author: GESELL, District Judge.

text:
    Mabel A. KING, Plaintiff, v. James F. PALMER, Director, District of Columbia Department of Corrections, et al., Defendants.
    Civ. A. No. 83-1980.
    United States District Court, District of Columbia.
    Sept. 10, 1984.

      Robert M. Adler, James A. Michaels, Washington, D.C., for plaintiff.
    Metcalfe C. King, Asst. Corp. Counsel, Washington, D.C., for defendants.
   MEMORANDUM

GESELL, District Judge.

Mabel A. King, a nurse at the District of Columbia jail, brought this sex discrimination action under Title VII complaining that she was denied a promotion that went to a less qualified female nurse because the other nurse had a sexual relationship with the doctor who promoted her. The Court heard six days of testimony. This Memorandum constitutes the Court’s findings of fact and conclusions of law.

In the typical case involving sexual conduct by a supervisor aimed at a subordinate, the plaintiff alleges that she has been the direct target of sexual propositions, suggestive behavior or similar abuse. Such conduct violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., because, but for her gender, a woman would not be subject to such behavior. Bundy v. Jackson, 641 F.2d 934, 942-43 (D.C.Cir.1981). This case is superficially different in that the plaintiff has not alleged or shown that she herself was the target of sexual conduct. But the theory of the violation is the same: “sex [was] for no legitimate reason a substantial factor in the discrimination.” Bundy v. Jackson, 641 F.2d at 942. Guidelines published by the Equal Employment Opportunity Commission similarly recognize that

Where employment opportunities or benefits are granted because of an individual’s submission to the employer’s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sexual discrimination against other persons who were qualified for but denied employment opportunity or benefit.

29 C.F.R. § 1604.11(g). Accord, Toscano v. Nimmo, 570 F.Supp. 1197, 1199 (D.Del. 1983).

With these principles in mind, the Court finds for reasons stated below that plaintiff initially made out a prima facie case.

Mabel King became an employee of the medical unit at the D.C. jail in 1975, classified as a clinical nurse, GS-9. She was promoted in 1979 to Supervisory Clinical Nurse, GS-11. In 1981, a new position was established at the jail, Supervisory Forensic/Clinical Nurse, GS-12. King applied for the position along with three other nurses. The job went to Jean Grant, a nurse 20 years younger than King who had worked in the medical unit since 1979 and who had far fewer years of experience as a nurse than King.

The plaintiff introduced evidence that contrary to established procedures Grant was pre-selected for the position by the chief medical officers at the jail, and that there was no genuine consideration of other candidates. Not only were the jail’s own regulations for promotions disregarded, but a later attempt was made to cover up this failure to follow the rules.

King also introduced evidence that nurse Grant and Dr. Smith, the chief medical officer, had attended out-of-town medical conventions together, that they occasionally had long lunches together, that Grant repeatedly came and went from work as she pleased in total disregard of her assigned schedule, and that Grant showed a casual physical friendliness with Smith at the office. She showed that the medical unit of the jail was rife with speculation that Grant and Smith were having an affair, that this hurt office morale and that her complaints were disregarded because of the personalities involved. In addition, deposition testimony was presented from a former close boy friend of Grant to the effect she was intimate with Dr. Smith and was prepared to have sex with him if necessary to get the promotion.

This evidence presented on the plaintiff’s direct case was sufficient for an inference to be drawn that some kind of sexual relationship between Dr. Smith and Grant was a substantial factor in Grant’s promotion. Other elements of a prima facie case— that plaintiff was a member of a protected class, that she applied and was qualified for a job for which the employer was seeking applicants, and that she was rejected— also were shown. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

To rebut a prima facie case, the defendant need not prove that there was a non-discriminatory reason for the challenged action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257-58, 101 S.Ct. 1089, 1095-96, 67 L.Ed.2d 207 (1981). “[T]he employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.” Id. at 257, 101 S.Ct. at 1095. The plaintiff retains the burden of persuasion, and once the Court has heard the evidence on both sides, it must decide the ultimate question of discrimination based on all the evidence with no presumptions in favor of either side. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). To meet this burden of persuasion, the plaintiff “may succeed ... either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095.

Resolution of this case on the merits is hampered by the unreliability of the testimony. The record fails to clarify many uncertainties caused by the obvious bias of most witnesses on either side and inexplicable lapses of memory or records dealing with crucial aspects of the ease. The record paints a dismaying picture of a governmental agency rank with petty jealousy, backbiting, lack of proper discipline, disregard for proper promotional practices, and incompetence in high authority.

Defendants offered an explanation and denied the basic sex discrimination claim. Their attempt to establish that Grant was selected because she had superior qualifications must be disregarded. It is unsupported by testimony the Court finds credible and is clearly pretextual. The testimony of the medical doctors responsible for Grant’s selection is not worthy of any credence. The selection was made in gross disregard of District of Columbia personnel regulations, no effort was made to investigate the numerous complaints concerning Grant’s performance and her frequent disregard of schedule. Other applicants for the position were not interviewed or seriously considered. Indeed the record suggests a deliberate attempt to withhold the underlying facts concerning Grant’s qualifications from the Court.

Thus the case must be resolved on the specific issue pressed by plaintiff — was Grant’s selection to any significant degree the product of sex discrimination. After full consideration the Court is satisfied that the proof as a whole fails to satisfy plaintiff’s burden.

There is no direct evidence of an explicit sexual relationship between Grant and Dr. Smith, each of whom vigorously deny it exists or even occurred. Dr. Smith has had a settled family life with wife and children. Grant has lived an active sex life with other men.

Plaintiff argues that even if no sexual relationship occurred, she is entitled to judgment if the evidence shows that some kind of sexual attraction, even if unconsummated, was responsible for Grant’s promotion. As authority for this proposition, plaintiff cites case law concerning grooming rules and the like, where it is established that employers may not explicitly apply different indicia of personal attractiveness to burden one gender more than the other. See, e.g., Gerdom v. Continental Airlines, Inc., 692 F.2d 602, 605-06 (9th Cir.1982) (en banc); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337 (D.C.Cir.1973). Moreover, plaintiff notes that female sexual attractiveness can be a legitimate basis for hiring and promotion criteria only if it can be shown to be a bona fide occupational qualification under 42 U.S.C. § 2000e-2(e). However, these cases do not delineate any standards for dealing with discriminatory claims based on a supervisor’s possible personal sexual attraction to an employee.

Where a claim of sex discrimination under Title VII is made by a plaintiff contending that one of the same sex was given favored treatment because allegedly the discriminator was sexually attracted to the favored employee, courts must proceed with great caution given the vagaries and infinite manifestations of sexual stimulation. If a sexual relationship is solicited by or given the supervisor and favored treatment by the supervisor results as the payoff, there is no difficulty. But where, as here, there is no proof of an explicit sexual relationship or indeed of any sexual behavior between the favored employee and the supervisor, difficulties arise. How can a trier of fact determine whether the selection was made for reason of sexual attractiveness as opposed to an individual’s nonsexual traits and qualities of personality? There is no answer to this difficult query in this record. Surely when this issue arises, as it does here in the last analysis, given the Court’s prior findings set forth above, plaintiff must fairly and squarely meet the issue by positive proof. Cases in this category must not rest on rumor, knowing winks and purient overtones or on inferences allowed in divorce law. Plaintiff offered no positive proof of sexual conduct or sexual attractiveness as between Grant and the doctors who promoted her. She has therefore failed to meet her burden.

Accordingly, the Clerk of Court is directed to enter judgment for the defendants.

      . See, e.g., Katz v. Dole, 709 F.2d 251 (4th Cir.1983); Bundy v. Jackson, 641 F.2d 934 (D.C.Cir. 1981); Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044 (3d Cir.1977).

      . No age discrimination claim was brought in the present action, although it was claimed in King’s administrative complaint to the District of Columbia Office of Human Rights.

      . These were meetings of prison and jail health workers held in conjunction with the annual fall meeting of the American Medical Association in Chicago.

      . A potentially key witness, the Administrator for Health Services at the jail, had to be excused after it was shown he had apparently sought to influence the testimony of a colleague who was testifying for plaintiff.

      . That is a difficult burden for the defendant. See, e.g., Wilson v. Southwest Airlines Co., 517 F.Supp. 292, 303 (N.D.Tex.1981). See generally 29 C.F.R. § 1604.1 (EEOC guidelines on sex as bona fide occupational qualification).


source: Caselaw Access Project

author: DUNCAN, District Judge.

license: Public Domain

text:
    Sanford J. BERGER, Plaintiff, v. The SUPREME COURT OF OHIO, et al., Defendants.
    No. C-2-84-1227.
    United States District Court, S.D. Ohio, E.D.
    Sept. 14, 1984.

      Sanford J. Berger, Cleveland, Ohio, pro se.
    David E. Northrop, Jeffrey Jurca, Asst. Attys. Gen., Columbus, Ohio, for defendants.
   MEMORANDUM AND ORDER

DUNCAN, District Judge.

This matter is before the Court on plaintiff Sanford Berger’s motion for a preliminary injunction preventing defendants from enforcing the provisions of Canon 7 B(l)(c) of the Supreme Court of Ohio’s Code of Judicial Conduct and Rules I and II of the Rules for the Government of the Judiciary of Ohio. Plaintiff claims that the above mentioned provisions deprive him of free speech in violation of the First and Fourteenth Amendments to the United States Constitution and of equal protection in violation of the Fourteenth Amendment. The Court’s findings of fact and conclusions of law follow hereinafter.

Defendants in this case are the Supreme Court of Ohio, its Chief Justice and Justices, Angelo Gagliardo, Disciplinary Counsel to the Supreme Court of Ohio, and the Board of Commissioners on Grievances and Discipline of the Judiciary. Defendant Supreme Court of Ohio is responsible for the governance of the bar of the State of Ohio including the disciplining of lawyers, judicial candidates, and judges, see Ohio Constitution Art. IV, H 5(B), and in pursuance of that duty has promulgated the Code of Judicial Conduct and Rules for the Government of the Judiciary of Ohio. Defendant Angelo Gagliardo is the Disciplinary Counsel of the Supreme Court of Ohio and is responsible for investigating and prosecuting disciplinary complaints against judicial candidates and judges in Ohio. Defendant Board of Commissioners on Grievances and Discipline of the Judiciary hears grievances against judges and judicial candidates and refers misconduct determinations to the Supreme Court for review and action.

Canon 7 B(l)(c) of the Code of Judicial Conduct provides:

(1) A candidate, including an incumbent judge, for a judicial office: ... (c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact.

Rules I and II of the Rules for the Government of the Judiciary of Ohio provide for disciplinary action, including disbarment, against members of the bar who violate the rules of conduct of the Supreme Court of Ohio.

Plaintiff Berger is a candidate for the office of Judge of the Cuyahoga County Court of Common Pleas, Division of Domestic Relations, and as such has expressed a desire to publicly discuss his views, and make certain pledges and promises, regarding reform of practices in the office he seeks. More specifically, plaintiff has manifested a desire to publicly state that as a judge in Cuyahoga County he would "first attempt to have the parties who appear before him mediate their disputes, without the presence of their attorneys, in order to remove some of the adversary affects (sic) of the divorce system upon the litigants.” See Plaintiffs Supplemental Brief in Support of His Motion for Preliminary Injunction. Plaintiff also desires to “criticize the excessive use of trial referees by the court and that he would hear most matters himself; or be able to criticize traditional dehumanizing procedures.” Id. At the hearing on plaintiffs motion, plaintiff reiterated his desire to criticize what he perceives to be deficiencies in the current administration of domestic relations law in Cuyahoga County and to voice his views on needed reforms. Plaintiff also stated at the hearing that he would like to make publicly known his “philosophy” or “platform.”

It is plaintiffs contention that Canon 7 B(l)(e) not only prohibits judicial candidates from making public statements about pending eases, but also prohibits general criticisms of the incumbent and/or the administration of the court, and pledges regarding reform of judicial practices. Indeed, it appears to be plaintiffs view that pursuant to Canon 7 B(l)(c) a candidate for judicial office may not publicly state anything other than that he will faithfully and impartially perform the duties of the office. See Plaintiffs Motion for a Temporary Restraining Order and Preliminary Injunctions, p. 2. Plaintiff asserts that such a restriction on speech violates his First and Fourteenth Amendment rights. Alternatively, plaintiff suggests that there are no ascertainable standards as to what constitutes a statement with regard to the “faithful and impartial performance of one’s duties in office.” Plaintiff maintains that the uncertain scope of the rule, in conjunction with the possible penalties for violation thereof, has the effect of “chilling” his right of free speech. Therefore, plaintiff asserts, the rule should be declared unconstitutional on its face for vagueness. See Plaintiff’s Supplemental Brief, p. 5.

Finally, plaintiff contends that Canon 7 B(l)(c) denies him equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution because it arbitrarily and without sufficient justification applies only to candidates for state judicial, as opposed to legislative and executive, positions.

As stated above, a hearing has been held to determine whether a preliminary injunction should issue.

Prior to turning to the question of whether injunctive relief is warranted, however, the Court feels compelled to examine two preliminary issues raised by defendants: first, whether plaintiff has standing to bring suit, and second, whether the pendency of a related proceeding before the Supreme Court of Ohio warrants abstention in the case at bar.

Standing

In their memorandum in opposition to plaintiff’s motion, defendants state that at present “no investigation of Plaintiff [by defendants for violation of a rule of conduct] is under way; in fact, defendants have not even received any complaints concerning Plaintiff.” Defendants contend that until the state’s investigative and enforcement powers are actually utilized, defendants have acted only in a legislative capacity, and are thereby immune from suit. See Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). Defendants add that as of yet plaintiff has not even outlined an anticipated course of conduct with sufficient clarity to create a potential case or controversy for the court, much less given defendants cause to initiate an investigation. As a result, defendants assert that plaintiff lacks standing at this point to challenge defendants with regard to the constitutionality of Canon 7 B(1)(e). The Court does not agree.

Plaintiff has indeed outlined with relative specificity a preferred course of conduct in running for judicial office and has clearly expressed a desire to make concrete criticisms of the incumbent and current administration. For example, plaintiff wishes to publicly criticize what he perceives to be the current administration’s overuse of referees and to pledge to limit such use. Plaintiff has also voiced a need for the administration to encourage more parties to mediate their problems among themselves, without the presence of attorneys.

Nor does it appear that the threat to plaintiff of prosecution under Canon 7 B(l)(e) should he publicly issue the above statements, is purely “imaginary or speculative.” In his supplemental brief, plaintiff notes an article from the Canton Repository which purports to quote defendant Gagliardo, in his capacity as Disciplinary Counsel, in connection with another disciplinary proceeding against a judicial candidate. Disciplinary Counsel v. Hon. Loren E. Souers, Jr., Case Number DD84-3, which also involves alleged violations of Canon 7 B(l)(e), is currently pending before the Supreme Court of Ohio. The article states:

He [Gagliardo] said even if Souers had been correct in all of his allegations, he still violated judicial canons that forbid candidates from challenging the records of incumbents. ... He said candidates should refer only to their background, awards they have received and endorsements from groups that support them.

See Plaintiff’s Supplemental Brief, p. 7 and Exhibit “C” to that brief, an article from the Canton Repository. Defendant Gagliardo has not attempted, in the case at bar, to disavow those comments or object to their reported scope or context. In fact, such a viewpoint of the scope of the Judicial Code of Conduct is reiterated in Disciplinary Counsel’s Brief in Opposition to Respondent’s Objections to the Findings of Fact which was filed in the Souers case. In that brief, Disciplinary Counsel makes clear that in his view the Code of Judicial Conduct prohibits candidates for judicial office from making comments that are critical of the incumbent, regardless of the truth or falsity of those allegations. To summarize, Disciplinary Counsel is the individual charged with investigating and prosecuting judicial candidates for violations of the Code of Judicial Conduct; there has been a public manifestation, which defendant Gagliardo has not disavowed, of his belief that any criticism of an incumbent judge in the course of a judicial campaign is a violation of the Supreme Court’s rules of judicial conduct; this understanding of the Judicial Code has been reiterated by Disciplinary Counsel in pleadings filed with the Supreme Court of Ohio in Souers; and Disciplinary Counsel has demonstrated a readiness to initiate prosecution of judicial candidates whose conduct he considers to be inconsistent with such a view of the Judicial Code. Given these circumstances, it is fallacious to conclude that as a candidate for judicial office plaintiff faces merely an “imaginary” threat of prosecution should he follow through with his announced intention to voice various criticisms of the incumbent. To the contrary, his fear of prosecution appears to be quite reasonable. Plaintiff need not expose himself to actual prosecution to present a justiciable controversy to this Court; the threat of prosecution is enough. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) and Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). Preconduct challenges to the validity of laws burdening First Amendment rights are among the essential bulwarks of a system of free expression. Morial v. Judiciary Commission of State of LA, 565 F.2d 295, 298 (5th Cir.1977).

Additionally, defendants are not in this case shielded from suit by legislative immunity. Plaintiff seeks declaratory and injunctive relief from the threat of impending investigation, prosecution and perhaps, sanction. Defendants are before the Court not in any legislative capacity, but in their capacity as investigators and enforcers. In such a capacity, legislative immunity does not apply. See Supreme Court of Virginia v. Consumer’s Union, supra.

It is, therefore, the Court’s opinion that plaintiff has standing to bring suit in this case.

Abstention

Defendants have also brought the Souers case to the Court’s attention. Souers involves, among other things, alleged violations of Canon 7 B(l)(c), and the respondent in that case has raised First Amendment defenses. Defendants contend that the pendency of the Souers case warrants abstention by this Court in the case at bar, under the Pullman doctrine, see Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), since the Supreme Court of Ohio in Souers might interpret Canon 7 B(1)(c) in such a manner so as to render unnecessary or substantially modify the federal constitutional questions presented in the case at bar.

It is the Court’s belief that abstention is not, under the circumstances at hand, appropriate. The abstention doctrine is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise of a court’s equity powers. Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377 (1964). Although most of the issues posed by plaintiff are extant in Souers, significant dissimilarities exist. Plaintiff has questioned the meaning of the language “pledges and promises of conduct in office other than the faithful and impartial performance of the duties of the office.” The meaning and constitutionality of this provision does not appear to be before the Supreme Court of Ohio in Souers, and it is, therefore, unlikely that the court in that case will resolve all of plaintiff’s constitutional concerns herein.

Due to the imminency of the upcoming election, and plaintiff’s desire to obtain some resolution of his concerns in time to campaign accordingly, the Court is reluctant to delay for an undue or indeterminate length of time consideration of plaintiff’s request for a preliminary injunction. Such a delay may be quite costly where the vagueness of a state rule or statute may inhibit the exercise of First Amendment freedoms. Therefore, the Court declines to abstain on the consideration of plaintiff’s request for a preliminary injunction against the enforcement of Canon 7 B(l)(c) and Rules I and II.

Preliminary Injunctive Relief

To obtain preliminary injunctive relief plaintiff must show (1) a strong or substantial likelihood of success on the merits; (2) irreparable injury; (3) that the issuance of a preliminary injunction would not cause substantial harm to others; and (4) that the public interest would be served by issuing a preliminary injunction. Mason County Medical Assn. v. Knebel, 563 F.2d 256, 261 (6th Cir.1977). No single factor is necessarily dispositive; proper judgment entails a balancing of all elements involved.

Likelihood of Success on the Merits

Plaintiff’s first obligation is to convince the Court of a substantial likelihood of his success on the merits. Plaintiff contends that the enforcement of Canon 7 B(l)(c) deprives him of his First and Fourteenth Amendment rights to freedom of speech. Plaintiff correctly states that although defendants have a duty to regulate the conduct of the bar, as such regulations move closer to impairing First Amendment rights, they must withstand a higher level of scrutiny to pass constitutional muster. Morial v. Judiciary Commission, supra, 565 F.2d at 300. When a regulation does run afoul of the First Amendment in a significant or substantial manner, then courts are obliged to invoke strict constitutional scrutiny. Under such a test, the state must show a compelling interest, to be achieved by means that are closely drawn to avoid any unnecessary abridgement. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).

Canon 7 B(1)(c) contains three prohibitions: (1) announcing views on disputed legal or political issues, (2) making pledges or promises of conduct in office other than the faithful and impartial performance of duties in office, and (3) misrepresenting one’s identity, qualifications, present position, or other fact. The Court is not persuaded that this provision prohibits criticisms of judicial administrations and incumbents, assuming such criticisms are not untruthful or misleading. See the Supreme Court of Kansas’ analysis of this issue in In re Inquiry Relating to Baker, 218 Kan. 209, 542 P.2d 701 (1975). There is evidence in the record to suggest that defendant Disciplinary Counsel maintains an opinion to the contrary; however, Disciplinary Counsel’s position on the issue is simply irrelevant for purposes of this Court’s inquiry into the constitutionality of Canon 7 B(1)(c) — it is the province of the Supreme Court of Ohio, not Disciplinary Counsel, to authoritatively interpret and enforce the Ohio Code of Judicial Conduct. As of now, the Supreme Court of Ohio has not given this Court reason to believe that the Canon means anything more than what it says on its face.

Nor is the Court convinced of the substantial likelihood of success of plaintiff’s restrictive reading of the provision regarding pledges and promises. One of the purposes of Canon 7 B(l)(c) is to prohibit candidates for judicial office from making pledges or promises which appeal to prejudices or special interests. Plaintiff Berger intends to pledge, among other things, to increase the judge’s personal involvement in the administration and resolution of cases, and. to attempt to encourage more direct dispute resolution among the parties themselves. Pledges such as these, the Court believes, relate to the faithful performance of the duties of judicial office, and are therefore expressly exempted from the scope of Canon 7 B(1)(c). Id. Finally, plaintiff has not convinced the Court of the existence of a substantial likelihood that the intent and meaning of the provision regarding campaign pledges is so unclear as to render it properly subject to facial attack as unconstitutionally void for vagueness. See CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973).

The Court believes that even under a standard of strict scrutiny, the state’s regulation is necessary to achieve a compelling state interest. Plaintiff does not dispute that the state has a compelling interest in assuring that its elected judges are protected from untruthful criticism and that judicial campaigns are run in a manner so as not to damage the actual and perceived integrity of state judges and the bar; hence, the provision against misrepresentation. Additionally:

Ours is an era in which members of the judiciary often are called upon to adjudicate cases squarely presenting hotly contested social or political issues. The state’s interest in ensuring that judges be and appear to be neither antagonistic nor beholden to any interest, party, or person is entitled to the greatest respect.

Morial, 565 F.2d at 302. Hence, the prohibitions against announcing predetermined views on disputed legal or political issues, and against making pledges of conduct other than those relating to the faithful and impartial performance of duties in office. The Court finds that plaintiff has not demonstrated a substantial likelihood that these interests are outweighed by whatever intrusion on the First Amendment is caused by prohibiting judicial candidates from making misleading or fallacious statements or political pledges.

The Court also is not persuaded by plaintiff in this ease that the singling out of judges’ campaign conduct violates the equal protection clause of the Fourteenth Amendment. The very purpose of the judicial function makes inappropriate the same kind of particularized pledges and predetermined commitments that mark campaigns for legislative and executive office. A judge acts on individual cases, not broad programs. Canon 7 B(l)(c) appears to appropriately recognize this distinction between candidates for judicial and for executive and legislative office. In short, plaintiff has not demonstrated a substantial likelihood that the Canon denies judicial candidates equal protection under the Fourteenth Amendment.

The Court finds that plaintiff has not persuasively demonstrated a substantial likelihood of success on the merits of his claim that Canon 7 B(l)(c) is unconstitutional on its face.

Nor has plaintiff demonstrated that irreparable injury will occur to his interests should the Court decline to issue a preliminary injunction since plaintiff has not persuaded the Court that Canon 7 B(l)(c) prohibits the statements which plaintiff has expressed a desire to make in the upcoming election.

Finally, the state has a compelling interest, as explained above, in preventing the occurrence of the kind of conduct to which Canon 7 B(1)(c) is addressed, and the public would suffer great injury should enforcement of the Canon be enjoined.

Therefore, plaintiff’s motion for a preliminary injunction is DENIED.


author: WISEMAN, Chief Judge.

text:
    ADVISORY INFORMATION AND MANAGEMENT SYSTEMS, INC., Plaintiff, v. PRIME COMPUTER, INC., Defendant.
    No. 3-83-0972.
    United States District Court, M.D. Tennessee, Nashville Division.
    Sept. 20, 1984.
    See also, D.C., 40 B.R. 1001.

      Daniel C. Kaufman, Paul E. Jennings, Waddey & Newport, Nashville, Tenn., for plaintiff and counterdefendant W.C. Cargile, Sr.
    Steven A. Riley, Bass, Berry & Sims, Nashville, Tenn., James C. Burling, David H. Erichsen, Hale & Dorr, Boston, Mass., for defendant Prime Computer, Inc.
    Thomas Wardlaw Steele, Nashville, Tenn., for Southern States Corp.
   MEMORANDUM

WISEMAN, Chief Judge.

This case involves a dispute between Advisory Information and Management Systems, Inc. [AIMS] and Prime Computer, Inc. [Prime], and raises issues of antitrust law and contract law. The matters before the Court are plaintiff AIMS’ motion for a preliminary injunction and defendant Prime’s motion for summary judgment. In order to address these matters, it is necessary to examine the history of transactions between the two parties.

Prime is a manufacturer of small and medium-sized general purpose computers. It produces actual components or hardware, operating software, which manages the resources and operations of the computer system, application software, and accessories. Prime’s components are produced to be compatible with one another so that add-on and upgrade equipment may be added to increase system performance without having to replace the entire system. Prime entered into several dealer agreements in 1978, including one with AIMS’ predecessor in interest, Tennessee Data Systems. The dealers apparently approached Prime because they desired hardware sufficient to support their application software, which performs special functions as part of a complete computer system. Prime retained these dealers because it did not produce very much application software at that time and wanted to market its products to end users who wished to purchase entire systems. (Finney Aff. ¶ 4; Kelly Aff. II 3; Naylor Aff. ¶ 2). Prime’s direct sales force had been unable to reach these customers successfully. Prime offered the dealers incentive price discounts to help their marketing. Prime emphasized that these dealer sales of Prime equipment were only for combined sales with the dealer’s application software for users principally interested in complete systems with application software. (Finney Aff. 115; Kelly Aff. 113; Davidson Aff. II4).

AIMS is a full line dealer of hardware, software, systems, and service bureau operations. Its principal officer, William Cargile, was also an officer in Tennessee Data Systems. He entered into a dealer agreement with Prime, which was assigned to his new company, AIMS, on September 4, 1980. The dealer agreement did not specifically prohibit sales of Prime hardware and equipment apart from complete systems incorporating application software. The agreement provided that the dealer was Prime’s exclusive dealer of “Information” operating software in the area of Tennessee and was entitled to sell systems and products enumerated by Prime and listed in Schedule 2 to the agreement. (Kirby Aff. Exhibit A). The agreement also provided sales quotas, listing the number of systems the dealer was required to meet to satisfy and maintain the agreement. Id. 3.1 Schedule 3). Prime was obligated to install the equipment sold, (id. 7), and the dealer was required to promote the Prime products and to maintain facilities to display and demonstrate the systems, (id. 8).

Prime became aware in early 1981 that some dealers engaged in “hardware-only” sales or sales of Prime's discounted equipment without application software. Prime considered these sales to be disruptive of its direct sales efforts and contrary to its original understanding with its dealers. (Finney Aff. If 7; Kelly Aff. ¶ 4). Prime attempted to get the dealers to stop these sales and realized the dealer agreement did not squarely prohibit them. Prime contemplated reaching a new dealer agreement that would limit or remove the dealers’ exclusive sales territories for its “Information” operating software and allow for direct sales of this software by Prime. (Finney Aff. ¶ 8, Kelly Aff. ¶ 5, Davidson Aff. ¶ 5, 6). When presented with the new proposal in early 1982, the existing dealers refused to agree to it. (Finney Aff. ¶ 9; Kelly Aff. ¶ 6; Davidson Aff. ¶ 6; Naylor Aff. ¶ 3).

In mid-1982, Prime convened a “pricing task force.” (Kaufman Supplemental Aff. Exhibit 13; Plaintiff’s Appendix 136-37). The committee concluded that domestic sales were made with average discounts of about 20 percent. It found also that customers considered Prime “an aggressive and disorganized discounter.” Prime’s president “emphasized that discounting is a learned activity” that can be “unlearned.” (Id.). Other Prime internal memoranda indicate that in June of 1982, it targeted AIMS as a “hardware broker,” and in the same notice stressed that AIMS was in default of its dealer quota. (Kaufman Aff. Exhibit 4; Plaintiff’s Appendix 81-82). Prime planned to place AIMS on probation for brokering and then terminate its dealer agreement. (Id.).

Prime sent notices to most of its dealers in June for July of 1982, advising them that they were in default of their dealer quotas. AIMS received one such letter on June 15, 1982. (Cargile Aff. ¶ 8 and Exhibit 3; Plaintiff’s Appendix 11). At the July 1982 dealer meeting, many dealers, including AIMS, challenged the default letters and Prime’s plans to remove the dealers’ exclusivity for sales of “Information” software. (Kelly Aff. ¶ 9; Davidson Aff. ¶¶ 7, 8; Naylor Aff. ¶¶ 4, 5). Prime agreed to negotiate disagreements after the dealers considered retaining an attorney. Prime suspended action on the default letters pending analysis of the dealer program. (Cargile Aff. Exhibit 4; Plaintiff's Appendix 12). Most of Prime’s dealers, 82 percent, were in default at this time. (Prime document-Plaintiff’s Appendix 187). The dealers selected two negotiators, Davidson and Naylor, to negotiate on their behalf. AIMS and its president Cargile, authorized and supported these negotiations. They were informed of progress by the negotiators. (Davidson Aff. ¶ 8; Kelly Aff. ¶ 11; Naylor Aff. ¶ 5, 6, & Exhibit A).

In the fall of 1982, AIMS ordered hardware from Prime for resale to DataMation Data Centers [DataMation], including a complete system as well as separate add-on and upgrade hardware. (Supplemental Cargile Aff. ¶ 21 and Exhibit 14; Plaintiff’s Appendix 28, 43). Prime received notice on October 27, 1982,' that AIMS was the source of equipment sold at discount to end-uses and installed and maintained by Prime’s field engineering staff. Prime’s vice president for marketing Bob Claussen emphasized that this must be stopped. (Prime document, Plaintiff’s Appendix 123). Prime planned to “make a file” on AIMS because of this. (Plaintiff’s Appendix 133).

The negotiations between Prime and the dealer committee produced a proposed new amendment to dealer agreements. (Kirby Aff. Exhibit B). The amendment allowed dealers to retain exclusivity for sales of “Information” software but allowed Prime to reduce areas of exclusivity for poor sales. It also reduced sales quotas for dealers. Additionally, it forbade “hardware-only” sales, allowing sales of add-on and upgrade equipment only where incorporated into a system with application software or dealer services “rendered prior to sale or lease to any end user.” (Id. II3). The amendment also provided for additions to the schedule of application software allowed for incorporation into systems with Prime hardware. It provided that additions had to be made with the prior consent of Prime, “which consent shall not be unreasonably withheld.” (Id.). See supra footnote 2. On November 5, 1982, Prime forwarded the proposed amendment to AIMS for acceptance. (Cargile Aff. ¶¶ 10, 11 and Exhibit 5; Plaintiff’s Appendix 4-5, 13).

There is some dispute regarding the “concerted activity” underlying adoption of the amendment. President Cargile asserts that the representatives of the dealer committee, Naylor and Davidson, had stated prior to negotiations that price cutting by DataMation and other “hardware brokers” had to be stopped by cutting off their supply. (Cargile Aff. ¶ 11, Plaintiff’s Appendix 5). Cargile also claims that Prime’s eastern operations dealer business manager, Jack Kelly, had told Cargile that Prime was under pressure from its direct sales force and other dealers to prevent sales to DataMation because their discounting practices competed with Prime and its dealers. (Id. § 5; Plaintiff’s Appendix 4). These allegations support AIMS’ contention that the amendment was the result of concerted activity between Prime and the independent dealers. The negotiators themselves and Prime personnel, however, claim that the provision, called an “added value” provision, originated exclusively with Prime. (Davidson Aff. ¶ 10; Naylor Aff. ¶ 8; Kelly Aff. ¶ 16). They claim that the dealer negotiators fought against adoption of the added value provision but ultimately were forced to concede it to attain other concessions from Prime. (Id.). Davidson and Naylor ea,ch specifically deny ever making statements to Cargile that price cutting by hardware brokers had to be stopped by cutting off their supply. (Davidson Aff. ¶ 12; Naylor Aff. ¶ 10). Kelly specifically denies ever telling Cargilé that he was under pressure from other dealers to prevent “hardware-only” sales. (Kelly Aff. ¶ 16). These statements support Prime’s assertion that the added value restriction was adopted unilaterally by Prime, without concerted activity. At any rate, in September 1982, when Naylor and Davidson advised dealers of the progress of negotiations, they described the added value provision as “a desireable [sic] objective” and indicated no opposition to it. (Cargile Aff. Exhibit 7; Plaintiff’s Appendix 21). They stressed that Prime wanted the provision “to try and stop gross discounting by a Dealer against PRIME’S direct sales force, or against another Dealer.” (Id.).

Prime dealers were given the choice of signing the amendment or continuing under their original agreements. (Davidson Aff. ¶ 11, Kelly Aff. ¶ 13, Naylor Aff. ¶ 9). Under the old agreements, however, most were threatened with default for failure to meet the previous quotas. Several days after sending the proposed amendment to AIMS for signature on November 5, 1982, Prime’s Jack Kelly telephoned AIMS’ William Cargile to determine whether he would sign. Cargile indicated that he would agree to the amendment. (Kelly Aff. ¶ 11). On November 12, 1982, Kelly ordered AIMS’ pending orders “on hold” because they were “hardware only” orders and were contrary to the new amendment to the dealer agreement. (Kaufman Supplemental Aff. Exhibit 9, Plaintiff’s Appendix 121; Kelly Aff. ¶ 14). On November 18, 1982, Kelly canceled the pending orders from AIMS. (Kaufman Supplemental Aff. Exhibit 8; Plaintiffs Appendix 103; Kelly Aff. ¶ 15). There is some dispute about whether Kelly informed Cargile that cancellation was based on the new amendment, (Compare Supplemental Cargile Aff. ¶ 25, Plaintiffs Appendix 29 with Kelly Aff. ¶ 15). Kelly did send a letter dated December 3, 1982, stating that the orders were canceled because Prime “will not accept equipment-only orders for items being purchased by AIMS, Inc. for others, who, in turn, compete with our Direct Sales or Authorized Reseller Sales.” (Cargile Supplemental Aff. Exhibit 17; Plaintiffs Appendix 57, 124, 139). Regardless of whether Prime actually relied on the amendment to the dealer agreement in canceling AIMS’ orders, the amendment provided a contractual basis for rejecting the orders. The amendment, when signed by Cargile for AIMS in November of 1982 had an effective date of September 15, 1982. (Kirby Aff. Exhibit B; Cargile Aff. ¶ 10 and Exhibit 5; Plaintiff’s Appendix 16). After signing, AIMS was thus bound by the terms of the amendment for the pending orders that Prime canceled on November 18, 1982.

SHERMAN ACT SECTION 1

AIMS argues that Prime’s cancellation of orders pursuant to its policy against “hardware only” sales was a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. This statute proscribes concerted activity in restraint of trade. Prime has challenged this allegation in a motion for judgment on the pleadings and in a motion for summary judgment. At the hearing on pending motions on June 22, 1984, this Court granted AIMS’ motion to amend its pleadings to allege a conspiracy between Prime and its dealers. AIMS has based its Section 1 claims almost exclusively upon this theory, although it raised another theory in opposing Prime’s motion for judgment on the pleadings.

In Monsanto Co. v. Spray-Rite Service Corp., - U.S. -, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), the Supreme Court held that a Section 1 violation requires concerted action between the manufacturer and other distributors. Unilateral action of the manufacturer does not constitute a Section 1 violation. See also United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919) (Manufacturer may independently refuse to deal with distributors who sell below manufacturer’s resale price). The Monsanto Court held that concerted action is not established merely by proof of a manufacturer’s termination of a distributorship in response to complaints by other dealers. Rather, “the antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others ‘had a conscious commitment to a common scheme designed to achieve an unlawful objective.’ ” — U.S. at —, 104 S.Ct. at 1471, 79 L.Ed.2d at 785-86 (quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980)).

In the present case, there is a fact issue regarding whether Prime was pressured into adopting its policy against hardware only sales. AIMS has presented evidence that Jack Kelly spoke of pressure from other dealers to prevent sales to hardware brokers, that the value added provision arose out of negotiations with the dealer ad hoc committee, that the dealer negotiators had spoken to AIMS of the need to prevent sales to hardware brokers, that other dealers may have informed Prime of AIMS’ sales, and that Prime pressured AIMS to desist. Although Prime has submitted affidavits denying all such allegations of concerted activity, AIMS has clearly raised a factual issue of conspiracy that is inappropriate for summary judgment disposition. AIMS has not rested merely on dealer complaints.

AIMS has argued that Prime’s practices are per se illegal price fixing, boycotting, and market division. Prime has argued that its practices are not per se Section 1 violations, but practices which, analyzed under the rule of reason, are not unreasonably anticompetitive. In support of its price fixing argument, AIMS argues that the added value provision to which it was compelled to agree permits only the dealer who initially sold a computer system for Prime to sell add-on and upgrade hardware and equipment. This equipment, because of the compatibility of Prime’s products, generally can be installed without reprogramming or other dealer services and is installed directly by Prime personnel. Moreover, upgrades do not ordinarily require new application software. The new amendment therefore locks in end users to deal only with the original dealer from whom the user purchased a system. AIMS argues that because this avoids price competition among dealers, it is per se unlawful concerted action to fix prices. Additionally, AIMS contends that the arrangement amounts to a boycott of discounters and a horizontal customer allocation among dealers, all per se violations of Section 1 of the Sherman Act.

Prime argues that the arrangement is a nonprice restriction which is judged under the rule of reason to determine whether the practice constitutes an unreasonable restraint of competition. See Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). Prime argues under this standard that its practices are not unreasonable because they beneficially enhance interbrand competition. Specifically, Prime urges that allowing dealers to sell only complete systems and subsequent upgrades only to those same purchasers of complete systems allows Prime to penetrate markets it could not otherwise reach, to control the quality and reputation of the systems installed, and to prevent dealers from free-riding on Prime’s marketing efforts.

Prime has not required that AIMS sell to end users at a specific price; it has reserved certain sales for itself and required end users who desire upgrades to deal only with their original Prime dealers. Prime contends that restricting “hardware only” sales encourages dealers to develop the market for users of complete computer systems, thus enhancing Prime’s ability to compete with other brands of computers. This also limits intrabrand retail price competition among dealers and direct sales staff for add-on and upgrade equipment. Vigorous competition still remains among dealers in the market for complete computer systems.

It is well settled that nonprice vertical restrictions are evaluated with lower scrutiny than price restrictions, which are per se illegal. See Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 51 n. 18, 97 S.Ct. 2549, 2558 n. 18, 53 L.Ed.2d 568 (1977). While the restrictions in this case reduce intrabrand price competition and undoubtedly affect retail prices, they do not amount to retail price maintenance, which is illegal per se under Section 1. Preventing “hardware only” sales by dealers enhances Prime’s access to end users of complete computer systems by ensuring that Prime dealers focus their sales on the full product market Prime employs them to reach. Hardware only sales diverted some dealers’ attention from full-product sales, for which dealers receive discounts and training from Prime, and interfered with the sales efforts of Prime’s direct sales force. Broad discounting by dealers could lead to dealers becoming clearinghouses for Prime equipment rather than maintained of showrooms and promoters of full computer systems with Prime equipment and dealer application programs. This would weaken Prime’s ability to compete interbrand.

Prime has also asserted interests in quality control and in avoiding the free-riding effect of having discounting dealers benefit from other dealers’ and Prime’s promotion service and marketing. AIMS contends this interest is illusory as far as service and quality control are concerned because Prime’s field service personnel maintain the equipment regardless of who made the sale. Moreover, AIMS argues, dealer service under Prime’s new system only becomes important before sales of systems; there is no incentive for the original dealers to provide services after the original sale because they will have the add-on and upgrade service on that account regardless of their subsequent efforts. AIMS also dismisses Prime’s quality control interest as “makeweight.” Because Prime routinely authorized the application software to be sold with its systems, and maintains all equipment itself, AIMS argues that Prime has no legitimate concern that end users will be supplied with quality control.

Although many of these contentions are meritorious and should be considered by a factfinder at trial evaluating the reasonableness of Prime’s restrictions, Prime has established that its measures are not price maintenance treated always as per se illegal. Discounting Prime hardware and selling in bulk is a form of free-riding on other dealers who deal only in complete systems and promote the systems and maintain exhibits as required by their dealer agreements. Moreover, Prime’s ability to control approval of application software to be sold with equipment does foster quality by ensuring compatibility with the computer system. Because the measures enhance interbrand competition in this way and foster penetration of the market for users of complete systems, the added value provision is not per se illegal price maintenance. Like many other nonprice restraints, it has a price effect. Because it allows Prime to compete more effectively with its vigorous competitors, it is not without redeeming qualities.

In Davis-Watkins Co. v. Service Merchandise, 500 F.Supp. 1244 (M.D.Tenn. 1980), aff'd, 686 F.2d 1190, 1196-97 (6th Cir.1982), cert. denied sub nom., Service Merchandise Co. v. Amana Refrigeration, Inc., — U.S. —, 104 S.Ct. 1718, 80 L.Ed.2d 190 (1984), the Sixth Circuit held that vertical restraints, actions originating as unilateral action from the manufacturer, should generally be analyzed under the rule of reason. To determine whether restrictions are imposed vertically or horizontally, the court held that one must examine the effect and purpose of the restrictions. Because the court found the challenged restrictions were in the manufacturer’s own interest and consistent with its market strategy, and because it found insufficient evidence of coercion by dealers to act against the manufacturer’s own interest, the court upheld this Court’s summary judgment finding that the market allocations in question did not amount to a horizontal group boycott, per se unlawful under Section 1.

The Davis-Watkins court relied substantially on Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The Court in Sylvania held that vertical restraints limiting the number of franchises authorized by a manufacturer must be analyzed under the rule of reason. Observing that the per se rule applies where practices have a destructive effect on competition without redeeming qualities, id. at 50, 97 S.Ct. 2549 at 2557, 53 L.Ed.2d 568, the Court emphasized that vertical restraints often benefit competition. Vertical restrictions, the Court held, “promote interbrand competition by allowing the manufacturer to achieve certain efficiencies in the distribution of his products.” Id. at 54, 97 S.Ct. 2549 at 2560, 53 L.Ed.2d 568. The Court stressed that limitations on distributors of a manufacturer’s products induce retailers to promote the products and prevent the “free rider” effect of retailers providing products without services. Id. at 55, 97 S.Ct. 2549 at 2560, 53 L.Ed.2d 568. Although the Court noted that some vertical restrictions might justify per se prohibition, it held that departures from the rule of reason must be based on demonstrated economic effect. Id. at 58, 97 S.Ct. 2549 at 2561, 53 L.Ed.2d 568. Thus, the Court established the rule of reason as the general rule for treatment of vertical restraints under Section 1.

As in Davis-Watkins, the evidence in this case does not establish a per se violation of Section 1. The flurry of papers and internal Prime memoranda indicate clearly that the prohibitions of “hardware only” sales originated with Prime. Although there is sufficient evidence of concerted activity to present the Section 1 issue to a jury, AIMS has not presented the evidence required to indicate horizontal restraints, originating with dealers, to justify departure from the rule of reason. There is no evidence to establish dealer coercion causing Prime “to act otherwise than consistent with its marketing strategy.” Davis-Watkins, 686 F.2d at 1199. Again, as in Davis-Watkins, evidence of complaints from dealers to the manufacturer alone would be insufficient to establish a horizontal restraint. Id. (citations omitted), 500 F.Supp. at 1249.

The Davis-Watkins court supported its decision to apply the rule of reason with findings of potential benefits to interbrand competition in the form of attracting aggressive retailers and inducing them to promote the products actively, eliminating the free rider effect, creating an efficient market distribution system, and maintaining control over safety and quality of the product. Id. at 1200-01 (quoting Abadir & Co. v. First Mississippi Corp., 651 F.2d 422 (5th Cir.1981)). Finding these benefits, the court held the economic conditions that justify the per se rule were not present and therefore it did not apply. Id. at 1201. As found above in discussing whether the amendment is a price restraint, Prime’s distribution system fosters interbrand competition in similar ways. It is appropriate for rule of reason analysis.

Prime has moved for summary judgment on the rule of reason issue, claiming that its actions do not have an unreasonable anticompetitive effect with reference to the overall effect on competition among all competitors in the relevant market. This motion must be denied. The data on Prime’s ability to affect competition is inconclusive, but it is not insubstantial as a matter of law. Nor is it clear the Prime’s policies have no effect on competition through retail prices. A trial on the merits is necessary to determine the reasonableness of Prime’s system of distribution. See Davis-Watkins, 500 F.Supp. at 1247.

SHERMAN ACT SECTION 2

AIMS has alleged that Prime took anticompetitive actions to monopolize trade and commerce in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. The issues under this cause of action revolve around Prime’s market share and the definition of the relevant market. AIMS has not phrased its claim as one for attempted monopolization. However, even if it is considered as such, Aims would have to demonstrate that Prime will achieve a substantial market share through its “hardware-only” restriction. See Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 841 (2d Cir.1980) (affirming summary judgment holding that plaintiff did not show that defendant with market share of 48 to 33 percent had a dangerous probability of success in attempted monopolization). See also White & White, Inc. v. American Hospital Supply Corp., 723 F.2d 495, 507 (6th Cir.1983) (attempt to monopolize requires evaluation of market power).

There is conflicting and inconclusive evidence regarding both market definition and market share. Although at trial, the plaintiff has the burden to show market definition, for summary judgment consideration, Prime, as movant, has the burden of establishing the issue in its own favor. Hayden Publishing Co. v. Cox Broadcasting Corp., 730 F.2d 64, 68 (2d Cir.1984). AIMS, asserting that Prime’s market share is not insufficient for a Section 2 cause of action as a matter of law, has produced data demonstrating that Prime has focused on specified market segments. AIMS seeks to demonstrate that Prime’s market share in the area of “32 bit superminicomputers” is substantial and that Prime “has monopoly or near monopoly power in the market segments which it has pursued.” Memorandum In Opposition to Defendant’s Motion for Summary Judgment at 25.

AIMS produced evidence showing that the “32 bit superminicomputer” systems and the comparable mainframe systems, both of which perform distributed data pro-’ cessing functions, are not reasonable substitutes for one another. (Schaider Declaration ¶¶ 5, 6). Mainframe systems perform functions in a series, while superminicomputers allow for scattered workstations and tasks performed out of sequence. (Id. ¶ 6). In support of his conclusion that the data processing industry regards “32 bit superminicomputers” as a separate market, AIMS’ expert relies on an article printed in the June 7, 1984, issue of the Wall Street Journal. (Schaider Declaration Exhibit 1). Excluding mainframe systems in his market share calculations, Schaider produces market share data showing Prime had a 59.7 percent market share in 1979, 54.2 percent in 1980, and 45.8 percent in 1981. (Id. 117, Exhibit 2). The Wall Street Journal article stated that Prime’s market share dropped from 33 percent in 1980 to 16 percent in 1983. AIMS has also produced a confidential Prime memorandum dated June 12, 1984, in response to the Wall Street Journal article. Included is a letter from the data company that supplied the figures for the article. The company explains that the 1983 figure should have ranged from 16 to 18 percent, and that the article should have based its figures on the dollar value of Prime systems rather than the unit shipment market share. This could have increased market share figures for Prime 3 to 7 percentage points. This would result in figures of a maximum of 40 percent market share in 1980 declining to a maximum market share of 25 percent in 1983. The data company also stated that Prime’s market share erosion was halted in 1983.

Prime has produced evidence from another market data firm indicating that there is no separate market for “superminicomputers” and that other systems are reasonable substitutes. (Bushee Affidavit ¶ 3). Bushee concludes that Prime’s market share has never exceeded 2.2. percent of the minicomputer market. Even considering a separate market for “superminicomputers,” Bushee concludes Prime’s market share did not exceed 3.7 percent of that market. (Id.). Because Prime is the party moving for summary judgment and there is a genuine, unreconciled dispute regarding market share, the evidence must be considered in the light most favorable to AIMS. Therefore, the Court will examine Prime’s market share within the market segments identified by AIMS in Prime’s advertising and planning documents.

In determining whether Prime had monopoly power, the Court must examine the strength of competition, the probable development of the industry, customer demand, and the percentage of market share of the defendant. Hayden Publishing Co., Inc. v. Cox Broadcasting Corp., 730 F.2d 64, 69 (2d Cir.1984). To determine whether Prime is liable for attempted monopolization under Section 2, the Court must determine whether Prime has a dangerous probability of success. This requires a showing that the defendant possesses “market strength that approaches monopoly power — the ability to control prices and exclude competition.” White & White, Inc. v. American Hospital Supply Corp., 723 F.2d 495, 507 (6th Cir.1983) (quoting Richter Concrete Corp. v. Hilltop Concrete Corp., 691 F.2d 818, 826 (6th Cir.1982)).

This Court holds that AIMS Section 2 claim must be dismissed. It is clear and beyond dispute that the computer industry is developing rapidly and that competition is very intense. This is reflected in the changing market share figures in the Bushee affidavit, the changing hardware and equipment available, the rapidly changing marketing strategies, the frequent changes of personnel between companies, and the large number of competing companies within the industry. (See e.g. Kaufman Aff. Exhibit 3, Plaintiffs Appendix 78). AIMS itself has acknowledged the rapid development of the industry in conjunction with its contract claims.

Where there is strong competition in a rapidly developing industry, the Sixth Circuit concludes that a market share of roughly 25 percent cannot present a dangerous probability of monopoly power. White & White, 723 F.2d at 508; Richter Concrete, 691 F.2d at 826 (30 percent share of market insufficient). See also Lektro-Vend Corp. v. Vendo Corp., 660 F.2d 255, 271 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982) (and citations); United States v. Empire Gas Corp., 537 F.2d 296, 305-07 (8th Cir. 1976), cert. denied, 429 U.S. 1122, 97 S.Ct. 1158, 51 L.Ed.2d 572 (1977); Terry’s Floor Fashions v. Burlington Industries, 568 F.Supp. 205, 214 (E.D.N.C.1983).

Prime’s maximum market share of 25 percent in 1983 had stabilized from the year before. Market figures were therefore the same in 1982 when the challenged practices occurred. Competition in the field shows no signs of abating. It is also significant in determining Prime’s ability to monopolize that the actions challenged as antitrust denied products to dealers only for certain types of sales. Prime did not close off all of its products to all dealers. Thus, AIMS has demonstrated no significant probability of monopolization.

CONTRACT CLAIMS

AIMS has raised several contract claims against Prime. One of these concerns Prime’s refusal to sell any model 9950 systems to independent dealers such as AIMS. Prime authorized sales of the model 9950 only through direct sales, and through the “Authorized Distributor Program.” (Cargile Aff. Exhibit 8, Plaintiff’s Appendix 23). AIMS claims that in negotiations for the dealer agreement, Prime gave assurances that its entire line of products would be available. AIMS also contends that Prime’s failure to make all of its products available is contrary to Prime’s good faith obligations and its obligation not to destroy or injure AIMS’ contract rights. See Uproar Co. v. NBC, 81 F.2d 373, 376-77 (1st Cir.) (citations omitted), cert. denied, 298 U.S. 670, 56 S.Ct. 835, 80 L.Ed. 1393 (1936).

There is a genuine dispute regarding whether Prime gave assurances that the entire line of products would be available. President Cargile of AIMS asserts that Prime’s representative did give these assurances and stated that assurances that newly developed products would be available were “of central importance because of the rapid advances in computer technology.” (Cargile Aff. ¶ 5, Plaintiff’s Appendix 3). Prime’s representative at the time denies this, claiming he told Cargile only the hardware Prime believed necessary for marketing application software would be available. (Finney Aff. ¶¶ 11, 12; see also Davidson Aff. ¶ 14). The initial dealer agreement and its amendment never provided that all compatible hardware would be available, nor was all compatible hardware included on the original schedule. (Finney Aff. ¶ 11; Horne Aff. ¶ 3). It provided the dealer with discretion to add or delete hardware. Moreover, because the dealer agreement provides an integration clause, contemporaneous oral statements would constitute inadmissible parole evidence. (See Kirby Aff. Exhibit A P.23 Tf 24.1) (integration clause)).

AIMS’ contention regarding sales of the 9950 must therefore be dismissed. Prime has demonstrated that the hardware presently available to AIMS is not obsolete and insubstantial. Prime hardware available for sale to AIMS accounts for 70 percent of Prime’s hardware sales in the first quarter of 1984. (Horne Aff. ¶ 4). Moreover, AIMS has been treated no differently from other dealers. The 9950 system is not available to any dealer. If AIMS had not declined to become an Authorized Distributor, it would have access to 9950 sales. AIMS has the same rights to hardware as all other dealers. The dealers have banded together, to protect their rights before. AIMS is adequately protected from overreaching by paragraph 5.5 of the dealer agreement, which provides that Prime shall not use its powers to delete equipment to effect termination of the dealer. AIMS has not sought to invoke the protection of this provision.

AIMS’ remaining contract claims stand on firmer ground. These claims involve Prime’s compliance with the added value restriction. See supra footnote 2. The first claim involves Prime’s rejection of AIMS’ orders for computer systems because of the policy and the contract provision prohibiting “hardware-only” sales. AIMS claims that Prime rejected the orders without affording AIMS the opportunity to specify the application software or services being sold prior to or in conjunction with the hardware ordered. (See Cargile Supplemental Aff. ¶¶ 21-26; Plaintiff’s Appendix 28-29). Prime asserts that Prime’s rejection of orders was due to AIMS’ refusal to specify its compliance with the dealer agreement. (See Kirby Aff. Ex. 3, Plaintiff’s Appendix 148). As discussed supra, however, it is unclear whether Prime relied on the amendment in rejecting the earlier orders. AIMS subsequently specified application software to be sold along with Prime hardware. (See Cargile Aff. Exhibit 10, Plaintiff’s Appendix 26). Prime requested further specifications on other orders. (Kaufman Aff. Exhibit 6, Plaintiff’s Appendix 90). The issue of contract compliance on this issue is not clear enough for summary judgment disposition. Moreover, Prime’s compliance with the provision of the new amendment may be relevant to the antitrust issues as well. Accordingly, Prime’s motion for summary judgment on this issue is denied.

AIMS may also take to trial its claim that Prime unreasonably withheld authorization of application software to be sold along with Prime equipment. AIMS has argued that Prime’s refusal to approve additional application software was contrary to Prime’s contractual obligation not to withhold authorization of additional software unreasonably. (See supra footnote 2). Prime rejected AIMS’ proposed additions to Schedule 1 approved application software because it was “reluctant to expand the relationship between the parties under present circumstances.” (Kaufman Aff. Exhibit 6, Plaintiff’s Appendix 90). Cargile of AIMS asserts that Prime never previously requested documentation or other formal testing for approval of application software. (Supplemental Cargile Aff. ¶ 26, Plaintiff’s Appendix 29). There is conflicting evidence regarding whether Prime had standards for evaluating proposed application software for approval. (Compare Schaider Declaration ¶ 4 with Horne Aff. MI 5, 6). Therefore, this issue must proceed to trial.

PRELIMINARY INJUNCTION

For the following reasons, AIMS’ motion for a preliminary injunction is denied. In order to determine whether to grant a preliminary injunction pursuant to Fed.R.Civ.P. 56(c), the Court must evaluate (1) the merits of plaintiff’s claim for ultimate relief; (2) the harm facing plaintiff if interim relief is denied; (3) the harm facing defendant or others if interim relief is granted; and (4) the public interest in granting or denying interim relief. E.g., Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102-04 (6th Cir. 1982); Roth v. Bank of the Commonwealth, 583 F.2d 527, 536-38 (6th Cir.1978), cert. dismissed per stipulation, 442 U.S. 925, 99 S.Ct. 2852, 61 L.Ed.2d 292 (1979); Mason County Medical Association v. Knebel, 563 F.2d 256, 260-62 (6th Cir.1977). No single factor is determinative; all must be weighed equitably. Roth, 583 F.2d at 537-38. One of the considerations required is the probability that plaintiff will succeed on the merits. Id. (citations omitted). Additionally, plaintiff must demonstrate that in the absence of relief, plaintiff will be irreparably harmed. Friendship Materials, 679 F.2d at 103 (citations omitted) (injunctive action for antitrust violations).

AIMS seeks a preliminary injunction to forbid Prime from enforcing the “added value” provision of the dealer agreement and from refusing to sell its entire line of compatible equipment to AIMS for resale. AIMS asserts that would be irreparably harmed without preliminary relief, citing cases holding that loss of a product line constitutes irreparable injury to a full-line dealer such as AIMS. See Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Manufacturing Co., Inc., 550 F.2d 189, 196-97 (4th Cir.1977); Bergen Drug Co., Inc. v. Parke, Davis & Co., 307 F.2d 725, 728 (3d Cir.1962). These cases do not apply here because they involved a manufacturer’s refusal to supply its entire product line to a particular retailer, treatment which discriminated against that particular dealer. Here, Prime has not placed AIMS at a disadvantage to other dealers, for AIMS has access to the same equipment as other dealers. Moreover, Prime has not closed off its entire product line to all dealers, but only a portion of it. AIMS has not demonstrated that money damages would not adequately compensate its alleged loss of profits, nor that its business failure and entry into bankruptcy was caused by Prime's restrictions. Although AIMS argues that it will be unable to salvage its business without preliminary relief, plaintiff has not explained why other dealers in the same position have not been driven into bankruptcy. While preliminary relief would clearly aid AIMS reorganization, other equitable considerations require denial of the preliminary injunction.

AIMS insists that immediate action is necessary to protect its interests, yet it waited one and one-half years after cancellation of its orders to bring this action for an injunction. This delay belies AIMS’ claim to irreparable harm. See Gianni Cereda Fabrics, Inc. v. Bazaar Fabrics, Inc., 335 F.Supp. 278, 280 (S.D.N.Y.1971) (quoting Gillette Co. v. Ed Pinaud, Inc., 178 F.Supp. 618, 622 (S.D.N.Y.1959)). Moreover, injunctive relief would not preserve the status quo as much as it would expand AIMS’ position under the contract. See Morgan v. Fletcher, 518 F.2d 236, 239 (5th Cir.1975) (citations omitted) (purpose of preliminary injunction is to preserve the status quo).

There are other reasons why the equities weigh against granting the injunction. Although Prime’s viability would not be threatened by injunctive relief, its distribution system would be greatly disrupted. Its discount for sales of complete systems would be arguably misappropriated to allow a dealer to make large numbers of wholesale sales. AIMS has not demonstrated a sufficient likelihood of success to justify the harms that would result from the preliminary relief AIMS has requested. Nor would any public interest mandate granting the injunction.

CONCLUSION

For the reasons discussed above, the Court concludes: AIMS’ claim for violations of the Sherman Act, Section 1 will proceed under the rule of reason; AIMS’ Section 2 claim is dismissed; AIMS’ contract claims will proceed to trial as limited in this memorandum; and AIMS’ motion for a preliminary injunction is denied. The state unfair trade practices claims will also proceed to trial because they are not appropriate for summary judgment disposition.

      . At oral argument on pending motions, June 22, 1984, plaintiff conceded that it is not entitled to summary judgment. Prime has continued to pursue its own motion for summary judgment.

      . The applicable provision states:
      Dealer hereby certifies that each Prime system listed on the Prime Computer, Inc. Domestic Price List attached as Schedule 2 to the Dealer Agreement, purchased and licensed under the cited Dealer Agreement, is to be incorporated into a system consisting of Dealer application software, which Dealer then sells or leases in the regular course of its business. Dealer may substitute Dealer services for the requirement to add application software, and such services may be rendered by either the Dealer or any party in behalf of the Dealer or having a contractual relationship with the Dealer, so long as such services are rendered prior to sale or lease to any end user. Application software to be included in Prime Systems purchased hereunder is listed in Exhibit B attached hereto and made a part hereof. Additions to and deletions from the Exhibit B list of application software may be made from time to time subject to the prior written consent of Prime, which consent shall not be unreasonably withheld. Dealer agrees that in no event shall Prime systems purchased/licensed hereunder be resold, leased, or otherwise transferred without said application software or the performance of services by the Dealer as aforesaid.

      . Aims defended its pleading by arguing that it could be supported by a theory of a conspiracy between Prime and AIMS itself, where Prime actively coerced AIMS into unwilling compliance with its demands. This theory is inadequate because AIMS’ cooperation was unnecessary for the success of Prime’s marketing arrangement. See Barnosky Oils, Inc. v. Union Oil Co. of California, 665 F.2d 74, 77-79 (6th Cir. 1981) (no section 1 conspiracy where plaintiff did not show defendant needed plaintiff’s acquiescence).

      . The Section 2 offense of monopolization requires, if anything, an even greater showing of market power than does attempted monopolization. See generally United States v. E.I. DuPont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956).

      . According to AIMS, this is one of the sub-market areas on which Prime has focused.

      . The market for add-on and upgrade equipment on its own cannot be considered a relevant market. See, e.g., Telex Corp. v. IBM Corp., 510 F.2d 894, 914-19 (10th Cir.), cert. dismissed, 423 U.S. 802, 96 S.Ct. 8, 46 L.Ed.2d 244 (1975) (compatible computer peripherals do not constitute a relevant market).

      . Prime’s market figures, however, are significant enough for AIMS’ rule of reason case under Section 1.

      . The dealer agreement provides that it shall be construed under the laws of Massachusetts.


author: FRANK A. KAUFMAN, Chief Judge.

text:
    Donaty BEAVER v. Lowell K. BRIDWELL, Secretary, Maryland Dept. of Transportation and Edward Hechmer, Chief, Maryland Toll Facilities Police and Officer Rayford Perry, Maryland Toll Facilities Police.
    Civ. No. K-83-3875.
    United States District Court, D. Maryland.
    Sept. 24, 1984.

      Ralph M. Murdy, Baltimore, Md., for plaintiff.
    Robert B. Harrison III and Steven W. Vanderbosch, Asst. Attys. Gen., Maryland Dept, of Transp., Baltimore, Md., for defendants.
    Stephen H. Sachs, Atty. Gen. of Maryland, and Evelyn 0. Cannon, Asst. Atty. Gen. of Maryland, Baltimore, Md., for defendant Perry.
    Benjamin R. Goertemiller, James F. Mewborn and Semmes, Bowen & Semmes, Baltimore, Md., for defendants Bridwell and Hechmer.
   FRANK A. KAUFMAN, Chief Judge.

This case arises out of injuries which plaintiff allegedly suffered on February 2, 1983 when he was stopped and arrested by a toll facilities police officer, Perry, for driving his truck in an improper lane. The defendants are (1) the toll facilities police officer; (2) the Chief of the Toll Facilities Police Force, Hechmer; and (3) the Chairman of the Maryland Transportation Authority and Secretary of the Maryland Department of Transportation, Bridwell. Plaintiff seeks damages from Perry in his individual capacity and from the other two defendants in their respective official capacities. The complaint alleges violations of plaintiff’s Fourth, Sixth and Fourteenth Amendment rights and of 42 U.S.C. § 1983.

Defendants Bridwell and Hechmer have moved to dismiss the within complaint on several grounds, including, inter alia, (1) the bar of res judicata and (2) abstention. Defendant Perry has moved to dismiss plaintiff’s complaint only on the bar of abstention. This Court, after hearing oral arguments and receiving written submissions, entered an Order granting the motion to dismiss of defendants Hechmer and Bridwell and denying the motion to dismiss of defendant Perry, for reasons to be set forth in an opinion. This opinion is accordingly being filed.

Plaintiff filed his within complaint in this federal district court on November 8, 1983. On November 7, 1983, one day earlier, plaintiff filed a complaint against the same three defendants, based on the same incident, in the Circuit Court for Baltimore City. In that complaint, plaintiff originally did not raise his § 1983 claim, but chose instead to base his claim on common law tort theory. On March 12, 1984, while defendants’ motion to dismiss was pending in this case, the Circuit Court for Baltimore City sustained a demurrer filed by defendants Bridwell and Hechmer on the grounds that those defendants were protected from suit by sovereign immunity. Judgment was entered in their favor in that Court on March 13, 1984. Plaintiff did not file an appeal from that judgment within the thirty-day period prescribed by Rule 812 of the Maryland Rules of Procedure.

Defendants Bridwell and Hechmer

“[FJederal Courts [are required] to give the same preclusive effect to state Court judgments that those judgments would be given in the Courts of the State from which the judgments emerged.” Kremer v. Chemical Construction Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (footnote omitted). See Allen v. McCurry, 449 U.S. 90, 95-96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). That rule arises from 28 U.S.C. § 1738, which provides that state court proceedings “shall have the same full faith and credit in every Court within the United States ... as they have by law or usages in the Courts of such State____ That requirement is not modified by the fact that the claim asserted in the federal court is based on 42 U.S.C. § 1983. See Allen v. McCurry, supra; Migra v. Warren City School District Board of Education, — U.S. —, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). In Allen, defendant McCurry had been convicted in a state proceeding during which the trial court had denied his motion to suppress certain evidence allegedly obtained in violation of the Fourth Amendment. Id. 449 U.S. at 92, 101 S.Ct. at 413. Defendant thereafter filed a § 1983 action in federal district court alleging a conspiracy to violate his Fourth Amendment rights. The district court granted summary judgment in favor of defendant. The Eighth Circuit reversed. Agreeing with the district court, Justice Stewart wrote that “nothing in the language of § 1983 remotely expresses any congressional intent to contravene the common-law rules of preclusion or to repeal the express statutory requirements of the predecessor of 28 U.S.C. § 1738 ....” Id. at 97-98, 101 S.Ct. at 416.

Whether claim preclusion — the barring in a subsequent proceeding of issues which could have been raised but were not raised in the first proceeding — applies to a § 1983 suit was left open by the Court in Allen, id. at 97 n. 10, 101 S.Ct. at 416 n. 10, but was answered in the affirmative four years later by the Supreme Court in Migra v. Warren City School District Board of Education, supra, — U.S. at —-—, 104 S.Ct. at 897-98, 79 L.Ed.2d at 63-64. In Migra, a supervisor of elementary education sued her employer, the Board of Education of Warren, Ohio, in state court when the Board failed to renew her employment contract. The state court ruled in favor of the supervisor, granting her reinstatement and compensatory damages. Thereafter, the supervisor instituted an action in federal district court under 42 U.S.C. § 1983 and § 1985, alleging violations of her federal constitutional rights. The district court granted summary judgment for the defendant on the basis of res judicata. After the Sixth Circuit affirmed, the Supreme Court expressed its agreement as to claim preclusion. In so doing, Justice Blackmun wrote:

In the present litigation, petitioner does not claim that the state court would not have adjudicated her federal claims had she presented them in her original suit in state court. Alternatively, petitioner could have obtained a federal forum for her federal claim by litigating it first in a federal court. Section 1983, however, does not override state preclusion law and guarantee petitioner a right to proceed to judgment in state court on her state claims and then turn to federal court for adjudication of her federal claims. We hold, therefore, that petitioner’s state-court judgment in this litigation has the same claim preclusive effect in federal court that the judgment would have in the Ohio state courts.

Id., — U.S. at —, 104 S.Ct. at 898, 79 L.Ed.2d at 64 (footnote omitted).

In Kutzik v. Young, 730 F.2d 149 (4th Cir.1984), a university professor instituted a breach of contract action in a court of the State of Maryland against the Dean of the University of Maryland School of Social Work and that University’s Board of Regents. The professor sought damages and reinstatement. The trial court dismissed the claim on the ground of sovereign immunity — the precise ground upon which defendants Bridwell and Hechmer achieved dismissal in the state court proceeding involved in the within case. The Court of Special Appeals of Maryland affirmed in an unpublished opinion. Id. at 151. While an appeal to the Court of Appeals of Maryland was pending, plaintiff sued the Dean, the President and the Chancellor of the University in this Court invoking § 1983 and alleging violations of the First and Fourteenth Amendments. Judge Young of this Court granted defendants’ summary judgment motion. Writing for Chief Judge Winter, Judge Chapman and himself, Judge Butzner affirmed, concluding that, under Migra, a federal district court must look to the law of the state in which the judgment was entered to determine its preclusive effect, id. at 151, and noting that, in Maryland, a judgment will preclude a subsequent claim when (1) there has been “a final judgment on the merits in the earlier litigation”; (2) “the cause of action must be the same in both suits” — that is, “the same evidentiary facts would sustain both suits”; and (3) “there [is] an identity of parties or their privies.” Id. at 151-52. In Kutzik, Judge Butzner held that those requirements had been met and that under Maryland law, a dismissal based upon sovereign immunity defense is a final judgment on the merits. Id. at 151.

In the instant case, defendants Bridwell and Hechmer seek dismissal under res judicata based on the prior judgment on the merits in the Maryland court proceeding. Under Maryland law, as set forth in Kutzik, it appears that the requirements for the application of claim preclusion are met. First, as discussed supra, the Maryland trial court’s dismissal of defendants under sovereign immunity is a final judgment on the merits. Second, the same evidentiary facts sustain both the state court and the within suits. Third, defendants Bridwell and Hechmer are two of the same three defendants sued in the Maryland court. Accordingly, claim preclusion operates herein to bar plaintiff’s suit.

Nor does Pennhurst State School & Hospital v. Halderman, — U.S. —, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (Pennhurst II), teach otherwise. In the first place, a damage suit against state officials sued in their official capacities, as is the situation herein with respect to plaintiff’s claims against defendants Bridwell and Hechmer, is barred by the Eleventh Amendment. See Pennhurst II at —, 104 S.Ct. at 908, 79 L.Ed.2d at 79. In Pennhurst II, the Supreme Court held that the exception set forth in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), permitting an injunction to issue in “a suit challenging the constitutionality [under the Constitution of the United States] of a state official’s action,” Pennhurst II — U.S. at —, 104 S.Ct. at 909, 79 L.Ed.2d at 79, does not permit a “claim” that state officials have “violated state law” to avoid the bar of the Eleventh Amendment. Id. at -, 104 S.Ct. at 909, 79 L.Ed.2d at 80 (emphasis in original). Herein, plaintiff seeks damages, not injunctive relief, against defendants Bridwell and Hechmer in their official capacities. So plaintiff’s claim against those defendants is barred by the Eleventh Amendment both under pre- and post-Pennhurst II law. But even if plaintiff were seeking injunctive relief against those two defendants, Pennhurst II is of no aid to him.

Plaintiff contends that Pennhurst II required him to bring his state-based tort claim against defendants in state court, where the Eleventh Amendment would not operate to bar such action, and his § 1983 claim in federal court. Having bifurcated his claims in accordance with Pennhurst II, plaintiff argues that the state dismissal should not be res judicata as to his federal claim. Plaintiff could have brought all his claims growing out of the February 2,1983 incident, including his § 1983 claim, in state court. However, plaintiff apparently wanted not only to seek damages under his state-law-based tort claim, which required him to state that claim in a state court or else, if he stated it in a federal court, to face the bar of the Eleventh Amendment, but also to have his § 1983 claim heard and decided in a federal court. That caused plaintiff to seek to proceed in both state and federal court and to try to bifurcate his two separate claims for relief. That result, in a given case, was recognized by Justice Powell in Pennhurst II when he wrote:

It may be that applying the Eleventh Amendment to pendent claims results in federal claims being brought in state court, or in bifurcation of claims. That is not uncommon in this area____ Under the abstention doctrine, unclear issues of state law commonly are split off and referred to the state courts.

Id. at —, 104 S.Ct. at 919-920, 79 L.Ed.2d at 92-93 (footnote omitted).

Thus, even if injunctive relief were involved herein — which it is not — Pennhurst II is no aid to plaintiff in resisting the motion to dismiss filed by defendants Bridwell and Hechmer.

Defendant Perry

Defendant Perry, sued in his individual capacity, argues in his motion to dismiss that this federal court should abstain from conducting proceedings in this § 1983 case when the same case is pending in state court. In considering the appropriateness of abstention in a § 1983 case due to the pendency of state proceedings concerned with a factual base which is the same as the one in the case in federal court, the Supreme Court has emphasized that, as a general rule, “the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction ...,” Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976), quoting from McClellan v. Carland, 217 U.S. 268, 272, 30 S.Ct. 501, 54 L.Ed. 762 (1910), in the absence of “exceptional” circumstances. Id., 217 U.S. at 818, 30 S.Ct. at 1246. The Fourth Circuit, in Kruse v. Snowshoe Co., 715 F.2d 120, 123 (4th Cir.1983), summarizing certain of Justice Brennan’s views in Colorado River, “described some of the factors relevant to [the] application” of the “exceptional-circumstances test.” Those factors are:

(a) the assumption by a state court of jurisdiction over property; (b) the inconvenience of the federal forum; (c) the avoidance of piecemeal litigation; and (d) the order in which the concurrent forums obtained jurisdiction.”

Kruse v. Snowshoe Co., supra, at 123. In Kruse, Judge Sprouse also wrote that in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Supreme Court “elaborated on the application of the exceptional-circumstances test” and noted:

[T]he decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case. Colorado River itself illustrates this principle in operation. By far the most important factor in our decision to approve the dismissal there was the “clear federal policy ... [of] avoidance of piecemeal adjudication of water rights in a river system”____

Kruse at 123.

In Colorado River, the Supreme Court held that the water rights issue therein posed caused the case to fall within the rarely used abstention exception. With regard to Colorado River, Professor Wright has written:

Nevertheless, the factual situation in that case was so unusual, and the Court’s emphasis on “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them” ... was so strong, that the case argues against, rather than for, the use of this practice [abstention] in routine cases

Wright, Law of Federal Courts, 317 (4th ed.), citing Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246 (footnote omitted).

Under the analytical framework provided by Colorado River and Kruse, defendant Perry’s argument for abstention is not convincing. To begin with, there is, as Justice Brennan wrote in Colorado River (at 817, 96 S.Ct. at 1246) “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” Moreover, the federal courthouse in which the within ease is pending is no more than a few blocks from the state forum. Accordingly, little or no inconvenience is involved if this ease proceeds — other than the inconvenience of two cases. While piecemeal litigation may occur, that possibility is present in many similar cases. It is true that the state action was filed only one day before the within federal action, which argues, but only slightly, in view of the brief time period, in favor of abstention. On the other hand, it is to be noted that the source of the law in this case is federal. Finally, although the state court can be expected adequately to protect plaintiffs rights, the record herein does not suggest that the state proceeding has gone very far in adjudicating plaintiffs rights against defendant Perry. In light of the Supreme Court’s emphasis upon the balance weighing in favor of a federal court’s exercise of its jurisdiction and against abstention, a defendant has the burden of showing why abstention is appropriate. That defendant Perry has not so done. Accordingly, denial of defendant’s Perry motion to dismiss is required.

      . In response to a demurrer filed by defendants Bridwell and Hechmer in the state court proceeding, plaintiff did raise the issue of his section 1983 claim.

      . The Supreme Court then remanded the case to the district court for a determination of whether Ohio law would preclude the suit. — U.S. at —, 104 S.Ct. at 899, 79 L.Ed.2d at 66.

      . To the same effect as Kutzik in its interpretation of Migra; B.C.R. Transport Co. v. Fontaine, 727 F.2d 7, 11-12 (1st Cir.1984).

      . Both suits arose out of the incident which occurred on February 2, 1983 in which the plaintiff was stopped and allegedly mistreated by Officer Perry.