapsed time of 75 minutes or our finding of not less than 65 minutes is not significant, as a matter of law.

The difficulty with the agents’ procedure was that, after detaining the defendant and his bag at about 12:45 o’clock p.m., the dog and his custodian did not arrive until 1:50 o’clock p.m. In Moya v. United States, 761 F.2d 322 (7th Cir.1985), the court said at p. 327:

The officers who apprehended Moya admitted that they stationed themselves at the airport specifically to investigate the transportation of illicit drugs. Under these circumstances, we believe it is reasonable to expect officers to arrange to have a narcotics detecting dog readily available, [citations omitted]

There can be no real doubt that the officers in this case did not conform to the standards set down by the Seventh Circuit in Moya. The same result, suppression of the evidence, must therefore follow, even though the events in this case took place before Moya was decided. After the officers first detained the defendant’s bag at 12:40 or 12:45 p.m., the D.E.A. delayed for almost a half hour before calling for the dog. An additional 40 minutes expired before the dog arrived. This is not reasonable diligence at the O’Hare Airport where drug enforcement agents and specialized police officers are stationed almost continuously for the purpose of detaining suspicious persons and their luggage. Thus, because the constables blundered, the defendant may go free.

The government attempts to salvage this outcome by arguing that the defendant was stopped for probable cause, not on the basis of reasonable suspicion. Under United States v. Place, supra, however, similar circumstances were held to authorize a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A 90-minute detention of luggage in that case was held to be unreasonable. In the case at bar, the principal grounds for stopping the defendant was the D.E.A. drug courier profile and the fact that the defendant was allegedly nervous when he was being interrogated. That he may have lied concerning his travelling companions and place of residence (Report p. 5) did not come to light until after his bag had been detained, and the other grounds for detention of the defendant’s bag did not go beyond those justifying a Terry stop. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

Defendant objects to the finding that his driver’s license may have been expired when he handed it to Officer Burzinski. Actually there is no dependable evidence that the license had expired, and Officer Burzinski said that she was not sure. Neither she nor Agent Ekman mention this in their reports. Therefore, we sustain the defendant’s objection to the magistrate’s finding that the defendant’s driver’s license had expired.

On the other hand, the defendant’s contention that even reasonable suspicion did not exist is not supported by the evidence, nor by Royer nor by the magistrate’s finding nor by the government’s contention. Her findings are supported not only by Royer but also by the majority opinion in Moya, supra, p. 324.

With the foregoing exception, the magistrate’s report and recommendation dated April 3, 1985 is adopted and the objections of the government are overruled. The other recommendations of the magistrate are not objected to and are not erroneous. In order to ascertain the government’s position in view of the foregoing decision on suppression, this case will be called for a status report on Monday, June 24, 1985 at 11:00 o’clock a.m.


author: NEAHER, District Judge.

text:
    EAZOR EXPRESS, INC., Plaintiff, v. UNITED STATES of America, John O. Marsh, Jr., Secretary, Dept. of the Army, United States Army Corps of Engineers, Lt. Gen. Joseph K. Bratton, Commander, U.S. Army Corps of Engineers, Defendants.
    No. 81 CV 3796 (ERN).
    United States District Court, E.D. New York.
    June 17, 1985.

      See also 483 F.Supp..l38.
    Manion Alder & Cohen by Joseph F. Mc-Donough, Richard R. Nelson II, Pittsburgh, Pa., for plaintiff.
    Janis G. Schulmeisters, Atty. in Charge, Torts Branch, Civ. Div., U.S. Dept. of Justice by Marie Louise Hagen, Trial Atty., New York City, for defendants.
   MEMORANDUM OF DECISION AND ORDER

NEAHER, District Judge.

Plaintiff Eazor Express, Inc. (“Eazor”), a Pennsylvania corporation engaged in interstate trucking, commenced this maritime tort action for damages against the United States. Invoking the Extension of Admiralty Act (“EAA”) and the Suits in Admiralty Act (“SIAA”), 46 U.S.C. §§ 740, 741-752 (1976), Eazor claims that the Army Corps of Engineers (“ACE”) had negligently permitted an independent dredging contractor to remove lateral support from bulkheads, which supported Eazor’s trucking terminal property bordering a portion of Newtown Creek in this District. Eazor subsequently sold the property, reserving the right to pursue its claim.

The following facts are not in dispute. ACE is a unit of the Department of the Army which is charged with, among other functions, maintaining navigable channels in waterways under its jurisdiction. New-town Creek is such a navigable waterway originating in the Maspeth section of the Borough of Queens and ultimately entering into the East River. Pursuant to the Rivers and Harbor Act of 1917, ACE is authorized to maintain a 125 foot wide channel in Newtown Creek to a depth of 20 feet below mean low water. Based upon its knowledge of user traffic, however, ACE has generally sought to maintain a 16 foot channel depth in the East Branch of the Creek, the portion relevant to this controversy.

Newtown Creek serves a highly industrialized area which creates heavy waterborne traffic by scows, barges, tugs and the like carrying petroleum, scrap metals and other industrial products. To maintain a clear channel for that traffic, ACE performed soundings from time to time to determine whether shoaling, i.e., the deposit of sedimentation from the sloping sides of the Creek, had raised the 16 foot channel level. ACE had prior experience with that problem, which required dredging in 1958 and again in 1964 to restore the channel to the desired 16 foot depth. Confronted with the shoaling problem in 1974, ACE concluded that dredging was again necessary. Pursuant to standard government practice, bids were advertised for the dredging operation to be performed by an independent contractor. The low bidder was Weeks Dredging & Contracting Co., Inc. (“Weeks”), which was awarded the contract after ACE determined from past experience that Weeks was capable of performing the job from a technical standpoint.

Weeks commenced dredging in the East Branch on April 8, 1974 and proceeded continuously until completion on April 17. Weeks’ daily reports of the dredger’s progress were submitted to ACE for review in groups of 2, 3 or 4 days. Post-dredging soundings by ACE indicated that Weeks had removed 36,558 cubic yards of material. Weeks, however, received payment for only 32,127 yards pursuant to the government’s standard contract requirements. The nonpayment for the excess of 4,431 cubic yards removed was in effect a penalty intended to discourage contractors from dredging more than was necessary and claiming extra compensation. It had nothing to do with any claim of wrongful performance by Weeks.

Eazor’s Claim

In 1966 Eazor purchased two parcels of vacant land in the Maspeth area bordering the East Branch of Newtown Creek for a total cost of $625,052. A contemporaneous survey reflected that the area of the tract was 182,448 square feet, of which 3,842 square feet lay between the deed line and the U.S. Pier and Bulkhead line, and 2,568 square feet was land under water, leaving a net area above water of 176,038 square feet. PX 2. On this combined tract Eazor constructed a 75 door trucking terminal, outbuildings and a 410 foot riprap bulkhead along one side of the property, all of which were completed in November 1967. The combined cost of land and construction was $1,245,238.

Eazor utilized the terminal until August 6, 1973, when it leased the entire property for a term of three years to United Parcel Service at a rental of $200,000 per year plus United’s payment of yearly real estate taxes of $84,000. Eazor then leased a smaller facility in Maspeth to conduct operations in conjunction with its reopened terminals in New Jersey. After United’s lease expired, Eazor used a part of its terminal from August 1976 until April 1982, when it shut down its general commodity business. In the interim Eazor leased 40 doors of its terminal to Roadway Express from December 1979 through April 1981 for a total rental of $198,425, with Eazor paying taxes and insurance. From October 1981 through May 1982 Eazor leased a 20 door portion of its terminal to Tose, Inc. for a total rent of $36,000. Throughout these lease and rental periods Eazor had its terminal up for sale, and on December 29, 1982 De Francisci Machine Corporation agreed to purchase it for $1,150,000, some $95,000 less than Eazor’s cost of construction. PX 47.

Eazor claims that after expiration of the United lease in 1976 it had sought without success to sell its Maspeth terminal, although there were six or eight potential purchasers who showed a serious interest in the property. Three of these brought in their own engineers to study an area of ground subsidence along the west and north sides of the terminal in the vicinity of the riprap bulkhead bordering Newtown Creek. According to Eazor, the engineers’ findings regarding the subsidence dissuaded their clients from purchasing the terminal. Subsequently, an unnamed prospective contractor’s remark that recent dredging of the Creek could have caused the subsidence, prompted Eazor to employ engineering consultants to investigate “the cause of the settlement problem.” Tr. 45.

On June 25, 1976, Edmund Burke, a partner of Mueser, Rutledge, Wentworth & Johnson, consulting engineers, reported his opinion to Eazor after inspecting the site and reviewing records of channel soundings made available by ACE for the years 1970, 1973 and 1974. Based on such data, Burke prepared drawings of the underwater channel areas adjacent to Eazor's two bulkheads purporting to show the character of the ground fill under the subsidence areas and the depth of the channel after Weeks’ dredging in April 1974. PX 25. It was Burke’s opinion “that the recent substantial settlements in both areas was caused by sliding settlements on your property caused by the dredging in the adjacent channel.” Id. at 3. Thereafter Eazor filed a claim against the United States claiming property damage in the amount of $1,405,-000, although the applicable two-year statute of limitations had long expired. Eazor succeeded, however, in reviving the claim by virtue of Private Law 96-66 enacted by the Congress.

The credibility of Burke’s opinion testimony and Eazor’s claim is seriously impaired by documentary evidence that as early as July 1972 there were widespread cracks and ground settlement throughout Eazor’s terminal, including especially the west riprap bulkhead area. As Burke then stated in his August 10, 1972 investigation report:

“The eight photographs show the west bulkhead, damage to the yard pavement, damage to and discontinuity of the building floor slab and settlement of the yard pavement adjacent to the building.”

PX 49 at 2. The cause of those conditions in the area of the buildings was “the result of consolidation of the peat stratum ... due to the increased loading on the underlying compressible peat stratum.” Id. at 4. However, as Burke stated in the 1972 report:

The cause of the pavement cracking and settlement of the yard area adjacent to the bulkhead along Newtown Creek is not readily apparent and may be difficult, at this time, to determine with any certainty. Any one or more of the following could contribute to the movement that has taken place:
1. All silt or peat above the lower sand stratum was not completely removed before placing the riprap for the bulkhead.
2. The trench through the silt and peat was not excavated to sufficient width to provide a stable base for the riprap.
3. Fill material placed behind the bulkhead is being washed out through the voids between the large pieces used for riprap. We can find no requirement for a filter course behind the bulkhead to properly retain this fill.

Id. at 5.

Noting that the pavement cracks “are as much as 10 inches wide” and of “20 foot width”, Burke concluded that “it appears there is lateral movement of the bulkhead as well as general settlement.” Id. “To gain more knowledge”, he recommended engaging a surveyor to make readings over a six month period at established points near the fence line. Id. There is no indication that Eazor followed his advice, although the cracks and subsidence continued in depth and extent prior to Weeks dredging in April 1974. Compare PX 49, drawing No. 2 with PX 48.

Also noteworthy was the large stratum of “soft silt & clay or peat” lying below the top fill of the property down to a depth of more than 20 feet at the bulkhead areas. These conditions existed at' the time Raymond Concrete Pile Company made its borings in 1965 preliminary to the construction of Eazor’s terminal. As noted in PX-49, Section A-A of Drawing No. 2, the peat stratum extended under the upper fill layer from the terminal area to the riprap bulkhead. Those drawings were prepared in July 1972 by Eazor’s own engineers — almost two years before the Weeks dredging. They reflect that as the upper layer of fill pressed down on the soft peat, the surface asphalt cracked open and subsided, creating pressure against the landward face of the riprap bulkhead and causing it to slide forward on the descending slope of the creek bed, thereby gradually widening and deepening the subsidence behind the bulkhead. That process did not cease with the passing of time.

The subsidence conditions continued to worsen in 1973 and thereafter, as shown in photographs taken July 25, 1974, just prior to Eazor’s lease of the terminal to United Parcel Service. DX E. Two of those photographs depict “yard alongside canal sinking” some nine months prior to Weeks dredging in April 1974. Id. Eazor, however, took no further action to ascertain the cause of the subsidence during United Parcel’s lease, although Edward Kardell, Eazor’s terminal manager, acknowledged inspecting the premises occasionally. According to his testimony, it was not until the spring of 1975 that he came upon the “unbelievable disaster”, which he described as “[t]his whole area from the fuel pumps down to all the end of the property just completely fell down — just completely sunk about four or five feet.” Tr. 186.

Informed of those asserted developments, Robert Eazor, then president and chief executive officer of Eazor, directed Kardell to take snapshots of the area extending along the riprap bulkhead side of the property. PX 10. Those photographs depict nothing more than a deepening, widening and extension of the same collapsing pavement shown in the 1973 photographs, DX E, supra, a year prior to the Weeks dredging. Bearing in mind that Eazor did nothing to correct the subsidence conditions as recommended in 1972 by its own consulting engineer, it should not have been surprising that further erosion and subsidence would occur under the weight of United Parcel’s three years of truck traffic and the erosive effects of rain, snow and ice on the subsiding pavement in the bulkhead area.

Discussion

After a searching review of the testimony, the exhibits, the proposed findings of fact and the parties’ briefs, the Court concludes that Eazor’s claim is not supported by a preponderance of credible evidence and is in fact untenable as a matter of law.

Eazor has proceeded here on the theory that ACE negligently permitted Weeks to dredge in the vicinity of Eazor’s bulkhead beyond the depth limits specified in the government contract, namely 17 feet, and that such dredging removed the lateral support provided by the sloping bank upon which the bulkhead rested. In advancing that theory, Eazor is essentially endeavoring to invoke the rule of res ipsa loquitur. The res ipsa rule, however, requires “facts proved affirmatively showing a surrounding situation which in the ordinary course would not permit or produce injury, and also that something under defendant’s control did inflict the injury complained of.” Savard v. Marine Contracting, Inc., 471 F.2d 536, 542 (2d Cir.1972), cert. denied sub nom. Savard v. Perini Corp., 412 U.S. 943 (1973). Those requisites have not been met by Eazor, for it is beyond dispute that the subsidence of the bulkhead began years before the 1974 dredging due to the compaction of the underlying peat stratum. And wholly aside from the fact that the dredging was performed by an independent contractor and not by ACE, Eazor has also failed to produce credible evidence that the dredging was in fact responsible for the subsidence complained of. There is no showing as to how the dredging was performed, nor any evidence that the dredging could have been accomplished in a manner different from the way in which Eazor assumes it was carried out. It is a “well-accepted principle in all jurisdictions that the mere fact that an accident or injury has occurred, with nothing more, does not constitute a prima facie case of negligence.” Calvert v. Katy Taxi, Inc., 413 F.2d 841, 844 (2d Cir.1969).

Finally, Eazor’s emphasis on the reference in the government’s contract specifications concerning “bulkheads which are in poor condition” cannot provide a basis for assessing liability against the government for improper dredging. That clause simply alerted a contractor (here Weeks) to take necessary precautions to prevent damage to such bulkheads, and reserved to ACE the right to specify the distance from the bulkheads at which dredging was to be limited. That provision imposed no obligation on the government to inspect bulkheads, but served simply to notify dredging contractors that dredging could be limited and their compensation reduced accordingly. Again, there is a total absence of evidence linking the government or Weeks to the conditions responsible for the subsidence of Eazor’s bulkhead.

The Applicable Law

The rules of law applicable to Eazor’s claim are not affected by Private Law 96-66 which permitted the bringing of this action after the expiration of the two-year limitation period provided by the Suits in Admiralty Act (“SIAA”), 46 U.S.C. §§ 741-752. Although the SIAA effects a waiver of sovereign immunity for certain maritime claims against the United States, it does not contain an express exception for harm caused by the exercise of “discretionary functions,” such as those involved in this case. However, there is appellate authority holding that such an exception should be implied. See Gercey v. United States, 540 F.2d 536, 539 (1st Cir.), cert. denied, 430 U.S. 954 (1976); Canadian Transport Co. v. United States, 663 F.2d 1081, 1085 (D.C.Cir.1980); Bearce v. United States, 614 F.2d 556, 559 (7th Cir.), cert. denied, 449 U.S. 837 (1980); contra Lane v. United States, 529 F.2d 175,179 (4th Cir.1975); De Bardeleben Marine Corp. v. United States, 451 F.2d 140, 146, n. 15 (5th Cir.1971) (dictum).

Consistent with prior decisions in this circuit, the activity of ACE in this case fell squarely within the concept of “discretionary function.” Thus in F & M. Schaefer Brewing Co. v. United States, 121 F.Supp. 322 (E.D.N.Y.1954), the Court dismissed an action brought under the Federal Tort Claims Act, which sought recovery from the government for the collapse of the plaintiff’s bulkhead and dock bordering Wallabout Bay. Noting that dredging operations were conducted by a contractor, albeit under the supervision of the Navy Department, the Court held “that the dredging operations constituted (1) a discretionary function for which the Government has not consented to be sued ...” and dismissed the action in toto. See also Lipka v. United States, 369 F.2d 288, 291 (2d Cir.1966), cert. denied, 387 U.S. 935 (1967) (supervision by United States Corps of Engineers of contractors’ employees in construction of cofferdam does not render the government liable for death and injury to employees). Applying those precedents, this Court rules that Eazor is not entitled to hold the government liable for the alleged damage to its bulkhead.

In addition to the foregoing, another established rule bars Eazor from recovery of damages against the government. There is no question that the dredging complained of was performed by Weeks as an independent contractor. In bidding for the job, Weeks was simply required to comply with the specifications set forth in the contract. In performing the contract, Weeks was acting solely in its own interest. Although Weeks was required to provide ACE with reports of the dredging operation, the contractor was in no sense acting as a federal employee or instrumentality. There was no evidence that ACE controlled or supervised the performance of the work. In such circumstances, as held in United States v. Orleans, 425 U.S. 807 (1976), the independent contractor exception found in the Federal Tort Claims Act bars Eazor’s claim against the United States. See also Bauer-Smith Dredging Co., Inc. v. United States, 283 F.2d 877 (Ct. Claims 1960), cert. denied, 368 U.S. 819 (1961); Lipka, supra, 369 F.2d at 291-92.

Accordingly, the Clerk is directed to enter judgment dismissing the complaint.

SO ORDERED.