author: EARL E. O’CONNOR, Chief Judge.

text:
    Janice Diane BARGER, Plaintiff, v. STATE OF KANSAS; Emporia State University; Dr. John E. Visser; Stephen F. Davis; Richard F. Ishler; and Kala M. Stroup, Defendants.
    Civ. A. No. 85-4006.
    United States District Court, D. Kansas.
    Nov. 4, 1985.

      Kenneth F. Crockett, Tilton, Dillon, Beck & Crockett, Topeka, Kan., for plaintiff.
    Karen A. Nichols, Asst. Atty. Gen., Topeka, Kan., Robert D. Benham, McAnay, Van Cleave & Phillips, Kansas City, Kan., for defendants.
   MEMORANDUM AND ORDER

EARL E. O’CONNOR, Chief Judge.

This case is before the court on defendants’ motions to dismiss plaintiff’s conspiracy claims arising under 42 U.S.C. § 1985; to dismiss plaintiff’s claims against the State of Kansas and Emporia State University arising under 42 U.S.C. §§ 1983, 1985 and 1988; for summary judgment on all of plaintiff’s claims against the individual defendants in their official and individual capacities; and for oral argument on said motions.

This is a sex discrimination action arising under 42 U.S.C. §§ 1983,1985 and 1988 and Title VII of the Civil Rights Act of 1965, 42 U.S.C. § 2000e, et seq. Plaintiff seeks actual and punitive damages and attorney’s fees against the State of Kansas and Em-poria State University [hereinafter ESU] and the individual defendants, Dr. John Visser, Dr. Stephen Davis, Dr. Richard Ish-ler, and Dr. Kala Stroup, in both their official and individual capacities.

The uncontroverted material facts in this case are as follows. Plaintiff was employed at ESU as a temporary lecturer from August 1978 to May 1983. Plaintiff’s temporary lecturer position was abolished on May 17, 1983. At all times pertinent to this action, defendant Dr. John Visser was President of Emporia State University, defendant Dr. Kala Stroup was Vice President for Academic Affairs and Dr. Richard Ishler was Dean of the School of Education. Defendant Dr. Stephen Davis became Chairperson of the Psychology Department at ESU on June 18, 1979, and continued in that position at all times relevant to this action.

I. Oral Argument.

Defendants have moved for oral argument on their motions for summary judgment and dismissal. Because the court does not believe that argument would be helpful in this case, defendants’ motion shall be denied. See Rule 15(d), Rules of Practice of the United States District Court for the District of Kansas.

II. Dismissal.

The court may not dismiss plaintiffs complaint for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). In considering a motion to dismiss, the factual allegations of the complaint must be accepted as true and all reasonable inferences must be made in favor of the plaintiff. Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). Motions to dismiss are generally viewed with disfavor and are rarely granted. 5 Wright & Miller, Federal Practice and Procedure § 1357 at 598.

A. Claims Against the State of Kansas and Emporia State University Arising Under Sections 1983, 1985 and 1988.

Defendants State of Kansas and Empo-ria State University move for dismissal of plaintiffs claims arising under 42 U.S.C. §§ 1983, 1985 and 1988 on the ground that they are immune under the Eleventh Amendment. For the following reasons, defendants’ motion will be granted.

It is well settled that the Eleventh Amendment, in the absence of consent, bars suit against the state or one of its agencies or departments in federal court. See, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). This bar applies regardless of the nature of the relief sought. Pennhurst, 465 U.S. at 100, 104 S.Ct. at 908; Missouri v. Fiske, 290 U.S. 18, 27, 54 S.Ct. 18, 21, 78 L.Ed. 145 (1933).

It is also well settled that universities established by the State of Kansas and governed by the Kansas Board of Regents share the state’s Eleventh Amendment immunity. Brennan v. University of Kansas, 451 F.2d 1287, 1290-91 (10th Cir.1971); Billings v. Wichita State University, 557 F.Supp. 1348, 1350 (D.Kan.1983). Defendant Emporia State University is such a university, and is therefore immune.

Plaintiff argues that the Kansas Legislature’s enactment of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., is evidence that the state has waived its immunity. This argument is totally without merit. K.S.A. 75-6118 expressly provides that the Kansas Tort Claims Act shall not be construed as a waiver of Eleventh Amendment immunity. This is also the past holding of this court. See Billings, 557 F.Supp. at 1351.

Plaintiff also argues that Congress intended to override the Eleventh Amendment grant of immunity by enacting the Civil Rights Act. This argument was expressly rejected by the Supreme Court in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Accordingly, it follows that plaintiffs sections 1983 and 1985 claims are barred by the Eleventh Amendment and must be dismissed.

It also follows that plaintiffs claims under section 1988 against the State and Emporia State University are barred. Section 1988 provides for the award of attorney’s fees only to a “prevailing party” under sections 1981, 1983, 1985 or 1986. Because plaintiff is barred from suing the State and ESU because of immunity, plaintiff cannot be said to “prevail” for purposes of section 1988. Pitts v. Kansas Board of Dental Examiners, No. 84-4207 (D.Kan., unpublished, Jan. 17, 1985). Thus, plaintiffs claim against the State and ESU under section 1988 must also be dismissed.

B. Conspiracy Claims Arising Under k2 U.S.C. § 1985.

All defendants move for dismissal of plaintiffs section 1985 conspiracy claims for failure to state a claim upon which relief can be granted. Because we have concluded that the State of Kansas and Emporia State University are immune from suit, we will restrict our discussion of this issue to the conspiracy claims against the individual defendants.

Defendants first argue that no section 1985(3) conspiracy could have existed because the University and its officials constitute a single entity that cannot conspire with itself. This argument is based on the general rule that agents of a corporation comprise one legal entity and therefore cannot conspire for purposes of section 1985(3). See, e.g., Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.1972). This court has applied this rule to government agents and employees acting in their official capacities. See Scott v. City of Overland Park, 595 F.Supp. 520, 527 (D.Kan.1984). See also Davidson v. Yeshiva University, 555 F.Supp. 75, 79-80 (S.D.N.Y.1982); Buntin v. Board of Trustees of Virginia Supplemental Retirement System, 548 F.Supp. 657, 660 (W.D.Va.1982); Zentgraf v. Texas A & M University, 492 F.Supp. 265, 272-73 (S.D.Tex.1980); Johnson v. Brelje, 482 F.Supp. 125, 130 (N.D.Ill.1979). But see Jacobs v. Board of Regents, 473 F.Supp. 663, 670-71 (S.D.Fla.1979); Jackson v. University of Pittsburgh, 405 F.Supp. 607, 612-13 (W.D.Pa.1975).

We have refused to apply this rule, however, to government employees acting in their individual capacities. See Scott, 595 F.Supp. at 527; Rivas v. State Board for Community Colleges, 517 F.Supp. 467, 472 (D.Colo.1981); Edmonds v. Dillin, 485 F.Supp. 722, 729 (N.D.Ohio 1980). Thus, to the extent that plaintiff has alleged that defendants conspired in their official capacities, plaintiff has not stated a claim under section 1985(3).

With respect to plaintiffs conspiracy claims against the defendants in their individual capacities, defendants argue that plaintiff has failed to adequately plead any conspiracy. Defendants contend that plaintiffs complaint contains only conclusory allegations of conspiracy and pleads no facts showing the necessary agreement and concerted action. We concur.

In Griffin v. Breckenridge, 403 U.S. 88, 102-103, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), the Supreme Court provided the following criteria for measuring whether a complaint states a cause of action under section 1985(3):

To come within the legislation a complaint must allege that the defendants did (1) “conspire or go in disguise on the highway or on the premises of another” (2) “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” It must then assert that one or more of the conspirators (3) did, or caused to be done, “any act in furtherance of the object of [the] conspiracy,” whereby another was (4a) “injured in his person or property” or (4b) “deprived of having and exercising any right or privilege of a citizen of the United States.”

The Tenth Circuit has held that mere conclusory allegations of a conspiracy with no supporting factual averments are insufficient to state a claim under section 1985(3). See Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983); Clulow v. State of Oklahoma, 700 F.2d 1291, 1303 (10th Cir.1983). To state a cause of action under section 1985(3), the pleadings “must specifically present facts tending to show agreement and concerted action.” Sooner Products, 708 F.2d at 512 (citing Clulow, 700 F.2d at 1303). We find that plaintiff has alleged no facts tending to show any agreement or concerted action between the individual defendants in their individual capacities.

We note, however, that the Tenth Circuit has warned that “caution is advised in any pre-trial disposition of conspiracy allegations in civil rights actions.” Clulow, 700 F.2d at 1303 (citing Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir.1980). We will therefore grant plaintiff leave to amend her complaint to plead specific facts, if any, showing an agreement or concerted action between the individual defendants in their individual capacities.

III. Summary Judgment.

Summary judgment is proper when the matters considered by the court disclose that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court must look at the record in the light most favorable to the party opposing the motion. Prochaska v. Marcoux, 632 F.2d 848, 850 (10th Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2316, 68 L.Ed.2d 841 (1981). Before summary judgment may be granted, the moving party must establish that it is entitled to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). Once the moving party has properly supported its motion, however, the opposing party must respond with specific facts that demonstrate the existence of a genuine factual issue to be tried, Otteson v. United States, 622 F.2d 516, 520 (10th Cir.1980), and may not rest upon the mere allegations or denials of his pleading. Fed.R.Civ.P. 56(e).

A. Claims Against the Individual Defendants in Their Official Capacities.

The individual defendants Yisser, Stroup, Ishler and Davis move for summary judgment on all claims made against them in their official capacities on the ground that these claims are barred by Eleventh Amendment immunity. We agree that the individual defendants are immune from suit in their official capacities for claims under sections 1983 and 1988, but not for claims under Title VII.

It is the well settled rule that state university employees who are sued in their official capacities are protected by the Eleventh Amendment. Beck v. Kansas University Psychiatry Foundation, 580 F.Supp. 527, 538 (D.Kan.1984); Wrenn v. State of Kansas, 561 F.Supp. 1216, 1220 (D.Kan.1983); Billings v. Wichita State University, 557 F.Supp. 1348, 1350-51 (D.Kan.1983). See generally Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). One exception to this general rule is that state employees are not protected by the Eleventh Amendment when sued in their official capacities for injunctive relief. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984). Plaintiff in this case, however, is not seeking such relief.

A second exception to this rule exists when Congress, exercising the powers granted by Section 5 of the Fourteenth Amendment, chooses to abrogate state immunity from suit in federal court. In Fitzpatrick v. Bitzer, 427 U.S. 445, 451-56, 96 S.Ct. 2666, 2669-71, 49 L.Ed.2d 614 (1976), the Supreme Court expressly held that Congress clearly intended to subject a state to suit in federal court under Title VII. Thus, Title VII suits against state employees in their official capacities are not barred by the Eleventh Amendment. With respect to suits under section 1983, however, the Supreme Court has found no Congressional intent to abrogate state immunity from suit under the Civil Rights Act. Quern v. Jordan, 440 U.S. 332, 343-45, 99 S.Ct. 1139, 1146-47, 59 L.Ed.2d 358 (1979). Thus, suits against state employees in their official capacities under section 1983 are barred by the Eleventh Amendment. Id.

We therefore conclude that defendants’ motion for summary judgment on all claims against the defendants in their official capacities shall be denied with respect to plaintiffs Title VII claims and granted with respect to plaintiff’s sections 1983 and 1988 claims.

, B. Claims Against the Individual Defendants in Their Individual Capacities.

The individual defendants Yisser, Stroup, Ishler and Davis also move for summary judgment on all claims against them in their individual capacities on the ground that the Eleventh Amendment bars a federal court from entering a money judgment against the defendants individually. Defendants’ argument is based on provisions in K.S.A. 75-6116 that require the state to pay any judgment against a state employee who is held liable for a violation of civil rights laws. Because such judgments are paid from the state treasury, defendants argue they are barred by the Eleventh Amendment.

Section 75-6116(a) reads in pertinent part:

If an employee of a governmental entity is or could be subject to personal civil liability on account of a noncriminal act or omission which is within the scope of the employee’s employment and which allegedly violates the civil rights laws of the United States or of the state of Kansas, the governmental entity shall provide for the defense of any civil action or proceeding which arises out of the act or omission and which is brought against the employee in the employee’s official or individual capacity or both .... If the employee’s act or omission giving rise to the action or proceeding was not the result of actual fraud or actual malice and the employee reasonably cooperates in good faith in defense of the action or proceeding, the governmental entity, subject to any procedural requirements imposed by statute, ordinance, resolution or written policy, shall pay or cause to be paid any judgment or settlement of the claim or suit and all costs and fees incurred by the employee in defense thereof.

K.S.A. 75-6116(a) (1984) (emphasis added).

This court has never specifically addressed the issue of Eleventh Amendment immunity for state officials with respect to the provisions of K.S.A. 75-6116. We have, however, consistently held that suits against state officers in their individual capacities are not barred by the Eleventh Amendment. See, e.g., Beck v. Kansas University Psychiatry Foundation, 580 F.Supp. 527, 538 (D.Kan.1984); Wrenn v. State of Kansas, 561 F.Supp. 1216, 1220 (D.Kan.1983). We have allowed such suits to proceed on the theory that when an officer acts unconstitutionally, he is “stripped of his official or representative character and is subjected to the consequences of his official conduct.” Ex parte Young, 209 U.S. 123, 159-60, 28 S:Ct. 441, 453-54, 52 L.Ed. 714 (1908). See also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984); Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 684-85, 102 S.Ct. 3304, 3314, 73 L.Ed.2d 1057 (1982); Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974).

As defendants correctly assert, the Eleventh Amendment does, however, bar such suits if the judgments are to be paid by the state. In Treasure Salvors, the Supreme Court stated:

[T]he [Eleventh] Amendment places a limit on the relief that may be obtained by the plaintiff. If the action is allowed to proceed against the officer only because he acted without proper authority, the judgment may not compel the State to use its funds to compensate the plaintiff for the injury.

458 U.S. at 689, 102 S.Ct. at 3317. Defendants thus argue that because K.S.A. 75-6116 provides for payment by the state of any judgment for a civil rights violation against a state official in his individual capacity, suits against the official in his individual capacity are barred.

We are not persuaded by defendants’ arguments. Every court to consider the effect of similar statutes has reached the conclusion that such suits are not barred by the Eleventh Amendment. See Ronwin v. Shapiro, 657 F.2d 1071, 1074-75 (9th Cir.1981); Downing v. Williams, 624 F.2d 612, 626 (5th Cir.1980), vacated on other grounds, 645 F.2d 1226 (1981); McAdoo v. Lane, 564 F.Supp. 1215, 1219-20 (N.D.Ill.1983); Broome v. Percy, 470 F.Supp. 633, 635-36 (E.D.Wis.1979); Palmer v. Penn-Ohio Road Materials, Inc., 470 F.Supp. 1199, 1203 (W.D.Pa.1979); Ware v. Percy, 468 F.Supp. 1266, 1268 (E.D.Wis.1979).

These decisions are predicated on the rationale that such statutes are merely attempts by the state to protect its employees and ensure that meritorious claims are paid. See Palmer, 470 F.Supp. at 1203. The statutes are simply agreements between the state and its employees and cannot be converted into a basis for Eleventh Amendment immunity by the state. Downing, 624 F.2d at 626. To hold otherwise would allow states, by passing indemnity statutes, to use sovereign immunity as a defense for all persons sued in their individual capacities under section 1983. Id. This would have the incongruous result of creating a special fund to compensate victims of civil rights violations, but denying payment to the intended beneficiaries because they sought relief in the federal courts. Palmer, 470 F.Supp. at 1203.

Furthermore, these statutes are voluntary decisions by the state to indemnify or pay their employees’ judgments. As the court in McAdoo, supra, noted:

The eleventh amendment requires only that nothing in this court’s judgment compel the state to pay the judgment .... [Sjince our judgment will in no way compel the state to indemnify plaintiffs, this action is not against the state within the meaning of the eleventh amendment; it is brought only against named individuals and hence is not barred by the amendment.

564 F.Supp. at 1219 (emphasis added).

In light of the foregoing, we conclude that K.S.A. 75-6116 does not present an Eleventh Amendment bar to section 1983 suits against state officials in their individual capacities. Summary judgment on plaintiff's claims against the individual defendants in their individual capacities is therefore inappropriate.

IT IS THEREFORE ORDERED that the motion by defendants Visser, Stroup, Ishler and Davis for summary judgment on all claims against them in their individual capacities is denied.

IT IS FURTHER ORDERED that defendants’ motion for oral argument is denied.

IT IS FURTHER ORDERED that the motion by defendants State of Kansas and Emporia State University to dismiss plaintiff’s claims arising under 42 U.S.C. §§ 1983, 1985 and 1988 is granted.

IT IS FURTHER ORDERED that defendants’ motion to dismiss plaintiff’s claims arising under 42 U.S.C. § 1985 is granted with respect to defendants Yisser, Stroup, Ishler and Davis in their official capacities. With respect to said defendants in their individual capacities, plaintiff is granted leave to amend her complaint to plead her conspiracy claim. Plaintiff shall have ten (10) days from the date of this order to file her amended claim and defendants shall have ten (10) days thereafter to answer. If plaintiff fails to file an amended complaint, plaintiff’s section 1985 claims against defendants Visser, Stroup, Ishler and Davis in their individual capacities shall be dismissed.

IT IS FURTHER ORDERED that the motion by defendants Yisser, Stroup, Ishler and Davis for summary judgment on all claims against them in their official' capacities is denied with respect to plaintiff’s Title VII claims and granted with respect to plaintiff’s claims arising under 42 U.S.C. §§ 1983 and 1988.

      . Emporia State University is defined by statute as a "state educational institution,” [see K.S.A. 76-711(a)], which is a state agency operated and managed under the Kansas Board of Regents [see K.S.A. 76-712].

        . Section 1985(3) provides in pertinent part:
      If two or more persons in any State or Territory conspire ... for the purpose of depriving ... any person or class of persons the equal protection of the laws, or of equal privileges and immunities under the laws ... the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
      42 U.S.C. § 1985(3) (emphasis added).

      . K.S.A. 75-6117 provides for payment of such judgments. It reads in part:
      (a) There is hereby established in the state treasury the tort claims fund which shall be administered by the attorney general.
      (b) Moneys in the tort claims fund shall be used only for the purpose of paying (1) compromises, settlements and final judgments arising from claims against the state or an employee of the state under the Kansas tort claims act or under the civil rights laws of the United States or of the state of Kansas and (2) costs of defending the state or an employee of the state in any actions or proceedings on those claims .... To the extent that payment cannot be made from insurance coverage obtained therefor, payment of a final judgment shall be made from the fund....
      K.S.A. 75-6117 (1984).

      . See also L. Tribe, American Constitutional Law at 133, n. 22 (1978):
      Such a voluntary assumption of an officer’s liability ought to be insufficient to create eleventh amendment immunity. In the parallel case of intergovernmental tax immunities, assumption by the federal executive of state taxes levied against a private party is not enough to create tax immunity. For the same reasons, a state should not be able to turn a purely intramural arrangement with its officers into an extension of sovereign immunity.


source: Caselaw Access Project

author: GOETTEL, District Judge.

license: Public Domain

text:
    UNITED STATES of America, v. Michael NASH, Defendant. UNITED STATES of America, v. Elliot NEGRON, Defendant.
    Nos. 85 Cr. 677 (GLG), 85 Cr. 676 (GLG).
    United States District Court, S.D. New York.
    Nov. 4, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for the U.S.; Linda Imes; Asst. U.S. Atty., of counsel.
    Legal Aid Society, New York City, for defendant Elliot Negron; Helen Coady, of counsel.
    Norman Arnoff, New York City, for defendant Michael Nash.
   OPINION

GOETTEL, District Judge.

Defendants Michael Nash and Elliot Negron move pursuant to Fed.R.Crim.P. 41 to suppress as evidence post-arrest statements made by them to government agents prior to their presentment before a United States Magistrate. For the following reasons, their motions are granted.

I. BACKGROUND

Defendants Nash and Negron are juveniles. On July 8, 1985, they were arrested in the Bronx for attempted armed bank robbery. Nash was arrested at approximately 10:15 a.m. on that date, orally advised of his rights, and driven to F.B.I. headquarters at 26 Federal Plaza. Upon his arrival, Nash was taken to an interview room and again advised of his rights. He signed a waiver of his rights and the agents took his pedigree, at which time they learned of his age. They contacted his mother and advised her of her son’s arrest and the charges filed against him. She indicated that she was unwilling to come down to court. It is unclear whether this notification took place before or after Nash made the statement at issue in this motion, or whether Mrs. Nash was advised of her son’s constitutional rights. Nash was subsequently processed and taken to the magistrate at approximately 5:30 p.m., and presented around 7 p.m.

Negron was arrested at a different location, approximately one hour after the other defendants. The arresting officers determined that he was a juvenile and read him his rights. They then drove to his mother’s home to search for weapons and to inform her of her son’s arrest and the nature of the offense. His mother was not at home, but the officers informed Neg-ron’s juvenile brother and sister, the sister’s adult husband, and Negron’s aunt (who did not speak English) that Negron had been arrested for attempted armed bank robbery. It does not appear that these family members were advised of his constitutional rights, but they were told they could come to the arraignment. The officers then drove Negron to 26 Federal Plaza, where he waived his rights and made a statement. He was processed by the Marshal’s office and Pre-Trial Services and taken to the magistrate around 5:30 p.m. He was presented with the other defendants around 7 p.m.

Both defendants were in custody for approximately 2-3 hours before making statements of confession. Nash was in custody for 8-9 hours, and Negron 7-8, before being arraigned before a magistrate. Several hours of the delay before presentment may be attributed to interviews of the defendants by Pre-Trial Services (in Negron’s case, by his probation officer), assignment of counsel and counsel’s interviews of the defendants, and congestion in the magistrate’s courtroom.

II. DISCUSSION

Section 5033 of the Federal Juvenile Delinquency Act provides:

Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer shall immediately advise such juvenile of his legal rights, in language comprehensive to a juvenile, and shall immediately notify the Attorney General and the juvenile’s parents, guardian, or custodian of such custody. The arresting officer shall also notify the parents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense.
The juvenile shall be taken before a magistrate forthwith. In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate.

18 U.S.C. § 5033 (1982). The defendants contend that their rights as juveniles under this statute have been violated. More specifically, they assert that because the. government failed to notify their parents and because there was an unreasonable delay in bringing them before a magistrate, their confessions must be suppressed. The Government contends, first, that numerous efforts were made to reach the parents, and second, that the time period between the defendants’ arrest and their presentment before a magistrate was reasonable under the circumstances. The requirements of the statute having been complied with, the Government submits, this Court should not suppress the statements.

There are but three Second Circuit decisions addressing the acceptable length of time a juvenile may be detained prior to arraignment before a magistrate. Two of those cases, United States v. Glover, 372 F.2d 43 (2d Cir.1967) (“Glover ”), and United States v. Binet, 442 F.2d 296 (2d Cir.1971), on remand, 335 F.Supp. 1000 (S.D.N.Y.1971) (“Binet”), were decided under the predecessor version of 18 U.S.C. § 5033, 18 U.S.C. § 5035. In Glover, a 17-year-old defendant was detained overnight in a prison facility before being arraigned the following morning. During that time he was questioned, and he confessed. The court suppressed the statement, finding that the statute allowed detention only for the purpose of “prompt arraignment, before a judicial officer, so that the magistrate may explain and protect the juvenile’s rights — among others, the right against compulsory self-incrimination and the right to the assistance of counsel.” Glover, supra, 372 F.2d at 46. The court went on to state the following:

Treatment of an accused juvenile after arrest as a chattel in the possession of the officers, deliverable at will to the inspectors’ offices for interrogation is a plain departure from the command of the statute for forthwith production of the juvenile before a magistrate. Statements taken while the statute is being ignored in this fashion must be held inadmissible.

Id. at 47.

Several years later, in Binet, a 15-year-old defendant was detained for 7V2 hours before his arraignment, during which time the government elicited incriminating statements from him. The district court found that “such an extensive time period, in and of itself, is violative of 18 U.S.C. § 5035, unless justified by extraordinary circumstances.” Binet, supra, 335 F.Supp. at 1002. Finding that no such exigencies existed, the court held that routine delays and the good faith intentions of those government officials who processed the defendant were insufficient to satisfy the statutory proscription. Id. at 1002-03.

In 1974, Congress amended the operative language of 18 U.S.C. § 5035. A comparison of the old version and its replacement shows that Congress retained the old standard of arraignment “forthwith,” but barred “unreasonable” as opposed to “unnecessary” delays. Little in the legislative history of the 1974 amendments appears to address the reason for this change, but it is noted that it was “necessary to amend the Federal Juvenile Delinquency Act to guarantee certain basic procedural and constitutional protections to juveniles under Federal jurisdiction” as mandated by In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). S.Rep. No. 93-1011, 93rd Cong., 2d Sess., reprinted in [1974] U.S. Code Cong. & Admin.News, 5283 at 5284, 5312.

The Government and defendant Negron dispute the effect of the change in language. Negron contends that the new section demands the application of a more rigorous “forthwith” standard. He asserts that the addition of an explicit command that the defendant be brought forthwith before a magistrate and that his or her parents be notified reflect a congressional intent to strengthen the protection for arrested juveniles. The Government, relying on United States v. Smith, 574 F.2d 707 (2d Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978) (“Smith”), contends that the old statute embodied a more stringent “forthwith” requirement.

In Smith, a 17-year-old defendant was detained for 4-5 hours before his arraignment, during which time the government questioned him and he offered a confession. The Second Circuit, in its only decision construing the new section 5033, refused to suppress the statement and found that the delay for questioning was not unreasonable. The court noted that the delay had served a “valid investigatory purpose” because “a participant [in the crime] was still unapprehended; most of the loot and a firearm were yet to be recovered.” Smith, supra, 574 F.2d at 710. We do not view the Smith case as resting on the change in statutory language.

While there are some grounds for distinguishing Smith from Glover and Binet, this Court must candidly confess that it views the decisions as being basically inconsistent. Moreover, the effect of Smith on the viability of the principles articulated in Glover and Binet is unclear, as is the correctness of either party’s interpretation of the change in statutory language. What is clear, however, is that unless the particular circumstances of a case permit otherwise, as demonstrated by Smith, the proscription against delay remains in force, and “forthwith” still means “forthwith.” The Government contends that Smith makes the delay in the instant case reasonable. However, we may distinguish Smith, because the particular circumstance present there — the “valid investigatory purpose” — upon which that court rested, is not present here. Here, all of the defendants’ co-defendants were already in custody at the time of Nash’s and Negron’s interrogation, and all of the physical evidence, including the weapon, had been recovered. Thus, it cannot be said that the delay here served a valid investigatory purpose.

In looking at the present language of the statute, we are influenced by the order in which its commandments appear. The first statement is that “[t]he juvenile shall be taken before a magistrate forthwith.” It is followed by the statement, “In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate.” (Emphasis added.) The Government relies on the second statement as modifying and weakening the strength of the first sentence. We do not so interpret it. It is not always possible to take a juvenile before a magistrate. In the middle of the night or on weekends (at least from Saturday afternoon on in this District) it would be impossible to do so. Consequently, we interpret the second statement as covering that situation. When there is a magistrate available, we interpret the first statement as being a literal requirement to take the juvenile there immediately. In so interpreting the statute, we do not infer a constitutional right to such a presentment or suggest that the requirement is necessarily a wise one. We are merely attempting to interpret a congressional commandment in light of its plain language.

Assuming arguendo that this literal interpretation of the “forthwith” requirement is in any way incorrect, we turn now to consider other statutory language as well as another framework for analysis. The defendants challenge the Government’s compliance with the notification requirement of the statute; they contend that the notice given to their parents of “the rights of the juvenile and of the nature of the alleged offense,” as required by 18 U.S.C. § 5033, was inadequate. The Government argues that it made good faith efforts to reach the defendants’ parents immediately after their arrest, and that such efforts constitute statutory compliance. It asserts that the arresting officers spoke with Negron’s relatives immediately, and with Mrs. Nash eventually. The Government further asserts that the statute does not prohibit the government from taking a statement prior to such notification.

In support of its position, the Government relies on United States v. Doe, 701 F.2d 819 (9th Cir.1983) {“Doe”), in which the court denied the defendant’s motion to dismiss for violations of section 5033, holding that a 34-hour delay in bringing a juvenile before a magistrate was not unreasonable, and that the government’s failure to notify the juvenile’s parent did not violate due process when the juvenile was not prejudiced. Doe, however, is factually distinguishable from the instant case. There, the juvenile’s mother lived outside the country and was later contacted by defense counsel, the prosecution voluntarily declined to use the statements the defendant made prior to his arraignment and the notification of his mother, and the delay was due to the unavailability of a magistrate. Here, the juveniles’ parents were more accessible to the Government, and on the morning of their arrest, a weekday, a magistrate was presumably available. A consideration of great importance to the Doe court was that the Government never used or intended to use the juvenile’s statement. In the instant case, the Government apparently has every intention of using the defendants’ confessions.

The Government suggests that defendant Negron’s principal objection to its compliance with the notification provision is that his mother was not notified. We find this emphasis misplaced. The statute provides for notification of a parent or guardian or custodian, and it seeks to alert a more knowledgeable and responsible adult not only of the arrest and the charges, but also of the juvenile’s constitutional rights, in order to protect the defendant from himself. Given that purpose, notification made after a statement has been given, or made without spelling out the juvenile’s rights to a “responsible” adult, cannot satisfy the statutory mandate. We do not imply that a juvenile has a constitutional right to have an adult present during the interviewing process. We do find that the statute requires the notification of such an adult before a waiver of rights occurs. The Government’s efforts at notification, although made with good intentions, do not satisfy the statute under the above analysis.

The Government argues that the proper analysis in the Second Circuit for admissibility of a juvenile’s confession is not whether each statutory requirement has been met, but rather, under the totality of the circumstances, whether the statement was given voluntarily. Smith, supra, 574 F.2d at 709-10. The Government further contends that a statement cannot be found per se involuntary because one of the requirements of section 5033 has not been met. Id. It is true that some courts, in looking at all the facts of a case, have merged the notification and forthwith arraignment requirements. In so doing, the courts have found confessions elicited during an extended time period before arraignment admissible when the parents or guardian were actually present or had received satisfactory notice of the accused’s rights. See United States v. Indian Boy X, 565 F.2d 585 (9th Cir.1977) (statements admissible despite delay prior to arraignment when juvenile’s parent was present at time of rendition of Miranda rights and waivers); see also Smith, supra, (court relied not only on the “valid investigatory purpose” served by the questioning before arraignment, but also on the fact that the defendant was arrested at the home of his grandmother, who was present while he was advised of his constitutional rights and the nature of the charges against him).

The Government contends that the totality of circumstances of the instant case render the statements of Nash and Negron voluntary, ergo, admissible. It refers to its notification of Nash’s mother and Negron’s relatives, and to the reasonableness of the delay, attributing it to routine processing and interviewing. Finally, the Government asserts that Nash and Negron were not strangers to the criminal justice system, both having been previously convicted of violent crimes and having served time on those charges. This experience, it submits, made the defendants fully aware of their rights and the consequences of waiving those rights and making a statement. In other words, the Government argues that these particular juveniles are not within the purview of the statute’s protection. Smith, supra, 574 F.2d at 709.

We are not persuaded by the Government’s arguments. In fact, looking at the total circumstances of this case, we are more convinced that these statements must be held inadmissible. The Government’s notification did not, and could not, effectuate the purpose of the statute. The 7-9 hour delay before presentment was unreasonable given the availability of a magistrate on that weekday morning. Finally, with respect to the Government’s contention that the defendants were “streetwise,” Nash and Negron may have been more aware of their rights than other juveniles having no prior experience with the criminal justice system. They also may have been intelligent enough to understand their position. Nonetheless, they are still juveniles, and remain entitled to the statutory protections accorded juveniles. Thus, their familiarity with the system cannot excuse the Government’s failure to arraign them pursuant to the statutory requirements.

III. CONCLUSION

For the above reasons, the defendants’ motions to suppress statements taken before their arraignment are granted.

SO ORDERED.

      . A pedigree is basic information including full name, age, address, etc.

      . This version, 18 U.S.C. § 5035, provided, in relevant part:
      Whenever a juvenile is arrested for an alleged violation of any law of the United States, the arresting officer shall immediately notify the Attorney General.
      If the juvenile is not forthwith taken before a committing magistrate, he may be detained in such juvenile home...
      In no case shall such detention be for a longer period than is necessary to produce the juvenile before a committing magistrate....

      . In attempting to determine how the present Court of Appeals of the Second Circuit would rule on this case, if we are correct in our belief that the earlier decisions cannot be reconciled, we are confronted with the fact that the Smith case was decided by a Circuit Judge who subsequently resigned from the Court, a visiting Circuit Judge, and a Judge of the Court of Customs and Patent Appeals, with the result that none of them are presently active judges on the Second Circuit bench. For that matter, only one of the judges on the Glover panel is still on the bench and none of the Binet judges are alive.

      . If pressed, we would agree with the defendant that, if anything, the change in language strengthens juveniles’ rights.


author: CRABB, Chief Judge.

text:
    MESSNER, INCORPORATED, a Wisconsin corporation, Plaintiff, v. The TRAVELERS INDEMNITY COMPANY, Defendant.
    No. 85-C-303-C.
    United States District Court, W.D. Wisconsin.
    Nov. 5, 1985.

      Thomas G. Ragatz and Gordon Davenport III, Foley & Lardner, Madison, Wis., for plaintiff.
    William J. Sneckenberg, Chicago, Ill., Ward I. Richter, Bell, Metzner & Gierhart, S.C., Madison, Wis., for defendant.
   ORDER

CRABB, Chief Judge.

This is a civil action for money damages in which plaintiff asserts that it is a loss payee under an insurance policy issued by defendant to the Marsala Restaurant, entitled to payment for fire damage to restaurant equipment and supplies plaintiff sold to the restaurant. Plaintiff also asserts a tort claim against defendant, claiming that defendant has acted in bad faith in refusing to pay plaintiff money owed under the insurance policy.

Defendant has moved to dismiss this action for failure to state a claim. Defendant asserts that plaintiff’s first claim must be dismissed because a loss payee may not maintain an action in its own name to collect the proceeds of an insurance policy. Defendant argues that the second claim must be dismissed because a loss payee cannot maintain an action for the tort of bad faith, and because plaintiff’s complaint fails to allege certain facts necessary to state a claim of bad faith.

FACTS

Taking the allegations of the complaint as true, and for the sole purpose of deciding this motion, I find the following as fact.

Plaintiff is a Wisconsin corporation engaged in the business of selling and servicing restaurant equipment and supplies. Defendant is a Connecticut insurance corporation with its principal place of business located in Hartford, Connecticut, and is licensed to do business in Wisconsin. Defendant is engaged in the business of providing various types of insurance.

On August 18, 1983, plaintiff sold $158,-767.40 worth of restaurant equipment, supplies and furnishings to Marsala Restaurant and Pizzeria Lunch, Inc., the operator of a restaurant in Beloit, Wisconsin. This sale was made pursuant to a conditional sales contract, under which plaintiff reserved a security interest in the equipment. In addition to the items covered by this contract, Marsala purchased various items of equipment and supply from plaintiff on open account between November 1, 1983 and February 8, 1984; these purchases totaled $4,472.66.

On October 13, 1983, defendant issued a property insurance policy to Marsala, insuring the restaurant’s real and personal property against covered losses. On March 31, 1984, defendant issued a lender’s certificate of insurance designating plaintiff as first loss payee under this policy for all of the personal property usual to the insured’s business, subject to a liability limit of $200,-000.00.

On May 27, 1984, the building occupied by Marsala was damaged by fire. The items purchased by Marsala from plaintiff suffered substantial damage and destruction.

Marsala failed to pay plaintiff for the restaurant items it purchased. On July 27, 1984, plaintiff brought suit in Rock County Circuit Court to recover the amount due from Marsala and to foreclose its security interest in the equipment. Messner, Incorporated and M & I Bank of Hilldale v. Marsala Restaurant & Pizzeria Lunch, Inc., Andrew Ingarra and Pamela Ingara, Case No. 84-CV-298. On August 18, 1984, the court entered a preliminary injunction allowing plaintiff to take possession of the collateral. On August 23, 1984, the court entered final judgment in favor of plaintiff for all amounts due and for foreclosure of its security interest. On March 26, 1985, the M & I Bank of Hilldale assigned its interest in that judgment to plaintiff.

Plaintiff took physical possession of the equipment in September, 1984. On September 19,1984, plaintiff submitted a claim to defendant for $149,321.96, based on plaintiffs estimate of the loss to the equipment and plaintiffs expenses in retrieving the equipment. Plaintiff did not attempt to repair any of the equipment before submitting its claim.

Marsala has not submitted a claim to defendant for the fire damage to the equipment.

Defendant responded to plaintiffs claim on December 6, 1984. Defendant offered to pay $26,806.55 for those items it considered a total loss and $5,938.00 for cleaning the remaining items, for a total payment of $32,744.55. On December 18, 1984, defendant revised its offer by adding $4,000.00 for plaintiffs costs for “inspection and servicing” the equipment.

Unable to reach agreement with defendant, plaintiff proceeded with attempts to repair and sell the damaged equipment. Plaintiff notified defendant of the repairs and sales, and defendant did not object. On March 18, 1985, plaintiff submitted a revised claim to defendant for $131,382.86. The revised claim reflected the results of the repairs and sales and the storage costs incurred by plaintiff. Defendant has refused payment of this revised claim.

OPINION

Loss payee’s action for insurance proceeds

Defendant asserts that under Wisconsin law a loss payee may not independently maintain an action for insurance proceeds. Defendant relies on the most recent Wisconsin case addressing this issue, Wunderlich v. The Palatine Fire Insurance Co., 104 Wis. 395, 80 N.W. 471 (1899). Plaintiff attempts to distinguish the Wunderlich case from several cases of even more ancient vintage, which, plaintiff asserts, establish a loss payee’s right to bring an action in its own behalf.

In Wunderlich, the George E. Foster Lumber Company was named a loss payee on policies insuring Wunderlich from fire damage to a certain lumber supply. Foster had an option to purchase a portion of the lumber supply from Wunderlich. After the option had been accepted, but before delivery, fire destroyed the lumber. Wunder-lich’s insurance claims were denied by the carrier on the basis of fraudulent representations made on the proofs of loss. Wun-derlich sued the insurer, and Foster, the loss payee, was impleaded. Foster filed cross complaints against the insurance carrier on two claims. The first claim was based on the policy’s “lumber clause,” which insured whoever proved to be the owner of any lumber held by Wunderlich. The second claim sought enforcement of the policy under the loss payable clause. The trial court dismissed Foster’s cross complaints on the pleadings.

The Wisconsin supreme court affirmed. The court rejected Foster’s claim under the “lumber clause” because Foster did not have an ownership interest in the lumber. The court also rejected Foster’s claim under the loss payable clause, stating:

The rights of a claimant under [the loss payable] clause, where the title and ownership of the property remains in the assured, are no longer open to doubt or debate in this state.... The contract is with the assured, to him alone is the insurer liable, and upon his acts will that liability depend. The claimant under such a provision is not an assignee of the policy so as to hold an independent right of recovery, but a mere appointee to receive ... the money which the assured is entitled to recover, but to receive it under and in the right of the assured.

Wunderlich, 104 Wis. at 402, 80 N.W. 471 (emphasis added).

Contrary to defendant’s interpretation, Wunderlich does not bar all independent actions by a loss payee. Rather, Wunder-lich ’s prohibition appears to be limited to situations in which the “title and ownership of the property remains in the assured;” in other words, when the loss payee has no ownership interest in the property.

This interpretation finds support in several Wisconsin cases predating Wunderlich, the most pertinent of which is Hammel v. The Queen Insurance Co., 50 Wis. 240, 6 N.W. 805 (1880). In Hammel, the mortgagee of the insured property was the loss payee under the mortgagor’s insurance policy; the mortgage debt was alleged to exceed the amount insured by the policy. After fire destroyed the property, the loss payee brought suit on the policy. The defendant insurance company demurred on the grounds that the loss payee could not bring an action without joining the insured as a party plaintiff. In affirming the order overruling the demurrer, the supreme court stated:

The legal title to the policy of insurance was as effectually in the plaintiff as if it had been assigned to him. He was mortgagee of the premises insured, and the loss, if any, was made payable to him as his interest might appear. His mortgage debt is averred to be greater than the sum insured. Thus his interest appears to be the whole interest in the policy. In these circumstances it is difficult to perceive why the mortgagor is a necessary party. It has been held in this court that where the legal title of the policy is in the creditor, he may maintain an action on the policy in his own name.

50 Wis. at 243-44, 6 N.W. 805 (citations omitted). The rationale of Hammel is that when the mortgage debt exceeds the amount insured by the policy, the mortgagee — loss payee has constructive legal title to the insurance policy.

The facts of the present case fall between those of Hammel and Wunder-lich. Unlike Hammel, the debt owed plaintiff is less than the amount insured by the policy. But unlike Wunderlich, plaintiff has an ownership interest in the insured property by virtue of its security interest. Therefore, the question to be decided is whether a loss payee who has an ownership interest in the insured property but whose interest is less than the total amount insured by the policy may bring an action on the policy. The Hammel case suggests in dicta that the loss payee may do so. Hammel, 50 Wis. at 244, 6 N.W. 805 (“If the mortgagee alone sue, and recover more than his debt, he will hold the surplus as trustee for his debtor.”)- No Wisconsin case addresses this issue directly, but other authorities provide guidance.

A leading treatise on insurance law describes a mortgagee’s right to sue in its own name as follows:

It is usually considered that either the mortgagor or mortgagee has a sufficient legal interest to permit him to sue for the policy proceeds.... Thus, the usual rule is that a mortgagee, particularly where such interest is recognized by a loss payable clause in the policy, is a proper person to maintain an action for the loss.
20B Appleman, Insurance Law and Practice § 11745, at 41 (1980) (footnotes omitted). This statement is consistent with the Wisconsin rule established in Hammel. Appleman then addresses the problem not addressed by Hammel or Wunderlich: a mortgagee’s right to sue when the mortgage debt is less than the amount of the policy:

If the property is insured for more than the mortgage, the mortgagee may still recover in his own name to the extent of his interest.

Id. at 43. Thus, a mortgagee may sue under a loss payable clause even though his interest is less than the amount of the policy. These principles also apply to loss payees who have interests in the insured property but who are not mortgagees:

The result is, as has been seen under prior discussions as to mortgagees and other persons interested, that a payee under a loss payable clause may, by the overwhelming weight of authority, sue in his own name to recover a loss occurring under a policy of property insurance.

Id., § 11749, at 48.

I conclude that a loss payee who has an ownership interest in the insured property may bring an action to recover on the insurance policy. Accordingly, I will deny defendant’s motion to dismiss plaintiff’s first cause of action.

Loss payee’s action for bad faith

In its second cause of action, plaintiff asserts that defendant has acted in bad faith in refusing to settle its insurance claim. Defendant contends that this claim must be dismissed because a loss payee cannot bring an action for bad faith.

Under Wisconsin law, an insurance company may be liable for extracontractual damages as a result of tortious conduct in the settlement of claims. See Kranzush v. Badger State Mutual Casualty Co., 103 Wis.2d 56, 60, 307 N.W.2d 256 (1981). The tort of bad faith is not a tortious breach of contract, but is a separate intentional wrong that results from a breach of the special duty imposed on the insurer as a result of its contractual relationship with the insured. See Anderson v. Continental Insurance Co., 85 Wis.2d 675, 687, 271 N.W.2d 368 (1978).

The Wisconsin courts have developed three theories of bad faith actions against insurers. In the first situation, an insured party may maintain an action for bad faith based on its insurer’s bad faith failure to settle a third-party claim. The rationale for allowing tort recovery in this situation is that if the insurer fails to settle a third-party claim within the limits of the policy and chooses to litigate the matter, the insured will be liable for that portion of any judgment which exceeds the policy limits. An insurance company that so exposes its insured to excess liability has breached its fiduciary duty to act on behalf of the insured and to exercise the same standard of care that the company would exercise with respect to its own business. See Kranzush, 103 Wis.2d at 60-61, 307 N.W.2d 256.

In the second situation, an insured party may bring a bad faith action based on the insurance company’s handling of a claim by the insured. Unlike the third-party claim situation, there is no danger that the insured will face excess liability when the insurer fails to settle such first-party claims. Nevertheless, Wisconsin allows the insured to bring a bad faith action based on a first-party claim because the insurance contract between the insurer and the insured imposes an implied covenant of good faith and fair dealing, the violation of which is actionable as a separate tort. See Kranzush, 103 Wis.2d at 61-62, 307 N.W.2d 256; Anderson, 85 Wis.2d at 686, 271 N.W.2d 368.

In these first two types of bad faith action, the party bringing the bad faith action is the insured. In the third situation in which Wisconsin law recognizes a bad faith claim against an insurer, the party alleging bad faith is not the insured. In Coleman v. American Universal Insurance Co., 86 Wis.2d 615, 273 N.W.2d 220 (1979), the Wisconsin supreme court held that an injured worker may bring a bad faith claim against her employer’s insurer based on its handling of her claim for benefits under a worker’s compensation policy. Although the injured worker is not the insured party, the employee and the insurer “occupy relative positions which are analogous to the insurer-insured relationship at the heart” of the bad faith tort. Kranzush, 103 Wis.2d at 66, 307 N.W.2d 256.

In recent cases, Wisconsin courts have been unwilling to extend the insurers’ duty to act in good faith to parties other than the insured. In Kranzush v. Badger State Mutual Casualty Co., 103 Wis.2d 56, 307 N.W.2d 256 (1981), the supreme court held that a tort victim could not bring a bad faith action against the tortfeasor’s insurer for failure to settle a claim.

The insurer’s duty of good faith and fair dealing arises from the insurance contract and runs to the insured. No such duty can be implied in favor of the claimant from the contract since the claimant is a stranger to the contract and to the fiduciary relationship it signifies. Nor can a claimant reasonably expect there to be such a duty, inasmuch as the insurer and the insured are aligned in interest against the claimant. In the absence of any such duty, the third-party claimant cannot assert a claim for failing to settle his claim....

Kranzush, 103 Wis.2d at 73-74, 307 N.W.2d 256.

The lack of a contractual relationship between the parties was also the basis for the court’s recent holding that an excess liability insurer may not bring a bad faith action against a primary insurer. See Loy v. Bunderson, 107 Wis.2d 400, 320 N.W.2d 175 (1982). In Loy, the court reiterated that the insurer’s duty of good faith runs to the insured, and stated that “[b]ad faith can only arise where an insurer has committed the tort against its own insured.” 107 Wis.2d at 428, 320 N.W.2d 175. See also Teigen v. Jelco of Wisconsin, Inc., 124 Wis.2d 1, 11, 367 N.W.2d 806 (1985) (“In Kranzush, we refused to extend the obligation of good faith beyond the relationship between the insurer and its insured.”).

Application of these principles to the present case presents a difficult question. Plaintiff is not the named insured. Neither, however, is it a stranger to the insurance contract — defendant issued a lender’s certificate of insurance naming plaintiff as the first loss payee. A broad reading of Coleman would suggest that because a loss payee occupies a position analogous to the insured by virtue of the loss payable clause, a loss payee should be able to bring a bad faith action. However, cases subsequent to Coleman state that Coleman should not be read broadly, but must be limited to its facts. See Bruheim v. Little, 98 Wis.2d 178, 180, 295 N.W.2d 793 (Ct.App.1980), aff'd 103 Wis.2d 96, 307 N.W.2d 276 (1981). In light of the oft-repeated language in recent Wisconsin cases that an insurer’s duty of good faith runs only to the insured, and considering the unwillingness of the Wisconsin supreme court in these cases to expand the availability of the tort of bad faith, I conclude that under Wisconsin law a loss payee may not maintain an action for bad faith.

Plaintiff also suggests that it may bring a bad faith action because it is a judgment creditor of the insured, citing Uebelacker v. Horace Mann Insurance Co., 500 F.Supp. 180 (E.D.Wis.1980). In Uebelacker, Judge Reynolds stated:

The right of a third party claimant to maintain an action for bad faith against the insurer has, however, been recognized only where the claimant has a vested claim, whether as a result of statutory entitlement, for example under the worker’s compensation statutes, or as a result of an unsatisfied judgment against the insured.

500 F.Supp. at 183. The court cited a Wisconsin case (Coleman) for the right of an injured worker to bring a bad faith action against the employer’s insurer, and two California cases, Royal Globe Insurance Co. v. Superior Court, 23 Cal.3d 880, 153 Cal.Rptr. 842, 592 P.2d 329 (1979); Barrera v. State Farm Mutual Automobile Insurance Co., 71 Cal.2d 659, 79 Cal.Rptr. 106, 456 P.2d 674 (1969), for the proposition that a judgment creditor may maintain a bad faith claim. In Barrera, the California supreme court held that a tort victim who has obtained a judgment against the tort-feasor may proceed against the tortfeasor’s insurance company to compel payment of an unsatisfied judgment, but the case did not involve a bad faith claim. In Royal Globe, the California court held that a tort victim could bring a bad faith action against the tortfeasor’s insurance company. These California cases do not establish the broad proposition that any judgment creditor may bring a bad faith action against the judgment debtor’s insurer. Moreover, in a case decided shortly after Uebelacker, the Wisconsin supreme court expressly declined to follow Royal Globe. See Kranzush, 103 Wis.2d at 81-82, 307 N.W.2d 256. I conclude that Wisconsin law does not permit a judgment creditor to bring a bad faith action against the judgment debtor’s insurer.

ORDER

IT IS ORDERED that defendant’s motion to dismiss plaintiff’s first cause of action is DENIED.

IT IS FURTHER ORDERED that defendant’s motion to dismiss plaintiff’s second cause of action is GRANTED.

      . The M & I Bank of Hilldale was the second loss payee on Marsala’s insurance policy.

      . In Wisconsin cases subsequent to Wunderlich, loss payees have brought actions on insurance policies. See Korntved v. American Insurance Co., 216 Wis. 470, 257 N.W. 670 (1934); Martin v. Tower Insurance Co., 119 Wis.2d 48, 349 N.W.2d 90 (Ct.App.1984). Although neither of these cases addressed a loss payee’s ability to bring an action, the cases do suggest that Wun-derlich did not establish an absolute bar to suits by loss payees.

      . The complaint does not state the amount Marsala owes plaintiff. In its brief, plaintiff states that its judgment against Marsala in the Rock County action is for $148,972.65. The insurance policy limited the amount payable to plaintiff to $200,000.00
      Plaintiff asserts that the Hammel rule applies because the amount Marsala owes plaintiff exceeds defendant’s estimate, of the amount of the insured loss. However, the relevant figure in Hammel for comparison with the debt was not the amount of the loss, but the amount of the policy coverage. Hammel states that when the debt exceeds the policy coverage, the mortgagee has constructive title to the policy. Hammel is silent on a mortgagee’s rights when, as in the present case, the debt exceeds the amount of the insured loss but not the policy limits.

      . I need not decide whether Wunderlich's prohibition of actions by loss payees who lack any ownership interest in the insured property is still good law in Wisconsin.

      . Another policy favoring bad faith actions by injured workers against their employer's insurer is that a recalcitrant insurer subverts the goal of the worker's compensation statutes of providing certain and swift recovery. See Kranzush, 103 Wis.2d at 65, 307 N.W.2d 256; Coleman, 86 Wis.2d at 621, 273 N.W.2d 220.

      . A major factual distinction between the present case and the worker’s compensation situation is that an injured worker’s rights are limited by the worker’s compensation statutory scheme. Providing an extra incentive to insurers to handle worker’s compensation claims swiftly and fairly is one of the primary reasons the Wisconsin courts have permitted injured workers to bring bad faith actions against their employers’ insurers. See Kranzush, 103 Wis.2d at 65, 307 N.W.2d 256.

      . The Royal Globe court held that California's insurance code authorized a tort victim to sue the tortfeasor’s insurer for bad faith. In Kran-zush, the Wisconsin court held that there was no analogous provision in the Wisconsin insurance code which might give rise to such an action. 103 Wis.2d at 71-72, 307 N.W.2d 256. The California supreme court had previously held that the insurance contract alone does not impose a duty of good faith on insurers in their dealings with third parties that would give rise to a bad faith cause of action by the third party. See Murphy v. Allstate Insurance Co., 17 Cal.3d 937, 132 Cal.Rptr. 424, 553 P.2d 584 (1976).


author: NICKERSON, District Judge.

text:
    In the Matter of the Application of FIRST UNITED FINANCIAL CORPORATION FOR the RETURN OF SEIZED PROPERTY.
    No. 85 C 2587.
    United States District Court, E.D. New York.
    Nov. 5, 1985.

      Russo, Silverman & Vitaliano (Ronald Russo, of counsel), New York City, for petitioner.
    Raymond J. Dearie, U.S. Atty., Edward A. McDonald, Atty.-in-Charge Organized Crime Strike Force, E.D. of N.Y. (Bruce Maffeo, of counsel), Brooklyn, N.Y., for respondent.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

This is a motion by petitioner for an order pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure directing that certain property unlawfully seized from petitioner’s premises be returned.

According to the government petitioner has been under grand jury investigation. In the course of the investigation, Magistrate Chrein signed a search warrant authorizing the seizure of specified books and records at petitioner’s premises. The warrant specifically excluded “the office and files of Stuart M. Steinberg, an attorney,” petitioner’s general counsel. Although the government did not take any files from his office, it did remove files stored in the office of his secretary in drawers that he identified as containing his files.

Petitioner urges that (1) the seizure of Steinberg’s files was unauthorized, indeed was proscribed, by the warrant, and (2) the seizure of certain documents, contained in his files in his secretary’s office and in places elsewhere in the office, violated the attorney-client privilege.

The government contends that even if the seizure of the attorney’s files in his secretary’s office was unauthorized by the warrant, petitioner may not raise the unlawfulness of the seizure on a motion under Rule 41(e). In order to do so, the government says, petitioner must show “irreparable harm,” and it has not done so.

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

There is no exception in the Fourth Amendment excluding from its protection persons under investigation by a grand jury. Indeed, the Supreme Court has said that a grand jury is “without power to invade a legitimate privacy interest protected by the Fourth Amendment.” United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). Nor does the Fourth Amendment prohibit only those unlawful searches and seizures that impose “irreparable harm” on the victim.

Rule 41(e) provides, in pertinent part, that a person “aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized” and that if “the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial.”

The government’s position amounts to this. It may violate petitioner’s Fourth Amendment rights, and Rule 41(e) affords no remedy unless petitioner proves “irreparable harm.” It is true that the rights of privacy that the amendment was designed to protect have been restricted in recent years by Supreme Court decisions. But this court had not supposed that those rights had been written out of the Constitution. Any deliberate violation of the amendment “aggrieves” the victim and is constitutionally “irreparable” even if the pecuniary damages are nominal.

The government argues that petitioner should be relegated to a post-indictment motion to suppress. But that is no remedy for an unindicted and innocent person. It is wrong to suppose that the Fourth Amendment applies only to those who have committed crimes or even to those suspected of or charged with doing so. It also protects the innocent. To wink at a violation is to invite the unlawful invasion in the name of the grand jury of their houses and offices by a government secure in the knowledge that they have no remedy and no means of protection.

If a court with final authority believes that the assurance to the people against unreasonable searches and seizures and the requirement to particularize warrants are inconvenient, or perhaps even pernicious, nothing could be easier than to treat violations of the amendment as without consequence. The words of the Constitution are not self executing. But if while deploring such violations courts afford no redress, the amendment becomes a mere relic of the past, a benevolent yearning now outmoded. History might tell us, and millions of people around the world might testify, that the taste of the fruit of that doctrine is bitter.

This court must and will follow the dictates of decisions binding upon it. But the appellate opinions, as this court reads them, have not to date finally determined that the Fourth Amendment is no more than an unenforceable platitude. We are not yet living in a police state.

Rule 41(e) is clear enough. If the property has been “illegally seized,” the court may order its return to the “aggrieved” person. The rule makes no mention of “irreparable harm.”

The government points to Standard Drywall, Inc. v. United States, 668 F.2d 156 (2d Cir.), cert. denied, 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d 442 (1982), as authority for its position. In that case the court held that the denial of a motion under Rule 41(e) was not appealable. The holding of the opinion does not require this court, if it finds an illegal seizure, to decline to act.

Nor does the Calandra case, supra, require the court to do so. According to that opinion, a witness may not refuse to answer before a grand jury questions based on evidence that has previously been unlawfully seized. But that does not make the previous seizure lawful or justify the unlawful retention of property by the government.

Nor is this a case where the court should defer to another court that has the same issue before it. Cf. Ex Parte Decious, 622 F.Supp. 40 (E.D.N.Y.1985).

The court respectfully declines to follow In re James Petrillo, 84 M. 0009, — F.Supp. - (E.D.N.Y. March 13, 1985).

The government also contends that the files in the secretary’s office were properly seized on the ground, presumably, that they were not the attorney’s files within the meaning of the warrant. The court cannot resolve that question on the present papers. The court will hold a hearing to determine the issues of fact.

As to those disputed items that petitioner claims are privileged attorney-client communications the court will hold an in camera hearing to decide which, if any, are privileged.

Petitioner’s request to unseal the government affidavit is denied. So ordered.


author: WEXLER, District Judge.

text:
    G. Hirsch GILL, Ph.D., Plaintiff, v. LUFTHANSA GERMAN AIRLINES, Defendant.
    No. CV 84-4948.
    United States District Court, E.D. New York.
    Nov. 5, 1985.
    Dr. G. Hirsch Gill, Ph.D., pro se.
    Conboy, Hewitt, O’Brien & Boardman, New York City, for defendant.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

On June 18, 1983, Dr. G. Hirsch Gill, Ph.D. arrived at JFK International Airport in Queens, New York to board Lufthansa German Airlines (Lufthansa) flight 401 to Frankfurt, Germany, connecting with flight 002 to Copenhagen, Denmark. Dr. Gill checked one suitcase and received a claim check for it. Nevertheless, at the gate as he attempted to board the plane a Lufthansa employee insisted that a bag Dr. Gill was carrying on board be checked. It is unclear why the employee insisted that the bag could not be carried on. Dr. Gill, a man well-prepared to match Lufthansa for precision and meticulousness, alleges that he ascertained Lufthansa’s dimension limits for carry-on baggage and carefully selected a bag of the correct measurements. It may be that Dr. Gill had more than one piece of carry-on luggage, but this is not clear. In any event, after Dr. Gill was refused boarding unless he checked the bag, he relinquished it to the airline. He did not receive a separate claim check for it, it was not weighed, and it was not marked as a second checked bag on his ticket.

The bag Dr. Gill was forced to check did not arrive with him in Copenhagen, Denmark. Instead, it was delivered some four hours later by SAS. It contained business documents and money and it is the gravamen of Dr. Gill’s complaint that the four-hour delay scuttled his business deal in Copenhagen that day. Dr. Gill alleges that he had been working on the undescribed deal for some time, and this project was apparently the reason for his trip to Copenhagen. He claims actual damages of $6,200.00 and punitive damages of $43,-800.00 against defendant Lufthansa.

Lufthansa now moves for summary judgment limiting defendant’s liability in accordance with the limitations on damages for delayed luggage set by Articles 19 and 22 of the Warsaw Convention, and awarding damages under the Convention’s provisions. Specifically, Lufthansa maintains that under Article 22 of the Warsaw Convention damages must be fixed at $20.00 per kilogram for Dr. Gill’s delayed baggage. Dr. Gill was so meticulous as to weigh the bag and alleges it weighed 9.45 kilograms. Lufthansa is willing to accept the alleged 9.45 kilogram weight and asks that judgment in plaintiff’s favor be awarded in the amount of $189.00, that is $20.00 multiplied by 9.45 kilograms. Rule 56, Fed.R.Civ.P.

Plaintiff pro se opposes and maintains that the hand baggage that he surrendered at the gate did not gain the status of “checked baggage” under the Warsaw Convention, and his damages should not be limited under the Convention provisions.

I.

The purpose of the Convention for the Unification of Certain Rules pertaining to International Transportation by Air, 49 Stat. 3000, T.S. No. 876, 49 U.S.C. § 1502, known as the Warsaw Convention, is to limit and render uniform airline liability in international transport. To this end, it sets out specific limits on recovery for death, injury, property damage, loss, and delay. While the Convention thus limits the risk to the airline, it also contains a presumption of carrier liability that works to the advantage of the passengers. Husserl v. Swiss Air Transport Company, Ltd., 388 F.Supp. 1238, 1244-45 (S.D.N.Y.1975). In short, while the compensation received under the Convention may be less than an unrestricted jury award, the injured party has a presumption of liability in his favor.

In order for the Warsaw Convention to be binding on a passenger, the passenger must have notice. Lisi v. Alitlia-Linee Aeree Italiane, S.p.A., 370 F.2d 508 (2d Cir.1966). That notice not only serves to make the passenger aware of the Convention and its effects, but gives him the opportunity to declare that the value of checked baggage is in excess of the standard limits and thereby to increase recovery under the Convention to the declared value. Warsaw Convention, Article 22(2). Of course, the airline is allowed to require payment of a supplementary sum to cover the excess value. Likewise, the passenger and airline can by special contract increase the passenger liability limit. Id., Article 22(1).

Finally, the airline must satisfy certain conditions in order to avail itself of the Warsaw Convention’s liability limits for checked baggage. See Lisi v. Alitalia, 370 F.2d 508. Article 4 addresses this clearly and directly by requiring that the carrier deliver a baggage check for checked items, that it issue the check in duplicate and that the baggage claim contain the following particulars:

(a) The place and date of issue;
(b) The place of departure and of destination;
(c) The name and address of the carrier or carriers;
{d) The number of the passenger ticket;
(e) A statement that delivery of the baggage will be made to the bearer of the baggage check;
(f) The number and weight of the packages;
(g) The amount of the value declared in accordance with article 22(2);
(h) A statement that the transportation is subject to the rules relating to liability established by this convention.

Warsaw Convention, Article 4(3).

Article 4 concludes:

(4) The absence, irregularity, or loss of the baggage check shall not affect the existence or the validity of the contract of transportation which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts baggage without a baggage check having been delivered, or if the baggage check does not contain the narticulars set out at (d,), (f) and (h) above, the carrier shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability.

The meaning of Article 4(4) is clear, if a carrier fails to give a passenger a claim check for checked baggage or gives a passenger a check that does not contain any of the three vital elements of the ticket number, notice of the Convention’s applicability, and the number and weight of the items, the carrier cannot invoke the baggage liability limitations of the Convention. Sensibly, failure to conform to checked baggage regulations does not affect personal injury or death limitations, a distinction defendant’s counsel might have missed.

Dr. Gill had a claim check for the suitcase he voluntarily checked. Arguably that check was sufficient to give notice of the Convention’s applicability and meet the ticket number requirement. Lufthansa failed, however, to give Dr. Gill a second claim check for the hand baggage he was forced to check at the gate or, alternatively, to add the second bag and its weight to the ticket or first claim check. It is plain that Lufthansa took charge of the baggage. It is also clear that failure to comply with the claim check requirements of Article 4 precludes summary judgment limiting defendant’s liability as provided by Article 22 of the Warsaw Convention. Hexter v. Air France, 563 F.Supp. 932 (S.D.N.Y.1982); Hill v. Eastern Airlines, Inc., 103 Misc.2d 306, 425 N.Y.S.2d 715 (N.Y.C.Civ.Ct. Kings County, Small Cl. Pt. 1980); Schedlmayer v. Trans International Airlines, 99 Misc.2d 478, 416 N.Y.S.2d 461 (N.Y.C.Civ.Ct.N.Y. County 1979).

II.

Defendant counters with a case from the U.S. District Court for the District of Columbia, Martin v. Pan American World Airways, 563 F.Supp. 135 (D.D.C.1983). In that case the district court held that failure to record the weight of a bag, which was subsequently lost, was a technical and insubstantial omission that would not vitiate the liability limitations of the Convention. Id. at 140-41. That court also held that failure to attach a tag to a checked bag and refusal to correct the oversight was not willful misconduct by the carrier. Id. at 141. The Court first points out that the case is from a district court in another federal circuit and conflicts with the stricter reading of the Warsaw Convention by the courts in this circuit. While the Martin Court relies on a construction of the Convention by the U.S. Court of Appeals for the Second Circuit, the quoted language is not strictly apposite. In Eck v. United Arab Airlines, Inc., 360 F.2d 804 (2d Cir.1966), the Second Circuit concluded on the issue of venue that the relevant provision of the Warsaw Convention should be interpreted according to its purpose and not read literally. Id. at 811-12. The Second Circuit was not addressing liability in the section cited by the district court. Nonetheless, the district court adopted the Eck language in support of its interpretation of the Convention’s liability limitations. The Court concludes that the Eck case is not particularly instructive on the application of Article 4.

Moreover, the case of Martin v. Pan Am, 563 F.Supp. 135, is factually distinguishable from the case at bar. In Martin the plaintiff voluntarily checked her bag at a regular baggage checking station some time before boarding her flight. The court found that she had an opportunity to make an excess value declaration or buy extra insurance to cover the full value of the bag’s contents, which she did not do. Id. at 141. That, according to the Martin Court, fulfilled the purpose of the Warsaw Convention and precluded any argument for allowing the plaintiff to recover the value of the bag’s contents in excess of the Convention’s limits. Dr. Gill had no such opportunity to declare excess value or obtain extra insurance protection. He was stopped at the boarding gate and allegedly not allowed to board unless he relinquished his bag to the airline. In fact, there are indications that the flight was slightly delayed while he argued with ground personnel over whether he should be permitted to carry the baggage on to the plane or must give it up for checking.

In any event, this Court concludes that the stricter interpretation of the Warsaw Convention is the better construction. The language should be given its plain meaning and effect. Article 4 is straightforward. Nor is it overly demanding. Only three elements on the claim check are absolutely required to preserve liability limitations: notice, ticket number, and number and weight of the bags. Warsaw Convention, Article 4(4). Loss of the check and the absence of the other required data do not vitiate the limitations. In view of the fact that the Warsaw Convention limits the carrier’s liability and shifts a greater part of the responsibility and risk to the passenger, it is not unreasonable or overly technical to require the carrier to comply with the minimum requirements plainly set out by the Convention. And certainly, last minute actions by the airline that deprive a passenger of his opportunity to take self-protective measures do not satisfy the purpose of the Convention. Lisi v. Alitalia, 370 F.2d at 512-13.

III.

The Court concludes that there remain genuine issues of material fact as to the airline’s liability and the applicability of the Warsaw Convention limitations. Lufthansa’s liability is not, as a matter of law, limited by the Warsaw Convention. It may be that defendant can prove facts at trial that will allow Lufthansa to limit its liability to that provided by Article 22(2) of the Warsaw Convention. The issue, however, is not an appropriate one for summary judgment at this juncture. Accordingly, defendant’s motion for summary judgment is denied.

IV.

Dr. Gill is a citizen of New Jersey. This action was denominated a Long Island case under the Local Rules because Lufthansa’s headquarters are located on the island. Lufthansa’s counsel, however, is located in New York City. Dr. Gill requests that this case be assigned to a judge in the Brooklyn Courthouse, as travel from New Jersey to the Uniondale Courthouse is long and difficult. Defendant’s counsel does not oppose. Accordingly, the Clerk of the Court is directed to reassign this case at random to a judge who sits in the Brooklyn Courthouse.

SO ORDERED.

      . This information is actually on the face of plaintiffs ticket, which defendant submitted as an unmarked exhibit.


author: GUNN, District Judge.

text:
    George D. LAMB, Plaintiff, v. EQUIFAX SERVICES, INC., et al., Defendants.
    No. 85-1127C(6).
    United States District Court, E.D. Missouri, E.D.
    Nov. 5, 1985.
    George von Stamwitz, St. Louis, Mo., for plaintiff.
    Stephen A. Thompson, Fordyce & Mayne, P.C., K. Steven Jones, Kortenhof & Ely, St. Louis, Mo., for defendants.
   ORDER AND MEMORANDUM

GUNN, District Judge.

IT IS HEREBY ORDERED that defendants Equifax Services, Inc. and Stinson’s motion to dismiss, converted to a motion for summary judgment pursuant to Rule 12(b), Fed.R.Civ.P., is granted.

IT IS FURTHER ORDERED that defendant Daley’s motion for summary judgment is granted.

IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment is denied.

On November 27,1984 plaintiff filed, pro se, cause of action No. 84-27560(1) against Equifax Services, Inc., Bradley Stinson and Phillip Gene Daley alleging a violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681, and various state common law theories of recovery. On April 4, 1985, the Court issued an order granting defendants summary judgment on the ground that all applicable statutes of limitations had run. Plaintiff did not appeal this judg-ement.

The present cause of action, filed May 16, 1985, is between the same parties and arises out of the same facts or occurence as the previous action. Plaintiff’s complaint seeks recovery under the same theories raised in the previous action, as well as under the additional theory of racial discrimination.

The doctrine of res judicata (claim preclusion) provides that a final judgment on the merits of an action precludes the parties from relitigating the cause of action upon any ground, absent fraud or some other factor invalidating the judgment. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 811-12, 39 L.Ed.2d 9 (1974). The doctrine “prevents litigation of all grounds for ... recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.” Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979); Roach v. Teamsters Local Union 688, 595 F.2d 446 (8th Cir.1979). A court’s dismissal of an action on the basis of the statute of limitations is a final adjudication on the merits for purposes of res judicata. Myers v. Bull, 599 F.2d 863, 865 (8th Cir.1979); Cemer v. Marathon Oil Co., 583 F.2d 830 (6th Cir.1978); C. Wright & A. Miller, 18 Federal Practice & Procedure § 4441 (1981). Applying these principles to the present case, the Court concludes that the final order rendered by the Court in Civil Action No. 842756-C-l granting summary judgment against plaintiff George Lamb and in favor of defendants Equifax Services, Inc., Bradley Stinson, and Phillip Gene Daley, operates under the doctrine of res judicata to bar the present action between the same parties and arising out of the same facts as the previous action.

Accordingly, summary judgment is granted in favor of all defendants and against plaintiff.

      . The Honorable John F. Nangle, United States District Judge for the Eastern District of Missouri.

      . The complaint was filed pro se. The Court has since appointed counsel to represent plaintiff.