author: FELDMAN, District Judge.

text:
    Norris A. BELANGER v. KEYDRIL COMPANY.
    Civ. A. No. 83-3487.
    United States District Court, E.D. Louisiana.
    Oct. 23, 1984.

      Patrick M. Amedee, New Orleans, La., for plaintiff.
    Paul O. Dicharry, New Orleans, La., for defendant.
   MEMORANDUM OPINION

FELDMAN, District Judge.

Norris A. Belanger brought this age discrimination action against his former employer, Keydril Company. In 1976, Mr. Belanger went to work for Keydril as a toolpusher for drilling operations outside the United States. When Keydril discharged him in July 1982 he was a tool-pusher on the KEY GIBRALTAR, a drilling rig located in waters over which the Republic of Zaire exercised exclusive and sovereign national jurisdiction. At the time of his discharge Mr. Belanger was 56 years old. The plaintiff claimed that Keydril wrongfully discharged him because of his age. The defendant contended that he was discharged for good cause because the plaintiff violated Keydril’s safety rules, causing injury to others, and that the plaintiff’s age was not a consideration in the termination decision.

The plaintiff brought this suit under the Federal Age Discrimination in Employment Act (Federal “ADEA”), 29 U.S.C. §§ 621-34, the General Maritime Law, and also the Louisiana Age Discrimination in Employment Act, La.R.S. 23:971-76 (alleging diversity jurisdiction regarding the Louisiana Act). Keydril contested the subject matter jurisdiction of this Court. Plaintiff is a citizen of Louisiana and the defendant is a Delaware corporation with its principal place of business in Texas. Therefore, this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332. This Court, applying Louisiana’s conflict of laws rules, also holds that the Louisiana Act applies in this case. Federal question and maritime jurisdiction, on the other hand, do not exist.

1. Extraterritorial Reach of the Federal Act

In Cleary v. United States Lines, 728 F.2d 607 (3d Cir.1984), affg 555 F.Supp. 1251 (D.N.J.1983), the Court of Appeals for the Third Circuit held that the Federal ADEA does not apply to American nationals employed outside the United States by American employers. This Court agrees. Section 7 of the Federal ADEA incorporates by reference Section 13(f) of the Fair Labor Standards Act, which provides that:

“this title shall not apply with respect to any employee whose services during the workweek are performed in a workplace within a foreign country.”

29 U.S.C. § 213(f). Other courts faced with this issue have agreed that Section 13(f) of the Labor Act restricts the territorial reach of the Federal ADEA to individuals employed within the United States. Pfeiffer v. Wm. Wrigley Jr. Co., 573 F.Supp. 458 (N.D.Ill.1983); Zahourek v. Arthur Young & Co., 567 F.Supp. 1453 (D.Colo.1983).

At the time of the alleged discriminatory act, Mr. Belanger, an American national, was working for Keydril, an American corporation, as a toolpusher on a rig within the sovereign jurisdiction of the Republic of Zaire in Africa. On its face, then, the Federal ADEA does not apply to Mr. Belanger.

The plaintiff argues, however, that he should be treated differently from the plaintiffs in Cleary, Zahourek, and Pfeiffer because he is a seaman and is entitled to some special status or protection. Mr. Belanger claims that this special seaman status arises from the unique protections provided by the General Maritime Law to American seamen working abroad. The argument is wide of the mark. The special status a seaman enjoys under maritime law does not apply to an age discrimination claim. The unique protections provided by the General Maritime Law to seamen are remedies for the physical dangers and hazards of working at sea. Age is not such a hazard. Thus, whatever special status Mr. Belanger may have as. a seaman does not reach his age discrimination claim against Keydril.

2. Age discrimination under the General Maritime Law

The next question, namely, whether this Court has jurisdiction under the General Maritime Law, focuses on whether that body of law provides a basis for a cause of action for wrongful discharge based on age discrimination. That is a question of first impression. For reasons stated below, this Court holds that it does not have the authority to create a cause of action for age discrimination under the General Maritime Law.

Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), and Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057 (5th Cir.1981), are central to plaintiffs claim that the General Maritime Law gives him a cause of action. In Moragne, the Supreme Court created a wrongful death action under the General Maritime Law for death caused by the unseaworthiness of a vessel located within state territorial waters. Moragne is clearly distinguishable from Mr. Belanger’s case. In Moragne the duty to provide a seaworthy vessel already existed. The Supreme Court, in Moragne, was not creating a new duty to maintain a vessel in a seaworthy condition; rather, the Court created a remedy for an already existing legal duty. The Court was dealing with a remedial question; a matter of enforcing an existing right. See 398 U.S. at 382 & 393, 90 S.Ct. at 1783. Mr. Belanger, however, asks this Court to create not only a remedy, but also a new legal duty. Significantly, a primary duty relating to fair and nondiscriminatory employment practices does not already exist under the General Maritime Law and it is not within this Court’s power to create one. Protection for age discrimination is a matter of legislative grant. That is for the Congress.

Similarly, the Fifth Circuit’s opinion, in Smith, fails to provide support for the creation of an employment discrimination action under the General Maritime Law. In Smith, the Court held that a seaman whose at-will employment was terminated because he filed an action for his injuries under the Jones Act was entitled to maintain an action for damages for wrongful discharge under the General Maritime Law. The Court’s holding was rooted in the premise that “a discharge in retaliation for the seaman’s exercise of his legal right to file a personal injury action against the employer constitutes a maritime tort.” 653 F.2d at 1063. The Smith Court did not create a new cause of action for wrongful discharge under the General Maritime Law. Rather, the case was specifically limited to situations in which a seaman is discharged in retaliation for seeking to enforce an already existing right under maritime law. The Court was concerned that vessel owners might otherwise thwart a seaman’s privilege to exercise his legal rights. The present case does not pose such a problem; Mr. Belanger does not claim that he was discharged by Keydril in retaliation for exercising some legal right under the General Maritime Law. And no authority is cited, nor has the Court found any, which establishes that the General Maritime Law protects one from age discrimination.

3. Choice of Law

Since this case is based on diversity jurisdiction, this Court is bound to apply the conflict of law principles of the forum state, Louisiana. Klaxon Company v. Stentor Elect(r)ic Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Louisiana has adopted the approach embodied in the Restatement (Second) of Conflict of Laws. See Burbank v. Ford Motor Co., 703 F.2d 865 (5th Cir. 1983); Jagers v. Royal Indemnity Co., 276 So.2d 309 (La.1973). Applying the “interest analysis” test of Sections 6(2) and 188(2) of the Restatement, this Court finds that Louisiana law applies.

Simply stated, Louisiana has the greatest policy interest in the issues here. That is how the “interest analysis” works.

Mr. Belanger was a citizen of Louisiana when he was hired by Keydril out of its Louisiana office in 1976, and he has remained a citizen of this State. Although Keydril is a Delaware corporation, with its principal place of business in Texas, it is also authorized to do and does business in Louisiana. Mr. Belanger’s employment contract was executed by the parties in Keydril’s Houston, Texas office, but Keydril corresponded with Mr. Belanger at his Louisiana residence about the terms of his employment. Furthermore, Mr. Belanger paid Louisiana income tax while he was working for Keydril. Keydril’s Houston office also mailed Mr. Belanger’s pay checks to his Louisiana residence.

Based on the nexus Mr. Belanger and Keydril had with the State of Louisiana, this Court believes that it is fair and just to assume that Keydril either expected or should have expected to be subject to the laws of this State. The choice of Louisiana law is neither capricious or fundamentally unfair. Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). Moreover, Louisiana has a significant interest in enforcing its stated policy against age discrimination. Otherwise, it would not have felt the need to enact its own statute, in addition to the Federal ADEA, forbidding and penalizing age discrimination in employment. Louisiana courts have often recognized the interest of this State in protecting its citizens from damage caused by the wrongful acts of others. See, e.g., Jagers v. Royal Indemnity Co., 276 So.2d 309 (La.1973).

Louisiana has also expressed a more substantial interest in this litigation than the State of Texas. The Texas legislature has expressly precluded the application of its law against age discrimination to the employment of persons outside the State of Texas. Tex.Rev.Civ.Stat.Ann. art. 5221k, § 5.10 (Vernon Supp.1984) Although Mr. Belanger executed his employment contract with Keydril in Texas, he was not employed to perform his services within that State. Thus, the Texas Act prohibiting age discrimination does not apply to him.

It is doubtful that the Republic of Zaire has much of an interest in this litigation. The only connection, known by this Court, that Keydril had with Zaire is that its rig, the KEY GIBRALTAR, on which the plaintiff was working, was under contract to Zaire Gulf Oil Company, who was conducting drilling operations within the territorial waters of Zaire. Zaire Gulf Oil Company, not Keydril, was granted sovereign authority by Zaire for such operations. Mr. Belanger’s contacts with Zaire were also not substantial. He merely paid taxes there, and received a foreign tax credit against his taxable income on his U.S. return in 1982. Furthermore, assuming that Zaire law applies, which is not the opinion of this Court, the parties have not proved the substance of Zaire law to this Court. Under the circumstances, Louisiana courts may presume that the foreign law is the same as the law of the forum, absent a showing to the contrary. Alice v. Taca International Airlines, S.A., 134 So.2d 922 (La.App.1961), annulled and remanded on other grounds, 243 La. 97, 141 So.2d 829 (1962); Doiron v. Vacuum Oil Co., 164 La. 15, 113 So. 748 (1927). None has been made here.

4. Applicability of the Louisiana Act

Keydril argues that the Louisiana Act does not apply in this case because the Act does not apply “to any employer who is subject to the provisions of the Federal Age Discrimination in Employment Act.” La.R.S. 23:976 (emphasis added). Although Keydril agrees that Mr. Belanger’s age discrimination claim is not covered by the Federal ADEA because of that Act’s territorial limitation to the United States, it contends that Keydril is still “subject to” the Federal Act pursuant to 29 U.S.C. § 630(b). Section 630(b) makes the Federal ADEA applicable to any employer “engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” (The fact that Keydril meets the Act’s definition of an “employer” is not in dispute.) This Court rejects Keydril’s argument. In this case, Keydril is not subject to the Federal ADEA. As previously stated, the jurisdictional provision of Section 13(f) of the FLSA, which Section 7 of the Federal ADEA incorporates by reference, prohibits the reach of the Federal Act to employees working in a foreign country.

At the time of his discharge from employment with Keydril, Mr. Belanger was working in Zaire. Thus, while Keydril, as an “employer”, may be generally covered by the Federal Act, this coverage does not extend to its employees working in foreign countries.

The conclusion that the reach of the Federal ADEA does not extend to American employers regarding their overseas employees has substantial support. For example, the EEOC, the authority empowered to investigate charges of age discrimination, is specifically precluded by Section 213(f) of the Labor Act from exercising its powers outside the territorial jurisdiction of the United States. Furthermore, as to its employees working in foreign countries, Keydril is exempted by Section 213(f) of the Labor Act from the record-keeping requirements imposed by Section 211(c) of the Act. This Court believes that it would be anomalous to conclude that Keydril is within the reach of the Federal Act in this case when Congress did not authorize powers of investigation and record-keeping requirements co-extensive with that reach. See Cleary v. United States Lines, Inc., 555 F.Supp. 1251, 1259-60 (D.N.J.1983). The legislative history of Section 213(f) of the Labor Act also indicates that that Act, and thus the Federal Act have absolutely no application abroad. See S.Rep. No. 987, 85th Cong. 1st Sess., reprinted in 1957 U.S. Code & Ad.News 1756. Since, in this case, Keydril is not subject to the Federal ADEA, the Louisiana Act applies.

The Louisiana Act is a fairly new statute and the Louisiana courts have not yet been called upon to interpret its substantive provisions. But the prohibition against age discrimination is identical under the Federal and Louisiana Acts. This Court, consequently, turns to the case law interpreting the Federal Act for guidance in applying the Louisiana Act.

Under the Federal ADEA, the plaintiff first has the burden of proving a prima facie case. See Bohrer v. Hanes Corp., 715 F.2d 213 (5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984); Haring v. CPC International, Inc., 664 F.2d 1234 (5th Cir. 1981). If the plaintiff establishes a prima facie case, a presumption that the employer discriminated arises. Then, “[i]f the defendant carries the burden of production of nondiscriminatory reasons for the discharge, the presumption ‘drops from the case’.” Reeves v. General Foods Corp., 682 F.2d 515, 521 (5th Cir.1982) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 10, 101 S.Ct. 1089, 1095 n. 10, 67 L.Ed.2d 207 (1981)). “The fact that the prima facie case once existed is no longer of special benefit to the plaintiff.” Reeves, 682 F.2d at 522-23 (emphasis in original). Because the presumption disappears, it is then incumbent upon the plaintiff “to introduce substantial evidence to show that [the defendant’s] articulated reasons were pretextual and that he had been discriminated against because of age.” Reeves, 682 F.2d at 523 (emphasis in original) (footnote omitted). In order for the plaintiff to prevail, he must show that age was a determinative factor in the defendant’s decision to terminate his employment.

Mr. Belanger’s Louisiana age discrimination claim was tried to a jury. The jury specifically found that Keydril terminated Mr. Belanger’s employment for reasons unrelated to Mr. Belanger’s age. Since the evidence was sufficient to support the jury’s verdict, this Court denied Mr. Belanger’s motion for a judgment n.o.v. or, in the alternative, for a new trial and refused to interfere with the jury’s findings.

      . This Court also agrees with the district court, in Cleary, that "[w]here the discriminatory decision may have taken place is of no consequence.” 555 F.Supp. at 1251. See also Zahourek v. Arthur Young & Co., 567 F.Supp. 1453, 1457 (D.Colo.1983). But see Willson v. Continental Oil Co., No. 82-2999 (S.D.Tex. July 17, 1984). That is, regardless of whether the employer made its termination decision through its personnel in the United States or abroad, the Federal ADEA simply does not apply if the employee was working in a foreign country. If Congress believed that the situs of the employer's decision was the determining factor, then it would have clearly said so. Instead, Congress believed that the workplace of the employee should be the determining factor.

      . It is an uncontested fact that Mr. Belanger was employed by Keydril as a seaman and member of the crew of the KEY GIBRALTAR, a "vessel” for purposes of the General Maritime Law.

      . Seamen are provided with three special remedies against their employers: maintenance and cure, a warranty of seaworthiness, and a negligence action through the Jones Act, 46 U.S.C. § 688. These three remedies are designed to protect seamen who have suffered personal injuries in their unique line of work. According to Gilmore and Black, “[t]he 'poor and friendless’ seaman is thus the beneficiary of a system of accident and health insurance at shipowner’s expense more comprehensive than anything yet achieved by shorebound workers.” G. Gilmore & Black, The Law of Admiralty § 6-6, at 282 (2nd ed. 1975).

      . Section 6(2) of the Restatement of Conflicts states:
      (2) When there is no such [state] directive, the factors relevant to the choice of the applicable law include
      (a) the needs of the interstate and international systems,
      (b) the relevant policies of the forum,
      (c) the relevant policies of the other interested states and the relative interests of those states in the determination of the particular issue,
      (d) the protection of justified expectations,
      (e) the basic policies underlying the particular field of law,
      (f) certainty, predictability and uniformity of result, and
      (g) ease in the determination and application of the law to be applied.
      Section 188(2) states:
      (2) In the absence of an effective choice of law by the parties ..., the contracts to be taken into account in applying the principles of section 6 to determine the law applicable to an issue include:
      (a) the place of contracting,
      (b) the place of negotiation of the contract,
      (c) the place of performance,
      (d) the location of the subject matter of the contract, and
      (e) the domicile, residence, nationality, place of incorporation and place of business of the parties.
      These contacts are to be evaluated according to their relative importance with respect to the particular issue.
      Section 188(2), which provides conflict rules for contract issues, (rather than section 145, which provides conflict rules for tort issues), provides the best guidance in resolving the conflict problem in this age discrimination case. See Dailey v. Transitron Electronic Corp., 475 F.2d 12, 14 (5th Cir.1973) (applying section 188(2) in a breach of employment contract case).

      . As explained by the Supreme Court of Louisiana, in Jagers, a false conflict of laws question exists when the second state has no interest in the litigation. 276 So.2d at 311 & n. 2.

      . This Court recognizes, however, that this section of the Texas statute could also be interpreted as focusing on where the contract of employment was executed and not on whether the employee actually performed services within the State of Texas. This interpretation would also make sense. For example, in the present case, the Texas Employment Commission made unemployment compensation payments to Mr. Belanger in 1983. Thus, one would think that Texas would have a substantial interest in enforcing its prohibition against age discrimination in this litigation and preventing Mr. Belanger from wrongfully becoming a burden to it. But this Court cannot find any law interpreting section 5.10 of the Texas statute. If the Texas statute did apply in this case, there would be no conflict. The substantive provisions of the Louisiana Act and the Texas statute are similar.

      . For comprehensive discussions of this presumption, see Symonette Shipyards, LTD. v. Clark, 365 F.2d 464, 468 n. 5 (5th Cir.1966) cert. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967); Seguros Tepeyac, S.A., Compañía Mexicana v. Bostrom, 347 F.2d 168, 174-75 n. 3 (5th Cir.1965).

      . The plaintiff must prove that
      (1) he was in the protected age group between the ages of forty and seventy,
      (2) his employment with the defendant was involuntarily terminated,
      (3) he was qualified to perform the job that he was employed to perform, and
      (4) he was replaced by a person outside the protected age group comprising individuals between the ages of forty and seventy.

      . Mr. Belanger claimed that he could prevail by proving either that his age more likely motivated Keydril to terminate his employment or that Keydril’s explanation for its termination decision is unworthy of belief. That is not, however, a correct interpretation of the law. In Reeves, the plaintiff, relying on the Fifth Circuit’s decision in Haring, asserted that if the jury found that the defendant’s explanation for its termination decision was wholly unworthy of credence, he was entitled to rely on a prima facie case as being substantial evidence from which the jury could infer age discrimination without the proof of intentional age-based discrimination. The Fifth Circuit disagreed and explained that the Haring decision did not support the plaintiffs argument. Reeves, 682 F.2d at 522 n. 11. Moreover, the Reeves court made clear that the plaintiff has the burden of proving both that the defendant's explanation is a pretext and that the defendant discriminated against him on the basis of age. Reeves, 682 F.2d at 523.
      This Court recognizes that there may be some confusion presented by Bohrer v. Hanes Corp., 715 F.2d 213 (5 Cir.1983) cert. denied, — U.S. -, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984), a case decided after Reeves. In Bohrer, the court stated that “the plaintiff may either prove that age more likely motivated the employer, or discredit its articulated rationale.” Bohrer, 715 F.2d at 218 (emphasis added) (citations omitted). Bohrer cannot be read as overruling the dual requirement established in Reeves. The Bohrer court recognized that the presumption of discrimination arising from the plaintiff’s prima facie case disappears when the employer offers a legitimate reason for its termination decision. 715 F.2d at 218. If this presumption drops from the case upon a showing of a legitimate reason, then the plaintiff must respond with some evidence of age discrimination. In other words, the reason offered by the employer must be a cover-up for age discrimination. Whether it is a pretext for some reason other than age is of no concern in considering the merits of a plaintiffs age discrimination claim. Also, it is unimportant if the defendant was incorrect in the decision to terminate. Unless the plaintiff can show that age was a reason, plaintiff may not prevail. See Jones v. Orleans Parish School Board, 679 F.2d 32, 38, modified on other grounds, 688 F.2d 342 (5 Cir.1982), cert. denied, 461 U.S. 951, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983); De Anda v. St. Joseph Hospital, 671 F.2d 850, 854 n. 6 (5 Cir.1982).


source: Caselaw Access Project

author: CEREZO, District Judge.

license: Public Domain

text:
    UNION DE TRONQUISTAS DE PUERTO RICO, LOCAL 901, Plaintiff, v. EMERY AIR FREIGHT CORPORATION, Defendant.
    Civ. No. 83-2713CC.
    United States District Court, D. Puerto Rico.
    Oct. 23, 1984.

      Freddie Pérez-González, Woods, Rosenbaum, Luckeroth & Pérez-González, Hato Rey, P.R., for plaintiff.
    Manuel Alvarado, Saldaña, Rey, Morán & Alvarado, Santurce, P.R., for defendant.
   OPINION AND ORDER

CEREZO, District Judge.

This action to set aside an arbitrator’s award was removed from the Superior Court of Puerto Rico, Carolina Section, pursuant to the provisions of 28 U.S.C. Section 1441 since it is a suit for violation of the collective bargaining agreement between defendant, an industry affecting interstate commerce, and plaintiff, a labor organization representing defendant’s employees, arising under Section 301 of the Labor Management Relations Act, 29 U.S.C. Section 185, and over which this court has original jurisdiction. Defendant requested summary judgment based on the following undisputed facts:

Jorge Cardona was an employee of the defendant Emery Air Freight Corporation, which engages in the business of air freight forwarding to and from Puerto Rico and places outside thereof, in the United States and in foreign countries. Plaintiff is a labor organization which represents defendant’s employees and had entered into a collective bargaining agreement with the defendant which covered the years 1981 and 1982. On January 31, 1981 Cardona suffered a cardiac infarction and was absent from his job for a period of eleven months and nineteen days, until his dismissal therefrom on January 19, 1982. During that time he had reported to the Puerto Rico State Insurance Fund, the agency in charge of administering benefits under Puerto Rico’s Workmen’s Accident Compensation Act, 11 L.P.R.A. Sections 1, et seq., and had not been discharged from treatment by the State Insurance Fund at the time of his dismissal from work. On March 10, 1982, in reply to his dismissal, he wrote to his employer informing it of this fact. Thereafter he requested disability benefits from the Veterans Administration. Cardona apparently insisted on his reinstatement and the union finally submitted his claim to arbitrator Fernando Hernández-Benitez who determined that his dismissal from employment with plaintiff was justified in that he had been absent more than twenty-five days, the maximum sick leave permitted by the collective bargaining agreement then in effect, and more than the six months during which, pursuant to section 3(q) of the Puerto Rico NonOccupational Temporary Disability Insurance Law, 11 L.P.R.A. Section 203(q), the employer was required to retain grievant’s employment. In addition, the arbitrator held that the twelve-month period provided by Article 5(a) of the Puerto Rico Workmen’s Accident Compensation Act, 11 L.P. R.A. Section 7, within which the employee retains his right to return to work, was inapplicable to grievant’s claim since the State Insurance Fund had determined that his illness was not work related. Finally, he decided that even assuming that Cardona’s employment was protected by that statute, by March 10, 1982, more than thirteen months after the date of the alleged “accident,” he had not yet been discharged by the State Insurance Fund and at the time of the hearing he was actively seeking disability benefits from the Veteran’s Administration. Therefore, he concluded that the conditions for reinstatement established by the statute were not present. This award was issued on January 31,1983. On October 11, 1983 the union filed this action to set aside the award claiming that it is against the public policy embodied in the Puerto Rico Workmen’s Accident Compensation Act, 11 L.P.R.A. Sections 1, et seq.

Citing United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), defendant alleges that these undisputed facts show that this action is barred by the applicable state statute of limitations, namely the three-month period established by § 24 of Law 376 of May 8, 1951, 32 L.P.R.A. Section 3224, for notifying a motion to set aside an arbitrator’s award issued in a commercial dispute. In the alternative, it contends that these facts establish that the aggrieved employee does not qualify for the protection of the statute invoked in the complaint, therefore, that the arbitrator’s award should be affirmed. Plaintiff union has opposed defendant’s motion and claims that the period established for invalidation of commercial awards is inapplicable to its cause of action. It cites Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), which rejected Mitchell’s choice of state statute of limitations for actions to vacate arbitration awards as that to be applied to actions arising under Section 301 and held instead that the six-month period for filing charges of unfair labor practices with the National Labor Relations Board pursuant to section 10(b) of the National Labor Relations Act, 29 U.S.C. Section 160(b), provided a closer analogy to such causes of action and better carried out the federal policies embodied in that Act. Citing a post-Dei Costello decision by the First Circuit Court of Appeals, the Union contends, however, that Del Costello does not hold that federal statutes of limitations must be applied to all section 301 actions. On the contrary, it asserts that state law continues to be the primary source of analogous periods of limitations to be applied to such actions. See: Derwin v. General Dynamics Corp., 719 F.2d 484 (1st Cir.1983). Nevertheless, it claims that since the Puerto Rico law governing commercial arbitration is inapplicable to labor arbitration, the periods of limitations provided therein may not be considered when determining whether an action to set aside an arbitrator’s award, issued in a labor dispute involving interstate commerce is timely. Since the Puerto Rico Labor Relations Act, 29 L.P.R.A. Sections 41-97, does not cover arbitration, it submits that “the better grounded criterion of a ‘reasonable term’ enounced in Buena Vista Dairy v. L.R.B., /94 PRR 596, 601 (1967)/” should be used. See: L.R.B. v. P.R. Telephone Co., 107 PRR 83, 88 (1976). Applying this criterion, the Union avers that the Supreme Court of Puerto Rico has ruled that an award issued thirteen months prior to seeking its enforcement could be implemented. L.R.B. v. P.R. Telephone Co., 107 PRR.

It is a settled principle that suits under section 301 of the Labor Management Relations Act are governed by federal law “which courts must fashion from the policy of our national labor laws.” Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957); Union of Automobile Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). Until the Supreme Court’s decision in Del Costello v. International Brotherhood of Teamsters, 103 S.Ct. 2281, however, “the timeliness of a /section/ 301 suit, such as the present one, /was/ to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” Hoosier, 383 U.S. at 704-705, 86 S.Ct. at 1113. See also United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732. In Del Costello, however, the Court held that where state statutes of limitations prove to be “unsatisfactory vehicles for the enforcement of federal law ... timeliness rules drawn from federal law — either express limitations periods from related federal statutes, or such alternatives as laches” may be used. Thus, the six-month limitations period of section 10(b) of the National Labor Relations Act, 29 U.S.C. Section 160(b), and not any of the analogous state statutes of limitations, was applied to the cause of action against the employer for violation of the collective bargaining agreement as well as to that against the union for unfair representation. Within that context the Court concluded that the mentioned statute of limitations served best to balance “the national interests in stable bargaining relationships and finality of private settlements, and an employee’s interest in setting aside what he views as an unjust settlement under the collective bargaining system.” Id. 103 S.Ct. at 2294 (quoting from Mitchell, 451 US, at 70-71, 101 S.Ct. at 1567-68 (J. Stewart, concurring opinion)). This notwithstanding, in Derwin v. General Dynamics Corp., 719 F.2d 484, our Court of Appeals rejected the contention that the Del Costello ruling bound it to apply the limitations period of the Federal Arbitration Act, 9 U.S.C. Section 9, to a union’s suit to confirm an arbitration award.

In this case, plaintiff’s suggestion that a “reasonable term” criterion be applied does not afford a simple solution to the issue presented since we must still define what is “reasonable” and, in so doing, refer to some analogous statute for guidanee. Moreover, even if plaintiff were correct, which it is not, in its averment that the Supreme Court of Puerto Rico has found that thirteen months was reasonable to request confirmation or enforcement of an award, this case involves the opposite situation in which a party seeks to set aside an arbitration award. Actions to modify or vacate awards are to be distinguished from actions to confirm them. See Derwin, 719 F.2d 489-490. Since the former pose the principal threat to the finality of such awards, generally short periods are provided for their filing while longer periods, or no term at all, are suggested for filing actions to confirm awards. Id. Such is the case under the Massachusetts law considered in Derwin and under the Puerto Rico commercial arbitration law, 32 L.P. R. A. Sections 3221 and 3224. Derwin was also a suit to confirm an award and the Court of Appeals found that the state law’s failure to provide a limitations period for actions to confirm arbitration awards was not inconsistent with the federal policy of according finality to labor awards. Id., at 490. To apply the “reasonable time” criterion to actions to vacate awards, however, would fundamentally upset that policy. Such cases, as the case at bar, resemble more an employee’s suit against his employer and his labor representative questioning the settlement of his grievance pursuant to collective bargaining agreement procedures. As such, the basis for applying the six-month limitations period of section 10(b) of the National Labor Relations Act expressed in Del Costello is equally valid in this case. Six months, not a shorter nor a longer period, sufficiently accommodates the national interest in the finality .of labor arbitration awards as a means of private settlement of disputes and a party’s interest in setting aside an award which it regards as unfair. See Del Costello, 103 S. Ct., at 2294. This action, filed eight months after the arbitration award was issued is untimely under that statute of limitations.

Even had this suit been timely filed, dismissal would be required based on the undisputed facts since plaintiffs contention that the award violates the public policy embodied in the Puerto Rico Workmen’s Accident Compensation Act is untenable. Its position is that merely because the employer acted prematurely under that law in dismissing the injured employee, it must indefinitely reserve the job and reinstate the employee whenever he requests it. We do not read Section 7, 11 L.P.R.A., as stating that the employer may not send a letter of dismissal to an employee who is reported to the State Insurance Fund. In fact, the law even takes into account the possibility that the job position is occupied by another person pending the injured employee’s discharge from the Fund. All that it protects is the employee’s right to request reinstatement if he is discharged by the Fund within twelve months of the accident and he is fit to occupy his old job. It is only if the employer refuses to reinstate the employee that he is liable under the law. Under the law, an employee, could be dismissed one month after the accident but would have to be reinstated if discharged by the Fund and if he so requests within the established period of twelve months. The fact of his dismissal is immaterial; (1) his discharge by the agency, (2) his request to be reinstated, made within the established period, and (3) his fitness to occupy the job are the only material considerations. In this ease the employee was not discharged until after the twelve-month period had expired and even at that time he was alleging disability before the Veteran’s Administration. Under those circumstances, defendant was not under an obligation to reinstate him. The arbitrator correctly analyzed the situation and his decision does not contravene the public policy of the Puerto Rico Workmen’s Accident Compensation Act.

For the reasons stated above, defendant’s Motion for Summary Judgment is GRANTED and Judgment shall be entered dismissing this action, costs to be taxed on the plaintiff.

SO ORDERED.

      . • These findings are based and adopt the arbitrator's findings of facts, which have not been questioned by plaintiff in its complaint or in its motion in opposition to defendant’s motion for summary judgment.

      . At the time of the hearing Cardona’s case in the State Insurance Fund had been dismissed since that agency had determined that he had not suffered a work-related accident or occupational illness. The decision, however, had allegedly been appealed.

      . In L.R.B. v. P.R. Telephone Co., 107 PRR 83 (1979) the Court held that thirteen months to seek enforcement of an award issued in a labor dispute was not a reasonable term. Nevertheless, the employer could not wholly benefit from the defense of "laches” since it had incurred in lack of diligence itself. Accordingly, the Court ordered reinstatement without back pay.


author: KEETON, District Judge.

text:
    Walter RAMOS, Jr., Plaintiff, v. Robert GALLO, Defendant.
    Civ. A. No. 81-281-K.
    United States District Court, D. Massachusetts.
    Oct. 24, 1984.

      Anthony Cardinale, Belmonte, Cardinale, Cotter & Merrill, Boston, Mass., for plaintiff.
    Suzanne Sheats, Claire S. Berman, Issac Braddock, Asst. Corp. Counsel, City of Boston Law Dept., Boston, Mass., for defendant.
   Opinion and Order

KEETON, District Judge.

This action arises out of the shooting of the plaintiff, Walter Ramos, Jr., by defendant Boston Police Officer Robert Gallo. Ramos brings claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, together with pendent state law claims. Ramos claims that Gallo used excessive force. He also claims that Gallo acted negligently, wantonly, willfully, maliciously, and with such reckless disregard of the consequences as to reveal a conscious indifference to the clear risk of death or bodily injury. Defendant has now moved for summary judgment on the grounds that there is no genuine issue as to any material fact and he is entitled to judgment as a matter of law.

I. Factual Background

The relevant facts in the case are as follows: At or about midnight on February 11, 1978, defendant and his partner, Boston Police Officer Joseph Mugnano, came upon the plaintiff at the intersection of Chelsea and Gove Streets in East Boston, Massachusetts. Plaintiff at the time was accompanied by several of his friends. The officers, who were in a police wagon driving up Gove Street, stopped their vehicle and got out. They attempted to arrest Ramos for alleged possession of marijuana and place him in the back of the wagon, but Ramos ran away. Gallo immediately began to chase after Ramos, withdrew his service revolver, and shot one time into the air. Plaintiff thereupon stopped. Gallo continued to run toward Ramos with his weapon drawn. The weapon went into plaintiffs stomach and then discharged.

On June 29, 1978, Ramos was convicted in East Boston District Court of possession of marijuana with intent to distribute. Officer Mugnano testified at that hearing. Ramos appealed, was retried before a jury in Suffolk Superior Court, and was found not guilty on March 1, 1979.

Ramos sought a complaint against Gallo in East Boston District Court for assault and battery by means of a dangerous weapon. Following, a hearing on March 1, 1978, no complaint was issued.

II. Standard for Summary Judgment

In deciding a motion for summary judgment, the court must look at the record in the light most favorable to the party opposing the motion. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). It must also draw all inferences in favor of the non-movant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). The movant has the burden of showing the absence of a disputed issue of material fact. Mack v. Cape Elizabeth School Board, 553 F.2d 720, 722 (1st Cir.1977). The court cannot weigh the evidence to dispose of the motion. O’Neill v. Dell Publishing Co., 630 F.2d 685, 687 (1st Cir.1980). The court rules only on questions of law and fact-based questions as to which the evidence would not support a finding against the movant.

III. Section 1983 Claims

I turn first to plaintiffs claim for relief under the due process clause of the Fourteenth Amendment and 42 U.S.C. § 1983, which states in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

It is undisputed that Gallo was acting under color of state law during the incident in which Ramos was shot. Viewed in the light most favorable to the plaintiff, the complaint alleges a deprivation of Ramos’s liberty without due process of law, in violation of the due process clause of the Fourteenth Amendment. Defendant argues, however, that no violation of rights of due process exists with respect to the shooting of Ramos because Ramos has state remedies that will afford him full redress for deprivation of liberty, if any occurred. De-“ fendant’s argument is based on the Supreme Court’s holdings in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, — U.S. -, 104 S.Ct. 8194, 82 L.Ed.2d 393 (1984).

In Parratt, a prison inmate sued for damages under § 1983, alleging that he was deprived of property without due process of law when prison officials negligently lost a hobby kit the inmate had ordered through the mail. The Court agreed that the plaintiff had been deprived of property within the meaning of the Fourteenth Amendment. 451 U.S. at 536-37, 101 S.Ct. at 1913-14. The Court went on to hold that, because a pre-deprivation hearing was not feasible under the circumstances, the availability of a post-deprivation damages remedy under state law negated plaintiff's contention that the deprivation of property was without due process of law. Id. at 540-44, 101 S.Ct. at 1915-17.

In Hudson v. Palmer, the Supreme Court extended the rationale of Parratt to intentional deprivations of property, holding that such deprivations do .not violate the procedural requirements of the due process clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available under state law. — U.S. at-, 104 S.Ct. at 3204.

The present case presents a question not yet decided by the Supreme Court: Is the principle of Parratt and Hudson applicable to intentional or negligent deprivations of liberty? Federal district and circuit courts have varied in their responses to this question. Some courts, noting that Justices Blackmun and White joined the Parratt opinion only on the understanding that the decision did not apply to deprivations of life or liberty, 451 U.S. at 545, 101 S.Ct. at 1918 (Blackmun, J., concurring), have limited the reach of Parratt to deprivations of property. See, e.g., Brewer v. Blackwell, 692 F.2d 387, 394-95 (5th Cir.1982) (Parratt inapplicable to intentional deprivations of liberty); Wakinekona v. Olim, 664 F.2d 708, 715 (9th Cir.1981) (same), rev’d on other grounds, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); Wilson v. Beebe, 743 F.2d 342, 350 (6th Cir.1984) {Parratt is inapplicable to intentional or negligent deprivations of life or liberty). Other courts, finding no principled reason to distinguish between deprivations of property and of liberty, have applied Parratt to negligent deprivations of liberty interests, see, e.g., Thibodeaux v. Bordelon, 740 F.2d 329, 334-38 (5th Cir.1984); Haygood v. Younger, 718 F.2d 1472, 1478-81 (9th Cir.1983), reh’g en banc granted, 729 F.2d 613 (9th Cir.1984); Daniels v. Williams, 720 F.2d 792, 796 (4th Cir.1983) and to intentional deprivations of liberty. See, e.g., Ellis v. Hamilton, 669 F.2d 510, 515 (7th Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1352 (9th Cir.1981), affd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Gilmere v. City of Atlanta, Ga., 737 F.2d 894, 905-10 (11th Cir.1984).

Were this case merely one involving the applicability of principles of procedural due process, illustrated in Parratt, to deprivations of liberty interests, summary judgment for defendant might be appropriate. I need not rule on this question at this point in the proceedings, however, for defendant’s argument urging the. application of Parratt to the present case fails to take account of the distinction between substantive and procedural due process.

A Fourteenth Amendment due process claim, such as the one asserted by Ramos, may be analyzed as a claim of denial of either procedural or substantive due process, or both. A procedural due process claim alleges that the state has unlawfully interfered with a protected liberty or property interest by failing to provide adequate procedural safeguards. The claim focuses on the procedures used by the state in effecting the deprivation of liberty or property, which the claimant argues were inadequate in light of the significance of the interests involved. Schiller v. Strangis, 540 F.Supp. 605, 613 (D.Mass. 1982). Parratt and other cases discussed above invoke this analysis.

A substantive due process claim, on the other hand, alleges not that the state’s procedures are somehow deficient, but that the state’s conduct is inherently impermissible, regardless of any protective or remedial procedures it provides. Schiller, 540 F.Supp. at 614. It is based on “the right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.” Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980).

The theory of substantive due process derives from the case of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In Bochin, the Court held that police action in obtaining evidence by subjecting a suspect against his will to a stomach pump so “shocks the conscience” as to violate due process. Justice Frankfurter wrote, “Due process of law is a summarized constitutional guarantee of respect for those personal immunities which ... are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ or are ‘implicit in the concept of ordered liberty.’ ” (citations omitted) Id. at 169, 72 S.Ct. at 208.

Defendant, in arguing that Parratt applies to this case, implicitly characterizes plaintiff’s claim as one involving procedural due process. However, plaintiff may also claim violation of substantive due process. The line dividing procedural due process from substantive due process is not always bright. Indeed, areas of potential overlap may exist. Thus, it may be difficult in a particular ease to determine the proper characterization of the claim or claims.

If plaintiff’s complaint is treated as alleging a substantive due process claim, or as alleging both procedural and substantive due process claims, defendant’s motion for summary judgment must be denied. Plaintiff has alleged that defendant shot him willfully and maliciously and that the shooting amounted to the use of excessive force. Although defendant disputes this, stating that he collided with plaintiff, thereby causing the revolver to go into plaintiff’s stomach and discharge, the court must look at the record in the light most favorable to plaintiff, the non-movant. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962).

It is well settled that “in appropriate circumstances, the use of excessive force or violence by law enforcement personnel violates the victim’s constitutional rights.” Landrigan v. City of Warwick, 628 F.2d 736, 741-42 (1st Cir.1980). Such use of excessive force by a police officer may rise to the level of a violation of substantive due process. Black v. Stephens, 662 F.2d 181, 188 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981); Roberts v. Marino, 656 F.2d 1112, 1114 (5th Cir.1981). Indeed, I cannot determine at this time that Ramos will be unable to offer proof, within the scope of his complaint, showing a use of force so excessive that it “shocks the conscience,” as that phrase has been used in precedents bearing upon substantive due process claims. See Shillingford v. Holmes, 634 F.2d at 265; Hall v. Tawney, 621 F.2d at 613; Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sup nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973).

Such a substantive due process claim is unaffected by the Supreme Court’s holding in Parratt. Parratt’s concern with the adequacy of post-deprivation state remedies simply has no place in the context of an alleged substantive due process violation. The constitutional violation exists independently of the adequacy or inadequacy of procedures that are available for redressing the deprivation. Courts have therefore uniformly held that Parratt does not bar substantive constitutional claims, including those of substantive due process. See, e.g., Augustine v. Doe, 740 F.2d 322, 326-27 (5th Cir.1984); Daniels v. Williams, 720 F.2d 792, 796 n. 3 (4th Cir.1983); Barnier v. Szentmiklosi, 565 F.Supp. 869, 880 (E.D.Mich.1983) (listing cases); Begg v. Moffitt, 555 F.Supp. 1344, 1362 n. 58 (N.D.Ill.1983) (listing cases).

The view that Parratt does not bar substantive due process claims has some support from the Supreme Court as well. In Hudson v. Palmer, when the Supreme Court extended Parratt to intentional deprivations of property, it was careful to limit its discussion and holding to alleged violations of procedural due process. Concurring in this part of the Court’s opinion, Justice Stevens, joined by three other justices, stated:

I do not understand the Court’s holding to apply to conduct that violates a substantive constitutional right — actions governmental officials may not take no matter what procedural protections accompany them.

104 S.Ct. at 3208 n. 4. Nothing in the majority opinion indicates otherwise. Augustine v. Doe, 740 F.2d at 326. See also Parratt, 451 U.S. at 545, 101 S.Ct. at 1918 (Blackmun, J., concurring); id. at 552-53, 101 S.Ct. at 1921-22 (Powell, J., concurring in result).

A case similar to this one is Garcia v. County of Los Angeles, 588 F.Supp. 700 (C.D.Cal.1984). In Garcia, plaintiffs alleged that after arresting two non-plaintiff members of their family, defendant deputy sheriffs followed plaintiffs into the Garcia residence and “wantonly, willfully, intentionally, maliciously, and in bad faith, did severely beat plaintiffs.” Id. at 701. Defendants moved to dismiss the complaint, arguing that it failed to state a § 1983 claim because, under Parratt, the availability of state tort remedies invalidated plaintiffs’ underlying constitutional claims. The court held that plaintiffs’ complaint, which simply alleged a due process violation, could state a substantive due process claim distinct from a claim for procedural due process. It declined to dismiss the substantive claim, holding that Parratt was inapplicable. Rather, the court stated defendants’ conduct would constitute a violation of substantive due process if plaintiffs proved outrageous conduct. Id. at 707.

Ramos should also be given the opportunity to prove that Gallo’s conduct was outrageous and “shocks the conscience.”

For these reasons, defendant’s motion for summary judgment on the § 1983 claim must be denied.

I need not and do not at this time address the troubling question as to the legally correct description of the standard of severity of an intrusion required to establish a violation of rights protected under the rubric of substantive due process. See, e.g., Landrigan v. City of Warwick, 628 F.2d at 741-42 (physical attack at time of arrest); Furtado v. Bishop, 604 F.2d 80, 95-96 (1st Cir.1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980); Johnson v. Glick, 481 F.2d at 1033; Jenkins v. Averett, 424 F.2d 1228, 1231-32 (4th Cir.1970); Schiller v. Strangis, 540 F.Supp. at 612-18 (concluding, in nonjury trial, as alternative basis of decision, that the plaintiff proved enough more than merely excessive force to show that “the constitutional line has been crossed,” even though force used by police officers may have been insufficient to meet the more demanding standard that it “shock the conscience of the court”). At or before trial, counsel for both parties will be invited to submit requested instructions, and perhaps special interrogatories to the jury, relevant to this issue.

An additional reason for denying summary judgment here is that plaintiff alleges that defendant’s actions violated his Fourth Amendment rights. One may argue that the use of excessive force is itself a Fourth and Fourteenth Amendment violation, thereby establishing a cause of action remediable under § 1983. See, e.g., Jenkins v. Averett, 424 F.2d at 1231-32 (Fourth Amendment right of people to be secure in their “persons” is a shield covering the individual’s physical integrity and supports an action for use of excessive force by police). It is not clear whether Jenkins is an instance of “procedural due process” analysis, an instance of “substantive due process analysis,” or is a third form of analysis fitting neither framework. See Schiller v. Strangis, 540 F.Supp. at 615.

IV. Other Federal Statutory Claims

Section 1981 of 42 U.S.C. guarantees that no person shall be denied equal rights under the law on account of race. A racially discriminatory motive is a necessary element of a § 1981 claim. General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982): The failure to allege a racially discriminatory motive is fatal to plaintiff’s § 1981 claim. Cf. Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).

Defendant’s motion for summary judgment on plaintiff’s claims under § 1985 and § 1986 must also be granted. Plaintiff’s complaint does not raise any claim of force, intimidation, or threat against persons holding public office, witnesses, or jurors. 42 U.S.C. § 1985(1) and (2). Plaintiff’s claim must fail under § 1985(3) as well, since he has not alleged any racial or other “class-based, invidiously discriminatory animus.” United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 3358, 77 L.Ed.2d 1049 (1983); Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Furthermore, Ramos has not alleged any overt acts by Gallo which were reasonably related to the promotion of a conspiracy. See Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir.1977). Since § 1985 does not apply, plaintiff’s § 1986 claim must also fail. Landrigan v. City of Warwick, 628 F.2d at 739 n. 1; Kermit Construction Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 3 (1st Cir. 1976) .

V. Other Federal Constitutional Claims

Plaintiff claims violations of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

Based on the present pleadings, it does not appear that plaintiff alleges any factual basis for claims under the Fifth, Sixth, or Eighth Amendments. For this reason, claims other than those alleging violations of procedural or substantive due process will be dismissed at this time, with leave for plaintiff by amendment to call the court’s attention to any other theory of relief for which he can in good faith allege a factual basis.

As to plaintiff’s Fourth and Fourteenth Amendment claims, they have been treated in Part III above, in relation to claims under 42 U.S.C. § 1983. Precedents do not support recognizing a remedy directly under the amendments to the United States Constitution, Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), when relief is available under § 1983. See Kostka v. Hogg, 560 F.2d 37, 44-45 (1st Cir. 1977) ; DeVasto v. Flaherty, 479 F.Supp. 1069, 1071-72 (D.Mass.1979), rev’d on other grounds, 658 F.2d 859 (1st Cir.1981); Leite v. City of Providence, 463 F.Supp. 585, 587 (D.R.I.1978).

VI. State Law Claims

Since Ramos has stated a viable federal claim against Gallo under § 1983, the court may exercise its pendent jurisdiction and hear any of plaintiff’s state law claims. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

The facts alleged in plaintiff’s complaint are sufficient to satisfy the elements of a prima facie case under state tort law, since plaintiff alleges that defendant used excessive force in apprehending him. I need not determine at this point whether such a claim is more properly treated as a claim of assault and battery or of false arrest, nor need I determine what privileges, if any, are available to the defendant. In any event, it does not now appear that there is no material dispute of facts as to a state law claim or claims based on the allegation of use of excessive force. Defendant’s motion for summary judgment as to such claim or claims is therefore denied.

Defendant correctly argues that he is entitled to judgment as a matter of law on any state claim of malicious prosecution, because lack of probable cause is essential to such a claim under Massachusetts law. Lincoln v. Shea, 361 Mass. 1, 4, 277 N.E.2d 699, 702 (1972). Under Massachusetts law, a conviction by a tribunal to which a complaint is made, though reversed on appeal, as here, conclusively establishes the existence of probable cause, unless the conviction was obtained solely by false testimony or is “impeached on the ground of fraud, conspiracy or subornation in its procurement.” Broussard v. Great Atlantic & Pacific Tea Co., 324 Mass. 323, 326, 86 N.E.2d 439, 440 (1949), citing Dunn v. E.E. Gray Co., 254 Mass. 202, 203-04, 150 N.E. 166 (1926). It is undisputed that Ramos was convicted in East Boston District Court and that Officer Mugnano testified at the hearing. Ramos has not, and it appears could not, plead facts to show that his conviction was obtained solely by the wrongful conduct of Gallo. See Della Jacova v. Widett, 355 Mass. 266, 269, 244 N.E.2d 580, 582-83 (1969) (where plaintiff’s conviction was based not merely on the testimony of defendant, probable cause would flow from plaintiff’s conviction in municipal court). Gallo therefore had probable cause to institute charges against Ramos and no claim for malicious prosecution arises.

Plaintiff may or may not be able to state a claim for damages under the Massachusetts Civil Rights Act, Mass.Gen.Laws ch. 12, §§ 11H and I. Plaintiff discusses such a claim in his memorandum in opposition to defendant’s motion for summary judgment, but plaintiff’s complaint nowhere mentions such a claim. Plaintiff must therefore amend his complaint and plead those facts necessary to set forth a claim under the Massachusetts Civil Rights Act in order for such a claim to be before me.

ORDER

For the foregoing reasons, it is ORDERED:

Defendant’s motion for summary judgment on plaintiff’s claim under 42 U.S.C. § 1983 is denied.

Defendant’s motion for summary judgment on plaintiff’s state tort law claim or claims in the nature of assault, battery, or false arrest is denied.

Defendant’s motion for summary judgment on plaintiff’s claims under the Fifth, Sixth and Eighth Amendments is hereby granted, with leave for plaintiff to file an amendment alleging a factual basis for any theory of relief he wishes to assert under these amendments.

Defendant’s motion for summary judgment on plaintiff’s claims directly under the Fourth and Fourteenth Amendments, under 42 U.S.C. §§ 1981, 1985 and 1986, and under the state law of malicious prosecution is granted.

Leave is granted for plaintiff to file an amended complaint alleging a factual basis for a claim under the Massachusetts Civil Rights Act if he wishes to assert such a claim.

      . Mass.Gen.Laws ch. 12, § 11H states in relevant part:
      Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured.
      Section 111, which provides a private right of action, states in relevant part:
      Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages.


text:
    Valerie FREEMAN, Plaintiff, v. WORLD AIRWAYS, INC., and Massachusetts Port Authority, Defendants. Joy and John OLSZEWSKI, Plaintiffs, v. WORLD AIRWAYS, INC., and Massachusetts Port Authority, Defendants.
    Civ. A. Nos. 82-1216-K, 84-284-K.
    United States District Court, D. Massachusetts.
    Oct. 24, 1984.

      Abner R. Sisson, Sisson, Lee & Bloomentahl, Boston, Mass., Marc S. Moller, Kreindler & Kreindler, New York City, for plaintiffs.
    James Meehan, Maynard Kirpalani, Parker, Coulter, Daley & White, Boston, Mass., for World Airways, Inc.
    . William Guy Ferris, Nutter, McClennen & Fish, Boston, Mass., for Massachusetts Port Authority.
    Joan I. Milstein, Asst. U.S. Atty., Philip Kolczynski, Aviation Trial Atty., U.S. Dept, of Justice, Washington, D.C., for United States, FAA, Dept, of Transp.; William Gallo, Litigation Div., FAA, U.S. Dept, of Transp., Washington, D.C., of counsel.
   Opinion and Order

KEETON, District Judge.

These are two among over thirty consolidated actions arising out of a crash of a World Airways commercial jetliner at the Boston-Logan International Airport (Logan Airport) on January 23, 1982. Plaintiffs allege negligence on the part of World Airways, Inc. (World Airways), the Massachusetts Port Authority (Mass. Port), and the Federal Aviation Administration of the Department of Transportation, United States of America (FAA). The plaintiffs in several of the consolidated actions, including these two, suffered personal injuries in the crash and seek both compensatory and punitive damages from one or both of the defendants, World Airways and Mass. Port. No punitive damages are alleged against the FAA. World Airways and Mass. Port move for partial summary judgment on the issue of punitive damages. Pursuant to a scheduling order as to these two actions only, the interested parties have filed briefs supporting and opposing the motions for partial summary judgment. This opinion addresses the choice of law problem concerning punitive damages asserted specifically by the named plaintiffs in these two actions.

I.

The facts relevant to the choice of law issue are undisputed. On January 23, 1982, a World Airways passenger airliner skidded off the end of Runway 15 at Logan Airport in Boston, Massachusetts. The flight had originated in Oakland, California, and had stopped in Newark, New Jersey, before commencing its casualty flight to Boston.

Plaintiffs allege that World Airways was negligent in (1) failing to ascertain the weather conditions in Boston before leaving Newark; (2) failing to ascertain the condition of the runway before approaching and landing at Logan Airport; (3) failing to land the plane safely; (4) failing to train its employees regarding water rescue techniques during an emergency; and (5) failing to evacuate the aircraft safely after the crash. The plaintiffs Olszewski, who assert claims against Mass. Port, allege that Mass. Port was negligent in (1) maintaining Runway 15 in a hazardous condition; (2) failing to notify incoming flights of existing weather conditions; (3) failing to close Runway 15; and (4) failing to institute and perform adequate rescue procedures after the crash.

Defendants move for partial summary judgment on the issue of punitive damages. They argue that this court should apply the law of Massachusetts, the place of injury, and that Massachusetts does not allow punitive damages in personal injury cases. Plaintiff, Valerie Freeman, who asserts punitive damages against World Airways only, argues that this court should apply either the law of California, the principal place of business of World Airways, the law of New Jersey, the place where the World Airways crew negligently made their decision to fly to Boston, or the law of Virginia, the plaintiff’s place of domicile. Plaintiffs, Joy and John Olszewski, who assert punitive damage claims against both World Airways and Mass. Port, argue that this court should apply the law of New Jersey, their place of domicile. All plaintiffs contend that punitive damages are available in personal injury cases under the applicable state law.

II.

Before proceeding to the choice of law problem, I address an issue raised by counsel for plaintiff, Freeman, in a status conference.

Freeman’s attorney suggested that this court should not decide the choice of law problem with respect to punitive damages in a pretrial motion for partial summary judgment. His reasoning is that a state’s interest in assessing punitive damages flows from the nature of the behavior of the party in the state. If the conduct of a party is considered innocuous, then the state where the conduct occurred has no interest in the outcome of the issue of punitive damages. However, if the defendant’s conduct is particularly outrageous— wilful and reckless — then that state may have a great interest in applying its law of punitive damages. Thus, the argument proceeds, a decision whether to apply the punitive damages law of one jurisdiction or another should await a jury’s inquiry into the conduct of the defendants. During the status conference, I expressed my doubt as to the validity of this argument. However, I encouraged counsel to develop the argument and present authorities in support of it in Freeman’s brief opposing the defendants’ summary judgment motion. The material submitted to this court since that conference has not elaborated upon the argument. I conclude that the question that Freeman wishes to submit to the jury would not advance the conflict of law analysis. Defendants do not contend that no genuine dispute of fact exists as to plaintiffs’ contention that defendants acted wilfully or recklessly. Rather, defendants assert that this dispute is not material to resolution of the choice of law issue. In proceeding to consider the defendants’ motion for partial summary judgment with respect to the complaints of plaintiffs, Freeman and Olszewski, I assume that the evidence will be sufficient to support a finding of wilfulness or recklessness.

III.

I approach the choice of law problem in the following manner. First, I examine the law of punitive damages in the relevant jurisdictions to ascertain whether the conflict is real. Second, if the conflict is real, I must as to each punitive damage claim determine what state’s law would be selected by the choice of law approach of the forum state. Third, I must apply the state law chosen for each claim.

First, I turn to the law of punitive damages in personal injury cases in the relevant states: California, Massachusetts, New Jersey, and Virginia. Of these states, the parties dispute only the law in Massachusetts. The California Legislature has enacted a statute specifically allowing punitive damages in personal injury cases. See Cal.Civil Code § 3294 (West Supp.1984). Courts in New Jersey and Virginia have recognized similar recoveries under the common law. See Berg v. Reaction Motors Division, Thiokol Chemical Corp., 37 N.J. 396, 181 A.2d 487 (1962); Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (1960).

Massachusetts courts have refused to award punitive damages unless the legislature has specifically authorized such awards in a particular context. See International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 856 n. 20, 443 N.E.2d 1308, 1317 n. 20 (1983) (“Under Massachusetts law, punitive damages may be awarded only by statute.”); City of Lowell v. Massachusetts Bonding & Ins. Co., 313 Mass. 257, 269, 47 N.E.2d 265, 272 (1943) (“In this Commonwealth exemplary damages are not allowed unless authorized by statute.”); Boott Mills v. Boston & Maine Railroad Co., 218 Mass. 582, 589, 106 N.E. 680, 683-84 (1914) (same). See also Caperci v. Huntoon, 397 F.2d 799, 801 (1st Cir.), cert. denied, 393 U.S. 940, 89 S.Ct. 299, 21 L.Ed.2d 276 (1968); Computer Systems Engineering, Inc. v. Quantel Corp., 571 F.Supp. 1365, 1369-70 (D.Mass.1983), affd, 740 F.2d 59 (1st Cir.1984). The Massachusetts Legislature has authorized punitive damages in wrongful death eases. See Mass.Gen.Laws ch. 229, § 2 (West Supp.1984). No similar provision has been enacted for personal injury cases. Thus, I conclude that a Massachusetts court would not award punitive damages to plaintiffs Freeman and Olszewski under Massachusetts law. See City of Lowell, 313 Mass. at 269, 47 N.E.2d at 272; Boott Mills, 218 Mass. at 589, 106 N.E. at 683-84. See also J. Ghiardi & J. Kircher, Punitive Damages: Law and Practice § 4.10 (1984); M. Minzer, J. Nates, C. Kim-ball & D. Axelrod, 5 Damages in Tort Actions § 40.02 (1984); Note, Punitive Tort Damages in New England, 41 B.U.L. Rev. 389, 390 (1961).

Freeman argues that Massachusetts generally allows punitive damages in all tort actions. She contends that the notion that punitive damages are not allowed unless the plaintiff dies is based upon flawed authorities and an overly restrictive interpretation of well-established Massachusetts tort principles. To support this contention, she primarily relies upon the Supreme Court’s decision in Day v. Woodworth, 54 U.S. (13 How.) 363, 14 L.Ed. 181 (1851).

In Day the Supreme Court reviewed a decision of the Circuit Court of the United States for the District of Massachusetts involving the tort of trespass. The opinion primarily addressed the lower court’s jury instruction on damages. The plaintiff on appeal argued that he should have received punitive damages in part to compensate him for counsel’s fees. Although the opinion discusses the propriety and widespread adoption of punitive damages to punish the defendant’s conduct, it in no way imposes such damages in a Massachusetts tort action. The punitive damages discussion simply explains that such damages are properly in the discretion of the jury and they are not available as a matter of right to compensate the plaintiff for counsel’s fees. Id. at 371, 14 L.Ed. 181. Day does not purport to restate Massachusetts law nor does it preclude Massachusetts courts from denying punitive damages.

Even if I were to accept that Day established punitive damages in all tort cases in Massachusetts, the Supreme Court decided Day before it decided Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). After Erie, it is this court’s duty to decide the issue of punitive damages as a Massachusetts court would decide it. See generally C. Wright, The Law of Federal Courts § 58 (4th ed. 1983). In light of this standard, the more recent cases decided by the Supreme Judicial Court of Massachusetts must control.

Freeman also argues that the only authority for the disallowance of punitive damages in personal injury cases consists of dicta in the cited Massachusetts cases. See City of Lowell, 313 Mass. at 269, 47 N.E. at 272; Boott Mills, 218 Mass. at 589, 106 N.E. at 683-84. To support her argument, she cites to Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N.E. 1 (1891), and Ellis v. Brockton Publishing Co., 198 Mass. 538, 84 N.E. 1018 (1908), which held that “enhanced damages” may be awarded in cases in which there is a wilful injury to the plaintiff. This argument is unpersuasive. The Supreme Judicial Court has stated repeatedly that punitive or exemplary damages are not recoverable unless specifically authorized by statute. These statements, whether dicta or holding, have established a restrictive policy with respect to punitive damages. See Computer Systems Engineering, Inc. v. Qantel Corp., 571 F.Supp. at 1369-70, affd, 740 F.2d at 70. The fact that Freeman cannot cite to one case awarding punitive damages in a personal injury context adequately demonstrates the force of the Supreme Judicial Court’s “dicta.”

Freeman’s citations to Burt and Ellis further support the proposition that punitive damages are not available in Massachusetts. In these eases the Supreme Judicial Court approved “enhanced damages” for injured feelings as a result of the wilfulness of the defendant’s conduct. However, the court carefully noted that such damages were entirely compensatory and not punitive. See Burt, 154 Mass. at 245, 28 N.E. at 5; Ellis, 198 Mass. at 543, 84 N.E. at 1020. The defendants’ motion for partial summary judgment addresses only the plaintiffs’ punitive damage claims. It does not involve compensatory damage issues.

Based upon the foregoing analysis, I conclude that under Massachusetts law punitive damages are not recoverable in personal injury cases.

Before reaching the question of the forum state’s approach to choice of law problems, I address one argument advanced by plaintiff Freeman that, if successful, would eliminate the real conflict of laws. Freeman argues that, if Massachusetts law is interpreted to deny punitive damages in personal injury cases and to allow such damages in wrongful death cases, this court should find that position unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

Several courts of appeals have addressed and rejected analagous arguments concerning the recovery of punitive damages. See In re Air Crash Disaster Near Chicago, Illinois, 644 F.2d 594, 608-10 (7th Cir.1981) (In re Chicago Air Crash) (a state’s decision to allow punitive damages in personal injury cases and not wrongful death cases is constitutional), cert. denied, 454 U.S. 878, 102 S.Ct. 358, 70 L.Ed.2d 187 (1981); In re Paris Air Crash, 622 F.2d 1315 (9th Cir.) (same), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980). Cf. Cyr v. B. Offen & Co., Inc., 501 F.2d 1145, 1148 n. 2 (1st Cir.1974) (N.H. statute that placed a $10,000 limitation on wrongful death actions but not personal injury actions is constitutional), The reasoning and analysis of these cases are persuasive. Using the rational basis level of scrutiny, I find that the Massachusetts Legislature could conclude that the state’s interest in deterrence of wilful conduct is outweighed by the possibility of excessive damages in cases in which the injuries do not result in death. Thus, the decision to deny punitive damages in personal injury cases is constitutionally permissible.

IV.

Based upon the foregoing analysis, a real conflict exists between the law of Massachusetts and the laws of California, New Jersey, and Virginia on the issue of punitive damages. To resolve the conflict in this diversity case, this court must apply the choice of law rules of the forum state. See Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Massachusetts law therefore governs which law should apply on the issue of punitive damages. See Computer Systems Engineering, Inc., v. Qantel Corp., 740 F.2d 59, 70 (1st Cir. 1984).

In the last decade Massachusetts courts have shifted their choice of law analysis from the traditional doctrine of lex loci delicti to a more functional approach. See Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 450 N.E.2d 581 (1983); Choate, Hall & Stewart v. SCA Services, Inc., 378 Mass. 535, 392 N.E.2d 1045 (1979); Pevoski v. Pevoski, 371 Mass. 358, 358 N.E.2d 416 (1976). Recent opinions of the Supreme Judicial Court indicate that Massachusetts would follow an analysis similar to if not identical with that of the Restatement (Second) of Conflict of Laws. See Cohen, 389 Mass, at 333-37, 450 N.E.2d at 585-87. See also Computer Systems Engineering, Inc., 740 F.2d at 70; Engine Specialties, Inc. v. Bombardier, Ltd., 605 F.2d 1, 19 (1st Cir.1979), cert. denied, 446 U.S. 983, 100 S.Ct. 2964, 64 L.Ed.2d 839 (1980); Schulhof v. Northeast Cellulose, Inc., 545 F.Supp. 1200, 1203 (D.Mass.1982). Thus, this court must analyze the choice of law regarding the issue of punitive damages under the Restatement’s approach.

The Restatement provides that “In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship [to the parties and the occurrence] ____” Restatement (Second) of Conflicts § 146 (1971). See id. § 145. A determination of the most significant relationship involves a consideration of the general factors underlying a particular legal issue, see id. § 6, and an application of these factors to the specific contacts of the tortious conduct, see id. § 145(2). See generally In re Chicago Air Crash, 644 F.2d at 611-12. In the sections below I apply the Restatement’s approach to the plaintiffs’ punitive damage claim against each defendant.

A. Freeman and Olszewski’s Punitive Damage Claim Against World Airways.

Plaintiffs Freeman and Olszewski allege punitive damages against World Airways. First, I must examine the parties’ contacts with the various states. See Restatement (Second) of Conflicts § 145 (1971). The injury occurred in Massachusetts. See id. § 145(2)(a). The conduct causing the injury allegedly occurred in California, Massachusetts, and New Jersey. See id. § 145(2)(b). Although World Airways is incorporated in Delaware, its principal place of business is in California. See id. § 145(2)(c). Plaintiff Freeman is a resident of Virginia, and the Olszewski plaintiffs are residents of New Jersey. See id. And, in this case, the center of the parties’ relationship is unclear. See In re Chicago Air Crash, 644 F.2d at 612.

Using this factual background of events and contacts, I must weigh the relative interests of the relevant states in their application of the law of punitive damages. See Restatement (Second) of Conflicts § 6 (1971). The primary purposes underlying a state’s decision to allow punitive damages are to punish the defendant and to deter others from following similar conduct. See In re Chicago Air Crash, 644 F.2d at 613; Schulhof v. Northeast Cellulose, Inc., 545 F.Supp. 1200, 1206 (D.Mass.1982). Such damages are not awarded to compensate the plaintiff. See id.; In re Air Crash Disaster at Washington, D.C. on January 13, 1982, 559 F.Supp. 333, 353 (D.D.C.1983) (In re Washington, DC. Air Crash). The primary purposes underlying the disallowance of punitive damages are to protect defendants from excessive liability and thus to encourage businesses to locate and conduct economic affairs in the jurisdiction. See Schulhof, 545 F.Supp. at 1206.

As noted before, the Restatement requires that courts addressing choice of law issues in personal injury cases give preference to the place of injury, unless another state has a more significant relationship. See Restatement (Second) of Conflicts § 146 (1971); In re Chicago Air Crash, 644 F.2d at 616. Thus, I first address Massachusetts’ interest in denying punitive damages to plaintiffs Freeman and Olszewski.

The World Airways crash presents an unusual situation. Frequently, airplane crashes allegedly result from a design or manufacturing defect. See Saloomey v. Jeppesen & Co., 707 F.2d 671, 675 (2d Cir.1983). Courts have characterized the place of injury in such cases as fortuitous. See In re Chicago Air Crash, 644 F.2d at 615. In those cases courts have given less weight to the place of injury because that state’s interest and ability to regulate wilful or reckless conduct through the imposition of punitive damages is less significant than the interest of the state of wrongful conduct or the defendant’s principal place of business. See In re Washington, D.C. Air Crash, 559 F.Supp. at 348; Restatement (Second) of Conflicts § 145 comment e (1971). This is not the case with the World Airways crash. Massachusetts, the place of injury, was also the location of most of World Airways’ alleged negligent conduct and other conditions that contributed to the cause of the crash.

Freeman and Olszewski allege negligence on the part of World Airways for (1) its approach to Logan Airport, (2) its conduct during the landing, and (3) its conduct relating to rescue operations after the crash. Plaintiffs allege only one act on the part of World Airways that occurred outside of Massachusetts and allegedly was a contributory cause of the crash. They allege that World Airways failed to ascertain the weather conditions before leaving New Jersey. The remaining allegation relates to World Airways’ conduct after the casualty. Thus, according to the plaintiffs’ own allegations, most of World Airways’ alleged wrongful conduct occurred in the Commonwealth of Massachusetts, the place of injury. This circumstance gives Massachusetts a significant interest in the outcome of the punitive damages question.

Massachusetts’ interest is further strengthened by the circumstances of the crash. The weather conditions and the landing operations at Logan Airport allegedly contributed to the cause of the crash. See In re Washington, D.C. Air Crash, 559 F.Supp. at 349 (“The instant case is not one where the injury might have occurred in ‘one of any number of states.’ ”). Indeed, no one disputes the role of the severe weather conditions at the time of the casualty flight. These conditions allegedly combined with the physical location of the airport’s runways near the Boston Harbor in contributing to the accident. These additional points of contact with Massachusetts give the state added interest in the choice of law determination.

Both Freeman and Olszewski argue that Massachusetts has no interest in a suit between a nonresident plaintiff and a California defendant. This argument misinterprets the significant relationship analysis. A court must look at a state’s interest in regulating conduct in its jurisdiction. Massachusetts has a significant interest in regulating conduct (deterrence or encouragement) of planes arriving at Logan Airport during the winter. A rule imposing or denying punitive damages would have a potential impact upon carriers’ decisions to travel to Massachusetts during difficult weather conditions. In re Chicago Air Crash, 644 F.2d at 615-16.

In light of the substantial contacts presented by this casualty to the Commonwealth of Massachusetts along with the state’s restrictive policy regarding punitive damages, I find that Massachusetts has a very substantial interest in deciding the punitive damages issue. That interest must control unless plaintiffs can show that another jurisdiction has a more significant interest.

Freeman argues that California has the strongest interest in the issue of punitive damages because it is World Airways’ principal place of business. It is true that California has a strong interest in regulating the conduct of its corporations. That interest is especially important when the place of injury is fortuitous. However, in this specific case, California’s relationship to the accident is not as significant as that of Massachusetts.

The only alleged act of negligence that may have taken place in California is World Airways’ alleged failure to properly train its employees to conduct water rescue procedures during an emergency. And, this act is relevant only to World Airways’ negligence after the crash. Thus, California’s interest is primarily related to the general care with which World Airways conducts its operations, not to the specific conduct that contributed to this accident. Although this interest is significant, it is not as strong as it would be if the airline industry were not covered by federal regulations that prescribe standards of safety. In fact, plaintiff Freeman’s complaint alleges that if World Airways’ crew had followed its own procedures, they would have determined that the weather conditions made it impossible to land in Boston. Thus, the defendant’s conduct outside of California is more relevant to the cause of this particular crash. Therefore, I find that Massachusetts’ relationship to this particular incident is greater than that of the State of California.

Freeman also argues that New Jersey, as the place of part of the negligent conduct, has a stronger interest than Massachusetts in the issue of punitive damages. According to the plaintiffs’ allegations, World Airways failed to ascertain the weather conditions in Boston, before departing Newark. Freeman also points to the fact that she purchased her ticket in New Jersey. Although these contacts give New Jersey an interest in this case, they do not combine to outweigh the interests of the Commonwealth of Massachusetts. Clearly, Massachusetts, as the place of injury and most of World Airways’ alleged wrongful conduct directly relating to the cause of the crash, has a more significant interest in deciding the punitive damages issue. See Detterline v. Downeast Airlines, Inc., 17 Aviation Cases (CCH) 17,628 (Mass.Superior Court 1982) (Maine law governed issue of punitive damages in airplane crash that occurred in Maine even though one act of negligence — pilot left Logan Airport with knowledge of unfavorable weather conditions — occurred in Massachusetts).

Plaintiffs Freeman and Olszewski finally argue that their respective states of domicile have more interest in the issue of punitive damages than the Commonwealth of Massachusetts. In these two cases they argue that this court should apply the law of Virginia to Freeman’s punitive damages claim, and the law of New Jersey to Olszewski’s punitive damages claim. Several courts have recently addressed the question of a domiciliary state’s interest in the issue of punitive damages. See In re Chicago Air Crash, 644 F.2d at 612-13; In re Washington, D.C. Air Crash, 559 F.Supp. at 353. These decisions have held that the domiciliary state’s interest ends once its resident receives the full measure of compensatory damages. They may be read as reasoning further that, because punitive damages are not to compensate the plaintiff, the state of domicile has no interest in the punitive damages issue.

Surely, it is true that a domiciliary state’s interest in the issue of punitive damages is smaller than its interest in compensatory damages. Very likely, it is an overstatement of the point, however, to assert that a domiciliary state has no interest in the punitive damages issue. A domiciliary state’s interest exists to the extent that such damages may help to ensure the safety of its citizens when they travel in foreign states. This is especially true to the extent that the legal system relies on private citizens as private attorneys general to bring appropriate civil actions that will serve to punish wilful and reckless conduct. It does not follow, however, that a domiciliary state has the most significant interest in the punitive damages issue. In this case Massachusetts’ relationship to the casualty clearly outweighs any interests held by the states of New Jersey and Virginia.

Even if one combines the interests of California, New Jersey, and Virginia, see Restatement (Second) of Conflicts § 145 comment i (1971), the Commonwealth of Massachusetts has a greater interest in the punitive damages issue. The location of the injury, most of the alleged negligent conduct, and the physical conditions (weather and geographic), all give Massachusetts the most significant relationship to the parties and the casualty.

Some of the arguments asserted in the plaintiffs’ briefs are premised upon the assumption that a state that allows punitive damages has a greater interest in the issue than a state that denies such damages. This assumption misinterprets the Restatement’s approach. “[Bjoth the decision to allow punitive damages and the decision to disallow punitive damages must be accorded great respect.” In re Chicago Air Crash, 644 F.2d at 615.

Based upon the foregoing analysis, I conclude that Massachusetts’ interest in applying its law to the issue of punitive damages is greater than the interests of California, New Jersey, and Virginia.

B. Olszewski’s Punitive Damage Claim Against Mass. Port.

The Olszewski plaintiffs allege punitive damages against Mass. Port. They argue that New Jersey has a more significant interest than Massachusetts on the issue of punitive damages over the defendant Mass. Port. They primarily assert that Mass. Port should not be able to shield itself from liability simply because the accident occurred in Massachusetts. And, because Mass. Port has significant contacts with various other states and nations, they contend that it should expect to account to other jurisdictions for both compensatory and punitive damages.

As noted above, Massachusetts has the most significant interest in applying its law of punitive damages to defendant World Airways. Massachusetts’ relationship with respect to the application of punitive damages to defendant Mass. Port is even greater. The Commonwealth of Massachusetts created the corporate entity, Mass. Port, in part to own and control certain operations at Logan Airport. Although Mass. Port has contact with various foreign carriers, all of its conduct is initiated from Massachusetts and in accordance with local laws and regulations. In this case all of the alleged negligent conduct occurred in Massachusetts. The Olszewski plaintiffs allege that Mass. Port was negligent in (1) maintaining Runway 15 in a hazardous condition; (2) failing to notify incoming flights of the existing runway and weather conditions; (3) failing to close the runway; and (4) failing to institute and perform adequate rescue procedures.

In light of the policies underlying punitive damages, it is clear that Massachusetts has the most significant interest in regulating the conduct of its Port Authority. Thus, the Massachusetts law must govern the punitive damages claim against Mass. Port.

Y.

Based upon the foregoing discussion, the law of Massachusetts controls Freeman and Olszewski’s claims of punitive damages against the defendants. As noted above, Massachusetts does not allow punitive damages in personal injury cases.

ORDER

For the foregoing reasons, it is ORDERED:

World Airways’ motion for partial summary judgment is granted.

Mass. Port’s motion for partial summary judgment is granted.