author: VIETOR, Chief Judge.

text:
    Alan F. McDONELL, et al., Plaintiffs, v. Susan HUNTER, et al., Defendants.
    Civ. No. 84-71-B.
    United States District Court, S.D. Iowa, C.D.
    July 9, 1985.

      Mark W. Bennett, Staff Counsel, Iowa Civil Liberties Union, Des Moines, Iowa, for plaintiffs.
    Gordon Allen, Sp. Asst. Atty. Gen., Mark Hunacek, John Parmeter, Asst. Attys. Gen., Des Moines, Iowa, for defendants.
   MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

VIETOR, Chief Judge.

This is a 42 U.S.C. § 1983 class action brought by three correctional institution employees challenging the constitutionality of an Iowa Department of Corrections policy (hereafter “the Department’s policy” or “the policy”) which subjects the Department’s correctional institution employees to searches of their vehicles and persons, including urinalysis and blood tests, upon the request of Department officials.

The court previously entered an order, pursuant to Fed.R.Civ.P. 23(c)(3), certifying the class consisting of all individuals employed by the Iowa Department of Corrections at its various institutions throughout the state of Iowa who are covered by the Department’s policies which may subject employees to searches of their personal motor vehicles and their persons, including strip-searches, and which allows Department of Corrections officials to demand urine, blood or breath specimens for chemical analysis.

Plaintiffs seek declaratory and injunctive relief on behalf of themselves and the class they represent that the Department’s policy (a copy of which is attached hereto as Appendix A) violates the Fourth Amendment to the United States Constitution and plaintiffs’ constitutional right to privacy. Plaintiff McDonell also seeks back pay for earnings lost during his period of discharge.

Jurisdiction and venue are predicated upon 28 U.S.C. § 1343(3). Venue is proper in this district pursuant to 28 U.S.C. § 1392(a). '

A preliminary injunction was issued in February of 1984, from which appeal was taken. The preliminary injunction order was affirmed. McDonell v. Hunter, 746 F.2d 785 (8th Cir.1984).

On June 6, 1985, the parties reported to the court that they have no further evidence to offer and no further briefing to present, so the case is now submitted for final decision on the evidence and briefs received by the court in conjunction with the preliminary injunction matter.

FINDINGS OF FACT

Plaintiff McDonell was employed as a correctional officer at the Men’s Reformatory at Anamosa (hereinafter “Anamosa”) until he was discharged on January 19, 1984. Shortly after that he was reinstated but transferred to a different institution. He lost ten days pay. Plaintiffs Curran and Phipps, at all times material to this action, were and continue to be employed at the Iowa Correctional Institution for Women at Mitchellville (hereinafter “Mitchellville”).'

There are approximately 1750 correctional institution employees of the Iowa Department of Corrections who are within the certified class.

Defendant Hunter is the Superintendent and chief executive officer of Mitchellville. Defendant Sebek is the Security Director of Mitchellville, and is responsible for the implementation and enforcement of the Department’s policy. Defendant Behrends is the Acting Deputy Warden of Anamosa, and is responsible for the implementation of the Department’s policy. Defendant Farrier is Director and chief administrative officer of the Iowa Department of Corrections, and is responsible for the supervision and operations of Anamosa, Mitchellville, and other correctional facilities.

It is, of course, necessary to maintain security at each correctional facility, and a necessary part of security is prevention of distribution of weapons, drugs and other contraband to inmates. The Department’s policy challenged in this suit is designed to serve security requirements at the state’s correctional facilities.

The motor vehicle parking lot for employees at Mitchellville is within the gates of the facility, that is, within the area where inmates are confined. At all other correctional facilities the employee parking lot is on facility property outside of the confines within which inmates are confined.

When plaintiff McDonell became employed at Anamosa in 1979, he signed a consent to search, a copy of which is attached hereto as Appendix B. On January 17, 1984, plaintiff McDonell was informed by supervisory personnel at Anamosa that they had received confidential information indicating that he had been seen the previous weekend with individuals who were “being looked at” by law enforcement officials regarding drug related activities. Based on this information, the supervisory personnel requested plaintiff McDonell to undergo urinalysis. He refused and as a result his employment was terminated on January 19. Shortly thereafter he was reinstated with loss of ten days pay and transferred to another institution.

In August of 1983, employees at Mitchellville were presented a search consent form to sign,, a copy of which is attached hereto as Appendix C. Plaintiffs Curran and Phipps refused to sign. There is disputed evidence that they were initially told that they would not receive their paychecks if they did not sign. In any event, they did receive their paychecks and all paychecks since then, and they have not been discharged or disciplined in any way for refusing to sign.

The Department’s policy does not identify who has the authority to require an employee to submit to a search or to provide a blood or urine sample, nor does the policy articulate any standards for its implementation. No separate written standards have been promulgated governing implementation of the Department’s policy. In his affidavit, defendant Farrier states: “As a practical matter, correctional officers are . not asked to submit to a urinalysis or blood test unless there is some articulable reason to believe that there may be a problem.”

CONCLUSIONS OF LAW AND DISCUSSION

The Fourth Amendment to the United States Constitution states:

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 Fourth Amendment applies to the states through the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949).

The Supreme Court has rejected the notion of “constitutionally protected areas” and has said: “The fourth amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). The Fourth Amendment is intended to protect the privacy of individuals from invasion by unreasonable searches of the person and those places and things wherein the individual has a reasonable expectation of privacy. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968). Only “unreasonable” searches are prohibited. Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925).

Defendants suggest that Fourth Amendment considerations are not involved in this case because any searches made pursuant to the Department’s policy would not be for criminal investigation purposes. That contention is without merit. “It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967). See Wyman v. James, 400 U.S. 309, 317, 91 S.Ct. 381, 385, 27 L.Ed.2d 408 (1971). All of us are protected by the Fourth Amendment all of the time, not just when police suspect us of criminal conduct.

There is no question that one's person and one’s automobile are places where one has a reasonable or legitimate expectation of privacy, and that government intrusions into those areas are searches. Taking blood from the body is a search and seizure within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). Urine, unlike blood, is routinely discharged from the body, so no governmental intrusion into the body is required to seize urine. However, urine is discharged and disposed of under circumstances where the person certainly has a reasonable and legitimate expectation of privacy. One does not reasonably expect to discharge urine under circumstances making it available to others to collect and analyze in order to discover the personal physiological secrets it holds, except as part of a medical examination. It is significant that both blood and urine can be analyzed in a medical laboratory to discover numerous physiological facts about the person from whom it came, including but hardly limited to recent ingestion of alcohol or drugs. One clearly has a reasonable and legitimate expectation of privacy in such personal information contained in his body fluids. Therefore, governmental taking of a urine specimen is a seizure within the meaning of the Fourth Amendment. Allen v. City of Marietta, 601 F.Supp. 482, 488-89 (N.D.Ga.1985); Storms v. Coughlin, 600 F.Supp. 1214, 1217-18 (S.D.N.Y.1984); Murray v. Haldeman, 16 M.J. 74, 81 (C.M.A.1983).

It is this court’s conclusion that all of the intrusions authorized by the Department’s policy are intrusions into areas where plaintiffs and their class normally have a reasonable and legitimate expectation of privacy protected by the Fourth Amendment. The question then becomes whether the intrusions authorized by the policy are nevertheless reasonable and therefore not violative of the Fourth Amendment.

Whether the authorized intrusions are reasonable must be evaluated in the context of the places of employment—penal institutions where security is a paramount consideration. The United States Court of Appeals for the Eighth Circuit, in a case involving the constitutionality of strip searching a prison inmate’s visitor, stated:

The penal environment is fraught with serious security dangers. Incidents in which inmates have obtained drugs, weapons, and other contraband are well-documented in case law and regularly receive the attention of the news media. Within prison walls, a central objective of prison administrators is to safeguard institutional security. To effectuate this goal prison officials are charged with the duty to intercept and exclude by all reasonable means all contraband smuggled into the facility. Indeed, Iowa correctional officials recognize their duty to constrict the flow of contraband into the prison. They consider both clothed and unclothed body searches an effective means of controlling contraband and “a basic implement of the institutions^] overall security.”
Although the preservation of security and order within the prison in unquestionably a weighty state interest, prison officials are not unlimited in ferreting out contraband. Certainly, as has been observed, one’s anatomy is draped with constitutional protection. United States v. Afanador, 567 F.2d 1325, 1331 (5th Cir.1978). And the state’s interest must be balanced against the significant invasion of privacy occasioned by a strip search. Indeed, a strip search, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience. See United States v. Sandler, 644 F.2d 1163, 1167 (5th Cir. en banc 1981); United States v. Dorsey, 641 F.2d 1213, 1217 (7th Cir.1981); cf. Terry v. Ohio, 392 U.S. at 24-25, 88 S.Ct. at 1881-1882 (limited search of outer clothing for weapons is likely to be an annoying, frightening, and perhaps humiliating experience).

Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982).

Correctional facility security considerations reduce the scope of reasonable expectations of privacy that one normally holds and makes reasonable some intrusions that would not be reasonable outside of the facility. However, security considerations do not cause prisoners to lose all of their constitutional rights at the prison gates. Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 1884-85, 60 L.Ed.2d 447 (1979); Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974). Visitors do not lose all of their Fourth Amendment rights at the prison gates. Hunter v. Auger, supra. And prison employees do not lose all of their Fourth Amendment rights at the prison gates. Armstrong v. New York State Commissioner of Correction, 545 F.Supp. 728, 730 (N.D.N.Y.1982).

There is no doubt that defendants can constitutionally conduct such “regulatory” searches of persons entering Iowa’s correctional facilities, including employees, as are reasonably necessary to serve security considerations, but the searches must be guided by some appropriate standards, and must be no more intrusive than is reasonably necessary. Hunter v. Auger, supra; McMorris v. Alioto, 567 F.2d 897 (9th Cir.1978). The lack of any standards is noted in footnote 4. The court now turns to the questions of the reasonable necessity for the searches authorized by the Department’s policy, the reasonableness of the extent of the intrusions authorized, and purported consents to the searches.

Searches of the Person

A routine search of all persons, including employees, entering a correctional institution sufficiently intrusive to discover any hidden weapons is certainly reasonable. This can be accomplished by a magnetometer or a pat-down search by a person of the same sex and an inspection of the contents of packages, purses, handbags and pockets. A strip search is another matter. The “reasonable suspicion” standard for strip searching an inmate’s visitor was established in Hunter v. Auger, supra, and the same standard has been held to apply to searches of prison employees. Security & Law Enforcement Employees District Council 82 v. Carey, 737 F.2d 187 (2d Cir.1984).

This court concludes that a strip search of a correctional facility employee may constitutionally be made only on the basis of reasonable suspicion, based on specific objective facts and rational inferences that may be drawn from those facts in light of experience. Hunter v. Auger, supra, 672 F.2d at 674. Inchoate, unspecified suspicions are insufficient. Id. Furthermore, a generalized suspicion of drug smuggling activity is insufficient— there must be reasonable grounds, based on objective facts, to believe that at the time of the strip search the employee is concealing drugs on his or her person. Id. at 675. Also, mere association with another individual suspected of drug dealing does not provide an independent basis for a strip search. Id.

Defendants argue that “mere suspicion” rather than “reasonable suspicion” should be the standard for permitting strip searches of employees. They contend that the reasonable suspicion standard established for strip searches of inmate visitors in Hunter v. Auger, supra, should not apply to employees because employees, unlike inmate visitors, cannot be limited to non-contact association with inmates. This position is arguable, but I do not find it persuasive. As the court observed in Hunter: “[T]he state’s interest must be balanced against the significant invasion of privacy occasioned by a strip search. Indeed, a strip search, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience.” Id. at 674. The intrusion of a strip search is the most extreme intrusion of personal physical privacy that can be made. Concededly, the state’s interest that is to be balanced against that extreme intrusion of privacy is a weighty interest. However, I believe that the state’s interest will not be significantly impaired by the reasonable suspicion standard. The standard is not unreasonably burdensome. If an employee is suspected of smuggling drugs into an institution, but the suspicion falls short of being a reasonable suspicion, surveillance and investigation would often either dispel the suspicion as unfounded or elevate it to the quality of reasonable suspicion. Furthermore, the state has means other than strip searches to discourage and guard against smuggling of contraband to inmates by institution employees. For instance, the state can, and certainly should, carefully screen and investigate the backgrounds of employment applicants. Also, drug smuggling by employees could no doubt be substantially deterred by criminal prosecution of any who are found bringing drugs into an institution. Iowa Criminal Code § 719.8. Lastly, if on a particular day an employee is the object of only mere suspicion, he could be directed to leave for the day and thereby not be given the opportunity for any contact with inmates. A balancing of the state’s interest against the significant invasion of privacy occasioned by a strip search supports the constitutionality of a reasonable suspicion standard for strip searches of institution employees, but does not support the constitutionality of a mere suspicion standard.

Searches of Automobiles

A search of all automobiles brought within the confines of the facility where they may be reached by inmates is reasonable. However, it is unreasonable to search an employee’s automobile that is parked outside the confines within which inmates are kept, even if the parking lot is on ground owned by the correctional facility. Defendants argue that if a search of an employee’s automobile yields drugs, that would show that the employee probably uses drugs and might, therefore, be likely to smuggle drugs to inmates. Perhaps, but that reasoning is far too attenuated to make such a search a constitutionally reasonable one. Furthermore, the constitutionality of a search cannot rest on its fruits. The institutional security need for searching employees’ cars parked outside the confines of the institution has not been shown.

Blood and Urine Samples

Defendants urge in support of taking blood and urine samples of employees the same reasons urged for searching employees’ cars parked outside the gates— identifying possible drug smugglers. So might searches of employees’ homes and taps on their telephones. The possibility of discovering who might be using drugs and therefore might be more likely than others to smuggle drugs to prisoners is far too attenuated to make seizures of body fluids constitutionally reasonable. Defendants also argue that taking body fluids is reasonable because it is undesirable to have drug users employed at a correctional institution, even if they do not smuggle drugs to inmates. No doubt most employers consider it undesirable for employees to use drugs, and would like to be able to identify any who use drugs. Taking and testing body fluid specimens, as well as conducting searches and seizures of other kinds, would help the employer discover drug use and other useful information about employees. There is no doubt about it—searches and seizures can yield a wealth of information useful to the searcher. (That is why King George Ill’s men so frequently searched the colonists.) That potential, however, does not make a governmental employer’s search of an employee a constitutionally reasonable one.

It is this court’s conclusion that the Fourth Amendment allows defendants to demand of an employee a urine, blood, or breath specimen for chemical analysis only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience, that the employee is then under the influence of alcoholic beverages or controlled substances. See Division 241 Amalgamated Transit Union (AFL-CIO) v. Suscy, 538 F.2d 1264, 1267 (7th Cir.1976). But see Allen v. City of Marietta, supra, 601 F.Supp. at 491.

Consent

Defendants contend that plaintiff McDonell and other class members who signed a written consent (Appendixes B and C) have validly consented to searches under the Department’s policy.

A search conducted pursuant to a voluntary consent does not violate the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances * * Id. at 248-49, 93 S.Ct. at 2058-59.

Plaintiff McDonell signed a consent form several years ago when he took employment at Anamosa. There is no evidence concerning the circumstances of that signing from which the court can determine voluntariness. Plaintiffs Curran and Phipps did not sign consents. There is no evidence concerning the circumstances of signing by class members who did sign. Under this record, the court cannot rest its decision on an assumption that plaintiff McDonell and class members who signed consents voluntarily consented in advance to any search made under the Department’s policy.

Furthermore, it is this court’s conclusion that the consent form does not constitute a blanket waiver of all Fourth Amendment rights. Within a correctional institution everybody’s Fourth Amendment rights are necessarily more limited than they are outside of the institution, but as discussed at page 7 of this memorandum opinion, Fourth Amendment rights are not totally lost. The consent form, which it appears plaintiff McDonell and others signed as a condition of employment when they became employed, served to alert employees to the fact that their Fourth Amendment rights are more limited inside the correctional institution, but the consent cannot be construed to be a valid consent to any search other than one that is, under the circumstances, reasonable and, therefore, permissible under the Fourth Amendment. Public employees cannot be bound by unreasonable conditions of employment. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Advance consent to future unreasonable searches is not a reasonable condition of employment.

Defendants’ reliance on Wyman v. James, supra, is misplaced. Wyman involved a state statutorily authorized home visit by a caseworker to the home of a recipient of Aid to Families with Dependent Children. The court, assuming without holding that such a home visit was a search, concluded that it was reasonable and therefore not violative of the Fourth Amendment. The numerous factors relied on in Wyman clearly distinguish it from the instant ease.

The January 1984 demand on plaintiff McDonell that he submit a urine specimen for chemical testing did not have a reasonable suspicion basis, and therefore it was a demand for a seizure not permissible under the Fourth Amendment.

JUDGMENT AND INJUNCTION ORDER

It is the declaratory judgment of the court that the Department’s policy, Appendix A attached hereto, violates the Fourth Amendment rights of plaintiffs and the certified class insofar as it permits searches and seizures prohibited by the following injunction.

Defendants and their officers, agents, servants and employees are hereby enjoined from conducting searches of the persons of plaintiffs and members of the certified class (employees) pursuant to the Department’s policy, except as follows:

(1) Employees entering, or who have entered, a correctional institution may be searched by use of a magnetometer or similar device, by a pat-down search by a person of the same sex, and by an examination of the contents of pockets, bags, purses, packages and other containers. Such a search may be conducted without cause, but must be done uniformly or by systematic random selection, and not by discriminatory or arbitrary selection of persons to be searched.

(2) Any strip search or any other body search that is more intrusive than the type allowed by subparagraph (1) above may be made only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience, that the employee to be searched is then in possession of a weapon or drugs or other contraband. Such a search is to be made only on the express authority of the highest officer present in the institution, made by one of the same sex in a private setting, and the specific objective facts shall be disclosed to the employee before the search is conducted and shall be reduced to writing and preserved.

Defendants and their officers, agents, servants and employees are hereby further enjoined from demanding from plaintiffs and members of the certified class (employees), pursuant to the Department’s policy, any urine, blood or breath specimen for chemical analysis, except that they are not enjoined from:

(1) Demanding of an employee who has entered a correctional institution a urine, blood, or breath specimen for chemical analysis on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience, that the employee is then under the influence of alcoholic beverages or controlled substances. Such a demand is to be made only on the express authority of the highest officer present in the institution, and the specific objective facts shall be disclosed to the employee at the time the demand is made and shall be reduced to writing and preserved.

(2) Requiring an employee-applicant or an employee to provide blood and urine specimens as part of a pre-employment physical examination or as part of any routine periodic physical examination that may be required of employees.

(3) Requiring an employee to periodically submit a specimen of blood, urine or breath as a condition of continued employment under a disciplinary disposition if such a condition is reasonably related to the underlying basis for the disciplinary action and the duration of the condition is specified and is reasonable in length.

Defendants and their officers, agents, servants and employees are hereby further enjoined from searching privately owned motor vehicles belonging to or used by plaintiffs and members of the certified class (employees) pursuant to the Department’s policy, except that motor vehicles that are parked within the institution’s confines where they are accessible to inmates may be searched without cause, but such searches must be done uniformly or by systematic random selection, and not by discriminatory or arbitrary selection of employees whose motor vehicles are to be searched. Searches of employees’ motor vehicles within the institution’s confines where they are accessible to inmates, other than uniformly or by systematic random selection, may be made only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience, that there is a weapon or drugs or other contraband in the motor vehicle to be searched. Such a “reasonable suspicion” search is to be made only on the express authority of the highest officer present in the institution, and the specific objective facts shall be disclosed to the employee whose motor vehicle is searched before the search is conducted and shall be reduced to writing and preserved.

It is the further judgment of the court that plaintiff McDonell shall be paid the ten days’ salary that he lost in conjunction with his temporary discharge.

APPENDIX A

INSTITUTIONS—PERSONNEL

SEARCHES OF EMPLOYEES AND AUTOMOBILES AND PERMISSION TO INSPECT EMPLOYEE LIVING QUARTERS Policy

Any employee or vehicle entering the grounds of an adult institution or facility may be inspected at any time for security reasons. Employees must be advised in writing by the institutional manager that such inspections of the person or vehicle are a condition of coming onto the grounds of an adult institution or facility to work. A written report of such an inspection shall be made to the institutional manager.

If an employee refuses to cooperate in such an inspection, the institutional manager is to immediately be notified. He, in turn, will render a decision as to whether or not the employee refusing to be inspected is to be relieved of duty pending disposition of the matter.

All institutions and facilities having employees living on State property shall prepare forms—and have said form signed by all employees living on State-owned or leased property. (See Appendix)

APPENDIX B

STATE OF IOWA DEPARTMENT OF SOCIAL SERVICES BUREAU OF INSTITUTIONS DIVISION OF ADULT CORRECTIONS

SEARCHES OF EMPLOYEES AND PERMISSION TO INSPECT EMPLOYEE LIVING QUARTERS

Any employee or vehicle entering the grounds of an adult institution or facility may be inspected at any time for security reasons. Employees must be advised in writing by the Institution Manager that such inspections of the person or vehicle are a condition of coming onto the grounds of an adult institution or facility to work., A written report of such an inspection shall be made to the Institution Manager.

If an employee refuses to cooperate in such an inspection, the Institution Manager is to immediately be notified. He, in turn, will render a decision as to whether or not the employee refusing to be inspected, is to be relieved of duty pending disposition of the matter.

All institutions and facilitites having employees living on state property shall prepare forms—a copy of which is attached—and have said form signed by all employees living on state owned or leased property.

Revised 2-22-77_

I, /s/ Alan McDonell , have read and understand Section II-A-6 of the Bureau of Corrections Manual and realize that due to the nature of work, type of institution, and attitudes of some of the residents confined herein, a personal search of all persons coming into and going out of the Men’s Reformatory is of benefit to the administration to curtail the movement of contraband in the institution.

My signature on this page constitutes my permission to be searched at any time while on State property by a staff member of the same sex that I am, when the staff member is directed to do so by the Warden, person acting in that capacity, or his designated representative. I, also, agree to submit to a urinalysis or blood test when requested by the administration of the Reformatory. I further agree to cooperate and assist in any and all investigations of a security or possible criminal nature when requested to do so. I hereby affix my signature knowingly and voluntarily, absent of any duress or coercion.

/s/ Alan McDonell_ 3/2/79_

Signature Date

/s/ D. Williams Witnessed by

APPENDIX C

Department of Social Services Des Moines

SEARCHES OF EMPLOYEES AND PERMISSION TO INSPECT EMPLOYEE LIVING QUARTERS FORM

I,-, have read and understand Section II-C-5 of the Divison of Adult Corrections Manual and realize that due to the nature of work, type of institution, and attitudes of some of the residents confined herein, a personal search of all persons coming into and going out of the institution is of benefit to the administration to curtail the movement of contraband in the institution.

My signature on this page constitutes my permission to be searched at any time while on State property by a staff member of the same sex that I am, when the staff member is directed to do so by the Warden, person acting in that capacity, or his designated representative. I, also, agree to submit to a urinalysis or blood test when requested by the administration of the institution. I further agree to cooperate and assist in any and all investigations of a security or possible criminal nature when requested to do so. I hereby affix my signature knowingly and voluntarily, absent of any duress or coercion.

Signature

Date

Witnessed by

AC-1201 (5/80)

      . Although the Department’s' policy as written does not expressly mention submission of blood, urine and breath samples, there is no dispute that the policy is considered to include submission of such samples.

      . It may well be that the primary purpose of a search made under the Department’s policy would be to serve the facility’s security needs. However, if the search yielded drugs or an illegal weapon or illegal possession of a lawful weapon, a criminal prosecution could follow and the evidence uncovered, if constitutionally obtained, could be used in the prosecution. United States v. Skipwith, 482 F.2d 1272, 1277-79 (5th Cir.1973).

       There are significant limits to Fourth Amendment rights in an automobile. However, an automobile is not an area totally devoid of one’s reasonable expectation of privacy and Fourth Amendment protection, as suggested by defendants.

      . A fundamental problem with the Department’s policy is that it lacks any standards whatsoever for its implementation. Who can authorize or make a search or a demand for a blood or urine sample? Without any standards, it appears that any institutional officer may authorize or make a search or demand for blood or urine at his or her own unfettered discretion, and that the procedures followed will be .another matter within the unfettered discretion of the officer implementing the Department’s policy. The only standard is that an after-the-fact written report be made to the institution’s manager.

      . Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and Hunter v. Auger, 672 F.2d 668 (8th Cir.1982), should provide guidance to defendants. Although a bare anonymous tip—one that completely lacks any indicia of reliability—will not satisfy the reasonable suspicion standard, if the information in the anonymous tip is linked to other objective facts the reasonable suspicion standard may be satisfied. Indeed, depending on the totality of the circumstances, even "probable cause” may be established. Of course, if a tip is not anonymous, the identity of the informant, his reliability, and the detail of the information he supplies may establish reasonable suspicion.

      . The Fourth Amendment, however, does not preclude taking a body fluid specimen as part of a pre-employment physical examination or as part of any routine periodic physical examination that may be required of employees, nor does it prohibit taking -a specimen of blood, urine, or breath on a periodic basis as a condition of continued employment under a disciplinary disposition if such a condition is reasonably related to the underlying basis for the disciplinary action and the duration of the condition is specified and is reasonable in length.

      . The term "within the institution’s confines where they are accessible to inmates" means within confines within which the general inmate population is kept. The term does not mean within some outer perimeter where low security risk inmates are sometimes allowed to go on work details.

      . None of the injunctive relief granted herein precludes any search and seizure authorized by a judicially issued search warrant, or a search and seizure without a warrant made on the basis of "probable cause” within the meaning of the Fourth Amendment if made under one of the established exceptions to the Fourth Amendment’s warrant requirement, or a search made pursuant to a valid and voluntary consent given immediately before the search is conducted.


source: Caselaw Access Project

author: BUA, District Judge.

license: Public Domain

text:
    Ronald C. BROWN, Plaintiff, v. CITY OF CHICAGO, ILLINOIS, a municipal corporation, Officer John Doe and Officer Richard Roe, individually and in their official capacities, Defendants.
    No. 84 C 9767.
    United States District Court, N.D. Illinois, E.D.
    July 9, 1985.
    David Letvin, Letvin & Stein, Chicago, 111., for plaintiff.
    James D. Montgomery, Corp. Counsel of the City of Chicago by Paul M. Sheridan, Asst. Corp. Counsel, Chicago, 111., for defendants.
   MEMORANDUM ORDER

BUA, District Judge.

Defendant, City of Chicago, has moved this Court for an order dismissing Counts II and III of plaintiff’s amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Also pending before the Court is plaintiff’s motion to compel discovery. For the reasons stated below, both motions are granted.

I. MOTION TO DISMISS

In considering a motion to dismiss under Rule 12(b)(6), a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to the relief requested. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). The following facts are alleged in the amended complaint. For the purposes of this motion, the Court assumes they are true. City of Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir.1976).

A. FACTS

Plaintiff, Ronald C. Brown, an adult black male, alleges that on April 23, 1984, between 2:30 and 4:00 p.m., he was driving his car in the City of Chicago when he encountered mechanical problems. While attending to his car, two officers of the Chicago Police Department approached the car. Brown was then arrested and brought to the police station at 35th Street and Lowe. At the police station, without any provocation, Brown was severely beaten by a white Chicago police officer, Defendant John Doe, whose identity is presently unknown to the plaintiff. A second officer, Defendant Richard Roe, whose identity is also unknown to the plaintiff, threw water on him. Brown was not allowed to make a telephone call or obtain medical treatment. Brown was detained at that police station until 7:00 a.m. the next day when he was then taken to traffic court and placed in the lock-up there. From traffic court, Brown was taken to Cook County jail where he was booked and bonded out on a $200 “eye” bond at approximately 9:00 p.m. During his custody, Brown was neither advised of his “Miranda” rights nor given the medical treatment he requested.

The next day, April 25, 1984, Brown was admitted to the hospital. Brown was diagnosed as suffering from trauma to the chest and head, abrasion of the eye, fracture of several ribs and a fracture of the hip. Brown alleges the sole cause of his injuries was the treatment he received at the 35th Street police station. Brown remained hospitalized until May 4, 1984, when he was discharged in stable condition with fair prognosis.

Count II of plaintiff’s amended complaint alleges that, “[defendant Officers John Doe and Richard Roe are parties to a contract with defendant City of Chicago whereby said City has agreed to indemnify and hold said individuals harmless for all civil rights violation judgments arising out of their employment with said City of Chicago, whether for compensatory or punitive damages.” Amended Complaint, Count II, 1118. Plaintiff also alleges that, “[p]ursuant to the Illinois Municipal Code, Illinois Revised Statute, ch. 85, par. 9-102, the City of Chicago is obliged to pay any judgment or settlement for tort, including 42 U.S.C. § 1983 violations and 42 U.S.C. § 1981 violations, as defendant Officers John Doe and Richard Roe may be liable for arising out of their employment with said City.” Id. at H 19. Plaintiff therefore claims that the City of Chicago has waived any defense it may have under Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1977), for the violations of constitutional rights by its agents and employees.

Count III of plaintiff’s amended complaint is brought pursuant to the doctrine of pendent jurisdiction and alleges that “the conduct by the individually named defendants and the defendant City of Chicago constituted an assault and battery, as it placed plaintiff in threat of imminent touching and did constitute an unpermitted touching within the meaning of the common law of Illinois.” Amended Complaint, Count III, II21.

B. DISCUSSION

In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities and other local government entities are “persons” subject to liability under 42 U.S.C. § 1983 where the constitutional deprivation suffered by the plaintiff can be causally linked to a government “policy” or “custom.” In City of Oklahoma City v. Tuttle, — U.S. -, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), the Supreme Court held that “[pjroof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.” Id. 105 S.Ct. at 2436. Similarly, the Seventh Circuit in Strauss v. City of Chicago, 760 F.2d 765 (1985), has defined what must be pled by a plaintiff bringing suit pursuant to 42 U.S.C. § 1983. The plaintiff in Strauss was the subject of an unlawful arrest and recipient of blows to the face. The court held that “[t]he existence of a policy that caused a plaintiff’s injury is an essential part of Section 1983 liability, so that some fact indicating the existence of some such policy must be pled.” Id. at 768.

In this case, Brown argues that Kolar v. County of Sangamon of the State of Illinois, 756 F.2d 564 (1985), was the death knell of Monell immunity for municipalities in Illinois. In Kolar the plaintiff brought suit against the County of Sangamon to enforce a judgment rendered against the Sheriff of Sangamon County pursuant to Ill.Rev.Stat, ch. 85, § 9-102 (1983). That statute provides:

A local public entity is empowered and directed to pay any tort judgment or settlement for which it or an employee while acting in the scope of his employment is liable in the manner provided in this article.

Ill.Rev.Stat., ch. 85, § 9-102 (1983). That court found under the statute the County of Sangamon was required to pay the judgment rendered against the Sheriff of Sangamon County. Kolar, however, simply interprets an Illinois statute, and does not sound the “death knell” of Monell in Illinois. Monell remains the leading case defining municipal liability. See City of Oklahoma City v. Tuttle, — U.S. -, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Brown has not pled any facts which would suggest that the City of Chicago has a custom or policy which caused the deprivation of his constitutional rights. Therefore, defendants’ motion to dismiss Count II of the amended complaint is granted.

Since the plaintiff’s federal claim against the City of Chicago in Count II is dismissed before trial, the state claim alleged in Count III against the City of Chicago is dismissed without prejudice for lack of pendent jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 16-17, 96 S.Ct. 2413, 2421, 49 L.Ed.2d 276 (1976); Moore v. The Marketplace Restaurant, 754 F.2d 1336 (1985); Knudsen v. D.C.B., Inc., 592 F.Supp. 1232, 1235 (N.D.Ill.1984).

II. MOTION TO COMPEL

Plaintiff’s motion to compel discovery is granted. Defendants are ordered to produce Joseph Guarieri, Carole Brawner, Delacy and the designated representative for oral depositions within 30 days. Defendants are further ordered to answer to plaintiff's written interrogatory within 30 days. Each side shall bear its own costs and fees.

III. CONCLUSION

Defendant City of Chicago’s motion to dismiss Count II and III of the amended complaint is granted. Count III is dismissed without prejudice. Plaintiff’s motion to compel discovery is granted. Each side shall bear its own costs and fees.

IT IS SO ORDERED.


text:
    Lester BUSTLE and Ruby Bustle, Plaintiffs, v. QUINT, LTD., d/b/a Windy City South Truck Stop and Home Insurance Co., Defendants.
    No. 85 C 1882.
    United States District Court, N.D. Illinois, E.D.
    July 9, 1985.

      Raymond C. Fay, Alan M. Serwer, Elizabeth H. Cameron, Haley, Bader & Potts, Chicago, 111., for plaintiffs.
    Andrew Kopon, Jr., McKenna, Storer, Rowe, White & Farrug, Chicago, 111., for the Windy City South Truck Stop.
   MEMORANDUM ORDER

BUA, District Judge.

Plaintiffs Lester and Ruby Bustle bring this action against defendants Quint, Ltd., doing business as Windy City South Truck Stop (“Windy City”) and Home Insurance Company. Plaintiffs’ “first cause of action” is in negligence directed against Windy City. Defendant Home Insurance Company was voluntarily dismissed on May 8, 1985. Before the Court is a motion to dismiss the amended complaint by Windy City pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, defendant’s motion to dismiss is denied.

I. FACTS

Plaintiff Lester Bustle contracted with Windy City South Truck Stop to change the oil and service the KT-450 diesel engine in his semitractor. “Shortly thereafter, the oil drain plug exited the engine, draining the oil, destroying the engine.” Amended Complaint, p. 2. Plaintiffs contend that Windy City was negligent in failing to replace the oil drain plug properly, or alternatively, in its failure to warn plaintiff of a defective oil drain plug. Plaintiffs seek to recover the following damages: (a) $28,000 to replace the destroyed diesel engine; (b) continuing lost wages at $1,500 per week; (c) $1,300 in expenses incurred for alternate transport of the goods; and (d) incidental expenses, attorneys’ fees and costs.

II. DISCUSSION

The standard for granting a motion to dismiss is well established. Under Fed.R. Civ.P. 12(b)(6) a complaint should be dismissed for failure to state a claim only if it appears beyond doubt that a plaintiff can prove no set of facts which would entitle him to the relief requested. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

In this case plaintiffs seek recovery in tort for economic losses allegedly resulting from Windy City’s negligence in replacing an oil drain plug during the course of changing the oil in the plaintiffs’ truck. Windy City argues that plaintiffs’ tort claim should be dismissed and their recovery limited to contractual damages.

While it is true that Illinois law generally precludes recovery in tort for solely economic losses, an exception exists for property damages caused by a sudden and dangerous occurrence that is tortious in nature. Bi-Petro Refining Co. Hartness Painting, 120 Ill.App.3d 556, 76 Ill.Dec. 70, 458 N.E.2d 209 (4th Dist.1983). The leading Illinois case in this area of characterization of damages reasons:

The demarcation between physical harm or property damage on the one hand and economic loss on the other usually depends on the nature of the defect and the manner in which the damage occurred.

Moorman Mfg. Co. v. National Tank Co., 91 Ill.2d 69, 82-83, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982). Quoting Pennsylvania Glass Sand v. Caterpillar Tractor Co., 652 F.2d 1165, 1173 (3d Cir.1981), the Moor-man court explained:

In cases such as the present one where only the defective product is damaged, the majority approach is to identify whether a particular injury amounts to economic loss or physical damage. In drawing this distinction, the items for which damages are sought such as repair costs, are not determinative. Rather, the line between tort and contract must be drawn by analyzing interrelated factors such as the nature of the defect, the type of risk and the manner in which the injury arose. These factors bear directly on whether the safety-insurance policy of tort law or the expectation-bargain protection policy of warranty law is most applicable to a particular claim.

Moorman, 91 Ill.2d 69, 83-84, 61 Ill.Dec. 746, 435 N.E.2d 443. Accordingly, under Moorman, economic loss is recoverable in tort where public policy considerations warrant the imposition of a social duty.

In this case, plaintiffs state that they contracted Windy City to change the oil and service the engine on their semitractor. “Shortly thereafter, the oil drain plug exited the engine, draining the oil, destroying the engine.” Amended Complaint, p. 2. Although through this language plaintiffs have not specifically alleged a “sudden and dangerous occurrence,” such an allegation may reasonably be inferred under the more liberal federal notice pleading requirements. Failing to properly replace an oil drain plug on a semitractor constitutes a safety hazard that poses a serious risk of harm to people and property. Combined with plaintiffs’ allegation that their semi-tractor engine was destroyed, it appears that plaintiffs may be able to prove some “set of facts which would entitle [them] to the relief requested.” See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Defendant relies principally on Moor-man. In that case, however, the damages occurred over a period of several months stemming from a crack in a grain storage tank. This case is more factually analogous to Bi-Petro, supra, 120 Ill.App.3d 556, where the plaintiff entered into an oral contract with the defendant for the repair of plaintiff’s 50 thousand barrel oil tank. Subsequently, the oil tank suddenly ruptured and damaged other property as well as the repaired tank. The case at bar involves the destruction of a diesel engine shortly after an oil change. It is conceivable that plaintiff may be able to prove facts which would fit within the Bi-Petro reasoning.

III. CONCLUSION

Defendant’s motion to dismiss is denied.

IT IS SO ORDERED.


author: GERALD J. WEBER, District Judge.

text:
    Ruth I. GANT, Plaintiff, v. ALIQUIPPA BOROUGH and Daniel LaRue, Defendants.
    Civ. A. No. 84-1675.
    United States District Court, W.D. Pennsylvania.
    July 10, 1985.

      Scott L. Melton, Conte & Courtney, Conway, Pa., for plaintiff.
    George M. Evan, Tighe, Evan & Ehrman, Pittsburgh, Pa., for defendant LaRue.
    Dougherty, Larrimer & Lee, Jr., Peter Molinaro, Jr., Pittsburgh, Pa., for defendant Aliquippa Borough.
   OPINION

GERALD J. WEBER, District Judge.

Plaintiff is a black woman, age 53, who has filed a civil rights complaint against the Borough of Aliquippa and a police officer, Daniel LaRue, employed by it. The complaint alleges that she was arrested by defendant LaRue without justification or probable cause, was severely beaten by him, manacled, taken by Borough police officers to the police station, detained, questioned, and denied necessary medical care while confined. She was later released. She alleges that as a result of this treatment she had to undergo hospitalization for 25 days.

She alleges violations of 42 U.S.C. § 1983 and § 1985 by both defendants.

Both defendants have moved for judgment on the pleadings and for summary judgment on all counts of the complaint. Plaintiff has moved for leave to amend the complaint to supply some of the details whose absence are the grounds of defendants’ motions for judgment on the pleadings. Defendants oppose the motion to amend on the grounds of lateness, further delay, the necessity of • further discovery, and the like. Any delay in this case is as much the fault of defendants as of plaintiff; the court can see no possible surprise to defendants or need of further discovery because the matters added by amendment were disclosed during the discovery period and are equally known and available to defendants as to plaintiff. At any rate we would not dismiss this complaint on the pleadings without an allowance to plaintiff to amend. The Federal Rules of Civil Procedure provide that leave to amend be liberally allowed; we see nothing particularly liberal in our allowance.

[Wjhere the entire record reveals facts susceptible of inferences that would justify an amendment of the pleadings and save the action, a motion for summary judgment should not be granted, but the party against whom the motion is directed should be afforded an opportunity to amend his faulty pleadings.

Castner v. First National Bank, 278 F.2d 376, 384 (9th Cir.1960). The amended complaint sets forth in considerable narrative detail the material generally covered in brief summary form in the complaint.

Considerable discovery has been employed here. The defendants’ motions and plaintiff’s response are documented in detail, and all are extensively briefed.

THE MOTION OF DEFENDANT LaRUE

(a) The 1983 claim:

LaRue argues that while plaintiff has properly alleged that he was acting under color of state law and that she was deprived of the rights, privileges and immunities secured her by the constitution, nevertheless she was not deprived of these without due process of law because adequate state remedies are available to her by civil actions for assault, battery, false arrest and false imprisonment against Officer La-Rue. This is an extreme extension of the rule of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1980). That case involved the procedural due process claim of a prisoner whose model building kit was lost in the prison post office. The Court held that not all deprivations of rights to liberty and property are so egregious as to amount to constitutional deprivations and held that the proper inquiry was whether proper post-deprivation due process was available. It found that it was in a simple and readily available state remedy for recompense for the loss of property.

But plaintiff here is not alleging a due process claim. She alleges a claim for a direct and intentional invasion of her substantive right to the constitutional guarantees, the right to be free from violence and injury by the state’s own agents. As such she has a right of action against the officer under Section 1983. This complaint does not allege a simple tort action against a state officer, but a deliberate and intentional invasion of a substantive constitutional right. Whether or not that allegation can be sustained requires the production of evidence of all the surrounding circumstances.

(b) The 1985(3) claim:

Defendant LaRue argues that the conspiracy claim against him must fail because plaintiff has failed to come forth with any evidence showing a prior agreement between LaRue and other police officers or representatives of the Borough. Nevertheless she has pleaded that she was arrested by LaRue, put into the custody of other police officers, and detained and interrogated by them. Conspiracy can rarely be proven by direct evidence of agreement; rather it largely depends on the circumstances and this is a matter of fact which must be determined by trial. Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). This cannot be determined by summary judgment. We will discuss the conspiracy claim further with respect to the defendant Borough’s parallel motion.

THE MOTION OF DEFENDANT BOROUGH

(a) The 1985(3) claim:

We recognize that an employer may not be subject to a conspiracy claim by the doctrine of respondeat superior. Neither may the employer be held to conspire with one of its own employees acting in his official capacity. See, Keddie v. Penn State Univ., 412 F.Supp. 1264 (M.D.Pa.1976). This is a situation where it takes more than two to tango. Nevertheless, in Novotny v. Great American Federal Savings & Loan Association, 584 F.2d 1235 (3d Cir.1978) it was held that two agents of one corporation acting within the scope of their employment could be held liable for conspiracy under Section 1985(3). The plaintiff has recited acts by LaRue and other police officers, either in concert or in tandem, violative of her constitutional rights. This appears to open the door to the inclusion of the Borough in the conspiracy charge. See Brown v. Fairleigh Dickenson Univ., 560 F.Supp. 391, 405-6 (fn. 5) (D.N.J.1983).

The Borough is a “person” subject to Section 1983 claims; it may be assumed that it is a “person” subject to Section 1985(3) claims. See Thompson v. State of New York, 487 F.Supp. 212, 228 (N.D.N.Y.1979). Because plaintiff has pleaded a series of acts by members of the Borough police department, all directed against black persons, with evidence of racial animus, within a period of a few months, known to superior officers of the Borough and the subject of comment and inquiry at meetings of the Borough council, the plaintiff may be allowed to produce proof of circumstances sufficient to establish a tacit agreement or an official policy of acquiescence by the Borough. Leonard v. Argento, 699 F.2d 874 (7th Cir.1983); Turpin v. Mailet, 619 F.2d 196 (2d Cir.1980); Herrera v. Valentine, 653 F.2d 1220 (8th Cir.1981). This is not susceptible of summary judgment.

(b) The 1983 claim.

Defendant Borough relies on the landmark opinion in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which holds that a local government unit may not be held liable in a federal civil rights claim under a theory of respondeat superior or vicarious liability. Monell held that liability attaches when the unconstitutional violation is the result of some Borough policy that implement or execute a policy statement, ordinance, regulation or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy.

In support of its contention, defendant Borough has produced a series of identical affidavits, and deposition testimony, from the Mayor, the Chief of Police, members of Council, and other employees, that they knew of no ordinances, laws, regulations and policies adopted by the Borough which serve to deny constitutional rights to blacks. But Monell is not so limited. “[LJocal governments, like every other 1983 ‘person’, by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such custom has not received formal approval through the body’s official decision making channels. Aa Mr. Justice Harlan, writing for the Court, said in Adickes v. S.H. jKress & Co., 398 U.S. 144, 167-168, 90 S.Ct. 1598, 1613-1614, 26 L.Ed.2d 142 (1970): ‘Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials____ Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.’ ” pp. 690-691.

Plaintiff has pleaded a series of racially related acts of alleged constitutional violations within a short time period around the time of the present incident, knowledge of these by the governing body and inquiry into the same, and the failure of the governing body to implement its well intentioned resolution by any affirmative corrective action. Plaintiff specifically pleads the lack of specialized training for its police officers to meet the particular problems that it was aware existed. These are all matters of fact which preclude summary judgment. They must be fully developed and answered at trial.

An appropriate order will be entered.

ORDER

NOW, this 10th day of July, 1985, in accordance with the foregoing Opinion it is ORDERED that:

(1) Plaintiff’s Motion for leave to Amend the Complaint is GRANTED;

(2) The motions of both Defendants for judgment on the pleadings and for summary judgment are DENIED;

(3) Counsel shall appear before the Court for a Pretrial Conference on Thursday, August 29, 1985, at 4 p.m.


author: CHARLES R. RICHEY, District Judge.

text:
    NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. NATIONAL BROADCASTING COMPANY, INC., Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.
    Civ. A. Nos. 85-1413, 85-1467.
    United States District Court, District of Columbia.
    July 10, 1985.

      David C. Vladeck, Public Citizen Litigation Group, Washington, D.C., for plaintiff NAACP Legal Defense and Educational Fund.
    Molly Paulker, National Broadcasting Corp. and Dennis A. Adelson of Schnader, Harrison, Segal & Lewis, Washington, D.C., for plaintiff National Broadcasting Corp.
    Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Barbara Gorden and Harriet Kerwin, U.S. Dept, of Justice, Washington, D.C., for defendant.
   ORDER

CHARLES R. RICHEY, District Judge.

These consolidated actions come before the Court on cross motions for summary judgment. Plaintiffs NAACP Legal Defense and Educational Fund, Inc. (“NAACP”) and the National Broadcasting Corporation, Inc. (“NBC”) had individually filed suit against the U.S. Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Since both suits involved requests for the same information, the cases were consolidated by Order of this Court on May 15, 1985.

Plaintiffs are seeking copies of five letters from local government entities to DOJ, written in response to a letter from the agency requesting these local government entities to voluntarily modify the terms of existing consent decrees based on the DOJ interpretation of the Supreme Court’s holding in Fire Fighters Local Union v. Stotts, — U.S. -, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). Plaintiffs are seeking the disclosure of these reply letters pursuant to FOIA. DOJ has refused to make available copies of the letters here at issue, claiming that they are exempt from disclosure under 5 U.S.C. § 552(b)(5). Further, should that exemption be found not to apply in this case, DOJ has asked this Court to develop a new privilege which would prevent disclosure, based upon Federal Rule of Evidence (“FRE”) 408.

The Court has carefully considered the motions before it, as well as memoranda in support thereof and in opposition thereto and the relevant statutory and case law. In light of this analysis, and there being no material facts in dispute, the Court finds that plaintiffs are entitled to summary judgment as a matter of law and grants their motions.

In June 1984, the U.S. Supreme Court came down with the Stotts decision, supra. This case concerned the modification by a district court of a consent decree involving the city of Memphis, Tennessee. The consent decree established preferences and goals for the hiring and promotion of blacks in the city’s fire department. Subsequently, the city projected budget deficits which required the lay-off of some city employees. The city announced that the fire fighters would be laid off according to the “last hired, first fired” rule. The plaintiffs in Stotts obtained a temporary restraining order followed by an injunction against lay-offs that would reduce the proportion of blacks employed by the fire department.

The Fire Fighters Union and the city appealed the injunction. The 6th Circuit affirmed the injunction on other grounds, while at the same time holding that the district court was authorized to modify the consent decree. The Supreme Court granted certiorari and last Juné issued its decision, reversing the injunction on the grounds that the district court may not order the violation of a bona fide seniority system because § 703(h) of Title VII “permits the routine application of a seniority system absent proof of an intention to discriminate.” 104 S.Ct. at 2587, citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 352, 97 S.Ct. 1843, 1863, 52 L.Ed.2d 396 (1977).

After this decision came down, DOJ sent letters to fifty local government jurisdictions subject to affirmative action provisions in judicial decrees. DOJ requested that these governmental entities voluntarily modify their consent decrees to eliminate racial hiring and promotion quotas in light of the DOJ interpretation of Stotts. DOJ received reply letters from some of these local governmental entities, which letters were the subject of plaintiffs’ FOIA requests. After failing to receive copies of these letters, plaintiffs filed the instant actions to compel disclosure. By May 23, DOJ claims to have located 28 of these letters, 19 of which were released to the plaintiffs. On May 30, DOJ released an additional six reply letters to the plaintiffs. However, DOJ refused to make available copies of five other reply letters it had received, and which are now the subject of this litigation. DOJ claims that the five letters have been withheld under exemption (b)(5) as being part of settlement negotiations. 5 U.S.C. § 552(b)(5).

Exemption (b)(5) protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). DOJ argues that this exemption implicitly incorporates discovery privileges not explicitly identified by Congress, relying chiefly on Weber v. United States, 465 U.S. 792, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984).

However, upon a close reading of Weber, it becomes apparent that the facts of that case are easily distinguished from those of the instant case. In Weber, the government was investigating an Air Force accident. In conducting this investigation, the government had given Air Force employee witnesses the assurance that their statements would not be used for any purpose other than for accident prevention. The respondents in Weber sought disclosure of these statements given in confidence. However, the Supreme Court found that these statements were unquestionably intra-agency memoranda in that the witnesses themselves were members of the agency and, further, that these statements were protected from civil discovery under the Machin Privilege. This privilege protects confidential statements made to air-crash safety investigators. Machin v. Zuckert, 316 F.2d 336 (D.C.Cir.1963), cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963). At the time of Weber, the Machin Privilege had been embodied as a principal of law for over twenty years.

DOJ argues that the statutory language of exemption (b)(5) should be broadly construed to encompass these five letters as intra-agency memoranda. However, even the broadest interpretation of the statute and case law will not support such a conclusion. Wu v. National Endowment for the Humanities, 460 F.2d 1030 (5th Cir.1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1352, 35 L.Ed.2d 586 (1973); Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980); Badwhar v. U.S. Dept. of the Air Force, slip op. No. 84-0154 (D.D.C. March 6, 1985). In each of these cases, the documents in question were created either by the agency itself or by consultation on behalf of the agency, and not by adversaries or potential adversaries of the agency. In contrast to the Weber case, the letters sought here by the plaintiffs are clearly not inter or intra-agency memoranda. Rather they are letters from adversaries in past litigation with DOJ to the agency. None of the entities which authored the letters in question could be viewed as being part of a federal agency or acting in consultation with the agency.

The Weber Court also clearly stated that recognition under exemption (b)(5) of a novel privilege, or one that has found less than universal acceptance, would not fall within the exemption unless explicitly discussed in the legislative history. However, the Court went on to say that the Machin Privilege, which has been well settled for some two decades, need not be viewed with the same degree of skepticism. In the instant case, the documents at issue are clearly not intra-agency memoranda, and are not protected by some long-standing or universally recognized privilege. Therefore, the Court finds that Weber is inapplicable to this case.

DOJ further argues that a settlement negotiation privilege exists under FRE 408. The Court does not agree. Indeed, the Court finds that the holding in Center for Auto Safety v. Dept. of Justice, 576 F.Supp. 739 (D.D.C.1983), while not controlling on this Court, is definitive on this issue. In Center for Auto Safety, DOJ refused to release certain documents requested by the plaintiffs pursuant to a FOIA request. These documents concerned DOJ’s consent to the modification of certain restrictions in a 1969 consent decree by the automotive industry. DOJ argued in that case, as it does in the instant actions, that there existed an implicit exemption to FOIA disclosure under FRE 408 involving settlement negotiations. The Court in Center for Auto Safety stated that “DOJ’s argument for this settlement negotiations privilege is misplaced. FRE 408 limits a document’s relevance at trial, not its disclosure for other purposes.” Although the intent of FRE 408 is to foster settlement negotiations, the sole means used to effectuate that end is a limitation on the admission of evidence produced during settlement negotiations for the purpose of proving liability at trial. It was never intended to be a broad discovery privilege.

FOIA was intended to be a disclosure statute. The clear purpose of FOIA is to assure that the public has access to all government documents subject to only nine specific exemptions. They are those which Congress decided were consistent with efficient government operation. S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965). Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854 (D.C.Cir.1980). This Court’s holding here today re-emphasizes the narrow scope of exemption (b)(5) and the strong public policy that the public is entitled to know what the government is doing and why. In enacting FOIA, Congress recognized circumstances under which the government would need protection for certain information. Congress responded to this need by the specific exemptions in the FOIA statute.

Disclosure in this instance, which is clearly not within any exemption of the FOIA statute, or the subject of any bona fide privilege, may very well add to the knowledge in the public domain, and could thereby assist in eliminating the need for quotas and goals as a method for eliminating racial discrimination.

Therefore, it is by the Court, this 10th day of July, 1985,

ORDERED that the plaintiffs’ motions for summary judgment be, and the same hereby are, granted, and that the defendant’s motion for summary judgment be, and the same hereby is, denied, and it is

FURTHER ORDERED that these cases shall stand dismissed and the clerk shall remove them from the dockets of this Court.

      . Weinstein's Evidence ¶ 408[1] at 408-14 (1981) ("It should be pointed out that the Rule should not be construed so as to render evidence otherwise discoverable inadmissible solely because it was presented during settlement negotiations. The policy of allowing open and free negotiations between parties by excluding conduct or statements of these discussions is not intended to conflict with the liberal rules of discovery embodied in the Federal Rules of Civil Procedure.”)


text:
    The ESTATE OF David L. PORTNOY, Deceased, Jerri Bridges, Administratrix, Plaintiff, v. CESSNA AIRCRAFT COMPANY, Defendant, v. MISSISSIPPI SCHOOL OF AVIATION, et al., Attachment Defendants.
    Civ. A. No. S83-0011(R).
    United States District Court, S.D. Mississippi, S.D.
    July 10, 1985.

      Floyd J. Logan, Gulfport, Miss., for Estate of Portnoy.
    Eaton A. Lang, Jr., Gulfport, Miss., for Cessna Finance Co.
    Roy C. Williams, Megehee, Brown, Williams & Mestayer, Pascagoula, Miss., for Victory Aircraft, Inc.
    Robert Alan Byrd, Rushing & Guice, Biloxi, Miss., Charles R. Davis, Alex A. Alston, Jr., David A. Bowers, Jackson, Miss., for Mississippi School of Aviation.
    H.D. Brock, Greenwood, Miss., for Kimmel Aviation, Inc.
    Thomas C. Gerity, Watkins & Eager, Jackson, Miss., for Cessna Aircraft Co.
   MEMORANDUM OPINION

DAN M. RUSSELL, Jr., Senior District Judge.

This cause is presently before the Court by motion of the plaintiff on behalf of the Estate of David L. Portnoy (Portnoy) against the defendant, Cessna Aircraft Company (Cessna). The plaintiff has filed a motion for partial summary judgment contending that Cessna is collaterally estopped from controverting any strict liability claim for the manufacture of a defective product due to the judgment in Nancy Baggs Germone, et al. v. Cessna Aircraft Company, No. 3-78-1193-G (N.D.Texas, June 8, 1981). A brief restatement of the pertinent facts are as follows.

On November 11, 1976, a military 02-A airplane that had been manufactured by Cessna crashed in the Mississippi Sound near Bay St. Louis, Mississippi. Major John T. Baggs and Sergeant David L. Portnoy, the only occupants, suffered fatal injuries in the crash. Major Baggs was a resident of Freehold, New Jersey and Sergeant Portnoy was a resident of Philadelphia, Pennsylvania. Portnoy, Baggs and the 02-A aircraft were assigned to the 105 Tactical Air Support Wing, 111th Tactical Air Support Group, 103 Tactical Air Support Squadron, Willow Grove Naval Air Station, Willow Grove, Pennsylvania.

Although Major Baggs was the assigned pilot of the flight and Sergeant Portnoy the listed passenger, the report submitted to the President of the Military Accident Board by Donald Simon, Cessna’s Administrator of Military Relations who participated in the investigation as an advisor, concluded the most probable cause of the accident resulted from “the pilot allowing] the passenger control of the aircraft after which he inadvertently, through misapplication of controls, initiated the spin maneuver with insufficient altitude for recovery.” Mr. Simon concluded that damage to the aircraft control column and rudder pedals, when compared to the injuries of Sergeant Portnoy’s body, indicated Sergeant Portnoy was in control of the airplane at the time that it crashed.

On September 27, 1978, Nancy Baggs filed a complaint against Cessna in the United States District Court for the Northern District of Texas, Dallas Division. Jurisdiction was based upon diversity of citizenship and the fact that Cessna had qualified to do business and had appointed an agent for service of process in Dallas, Texas. At trial, the jury was instructed only on a theory of defective design of the propeller and on the issue of whether Major Baggs operated the aircraft in a manner that would constitute a misuse. The jury answered the Court’s special interrogatories in favor of Baggs and awarded damages totalling $900,000.00 to Mrs. Baggs and her four children.

A $900,000.00 judgment was entered against Cessna on July 18, 1981. Cessna moved for judgment notwithstanding the verdict, or, alternatively, for a new trial, which the Court denied on August 17,1981. Thereafter, Cessna perfected its appeal to the United States Court of Appeals for the Fifth Circuit. Baggs filed a cross appeal.

By joint motion of the parties, the case was remanded to the District Court on October 21, 1981. On October 28, 1981, the District Court set aside the verdict and judgment and granted Cessna a new trial “upon agreement of the parties and upon reconsideration of the Defendant’s Motion for a New Trial previously filed herein, ...” Upon the same day the Court entered an Order Appointing Guardian Ad Litem, an Agreement for Judgment and Release, and a Final Judgment. The Final Judgment recited in part that:

[T]he parties having represented to the Court and the Court having found that defendant denies liability in this case and that this is a judgment entered pursuant to compromise and settlement and not a finding of liability on the part of defendant, and it appearing to the Court that said agreement for judgment and release is in all things fair and just, and that judgment should be entered in accordance therewith;____

On September 16, 1981, more than three months after the Baggs trial, Marvin Portnoy and Florence Portnoy, the parents of David L. Portnoy, deceased, were granted Letters of Administration “for suit purposes only” by the Register for Probate of Wills and Grant of Letters Testamentary and of Administration of Philadelphia County, Pennsylvania. Jerri Bridges, a secretary in the office of Hopkins, Logan, Vaughn and Anderson, was granted Letters of Administration of Portnoy’s estate by the Chancery Court of Hancock County, Mississippi on February 24, 1982. She initially filed a complaint against Cessna in the United States District Court for the Southern District of Mississippi, Southern Division, on April 22, 1982. That suit, which was assigned Civil Action No. S820233(C), was dismissed by the trial court for lack of in personam jurisdiction and affirmed on appeal. See Estate of Portnoy v. Cessna Aircraft Company, 730 F.2d 286 (5th Cir.1984).

The instant action was filed in the Chancery Court of Hancock County, Mississippi on October 29, 1982 as Cause Number 16,-186. It was removed from the Chancery Court to this Court on January 4, 1983. This Court, having determined that Cessna is not subject to in personam jurisdiction by virtue of the decision in Estate of Portnoy v. Cessna Aircraft Company, supra, is proceeding quasi in rem on the basis of a complaint for attachment served upon three Mississippi corporations who are indebted to Cessna for civilian or general aviation purchases. See Estate of Portnoy v. Cessna Aircraft Company, 603 F.Supp. 285 (S.D.Miss.1985).

Portnoy’s complaint and bill for attachment alleges counts in strict liability in tort, breach of warranty, failure to warn and punitive damages. The complaint for bill of attachment demands a judgment against Cessna in the amount of $2,500,-000.00 as compensatory damages and $2,500,000.00 as punitive damages. The strict liability and breach of warranty counts allege that the airplane generally was defectively designed, manufactured, tested, assembled and serviced. The failure to warn count alleges that the airplane had a defective propeller hub which had a propensity to develop cracks and lose blades, and that Cessna failed to adequately warn and instruct users of the dangers associated with this alleged condition.

The plaintiff herein has filed this motion for partial summary judgment contending that Cessna is collaterally estopped from controverting its strict liability for the manufacture of a defective product. It is argued that these issues were decided adversely to Cessna by the jury sitting in the Baggs case.

When confronted with the issue of collateral estoppel in diversity cases the district court must turn its attention to federal law which governs the collateral estoppel effect of an earlier federal judgment. Hauser v. Krupp Steel Producers, Inc., 761 F.2d 204, 207 (5th Cir.1985); Wehling v. Columbia Broadcasting Co., 721 F.2d 506, 508 (5th Cir.1983). In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) the U.S. Supreme Court approved the use of offensive collateral estoppel when it was asked to determine “whether a litigant who was not a party to a prior judgment may nevertheless use that judgment ‘offensively’ to prevent a defendant from relitigating issues resolved in the earlier proceeding.” Id. at 326, 99 S.Ct. at 649.

Shore had brought a stockholder’s class action against Parklane Hosiery Co., Inc. and thirteen of its officers, directors, and stockholders (hereinafter simply referred to as Parklane) contending that it had issued a materially false and misleading proxy statement in connection with a merger thereby violating the Securities and Exchange Act of 1934. The SEC filed a similar suit against Parklane and requested injunctive relief. A Federal District Court found the proxy statement to be materially false and misleading as alleged and entered a declaratory judgment to that effect. Shore then moved for a partial summary judgment against Parklane asserting that it was collaterally estopped from relitigating the issues that had been resolved against it in the action brought by the SEC. The District Court’s decision to deny the motion was reversed by the U.S. Court of Appeals for the Second Circuit. After precautionary instructions, the Supreme Court affirmed the appellate court’s decision.

The Court noted that offensive collateral estoppel differs substantially from defensive collateral estoppel and should therefore be viewed with stricter scrutiny. In a case involving defensive collateral estoppel, a plaintiff is estopped from asserting a claim that the plaintiff had previously litigated and lost against another defendant. Offensive collateral estoppel occurs when a plaintiff is seeking to bar a defendant from relitigating an issue decided against him in an earlier action involving a different plaintiff. In other words, defensive collateral estoppel is used as a shield whereas offensive collateral estoppel is used as a sword. Inherent to the sword are several reasons which were articulated in Parklane on why the two situations should be treated differently.

.First, defensive use of collateral estoppel promotes judicial economy where offensive use creates precisely the opposite incentive. When defensive collateral estoppel is used, the plaintiff is precluded from relitigating identical issues by merely switching adversaries. This encourages a plaintiff to join all potential defendants in the first action. Through offensive collateral estoppel, the plaintiff is entitled to rely on a previous judgment against a defendant without being bound by that judgment if the defendant wins. This encourages the plaintiff to adopt a “wait and see” attitude in the hope that another plaintiff in the first action will obtain a favorable judgment. Such an offensive use tends to increase the total amount of litigation since all the potential plaintiffs will have everything to gain and nothing to lose by not intervening in the first action.

A second argument against the use of offensive collateral estoppel discussed in Parklane was one of potential unfairness to the defendant. Such unfairness is manifested through various situations. For example, the unforseeability of future suits or the attempt to recover small or nominal damages may provide little incentive for a vigorous defense. Still another situation appears where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result.

These reasons are not to be interpreted as a preference to preclude the use of offensive collateral estoppel, but rather to grant the district court broad discretion to determine when it should be applied.

The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.

Parklane Hosiery, 439 U.S. at 331, 99 S.Ct. at 652; Hauser, 761 F.2d at 207, (emphasis added).

In applying this rule this Court must first determine whether Portnoy is a “wait and see” plaintiff who could have joined the Baggs suit. In the exercise of its broad discretion, the trial court should not permit the use of offensive collateral estoppel when the plaintiff could easily have joined in the first action. Charles J. Arndt, Inc. v. City of Birmingham, 748 F.2d 1486, 1494 (11th Cir.1984). The situation involving a wait and see plaintiff is enhanced when the plaintiff in the first action has a particularly strong ease or presently particularly sympathetic circumstances justifying relief. Hicks v. Quaker Oats Co., 662 F.2d 1158, 1172 (5th Cir.1981).

By waiting until this plaintiff has litigated, other plaintiffs may hope to “ride on his coat tails” to a judgment against defendant, even though the other plaintiffs’ individual cases might not be as strong and might have been treated differently in terms of liability found or relief granted if all the cases had been tried together.

Id.

It is inconceivable to this Court that discovery and trial preparation for the Baggs suit failed to alert the Portnoy heirs of the impending action. Certain similarities, such as the fact that Baggs and Portnoy were assigned to the same tactical air support wing, vacillates the plaintiff’s contention that knowledge of the Baggs action was never received.

Although the record is absent of any proof of a purposeful delay, strong sympathetic circumstances inherent in the Baggs suit as compared to Portnoy’s action, as well as a possible different finding concerning Cessna’s liability to Portnoy, would only result in an injustice to the defendant should this Court allow the use of offensive collateral estoppel. Mrs. Baggs appeared in Court as a widow and mother of four young children. She also appeared against a defendant whose investigator, Donald Simon, had determined that the 02-A military aircraft crashed not as a result of the actions of Major Baggs, but as a result of the actions of Sergeant Portnoy. The issue of Portnoy’s contributory negligence was not submitted to the jury in Baggs. The only issue was whether John Baggs had misused the airplane. Therefore, there is no identity of the issues concerning Cessna’s defense in the Baggs trial and the present action. A trial before the jury may very well conclude that it was Portnoy’s negligence that was the sole cause of the crash. It would be unfair to the defendant to allow the mother, father, and brother of Sergeant Portnoy to ride on the coat tails of the Baggs suit under such circumstances.

Other situations of possible unfairness include the attempt to recover nominal damages, the unforseeability of future suits, inconsistent previous judgments, and the lack of procedural opportunities. Although it was highly unforseeable that a future suit would follow, the damages sought by Mrs. Baggs were substantial enough to assure a vigorous defense on the part of Cessna. Also, it has not been alleged that there were any previous inconsistent judgments or lack of procedural opportunities. However, to permit the use of offensive collateral estoppel at this time would preclude Cessna from asserting the government contract defense discussed by the Fifth Circuit in Hansen v. Johns-Mansville Products Corp., 734 F.2d 1036, 1045 (5th Cir.1984) and first applied in Mississippi in the case of Bynum v. General Motors Corp., 599 F.Supp. 155 (N.D.Miss.1984).

Generally, the government contractor defense shields a manufacturer from liability when such work is performed in accordance with government specifications absent any negligence or wilfully tortious conduct by the independent contractor. A military supplier who can satisfy the enumerated criteria as enunciated in Hansen v. Johns-Mansville Products Corp., 734 F.2d 1036 (5th Cir.1984) is shielded from liability under the theories of strict liability, negligence, or breach of warranty. Bynum, 599 F.Supp. at 158. The record in the Baggs trial, as well as the record in this Court, is void of any stipulations or uncontradicted evidence relating to any of the three enumerated criteria. This is due to the fact that at the time of the Baggs trial, and as late as June, 1984, no Texas court had adopted the government contractor defense. Hansen, 734 F.2d at 1045. Therefore, this issue, which bars Cessna from liability, has never been actually litigated and determined adversely to Cessna in the prior litigation. Since the general contractor defense has been recently applied in Federal District Court in Mississippi, it would constitute an unfairness and injustice to the defendant if this Court were to permit the use of offensive collateral estoppel and deny Cessna its day in Court.

The final contention facing this Court concerns the finality of the Baggs judgment. The plaintiff contends that since the Baggs trial was fully litigated prior to settlement, offensive collateral estoppel may be invoked. For support, the plaintiff relies upon Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149 (5th Cir.1982). Chemetron Corp. was one of many cases arising out of the Westec Stock Scandal. Chemetron sued 57 defendants, including David Bintliff, a businessman and investor, who was also one of the defendants sued in a previous action by Cosmos Bank in the case of Cosmos Bank v. Bintliff, Civil Action No. 67-H-590 (S.D.Tex.1975). The Cosmos Bank was tried before a judge without a jury. The trial judge filed and entered a lengthy “Memorandum and Order” detailing his findings of fact and conclusions of law which awarded the plaintiff over $700,000 in damages and interest. Before entry of the judgment, Bintliff’s counsel wrote the U.S. District Clerk stating that Bintliff and Cosmos Bank would settle only if the judge would sign an order granting a new trial so that Bintliff would be protected “against the use of the judge’s findings and conclusions in other litigation.” Chemetron Corp., 682 F.2d at 1187. The trial judge refused to act in accordance with Bintliff’s request since he failed to see any basis for the granting of a new trial. The trial judge proposed a different order and threatened to act on the plaintiff’s pending motion for judgment unless his proposed order was promptly agreed to. Bintliff settled the case before judgment was entered. An order was entered dismissing the case with prejudice and withdrawing and setting aside the findings of fact and conclusions of law.

Chemetron subsequently sought to collaterally estop Bintliff from relitigating the issues decided in Cosmos Bank. Upon refusal of the trial court, the claim against Bintliff was tried fully and resolved against Bintliff by a jury. Bintliff appealed, and Chemetron filed a protective cross-appeal in which it complained that Bintliff should have been collaterally estopped from relitigating the issues against him in Cosmos Bank. In addressing the issue of whether the absence of a final judgment precluded “judicial finality”, the Fifth Circuit stated:

Thus, the finality requirement does not necessarily demand the ministerial act of executing a judgment. It does not elevate form over substance in that fashion—the accurate definition of “finality” in the offensive collateral estoppel context is “fully litigated.”

Id. at 1191.

The plaintiffs reliance upon Chemetron is somewhat tenuous since the case is easily distinguishable from the cause presently before this Court. Neither Chemetron nor the cases cited therein contained an order granting a new trial or a final judgment. It was within this vacuum that the Circuit Court predicated its opinion. Conversely, the Baggs ease contained an executed order granting new trial as well as a final judgment. The District Court’s Order Granting New Trial based upon the trial judge’s “reconsideration of the Defendant’s Motion for New Trial previously filed ... ”, and the Final Judgment specifically precluded any finding of liability. It is not the prerogative of this Court to circumvent the legal implications and to virtually ignore the reasoning and decision of Judge Pat Higginbotham, who was the trial judge in the Baggs case. For this reason, and for the reasons stated throughout this opinion concerning possible fairness to the defendant, this Court finds that the plaintiff’s motion for partial summary judgment is not well taken and should be DENIED.

An Order shall be provided in accordance with this Opinion as set forth in the Local Rules.

      . Other considerations of fairness, some of which were repeated in Parklane, have been considered by the Fifth Circuit and summarized in Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149, 1189 (5th Cir.1982) as follows:
      (1) party against whom estoppel is asserted must have had a "full and fair” opportunity to litigate the issue in the prior case;
      (2) application of the doctrine must not create "injustice”;
      (3) application of the doctrine must not contravene any "overriding public policy;
      (4) parties who are defendants in both actions must be closely scrutinized to avoid unfairness;
      (5) the issue to be concluded must be identical to that involved in the prior action;
      (6) in the prior action the issue must have been "actually litigated"; and
      (7) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.

      . It should be noted that at the time of the Baggs trial the statute of limitations had run against the Portnoy heirs in every conceivable jurisdiction in which an in personam judgment could be obtained against Cessna.


author: OWEN, District Judge.

text:
    INTERNATIONAL COMMERCIAL RESOURCES, LTD., Plaintiff, v. JAMAICA PUBLIC SERVICES CO., LTD., Defendant.
    No. 84 Civ. 1971 (RO).
    United States District Court, S.D. New York.
    July 10, 1985.
    Hill, Rivkirts, Carey, Loesberg, O’Brien & Mulroy, New York City (Richard H. Webber, New York City, of counsel), for plaintiff.
    Cahill, Gordon & Reindel, New York City (Richard A. Mahfood, New York City, of counsel), for defendant.
   OPINION

OWEN, District Judge.

This action is for alleged contract damages. Defendant moves both for summary judgment dismissing the complaint and for partial summary judgment as to liability on the counterclaims. Plaintiff International Commercial Resources, Ltd., a New York exporter, bases its claim on an oral agreement allegedly made on March 9, 1982 and evidenced by a letter of the same date. Defendant Jamaica Public Service Co., Ltd., a Jamaican utility, counterclaims based on a written agreement dated August 12, 1982. On this Fed.R.Civ.P. 56 motion by defendant, I treat plaintiffs factual allegations as being true. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

According to plaintiff, it arranged for Chemical Bank, not a party, to lend approximately $6.5 million to Jamaica. This money was to be used exclusively to purchase “spare parts and equipment” from ICR. On March 9,1982, the buyer-seller arrangement was finalized in a phone conversation from New York to Jamaica and confirmed the same day in the following letter, signed by ICR’s president.

Following my telephone call to you today, this is to confirm that International Commercial Resources, Ltd. will serve as the exporter of the various goods that the Jamaica Public Service Company, Ltd. (JPS) intends to purchase with the proposed loan of $6,500,000 from Chemical Bank.
In essence, we will provide our competitive price quotations, and upon JPS acceptance and notification of acceptance to Chemical Bank, we will order from various manufacturers/suppliers the items specified and approved. Chemical Bank will handle opening of letters of credit to us before we place firm orders with the manufacturers.
Our fees/commissions will not be an add-on to the cost of goods sold to JPS, rather, we will secure the necessary discounts direct from the manufacturers, particularly those in the United States. Where the item or items must be purchased from manufacturers/suppliers outside the United States, and with whom we cannot secure wholesaler or agent discounts, our add-on cost will be five (5) per cent maximum.
I trust that the above description of our role as exporter is sufficient for your needs. Should you have any questions, please let me know.

No objection having been received to this letter, plaintiff proceeded to arrange the loan, and the loan closing took place on July 30, 1982. Unfortunately, at the closing Jamaica announced that the previously agreed upon pricing arrangement was unacceptable, and that it would insist upon a ceiling of 5% on any mark-up. While the loan closing took place as scheduled, the parties appear to have continued negotiations concerning price. Eventually, and allegedly solely due to an agreement that $20 million in additional business would be forthcoming, plaintiff signed the following letter agreement on August 12, 1982:

In connection with the loan of U.S. $6.5 million from Chemical Bank, International Division, 20 Pine Street, New York, U.S.A. to Jamaica Public Service Company Limited (JPS) and the undertaking that International Commercial Resources Limited (ICR) will serve as the exporter of the various materials and equipment to JPS, we request your agreement to the following:
1. That ICR will secure the best prices that can be obtained for the equipment and materials to be purchased.
2. That your fees and/or commissions will not exceed an aggregate five per cent (5%) of the FOB value of the equipment and materials and any discounts from manufacturers/suppliers will be for the credit of JPS. The accounts will be reconciled on a quarterly basis to reflect adjustments for commissions or discounts.

When the additional business did not materialize, plaintiff repudiated the August agreement and commenced this action based on the March one.

Defendant first raises the statute of frauds, New York U.C.C. § 2-201. That statute requires that an agreement for “sale of goods for $500 or more,” such as this one, must be evidenced by a “writing sufficient to indicate that a contract for sale has been made.” Between merchants, a writing in confirmation of the contract and sufficient against the sender, which is received within a reasonable time, is sufficient to satisfy the writing requirement unless written notice of objection is given within ten days of receipt. U.C.C. § 2-201(2). Here, plaintiffs sworn affidavits state that it sent a signed confirming letter, dated the day of the oral agreement, and further states that no objection of any sort was received until the loan closing, over four months later. Thus, plaintiff has clearly met the requirement of a writing evidencing the existence of a contract.

However, U.C.C. § 2-201 also requires that the writing contain a quantity term. In this, these writings are deficient. While the March 9 letter states the total dollar amount of the transaction ($6,500,000), neither letter has even a general description of the items that were to be purchased, defining them only as “various goods that [defendant] intends to purchase” or “various materials and equipment.” Nor is this a “requirements” type of contract, see e.g., Riegel Fiber Corp. v. Anderson Gin Co., 512 F.2d 784 (5th Cir.1975); Eastern Dental Corp. v. Isaac Masel Co., Inc., 502 F.Supp. 1354, 1363 (E.D.Pa.1980). There, at least the subject matter of the requirements is known and the commitment exists to purchase all of such items from the seller. At best, I see this as the American plaintiff being the foreign defendant’s procurement agent for whatever it is asked to procure, knowing that it can look to Chemical Bank for payment. Jamaica did not commit itself as to what it would “procure.” Therefore, in my judgment, this does not make a contract supporting the cause of action plaintiff asserts.

For the forgoing reasons, defendant’s motion to dismiss is granted and its motion for summary judgment as to liability on the counterclaim is denied. Submit order on notice.