text:
    John W. HANEY, Petitioner, v. Michael DUTTON, et al., Respondents.
    Civ. A. No. 3:84-0517.
    United States District Court, M.D. Tennessee, Nashville Division.
    May 22, 1984.
    Memorandum Opinion and Order July 11, 1984.
    On Motion for Enlargement Aug. 1, 1984.
    On Request for Certificate of Probable Cause Aug. 17, 1984.
    John W. Haney, pro se.
    William M. Leech, Jr., Atty. Gen., Nashville, Tenn., for respondents.
   MEMORANDUM OPINION AND ORDERS

NEESE, Senior District Judge, sitting by designation.

The petitioner Mr. John W. Haney, who is serving a life term of imprisonment for murder in the second degree, seeks the federal writ of habeas corpus. 28 U.S.C. § 2254(a). He claims he was denied the effective assistance of counsel at trial because his counsel

* * * was aware, prior to seating of the jury, of a prospective juror’s knowledge of Petitioner’s prior conviction * * *. [But] * * * Petitioner’s attorney failed to bring this knowledge to the attention of the court and allowed the juror to be seated and sworn on the jury with this prejudicial knowledge. * * *

Mr. Haney appears to have exhausted his available state remedies by presenting this claim to the courts of Tennessee through post-conviction relief procedures. See State of Tennessee, appellee, v. John W. Haney, appellant, no. 82-130-III, in the Court of Criminal Appeals of Tennessee at Nashville, unpublished opinion of November 17, 1983, perm. app. den. by Supreme Court of Tennessee, March 5, 1984.

It appears from that opinion that a hearing on the juror-incident was held in the trial Court and that the hearing-judge found the extraneous information received by such juror had no effect on her deliberation and that, therefore, it caused no prejudice to Mr. Haney. It appears further that such appellate Court found that, contrary to the assertion of the petitioner, counsel first became aware of this incident “ * * * after trial, but before the post-trial hearing. * * * ” Assuming these findings have “fair support” in the record, they are entitled to deference by this Court. 28 U.S.C. § 2254(d); Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850[2], 74 L.Ed.2d 646 (1983); Cardwell v. Taylor, 461 U.S. 571, 572, 103 S.Ct. 2015, 2016, 76 L.Ed.2d 333 (1983); Sumner v. Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982) (“We deal here with a statute that requires federal courts to show a high measure of deference to the fact findings made by the state courts.”)

It hereby is ORDERED that the respondent file within 30 days herefrom an answer in accordance with Rule 5, 28 U.S.C. fol. § 2254. Rule 4, 28 U.S.C. fol. § 2254. (It is not anticipated that the filing of a complete transcript of the trial will be necessary; only that portion of the transcript relating to the hearing on the motion for a new trial need be filed at this time.)

MEMORANDUM OPINION AND ORDER

As the Court noted earlier, see memorandum opinion and orders herein of May 22, 1984, the petitioner Mr. Haney claims he was deprived of the effective assistance of counsel, Constitution, Sixth Amendment. He claims his trial counsel

* * * was aware, prior to seating of the jury, of a prospective juror’s knowledge of Petitioner’s prior conviction. Petitioner’s attorney failed to bring this knowledge to the attention of the court and allowed the juror [Ms. Evelyn Yell] to be seated and sworn on the jury with this prejudicial information. * * * []

From the transcript of a hearing held in the trial Court concerning inter alia the incident involving Ms. Yell, the Court of Criminal Appeals found that, contrary to the claim of Mr. Haney, the information (that Ms. Yell was aware of his prior conviction) “ * * * came to the attorneys after [emphasis in original] trial, but before the post-trial hearing * * * ” and that trial counsel for Mr. Haney “ * * * did not learn of the matter involving juror Yell prior to trial * * * ” as was contended by the petitioner. State of Tennessee, appellee, v. John W. Haney, appellant, no. 82-130-III, in the Court of Criminal Appeals of Tennessee at Nashville, unpublished opinion of November 17, 1983 at pg. 3. The foregoing findings have “fair support” in the record.

They are thus entitled to deference by this Court. 28 U.S.C. § 2254(d); Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850[2], 74 L.Ed.2d 646 (1983); Cardwell v. Taylor, 461 U.S. 571, 572, 103 S.Ct. 2015, 2016, 76 L.Ed.2d 333 (1983); Sumner v. Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982). Furthermore, such findings are supported by the uncontroverted affidavits herein of trial-counsel for Mr. Haney, each of whom states that he did not learn of the incident involving Ms. Yell “ * * * until the day after the trial * * * ft

The factual basis for the petitioner’s claim of ineffective assistance of counsel being without merit, this Court concludes, as a matter of law, that Mr. Haney was not deprived of his Sixth Amendment right to the effective assistance of counsel as claimed. It appearing from a review of the state-court proceedings and of the expanded record that an evidentiary hearing is not required herein, and it appearing further that the petitioner is not entitled to relief herein, his petition hereby is

DISMISSED. Rule 8(a), 28 U.S.C. fol. § 2254. Should the petitioner give timely notice of an appeal from this order and the judgment to be entered herein, Rule 58(1), F.R.Civ.P., he is authorized to proceed thereon in forma pauperis. Rule 24(a), F.R.Civ.P. Any such notice will be treated also as an application for a certificate of probable cause. Rule 22(b), F.R.App.P.

The petitioner has not made a substantial showing of the denial of a federal right because his petition fails to challenge the factual determinations of the state appellate court and fails to invoke any of the exceptions to the presumption of correctness of 28 U.S.C. § 2254(d). See Loveday v. Davis, 697 F.2d 135, 138-139 (6th Cir. 1983). Therefore, a certificate of probable cause shall NOT issue. Rule 22(b), supra; Barefoot v. Estelle, 463 U.S. 880,-, 103 S.Ct. 3383, 3394[11, 12], 77 L.Ed.2d 1090 (1983), reh. den. — U.S. -, 104 S.Ct. 209, 78 L.Ed.2d 185 (1983) (probable cause requires the petitioner to make a substantial showing of the denial of a federal right).

ON MOTION FOR ENLARGEMENT

The petitioner moved the Court for “ * * * an enlargement of 30 days to prepare and file a motion to rehear.” Because the Court is without authority to grant such an enlargement, such motion hereby is

DENIED.

The Supreme Court has held that a motion for a rehearing in a federal habeas-corpus proceeding is governed by the provisions of Rule 59(b) or (e), F.R.Civ.P. Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, 268-271, 98 S.Ct. 556, 562 — 564[6], [7], 54 L.Ed.2d 521 (1978), reh. den. 434 U.S. 1089, 98 S.Ct. 1286, 55 L.Ed.2d 795 (1978). This Court is prohibited expressly from enlarging the time periods specified in Rule 59, Rule 6(b), F.R. Civ.P., and this prohibition is mandatory. Leishman v. Associated Wholesale Elec. Co., 318 U.S. 203, 206, n. 4, 63 S.Ct. 543, 545, n. 4, [5], 87 L.Ed. 714 (1943); Perry v. Richardson, 440 F.2d 677, 679 (6th Cir. 1971).

ON REQUEST FOR CERTIFICATE OF PROBABLE CAUSE

This Court has already ruled that a certificate of probable-cause will not issue herein for the reasons assigned. Memorandum opinion and order herein of July 11, 1984, p. 4. The petitioner should now address his request therefor to a judge of the United States Court of Appeals for the Sixth Circuit. See 28 U.S.C. § 2253; Rule 22(b), F.R.App.P.

       A copy of the opinion of the Court of Criminal Appeals on the direct appeal (May 25, 1979) should be submitted also.

      . The petitioner did not specify in his petition his ground for relief but, instead, incorporated therein the documents which he had presented to the appellate courts of Tennessee. This statement of his claim is taken from the introduction of his unsuccessful application for permission to appeal to the Supreme Court of Tennessee.

        . See transcript of hearing on motion for new trial of October 11, 1978, at 8.


source: Caselaw Access Project

author: WICKER, District Judge.

license: Public Domain

text:
    ACORN and William Coles v. The CITY of NEW ORLEANS, et al.
    Civ. No. 83-4859.
    United States District Court, E.D. Louisiana.
    June 4, 1984.

      Stephen R. Bachmann, Bachmann & Wletchek, New Orleans, La., for plaintiffs.
    Galen S. Brown, New Orleans, La., for defendants.
   WICKER, District Judge.

This matter came before the Court on a former date. Plaintiff, the Association of Community Organizations for Reform Now (ACORN) sought to enjoin defendants City of New Orleans (the City), its Police Chief Henry Morris, and its Finance Director Er-roll Willims from enforcing Chapter 38, Section 182 (§ 38-182) of the New Orleans City Code. After considering the testimony, exhibits, briefs of counsel and the law, the Court finds that § 38-182 is unconstitutional under the First Amendment and hereby permanently enjoins the defendants from enforcing that section.

ACORN is a non-profit association of low and moderate income people which is active in 26 states. Its purpose is to advance the interests of its membership in areas of social and political concern such as utility rates, hazardous materials and park facilities.

ACORN engages in three methods of information dissemination and fundraising to promote its cause: canvassing, cannistering and tagging. ACORN members canvass by seeking contributions door-to-door. Cannistering involves approaching persons on the sidewalk, asking them for their signatures on petitions and requesting contributions.

When tagging, members approach cars which are stopped at traffic lights. The ACORN member gives the driver a flyer which describes the association’s work and which indicates how someone may contact ACORN to acquire more information or to join its cause. The member makes a short statement about a particular issue of concern to ACORN and asks the driver for a contribution.

The hearing testimony revealed that ACORN has been tagging in New Orleans since April of 1982. Members wear bright orange reflective vests and do not tag at night. No one under twelve years of age tags for ACORN. All taggers are accompanied by supervisors. They are required to review safety rules and to know how long particular traffic lights are before working at an intersection. They are told roughly how many cars can be approached per signal cycle and are instructed that when the signal changes to yellow, they are to return to the sidewalk. Finally, members are directed to obey the police at all times. There was no testimony which would indicate that any accident or injury has been caused by ACORN’s tagging operations in New Orleans or elsewhere.

ACORN regularly engaged in tagging each weekend without disturbance until August of 1983. On August 15, Superintendent Morris issued a letter to the police department’s commanding officers which indicated that there had been a noticeable increase in the amount of tagging in New Orleans which had impeded the orderly and safe flow of traffic on City streets. Accordingly, the letter directed police officers to “strictly enforce” § 38-182 which section makes such solicitation unlawful.

On August 16 ACORN was sent a letter from the City which directed it to obtain a solicitation permit. On August 18 ACORN member Emery Johnson was cited by a City police officer for violating § 38-182. Although § 38-182 had been in existence since 1968, Deputy Police Chief Wood-fork testified that it had not been enforced prior to 1983.

ACORN claimed that the City’s pattern of enforcement is arbitrary and capricious and denies ACORN due process of law. Its members testified that ACORN was singled out for prosecution, presumably since it is a political, rather than charitable, organization and since it promotes what many view as unpopular causes. The Deputy Chief testified, however, that enforcement of § 38-182 is not aimed selectively at particular groups, but that the Police Department began enforcing the section following recent complaints from concerned citizens. He also stated that the City has a separate ordinance which prohibits obstruction of traffic, which ordinance is not specifically directed at speech activity as is § 38-182.

Section 38-182 prohibits persons from standing in a roadway or on a neutral ground for the purpose of soliciting funds. Plaintiffs brought this action under 42 U.S.C. § 1983, contending that § 38-182 is unconstitutional both on its face since it prohibits expressive activity which is protected under the First Amendment and as applied since the police department has enforced the ordinance selectively against ACORN in violation of the Fourteenth Amendment.

Public places which have historically been associated with the free exercise of expressive activities, such as streets, sidewalks and parks, are considered “public forums” where the government’s ability to permissibly restrict expressive conduct is strictly limited. U.S. v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 1706-07, 75 L.Ed.2d 736 (1983); Carey v. Brown, 447 U.S. 455, 460, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (1980); Hague v. C.I.O., 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). The Supreme Court has clearly stated that speech does not lose its protected status because the speaker seeks a contribution. Rather, solicitation of funds unquestionably is protected expression under the First Amendment. Heffron v. ISKCON, 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981); Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 833, 63 L.Ed.2d 73 (1980); ISKCON v. City of Houston, 689 F.2d 541, 545 (5th Cir.1982).

In seeking to solicit funds at roadway intersections, therefore, ACORN wishes to engage in protected First Amendment activity in a traditional public forum. The issue here is not whether ACORN’s activities are protected under the First Amendment, but whether the City has exercised its power to regulate solicitation in a manner consistent with constitutional requirements.

The First Amendment does not guarantee the right to communicate views at all times and places or in any manner that may be desired. See e.g., Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (upholding ban on political campaigning on military base); Adderly v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (upholding prohibition on demonstrations at a jail). Solicitation of financial support, like other protected expression, is subject to reasonable regulation. This regulation, however, must be designed and enforced in a manner which does not intrude upon the rights of free speech. Hynes v. Mayor and Council of the Borough of Oradell, 425 U.S. 610, 616-17, 96 S.Ct. 1755, 1758-59, 48 L.Ed.2d 243 (1976). Regulation must be “undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information would likely cease.” Village of Schaumberg, supra, 444 U.S. at 632, 100 S.Ct. at 834.

ACORN contends that § 38-182 violates the rights of its solicitors since the section is overbroad and the City could accomplish its goals by less intrusive means. “A law is overbroad if it ‘does not aim specifically at evils within the allowable area of control ... but sweeps within its ambit other activities that constitute an exercise’ of First Amendment rights.” Beckerman v. City of Tupelo, Mississippi, 664 F.2d 502, 507 (5th Cir.1981) citing Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). A law will not be voided, however, unless its over-breadth is substantial in relation to the statute’s plainly legitimate sweep. Broadrick v. Oklahoma, 413 U.S. 601, 605, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973); Beckerman v. City of Tupelo, Mississippi, supra, 664 F.2d at 507; Fernandes v. Dimmer, 663 F.2d 619, 633 (5th Cir.1981), cert. denied, 458 U.S. 1124, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982).

In the First Amendment context, courts disregard the normal rule which precludes persons whose conduct may validly be prohibited from challenging a law as it applies to others since there is a possibility that protected speech may be inhibited by the overly broad reach of the statute. A person whose speech is unprotected, thus, may challenge a law as facially invalid by showing that it substantially abridges rights of others not before the court. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981); Village of Schaumberg, supra, 444 U.S. at 634, 100 S.Ct. at 834; Basiardanes v. City of Galveston, 682 F.2d 1203, 1217 (5th Cir.1982). When First Amendment rights are involved, the ordinance’s proponent bears the burden of proving its constitutionality. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); ACORN v. City of Frontenac, 714 F.2d 813, 817 (8th Cir.1983).

Prior cases have not determined whether a city may prohibit persons from soliciting funds from cars which are stopped at street lights. The Fifth Circuit has decided three cases, however, which provide analytical guidance.

In Fernandes v. Limmer, the Fifth Circuit considered a Krishna religion devotee’s attack on the constitutionality of an ordinance governing solicitation at the Dallas/Fort Worth Airport. The court first held that the airport terminals are public forums since the character of the areas, the pattern of usual activity, the nature of their essential purpose, and the population who take advantage of them make them appropriate places for communication of views on issues of political and social importance. 663 F.2d at 626. One portion of the city’s licensing scheme permitted charitable solicitation on airport sidewalks but prohibited solicitation at all times inside terminal buildings. The court held that by completely forbidding solicitation in the terminal buildings, the Dallas/Fort Worth ordinance swept substantially beyond the ambit of permissible regulation. Rather, the airport had to provide access to those areas where solicitation would not interfere with airport functions. 663 F.2d at 627, 633— 34.

In Beckerman v. City of Tupelo, Mississippi the Circuit considered the constitutionality of Tupelo’s parade ordinance. One section prohibited issuing a permit for parades or demonstrations which would take place after 6:00 p.m. The court stated that Tupelo could regulate the times of parades and even restrict them to daylight hours, but any regulation must be drawn to insure minimal intrusion on First Amendment rights. The court held that since it remains light past 6:00 much of the year in Tupelo, the ordinance was unconstitutionally overbroad. To survive constitutional scrutiny, the ordinance must either fluctuate with the time of sunset, vary accordingly to the seasons, or be set at a later time to accommodate year-round First Amendment interests. 664 F.2d at 512.

Another section of Tupelo’s ordinance prohibited the use of sound trucks and sound amplification equipment at any time on the streets in areas zoned residential. Although sound equipment may be incompatible with actual residential areas, the zoning ordinance extended to places which included structures other than houses, such as churches and schools. Since it restricted speech in areas beyond those deservedly protected, the court held that the section was unconstitutionally overbroad. 664 F.2d at 516.

In Dallas ACORN v. Dallas County Hospital District, 670 F.2d 629, 632-33 (5th Cir.1982), similarly, the Circuit stated that even a hospital may not completely forbid distribution of critical literature on its grounds, but may only prevent expression where it is fundamentally incompatible with the hospital’s normal activity at a particular time. The staff could restrict distribution in the outpatient clinic and other areas where medical services were actually performed, but it was overbroad to prohibit speech within the hospital in those areas where its operations would not be disturbed.

til] An ordinance which prohibits all solicitation for funds in all streets and on all neutral grounds, like those in the Fifth Circuit cases, sweeps too broadly. The ordinance prevents solicitation from pedestrians on those French Quarter streets which are often closed to vehicular traffic. It prohibits it during Mardi Gras season when many streets are barricaded, during street fairs, street running races, parades, demonstrations and other activities where no vehicles are present. Nor does it provide a means for persons to apply for permission to solicit during these events. The ordinance forbids solicitation on neutral grounds regardless of the part of town, the number of cars passing, the speed of traffic, the width of the neutral grounds, the presence of a stop sign or traffic signal, or the color of the light. It does not consider the number of solicitors, their visibility, the size of their signs, the time of day or the day of the week.

The ordinance as written does not distinguish between solicitors who step off the neutral ground, those who stand on the neutral ground and solicit from cars stopped adjacent to them at traffic lights, and those who wish only to solicit from fellow neutral ground pedestrians. There is no apparent danger posed by someone soliciting from another person who is also standing on the neutral ground. In addition, in instances when there is little traffic and a sufficiently wide neutral ground so that there is no likelihood of persons slipping inadvertently into the stream of oncoming vehicles, solicitation of funds from drivers may not pose a significant danger. It need not slow traffic or block the view of drivers. So long as the solicitor stays out of the street when traffic is moving and does not unduly harass the driver when stopped, such activity will not endanger passengers or pedestrians any more than would a picket line or children playing in the neutral ground.

A city has no greater right to completely prohibit solicitation at all times and places in its streets, which are traditional public forums, than it does to forbid such activity in all parts of its airports and hospitals which are not. Since the ordinance forbids numerous expressive contacts which are constitutionally protected and which do not jeopardize the governmental interest asserted, it is substantially over-broad.

The City argues contrarily, however, that it may restrict solicitation since the ordinance is merely a time, place and manner restriction designed to promote safety and convenience. This argument is unpersuasive. Regulations of time, place and manner must be reasonable, Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972); Beckerman, supra, 664 F.2d at 516, and must be narrowly drawn to serve significant governmental interests without unnecessarily interfering with First Amendment freedoms, U.S. v. Grace, supra, 461 U.S. at 177, 103 S.Ct. at 1707; Village of Schaumberg, supra 444 U.S. at 637, 100 S.Ct. at 836. “Carefully tailored restraints designed to further legitimate governmental interests in preserving the forum for the normal pattern of activities conducted there are constitutionally acceptable. An outright ban on the use of the forum for expressive purposes, on the other hand, can seldom, if ever, be justified.” Feman dez v. Limmer, supra, 663 F.2d at 633. “The crucial question is whether the manner of expression is basically incompatible with the normal activities of a particular place at a particular time.” Beckerman, supra, 664 F.2d at 516, quoting Grayned, supra, 408 U.S. at 116, 92 S.Ct. at 2303.

Section 38-182 is designed to insure the safety of pedestrians and automobile passengers and to promote the free-flow of traffic. These are legitimate governmental objectives. Heffron, supra, 452 U.S. at 650, 101 S.Ct. at 2565; Grayned, supra, 408 U.S. at 115-16, 92 S.Ct. at 2303. The City clearly may regulate to prevent individuals from obstructing traffic and may punish those who do.

The ordinance, however, is not carefully drawn to meet these interests. While an absolute prohibition of solicitation may be warranted on Interstate 10 where cars travel in excess of 60 miles per hour and do not stop, the same, as indicated above, cannot be said of all streets in New Orleans. In numerous instances, solicitation on streets and neutral grounds may be compatible with the normal use of these facilities at a particular time. The ordinance simultaneously has been drawn too narrowly to meet the City’s needs. At numerous intersections in New Orleans children enter the streets to wash the windshields of cars stopped at traffic lights. Such activity creates a greater danger to safety than tagging since children are involved and since they walk in front of vehicles to wash from both sides of the car. Yet, such strictly commercial activity, which carries no constitutional protection, is not covered by the ordinance since it is neither a sale of a commodity, nor solicitation.

In addition, for an ordinance to pass constitutional muster as a time, place and manner regulation, the government has the burden of showing that it has employed the means least restrictive of protected First Amendment activity. Schad v. Borough of Mount Ephraim, supra, 452 U.S. at 70-71, 101 S.Ct. at 2183-84; Village of Schaumberg, supra, 444 U.S. at 637, 100 S.Ct. at 836. Again, the City has fallen short. The Deputy Police Chief testified that the City has an ordinance which prohibits the obstruction of traffic. This is the proper manner of promoting the interest in public safety and convenience, rather than by prohibiting speech directly. Ordinances which penalize obstruction, interference with the view of drivers, or other actions which create a hazard to traffic safety restrict all activities which may actually pose a danger while leaving citizens the liberty to engage in protected speech in those manners which do not conflict with the City’s interests. The City therefore can easily design a statute which is less restrictive of free speech simply by directing the ordinance at the potential evil rather than at a manner of expression. Even if the ordinance were not overbroad, § 38-182 would be unconstitutional since it is not a reasonable time, place and manner regulation.

If the City wishes to provide further guidance to solicitors, it may do so by enacting true time, place and manner restrictions, rather than this total ban on expression. It may prohibit solicitation during certain hours or on certain streets, either by name or by limiting tagging to areas with a particular maximum speed limit. The City may require high visibility vests, set a minimum age for taggers, limit the number of taggers per intersection, require the presence of supervisors, prohibit tagging in areas where the neutral ground is insufficiently wide, or forbid signs above a designated height. The City may allow tagging only at traffic lights, require that taggers return to the neutral ground when the light changes to yellow or, if actually warranted, forbid solicitors from entering streets during the hours they are open to vehicular traffic. Any of these regulations would be less restrictive methods for the City to address its interests.

These suggestions are merely that. It is not the role of this Court to determine what regulation is necessary or to rewrite this ordinance for the City of New Orleans. The Court recognizes that regulation in this area is legitimate and desirable and encourages the City to formulate appropriate limitations which are in keeping with constitutional demands. However, the Court is limited to deciding the particular controversy before it. See Fernandes v. Limmer, supra, 663 F.2d at 626. What the City may not do is prevent solicitation on all streets and neutral grounds without making an earnest attempt to accommodate legitimate speech interests through careful drafting.

ACORN also alleged that the City applied § 38-182 discriminatorily against it in violation of the equal protection clause of the Fourteenth Amendment. Since the ordinance does not on its face discriminate on the basis of the content or source of speech, plaintiff must prove that it has been singled out for prosecution and that this discriminatory selection was based on an impermissible consideration such as race, religion or the exercise of constitutional rights. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); U.S. v. Jennings, 724 F.2d 436, 445 (5th Cir.1984). These elements may be demonstrated by statistical evidence. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed. 498 (1977).

The Fourteenth Amendment claim fails for two reasons. First, ACORN has not demonstrated that the City enforced § 38-182 selectively. On August 15, 1983 New Orleans police officers were first directed to enforce the ordinance. On August 18 an ACORN member was cited for its violation. Although ACORN called witnesses to testify that other groups had tagged without being cited, no one testified that other groups had solicited following the issuance of the August 15 letter. Nor did ACORN call police officers or employees of the City records office to establish whether other groups had been cited. Secondly, ACORN failed to put on evidence to show that any discrimination was due to an impermissible purpose. Simple allegations, without proof of discriminatory enforcement, are inadequate to establish an equal protection violation under Yick Wo.

Section 38-182 is unconstitutional on its face since it is substantially over-broad and cannot be justified as a time, place or manner restriction. Plaintiff is entitled to reasonable attorney’s fees under 42 U.S.C. § 1988.

Accordingly, ACORN’s motion is GRANTED and it is hereby ORDERED that a permanent injunction issue barring the City of New Orleans from enforcing § 38-182 of the City Code.

      . ACORN also sought to enjoin enforcement of Chapter 14 of the City Code, a permit scheme for charitable solicitation. Counsel for the City and ACORN have entered into a consent decree declaring Chapter 14 unconstitutional in light of Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). Record Doc. 12. This opinion, therefore, is limited to consideration of the constitutionality of § 38-182.

      . Plaintiffs Exhibits 1, 2, 3, 4.

      . City Exhibit 1.

      . Exhibit B to the Complaint.

      . Exhibit C to the Complaint.

      . The "neutral ground” is the median area in a divided street which separates traffic flowing in opposite directions. In New Orleans, the neutral grounds vary considerably. Some are only a step or two wide while others may be one hundred feet or more across. They may be tree laden and therefore difficult to see over, dotted with interspersed bushes, or simply wide expanses of grass. They may be on busy downtown boulevards such as Poydras Street, fast cross-town arteries such as Robert E. Lee Boulevard or Broad Street or slow uptown residential avenues such as Audubon Place which scarcely receive any traffic at all.

      . 828 M.C.S. § 38-182 states:
      No person shall stand in the roadway for the purpose of soliciting a ride from the driver of any vehicle, and no person shall stand in a roadway or upon a neutral ground for the purpose of selling any produce or commodity to the occupants of vehicles, or for the purpose of soliciting funds.

      . The government may prohibit communication entirely in areas that are not public forums so long as it acts reasonably and the prohibition is content-netural. U.S. Postal Service v. Council of Greenburgh Civic Association, 453 U.S. 114, 132, 101 S.Ct. 2676, 2686, n. 7, 69 L.Ed.2d 517 (1981); Greer v. Spock, 424 U.S. 828, 838-39, 96 S.Ct. 1211, 1218, 47 L.Ed.2d 505 (1976).

      . The Court therefore need not determine whether ACORN’s in-the-street soliciting activity could be prohibited by a narrowly drawn statute.

      . U.S. Labor Party v. Oremus, 619 F.2d 683 (7th Cir.l980), in addition to being from another circuit, is distinguishable. First, the ordinance there concerned only solicitation by persons standing in the highways, not by persons on city streets or on neutral grounds. 619 F.2d at 688. Secondly, the solicitors there did not contest the constitutionality of the statute in question. 619 F.2d at 686.

      . The Court’s holding was limited to declaring unconstitutional the complete denial of access to the terminal forum. It did not suggest that reasonable regulation of time, place and manner of solicitation there would be impermissible. 663 F.2d at 634-35.

      . The ordinance forbids selling items only to the occupants of vehicles, yet prohibits all solicitation, regardless of whether one seeks funds from drivers or pedestrians.

      . ACORN’s members testified in this regard that they solicit only on weekend days when traffic is generally less congested.

      . Reasonable ordinances must also leave open ■ ample alternative means of communication. Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 535, 100 S.Ct. 2326, 2332, 45 L.Ed.2d 319 (1980). And if the exclusion is content-based, the government must demonstrate that the regulation is necessary to serve a compelling state interest. Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983); Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981).

      . Nor can the City claim that it may prohibit solicitation on neutral grounds since ACORN members may exercise their rights to solicit elsewhere. One is not to have the exercise of his or her "liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151-52, 84 L.Ed. 155 (1939).

      . A city may provide for the orderly control of travel on streets to insure the safety and convenience of its citizens and it may punish conduct which violates a valid law. However, a person who is rightfully on a street left open to the public "carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.” Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 671-72, 87 L.Ed. 869 (1943).

      . In Schneider v. State, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155 (1939) the Court stated that the government must exercise the less restrictive means, even if they are less convenient and efficient methods of addressing the state’s legitimate interest.

      . Detailed schemes for regulating solicitation may be permissible if enacted with adequate respect for speech interests. See ISKCON v. City of Houston, 689 F.2d 541 (5th Cir.1982).

      . The Court notes that the City was already on notice that its ordinances must be narrowly drawn to accommodate speech interests. In Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) the Supreme Court struck down as overbroad another New Orleans ordinance which had made it unlawful for persons to curse or revile or use obscene or opprobrious language to a police officer. The fact that the particular defendant’s language might not have been protected under an appropriately drawn statute was immaterial and the conviction was overturned.

      . Compare Police Department v. Mosely, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (city ordinance prohibited picketing next to a school but exempted labor picketing from the prohibition).


author: WANGELIN, District Judge.

text:
    MISSOURI NATIONAL EDUCATION ASSOCIATION, Jo Alexander, Lynn Bahr, Jerry Bailey, Virginia Nace, Vicki T. Nelms, Arvil Skinner, Gail Schmelzer, Nancy Whatley and Mary Jane Wilson, Plaintiffs, v. NEW MADRID COUNTY R-1 ENLARGED SCHOOL DISTRICT and Ray Melton.
    No. S82-161C(D).
    United States District Court, E.D. Missouri, Southeastern Division.
    June 14, 1984.
    Opinion on Motion For New Trial Sept. 28, 1984.
    Opinion on Motion For Declaratory and Injunctive Relief Dec. 19, 1984.
    Opinion on Attorneys’ Fees and Costs March 25, 1985.

      Christopher Hexter, Schuchat, Cook & Werner, St. Louis, Mo., David G. Beeson, Buerkle, Beeson & Ludwig, Jackson, Mo., for plaintiffs.
    Harold D. Jones, Bock & Jones, Hal E. Hunter, Jr., Hunter & Hunter, New Madrid, Mo., James E. Spain, Hyde, Purcell, Wilhoit, Spain, Edmundson and Merrell, Poplar Bluff, Mo., for defendant.
   JUDGMENT

WANGELIN, District Judge.

This action came on for trial before the Court and a jury, Honorable H. Kenneth Wangelin, District Judge presiding and the issues having been duly tried and the jury having rendered its verdict.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that judgment be and hereby is entered in favor of plaintiffs Jo Alexander and Arvil Skinner on their claims for deprivation of their first amendment rights and against defendants New Madrid County R-l Enlarged School District and Ray Melton in the amount of $0.00 (zero dollars).

IT IS FURTHER ORDERED AND ADJUDGED that judgment be and hereby is entered in favor of defendants New Madrid County R-l Enlarged School District and Ray Melton and against plaintiffs Lynn Bahr, Jerry Bailey, Virginia Nace, Vicki T. Nelms, Gail Schmelzer, Nancy Whatley and Mary Jane Wilson.

IT IS FURTHER ORDERED AND ADJUDGED that costs shall be accessed at %% (two-ninths percent) of total costs against defendants and lk% (one-ninth percent) of the total against each of the non-prevailing plaintiffs.

ON MOTION FOR NEW TRIAL

This matter is before the Court upon plaintiffs’ motion for declaratory and injunctive relief. Trial was had on the issue of damages and the jury returned a verdict in favor of two plaintiffs, but awarding no damages, and against the other seven plaintiffs.

Presently before the Court is the motion of individual plaintiffs Alexander and Skinner for declaratory and injunctive relief. Also before the Court is the motion by plaintiff Missouri National Education Association for the same relief.

The Court is hesitant to decide these issues, however, without first examining the propriety and the wisdom of engaging in deliberation on these arguments. The Court questions whether it has the jurisdiction to decide the wholly equitable claims of the organizational plaintiff. Moreover, the Court questions whether it would be' better, now that the legal claims have been decided, to allow further proceedings in this matter to be addressed by a tribunal specifically established for such a purpose as, for example, the National Labor Relations Board. These issues have not been addressed by the parties and the Court would appreciate their thoughts in this regard.

Accordingly,

IT IS HEREBY ORDERED that a decision on plaintiffs’ motions for declaratory and injunctive relief be and is STAYED pending further briefs; and

IT IS FURTHER ORDERED that the parties shall have twenty (20) days from the date of this Order to provide briefs concerning issues raised in this Memorandum.

ORDER

IT IS HEREBY ORDERED that plaintiffs’ motion for new trial be and is DENIED.

ON MOTION FOR DECLARATORY AND INJUNCTIVE RELIEF

This matter is before the Court upon the motions of plaintiffs Alexander, Skinner, and the Missouri National Education Association (MNEA) for declaratory and injunctive relief. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1343(3).

This case was originally filed on behalf of eleven (11) individual teachers and the Missouri National Education Association against defendants the New Madrid R-l Enlarged School District and Superintendent Ray Melton. Prior to trial two of the plaintiffs dismissed their claims against defendants.

This cause was tried before a jury which rendered a verdict in favor of plaintiffs Alexander and Skinner, but did not award any damages, and against the seven other individual plaintiffs. Plaintiff MNEA and the individual plaintiffs reserved their claims for declaratory and injunctive for a decision by the Court. Further briefs were requested from the parties concerning whether, in its pure injunctive and declaratory state, the claims of the organizational plaintiff would be more appropriately adjudicated before the National Labor Relations Board. After a review of plaintiff’s briefs regarding this issue the Court finds that resolution of this dispute may properly and appropriately be made at this time. Accordingly, the Court will now address plaintiffs’ claims for declaratory and injunctive relief.

Plaintiff’s Skinner and Alexander seek declaratory and injunctive relief as follows:

1. That the Court enter a Declaratory Judgment that the defendants’ policies, practices and/or acts of harassing, intimidating and/or coercing plaintiffs Alexander and Skinner for either belonging to New Madrid National Education Association and Missouri National Education Association or simply not belonging to Missouri State Teachers Association was and is a violation of the First and Fourteenth Amendments to the United States Constitution.

2. That the Court enter a Declaratory Judgment that the defendants’ policies, practices and/or acts of granting privileges to teacher members of New Madrid Community Teachers Association and Missouri State Teachers Association while at the same time denying these privileges to plaintiffs’ Alexander and Skinner, who were and are members of Missouri National Education Association, was and is a violation of the First and Fourteenth Amendments to the United States Constitution.

3. That the Court order defendants to return plaintiff Jo Alexander to teaching the same level of math courses she taught up through the 1981-82 school year either at Portageville High School or the School District’s Central High School complex. That at a minimum, these classes include the same or similar number of geometry and algebra sections that plaintiff Alexander taught during the 1981-82 school year at Portageville High School.

4. That in consideration for any future transfers, reassignments or the filling of vacancies, defendants will be required to credit plaintiff Alexander with teaching the same level and number of algebra and geometry classes in the 1982-83 and 1983-84 school years that she had taught in the 1981-82 school year at Portageville High School.

5. That in returning plaintiff Alexander to the teaching position she would have occupied but for the defendants’ violations of her Constitutional rights, the Court will order defendants to return to Alexander the expenses she incurred in travelling on a daily basis between her home in Portage-ville, Missouri and the West Campus of Central High School in Howardville, Missouri during the 1982-83, 1983-84, and 1984-85 school years.

6. That the Court will order defendants to return plaintiff Arvil Skinner to his former high school counseling position at Portageville High School.

7. That, in consideration for any future transfers, reassignments or the filling of vacancies, defendants will be required to credit plaintiff Skinner as though he had served in the high school counseling position at Portageville High School for the 1982-83 and 1983-84 school years. .

8. That, in returning plaintiff Skinner to the counseling position that he would have occupied but for defendants’ violation of his Constitutional rights, the Court will order defendants to compensate plaintiff Skinner with the additional wages that he would have earned had he been employed as a high school counselor during the 1982-83, 1983-84, and 1984-85 school years.

9. That defendants New Madrid County R-l Enlarged School District and Ray Melton, including all School Board Members, agents, administrators, and all persons in active concert and participation with them, are enjoined not to harass, intimidate, or coerce plaintiffs Alexander and Skinner into belonging to Missouri State Teachers Association and not belonging to New Madrid National Education Association and Missouri National Education Association.

10. That defendants New Madrid County R-l Enlarged School District and Ray Melton, including all School Board Members, agents, administrators, and all persons in active concert and participation with them are enjoined to grant the same privileges to members and access to representatives of the New Madrid National Education Association and Missouri National Education Association, the associations which plaintiffs Alexander and Skinner belong, that they have previously granted to teachers and representatives of New Madrid Community Teachers Association and Missouri State Teachers Association, including, but not limited to:

(a) Use of teacher mailboxes and bulletin boards in the teacher lounges of School District schools to post notices relating to the business of New Madrid National Education Association and Missouri National Education Association just as they were and are used by both New Madrid Community Teachers Association and Missouri State Teachers Association;

(b) Use of school facilities for meetings of New Madrid National Education Association in the same manner and under the same conditions as those facilities were and are presently utilized for meetings by New Madrid Community Teachers Association and other community civic organizations;

(c) Access to the school buildings by the representative(s) of Missouri National Education Association assigned to the New Madrid County R-l Enlarged School District under the same terms and conditions that were and are still extended to the representative(s) of the Missouri State Teachers Association;

(d) Dues deduction privileges to teacher members of New Madrid National Education Association and Missouri National Education Association on the same basis that those dues deduction privileges have been and are already granted to teachers in New Madrid Community Teachers Association and Missouri State Teachers Association.

11. That the order issued by the Court be posted by the defendants on the bulletin boards in the teacher lounges of each of the School District’s school buildings and be placed in the mailboxes of the certificated staff of the School District.

Plaintiff MNEA requests essentially the same declaratory and injunctive relief. Because of this Court’s decision with respect to plaintiff MNEA’s claims, these claims need not be set out in detail.

Testimony offered at trial indicated that certain members of the New Madrid County School Board, as well as administrators of the School District, evidenced a degree of hostility to the National Education Association. Moreover, plaintiffs allege that the record is repleat with attempts to intimidate teachers and dissuade them from joining the MNEA. This intimidation allegedly took the form of stripping employees of additional jobs such as bus driver or student driver instructor. Additionally, plaintiffs argue that every probationary teacher who joined the National Education Association was terminated in April of 1982 and that other members of the Association were transferred from their normal teaching positions to lesser teaching positions in May of 1982. Finally, plaintiffs contend that the school district discriminated against the National Education Association by precluding the distribution of literature and barring meetings in school facilities, and denying a dues deduction check-off, all of which are provided. Plaintiffs seek relief from all of these alleged discriminatory practices and harassment.

THE ORGANIZATIONAL PLAINTIFF

The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. It also protects the right of associations to engage in advocacy on behalf of their members. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The First Amendment prohibits government interference with the guarantees either by a general prohibition of certain forms of advocacy or by imposing sanctions for the expression of particular views it opposes. See Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).

However, as explained in Smith v. Arkansas State Highway Employees, 441 U.S. 463, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979), the First Amendment “does not impose any affirmative obligation on the government to listen, to respond, or in this context, to recognize the [labor] association and bargain with it.” Thus, while the rights of the individual teachers must be protected, the Court finds no independent rights that can properly be asserted by plaintiff MNEA. Therefore, plaintiff MNEA’s claims for injunctive and declaratory relief will be denied. See also Hanover Township Federation of Teachers Local 1954 v. Hanover Community School Corporation, 457 F.2d 456 (7th Cir.1972).

THE INDIVIDUAL PLAINTIFFS

With respect to the individual plaintiffs it is clear that the jury verdict rejected the view of widespread harassment and discrimination imposed by defendants. As noted, supra, the jury found for only two of the nine plaintiffs and awarded no damages. This Court is bound by the jury’s determination of the facts. Therefore, this Court finds that plaintiffs Alexander and Skinner suffered retaliatory job transfers due to their association with plaintiff MNEA and they will be accorded equitable relief to rectify defendant’s actions. All other plaintiffs were found not to be discriminated against and, therefore, the broad declaratory and injunctive relief requested by plaintiffs will not be granted. Moreover, the jury awarded plaintiffs Skinner and Alexander no damages. Thus, the Court is compelled to deny their current prayer for monetary relief.

Moreover, the Court will deny plaintiffs’ requests for equitable relief vis a vis their relationship with the Missouri National Education Association. As noted in Smith, supra, there is no constitutional requirement that the defendant School District recognize MNEA; there is only the requirement that defendant not discriminate against those who wish to join the MNEA.

In conclusion, plaintiff MNEA’s motion for declaratory and injunctive relief will be denied. The motion of plaintiffs Skinner and Alexander for declaratory and injunctive relief will be granted in so far as it restores them to their former positions and protects their First Amendment right of free speech and association without fear of retribution. To the extent, however, that they request declaratory and injunctive relief to have the defendant School District recognize or otherwise deal with plaintiff MNEA, their motion will be denied. Finally, their request for monetary relief will be denied.

ON ATTORNEYS’ FEES AND COSTS

This matter is before the Court upon the parties' motion for attorneys’ fees and costs. Trial was had on this cause between June 4 and 14, 1984 and the jury entered a verdict for two of nine of the individual plaintiffs but awarded no damages. The Court later entered declaratory and injunctive relief for the two successful plaintiffs.

Plaintiffs seek a total of One Hundred Forty One Thousand Three Hundred Sixteen Dollars and Fifty Cents ($141,-316.50) in attorneys’ fees and Sixteen Thousand Eight Hundred Eighty Nine Dollars and Fifty One Cents ($16,889.51) in reasonable expenses. Defendants oppose plaintiffs’ motion for attorneys’ fees and seek a total of One Hundred Six Thousand Eight Hundred Sixteen Dollars and Seventy Six Cents ($106,816.76) for attorneys’ fees and out-of-pocket expenses. Defendants’ motion must be denied. Rule 30 of the Local Rules of the United States District Court for the Eastern District of Missouri provides, in pertinent part:

In any case where a party is entitled to an award of attorney’s fees, regardless of whether said entitlement has its source in a contract or a statute, said party shall file a claim for attorney’s fees no later than twenty-one (21) days after entry of judgement on the merits.

This Court entered its final judgment on the merits on December 19, 1984. Hence, defendants’ motion was filed out of time and must be denied. Moreover, this Court finds that plaintiffs’ claim was not, as a matter of law, “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). Therefore, even if defendants could be considered “prevailing defendants”, which is highly doubtful, they could not recover attorneys’ fees or costs.

As to plaintiffs’ motion, a more complex analysis is necessary. Plaintiff seeks attorneys’ fees pursuant to the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988 which authorizes a district court to award a reasonable attorney’s fee to prevailing parties in civil rights litigation.

The first point to determine, therefore, is whether plaintiff was a prevailing party in the instant cause. Generally, a plaintiff may be considered a “prevailing party” if he or she succeeds “on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the litigation.” Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978).

A review of the total relief requested by the nine individual plaintiffs and the Missouri National Education Association (M.N. E.A.), juxtaposed against the eventual award, reveals a significant discrepancy. This case was originally brought by eleven individual plaintiffs and the M.N.E.A. Pri- or to trial two of the plaintiffs dismissed their complaints. As noted, supra, of the remaining nine plaintiffs only two received a verdict in their favor but were awarded no money damages. The two successful plaintiffs were awarded declaratory and injunctive relief in the form of reinstatement to their previous jobs and credit for lost time, a declaration that their First and Fourteenth Amendment rights had been violated, and an order enjoining the defendants from further harassing, intimidating, or coercing them. The M.N.E.A.’s request for declaratory and injunctive relief was denied.

Originally, plaintiffs had sought the following:

(a) That the Court enter a declaratory judgment that Defendants’ policies, practices and/or acts of harassing, intimidating, and/or coercing Plaintiffs and other School District teachers for either belonging to the New Madrid NEA or not belonging to either the New Madrid NEA or the Missouri State Teachers Association and pressuring them to belong to the Missouri State Teachers Association was and is a violation or the First and Fourteenth Amendments to the United States Constitution.

(b) That the Court enter a declaratory judgment that the Defendants’ policies, practices and/or acts of granting privileges and access to representatives of the Missouri State Teachers Association and members of the CTA while at the same time denying these same privileges and access to representatives of the Missouri National Education Association was and is a violation of the First and Fourteenth Amendments to the United States Constitution.

(c) That the Court enter a declaratory judgment that the Defendants’ non-renewal of the teaching contracts of Plaintiffs Bahr, Bailey, Porter, Whatley and Nelms and the transfer or reassignment of Plaintiffs Alexander, Skinner, Wilson, Schmelzer, and Nace was a violation of Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution.

(d) That the Court enjoin the Defendants, their successors, officers, agents, representative, employees, attorneys and those acting in concert with them from engaging in the policies, practices and acts complained of herein or in any other employment practices or acts which discriminate against Plaintiffs in violation of their rights guaranteed by the First and Fourteenth Amendments to the United States Constitution.

(e) That the Court order Defendants to offer Plaintiffs Bahr, Bailey, Porter, Whatley and Nelms teaching contracts for the 1982-88 school year and to make them whole for any and all losses and damages suffered as a result of Defendants’ unlawful employment practices, including, inter alia, back wages, credit for continuous employment as if the unlawful acts complained of herein had not occurred, and other related employment benefits lost to Plaintiffs due to Defendants’ unlawful actions, policies and practices as alleged herein.

(f) Order Defendants to return Plaintiffs Alexander, Skinner, Wilson, Schmelzer, and Nace to their former teaching positions and to make them whole for any and all losses or damages suffered as a result of Defendants’ unlawful employment practices.

(h) That a judgment be entered against Defendants for the additional costs that each of the Plaintiffs had to incur either as a result of the non-renewal of their contracts or as a result of their involuntary transfers and/or assignment to other teaching positions in the New Madrid County R-l School District of the 1982-83 school year.

(i) That a judgment be entered against Defendants for an amount of Twenty Thousand Dollars ($20,000.00) for each of the Plaintiffs whose contracts were not renewed for the 1982-83 school year and Ten Thousand Dollars ($10,000.00) for each of the Plaintiffs who were involuntarily transferred or reassigned for the 1982-83 school year for the pain, suffering, great humiliation and embarrassment suffered by each of the Plaintiffs on account of the violation by Defendants of Plaintiffs’ rights guaranteed by the First and Fourteenth Amendments to the United States Constitution.

(j) That a judgment for punitive damages be entered against Defendant Melton in the amount of Ten Thousand Dollars ($10,-000.00) for each of the individual Plaintiffs.

Plaintiffs were awarded only some of the declaratory and injunctive relief requested in subparagraphs (a), (c), (d), and (f) and then only to the extent that the relief was that requested by plaintiffs Alexander and Skinner. Furthermore, plaintiffs received none of the approximately Two Hundred Forty Thousand Dollars ($240,000.00) in actual and punitive damages that they sought. Viewed in this context, plaintiffs’ statement that they have achieved “excellent results” must be reviewed with more than a little doubt.

In Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983) the Court noted that if “excellent results” are achieved, plaintiffs’ attorney should recover a fully compensatory fee.

If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff’s claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.

Id. at 436, 103 S.Ct. at 1941.

The degree of success obtained in this cause, in this Court’s view, is quite minimal. The Court finds that plaintiffs should receive a fraction of attorney’s fees in concurrence with the fraction of plaintiffs that were successful. In this instance, there were nine individual plaintiffs and one organizational plaintiff. Of these ten plaintiffs only two were successful and then only with respect to a portion of relief requested. In accordance with this, the Court will award plaintiffs one-fifth (Vb) of the attorneys’ fees requested. This amounts to Twenty Eight Thousand Two Hundred Sixty Three Dollars and Thirty Cents ($28,263.30).

Accordingly,

IT IS HEREBY ORDERED that plaintiffs’ motion for attorneys’ fees and costs be and is AWARDED in part; and

IT IS FURTHER ORDERED that plaintiffs be and are awarded Twenty Eight Thousand Two Hundred Sixty Three Dollars and Thirty Cents ($28,263.30) in attorneys’ fees; and

IT IS FURTHER ORDERED that plaintiffs’ be and are awarded Sixteen Thousand Eight Hundred Eighty Nine Dollars and Fifty One Cents ($16,889.51) in costs.

      . Plaintiffs seek compensation for a total of One Thousand Five Hundred Seventy Nine point Forty Eight Hours (1,579.48) spent on this cause. The amount of time spent by each of plaintiffs’ attorneys, together with their reasonable rate of pay and the total amount each attorneys’ fees is as follows:
      Christopher T. Hexter 890.87 hours
      David G. Beeson 608.5 hours
      Sally E. Barker 37.5 hours
      Marilyn S. Teitelbaum 12.4 hours
      Louis R. Branz 9.7 hours
      Matthew J. Duensing 10.0 hours
      Christine Lay (legal assistance) 10.5 hours
      Christopher T. Hexter $100.00
      David G. Beeson $ 75.00
      Sally E. Barker $100.00
      Marilyn S. Teitelbaum $100.00
      Louis R. Branz $ 60.00
      Matthew J. Duensing $ 60.00
      Christine Lay (legal assistance) $ 40.00
      Christopher T. Hexter $89,087.00
      David G. Beeson $45,637.50
      Sally E. Barker $ 3,750.00
      Marilyn S. Teitelbaum $ 1,240.00
      Louis R. Branz $ 582.00
      Matthew J. Duensing $ 600.00
      Christine Lay (legal assistance) $ 420.00
      While the Court does not find the hourly rates to be excessive, the number of hours spent, relative to the results achieved, are excessive as explained in the main body of the memorandum.


author: NESBITT, District Judge.

text:
    UNITED STATES of America v. ONE (1) DEFENDER LOBSTER VESSEL NAMED BETTY II, etc., et al., Defendant.
    No. 83-0904 CIV LCN.
    United States District Court, S.D. Florida, S.D.
    June 25, 1984.

      Barry Seltzer, Asst. U.S. Atty., Miami, Fla., for plaintiff.
    Rudolph Browd, Miami, Fla., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

NESBITT, District Judge.

THIS CAUSE came before this Court for a non-jury trial on June 13 and 14, 1984. The Plaintiff, UNITED STATES OF AMERICA, seeks civil forfeiture of the Defendant vessel, One (1) Defender Lobster Vessel Named, BETTY II, pursuant to 21 U.S.C. § 881, 49 U.S.C. § 781, 19 U.S.C. §§ 1595a(a) and 1703.

The Court, having heard the testimony of the witnesses, having considered the evidence and having made determinations of credibility of the witnesses presented, enters the following findings of fact and conclusions of law.

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355.

The Plaintiff, UNITED STATES OF AMERICA, filed an Amended Complaint for Forfeiture in Rem, alleging that on February 9, 1983, officers of the U.S. Customs Service seized the Defendant motor vessel; that said motor vessel was used or was intended to be used to transport or to facilitate the transportation, receipt, possession or concealment of marijuana into the United States; that a secret compartment for the purpose of smuggling was built into the defendant vessel.

The claimant, Gonzalez Fundora Fishing, Inc., filed its Answer to the Amended Complaint, alleging an interest in the defendant vessel as its lawful owner. The claimant denied any knowledge of the defendant vessel’s alleged illegal activities and denied that a secret compartment had been built into the vessel.

FINDINGS OF FACT

1) On February 7 or 8, 1983, Customs Agent Thomas Arnold received a telephone call from a documented confidential informant who advised him that a lobster vessel by the name of the Betty II had just brought a load of marijuana into the United States and was currently docked behind a home at the end of Coco Plum in Marathon, Florida. Marathon, located in the Florida Keys, offers ready access to the open seas. The informant, who was not paid for the information and whose information had proved accurate six times previously, told Agent Arnold that the vessel might still be loaded with marijuana and that it contained a false compartment located underneath the stove.

2) Agent Arnold contacted Customs Patrol Officer (CPO) Kenneth Cooper and relayed to him the information he had received from the informant. Officer Cooper, along with CPO Marshall Leon Harris, went to the Coco Plum property on February 9, 1983. They were met by an elderly man, Castor Garcia. Officer Cooper identified himself to Garcia and asked him if he was in charge of the property. He responded that he was taking care of the property for his daughter and maintaining the vessel for a friend of his from Miami, whose name he could not recall. Officer Cooper asked Garcia for his permission to board the vessel; Garcia consented.

3) Officers Cooper and Harris boarded the Betty II and proceeded to the cabin window. From that vantage point, the officers observed a different shade of painted fiberglass protruding from underneath stove.

4) The officers entered the cabin, pulled the stove away from the wall and found a five (5) foot gas hose connecting the stove to a propane gas tank. The officers tapped on the fiberglass under the stove and a rectangular hatch fell into a below-deck secret compartment. Officers Cooper and Harris descended into the compartment using a ladder affixed to the bulkhead wall.

5) Inside the secret compartment, the Customs officers observed marijuana residue scattered on the floor and embedded in the foam covered outer walls. They collected 12 to 15 grams. Officer Cooper administered a standard chemical field test to the suspected substances. The field test proved positive for marijuana.

6) Officer Cooper also found a load of spoiled fish in the vessel’s ice hold. This vessel had not been equipped with commercial fishing equipment. The presence of the spoiled fish suggested to him that the fish had been purchased, not caught, a common ploy of narcotics smugglers to appease the Coast Guard in the event of an investigatory stop.

7) Officers Cooper and Harris informed Garcia that the vessel was being placed under seizure by the United States Customs Service. They then contacted their sector office in Miami to report the seizure, as well as the Coral Bay Marina in Islamorada to arrange for storage. Charles Thomson, an employee of the marina, captained the boat from the Marathon seizure location to the Islamorada storage marina.

8) Customs Agent Thomas Arnold was tendered and accepted as an expert in the location, detection, and appearance of false or secret compartments. Agent Arnold is an instructor on this subject at Coast Guard training sessions. He testified that in his opinion the vessel had been fitted out with a false or secret compartment. In support of his opinion, Agent Arnold referred to the unusual location of the compartment opening, underneath the stove, to the multiple fiberglass layers covering the hatch, to the odor-proof foam on the outer walls of the compartment, and to the five (5) foot length of the stove gas pipe, allowing for easy movement of the appliance. Agent Arnold’s testimony was highly credible.

9) Charles Thomson, an expert in boat construction, testified that it was unlikely that the Betty II had been constructed for commercial fishing. Thomson produced schematic drawings of the vessel that were placed into evidence. He had calculated the size of the ice hold and the fuel tanks and testified that the ice hold was extremely small relative to the extraordinarily large fuel tanks. Mr. Thomson calculated that the fuel capacity of this vessel allowed for a range of 1700 miles, a sufficient range to reach Columbia. Mr. Thomson also testified that a guiding principle in boat construction is to make use of all available space. He stated that it simply is not logical to construct an ice hold in an area that denies access to a large compartment, as had occurred in the construction of the Betty II. He testified that the only sensible approach would have been to build the ice hold further aft, thereby permitting the remaining space to be used for additional storage or berthing quarters.

10) Claimant presented the live testimony of one witness, its president, Rene Gonzalez. Gonzalez testified that it was he who primarily financed the purchase of the hull. He acknowledged, however, that the bill of sale was made out to two other individuals, Ignacio Gonzalez and Fernando Fundora, rather than to himself or to the boat’s registrant, the claimant corporation.

11) Rene Gonzalez testified that the inside of the hull was constructed by Ignacio Gonzalez and Fernando Fundora and, again, financed largely by himself. He acknowledged having familiarity with Ignacio Gonzalez’s criminal narcotics conviction at the time of construction. Although he claimed that the vessel had not been fitted out with a secret compartment, he prof-erred no credible explanation for the wasted compartment space below deck, for the lengthy size of the gas hose, for the location of the insulating foam on the outside compartment wall, opposite the ice hold, for the absence of commercial fishing equipment, or for the extraordinarily large fuel tanks. Gonzalez testified that the compartment had been foamed before a newer, smaller ice hold was built, but he was unable to reconcile that testimony with a photograph showing foam on the bottom of the ice hold wall.

12) Rene Gonzalez testified that he had leased the Betty II in early January 1983 to an individual by the name of Regino Padrón, a man known to him for a few months as a fisherman. Gonzalez could not recall the names of those who had supplied the references for Padrón. He never personally, nor through an agent, verified Padron’s address or investigated his background. He did not know whether Padrón was a citizen. Gonzalez admitted that the lease agreement had never been reduced to writing and that his lessee was relative stranger.

13) Claimant introduced into evidence the deposition testimony of Castor Garcia.

CONCLUSIONS OF LAW

1. Probable cause is defined as a reasonable ground for belief of guilt supported by less than prima facie proof but more than mere suspicion. United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980), United States v. One 1975 Ford F100 Pick-up Truck, 558 F.2d 755, 756 (5th Cir.1977). United States v. One 1971 Chevrolet Corvette Automobile, 496 F.2d 210, 212 (5th Cir.1974).

2. When the defendant vessel, the Betty II, was seized by U.S. Customs Patrol Officers Cooper and Harris in Marathon on February 9, 1983, approximately 12-15 grams of marijuana were located in a secret compartment below the deck of the vessel. The defendant vessel facilitated the receipt, possession and concealment of a controlled substance and contraband article in violation of 19 U.S.C. § 1595a, 21 U.S.C. § 881, and 49 U.S.C. § 781. The Court therefore concludes that the United States of America met its burden of establishing probable cause for the seizure of the Betty II and the institution of this forfeiture action.

3. Once the government established probable cause, the burden of proof shifted to the claimant to prove a defense to the forfeiture. 19 U.S.C. § 1615 (1980); United States v. One 1975 Ford F100 Pick-up Truck, 558 F.2d 755, 756 (5th Cir.1977), United States v. One 1971 Chevrolet Corvette Automobile, 496 F.2d 210, 212 (5th Cir.1974). The claimant must prove a defense by a preponderance of the evidence. Ford F100 Pickup Truck, 558 F.2d at 756.

4. “Innocence [of the claimant], in and of itself, is an insufficient defense to forfeiture,” United States v. One 1957 Rockwell Aero Commander 680 Aircraft, 671 F.2d 414, 417 (10th Cir.1982). To prevail on the defense of innocence, a claimant must establish that 1) he was not involved in the wrongful activity, 2) he was not aware of the wrongful activity, and 3) he had done all that reasonably could be expected to prevent the proscribed use of his property. United States v. One (1) 1980 Stapleton Pleasure Vessel Named Threesome Registration No. FL4180EA, 575 F.Supp. 473, 478 (S.D.Fla.1983), citing Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689, 94 S.Ct. 2080, 2094, 40 L.Ed.2d 452 (1974).

5. The Court concludes that claimant failed to establish the defense of innocence by a preponderance of the evidence. The company’s president, Rene Gonzalez, did not do all that reasonably could have been expected to prevent the proscribed use of its property. He did not reduce his lease agreement to writing. He never checked or verified the lessee’s address or his citizenship. He never inquired of local law enforcement agencies about him. He could not recall the names of those who recommended the lessee. By the admissions of Gonzalez, the lessee was a relative stranger.

6. The Court concludes that claimant corporation constructed this vessel to smuggle merchandise into the United States in violation of 19 U.S.C. § 1703, as evidenced by the presence of a false or secret compartment. A false or secret compartment is a prospective storage area that is not apparent to the average user of a conveyance and serves no legitimate function. The unusual location of the compartment opening underneath the stove, the five (5) foot gas hose behind the stove allowing for easy movement of the appliance, the multiple layers of fiberglass on the hatch, the odor-proof foam on the below-deck compartment’s outer walls, opposite the ice hold, and the location of the ice hold in an area of the vessel creating a large amount of useless and inaccessible space are all probative of a false or secret compartment. In addition, marijuana residue was found in the false or secret compartment of the vessel.

7. The Court concludes that the “Betty II” was not constructed primarily for commercial fishing purposes as evidenced by the absence of commercial fishing equipment, the small size of the ice hold, and the extraordinarily large capacity of the fuel tanks.

8. Customs officials, without a warrant or any suspicion of wrongdoing, may, pursuant to 19 U.S.C. § 1581(a), board and search a vessel having access to the open seas. United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). The statute may be relied upon even where there is no intent to inspect the vessel’s documents. The Court concludes that under the circumstances of this case a warrantless, suspicionless search of the Betty II would have been lawful, as the vessel had access to the open seas.

9. Where a vessel is on inland waters, 19 U.S.C. § 1581(a) permits a warrantless boarding and search on facts which justify a “reasonable suspicion.” United States v. Kent, 691 F.2d 1376 (11th Cir.1982), cert. denied, 462 U.S. 1119, 103 S.Ct. 3086, 77 L.Ed.2d 1348 (1983). A tip from a known, proven informant can justify a reasonable suspicion of criminal activity. Id., at 1379. The Court concludes that even if reasonable suspicion were required, the tip of the confidential informant would have supplied it.

10. Neither a warrant nor exigent circumstances are necessary to justify a search where there exists probable cause to believe that a crime is occurring. United States v. Andreu, 715 F.2d 1497, 1500 (11th Cir.1983). Probable cause exists if “the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” United States v. Elsoffer, 671 F.2d 1294, 1298 (11th Cir.1982). Even if probable cause were required under these circumstances to board and search the Betty II, the Court concludes that the information given the Customs officials here constituted much more than reasonable suspicion; it easily rose to the level of probable cause.

11. Even if the Customs officials had not had probable cause to search the cabin prior to boarding, the Court concludes that probable cause existed once the officers, who were already lawfully on the deck of the vessel, observed from the cabin window the different shaded fiberglass. The observation verified the tip provided by the confidential informant and provided probable cause to believe the vessel contained a false compartment beneath the stove.

12. Even if exigent circumstances were required for a warrantless search, they were present in this cause by virtue of the fact that a vessel is an inherently mobile conveyance. United States v. D’Antignac, 628 F.2d 428, 434 (5th Cir.1980).

13. Alternatively, the warrantless boarding and search of the Betty II was constitutional because it was conducted pursuant to consent, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), granted by Castor Garcia, an individual who had apparent authority to issue such consent. United States v. Carter, 569 F.2d 801, 804 (4th Cir.1977), cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978).

It is the conclusion of the Court that the defendant lobster vessel BETTY II shall be and is hereby deemed forfeit to the United States of America for violation of 19 U.S.C. § 1595a, 21 U.S.C. § 881, 49 U.S.C. § 781, and 19 U.S.C. § 1703.


author: NORMA HOLLOWAY JOHNSON, District Judge.

text:
    James K. GILSON, Plaintiff, v. The REPUBLIC OF IRELAND, et al., Defendants.
    Civ. A. No. 79-2647.
    United States District Court, District of Columbia.
    June 28, 1984.

      Joseph H. Sharlitt, Freedman, Levy, Kroll & Simonds, Washington, D.C., for plaintiff.
    J.P. Janetatos, Baker & McKenzie, Edward A. McDermott, William A. Bradford, Jr., Washington, D.C., for defendants.
   MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

This case is now before the Court on remand from the Court of Appeals for the District of Columbia Circuit for further proceedings and additional fact-finding on the third and fourth counts of the complaint. Gilson v. Republic of Ireland, 682 F.2d 1022 (D.C.Cir.1982) affirming in part and reversing in part 517 F.Supp. 477 (1981). After engaging in further discovery and other proceedings, defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (F.R.C.P.). Plaintiff opposes the motion of each defendant. From a careful review of the pleadings, affidavits, depositions, and the entire record, the Court finds that there are no material facts in genuine dispute and defendants are entitled to judgment on counts three and four of plaintiff’s complaint as a matter of law. Accordingly, the motions of Gaeltarra Eireann (GE), Leictron Teoranta (Leictron), Industrial Development Authority (IDA), and the Republie of Ireland for summary judgment are granted.

BACKGROUND

Counts three and four of plaintiff’s complaint are denominated, respectively: “Accounting by Defendant Gaeltarra Eireann for Use of Patent Rights and Proprietary Information” and “Accounting by Defendant Leictron for Unlawful Use of Patent Rights and Proprietary Information.” The gravamen of these counts is that GE turned over to defendant Leictron the use of patent rights owned by plaintiff in contravention of the laws of both the United States and Ireland. Plaintiff further alleges that Leictron not only used and infringed these rights but also benefited from the usurpation of the patent rights with the active collusion of GE. Plaintiff also alleges that GE unlawfully turned over to Leictron his proprietary information regarding the growing, cutting, and finishing of quartz crystals. Plaintiff again asserts that Leictron benefited from its misappropriation of this proprietary information with the active collusion of GE. Thus, the substance of plaintiff’s claims in counts three and four is that defendants GE and Leictron 1) unlawfully used and infringed his patent rights and 2) misappropriated trade secrets plaintiff allegedly possesses in the manufacturing of quartz crystal.

DISCUSSION

The function of a court when ruling on a motion for summary judgment is to determine whether there are any material facts in genuine dispute, and any doubt or uncertainty about the presence of triable issues of fact must be resolved against the party moving for summary judgment. See F.R.C.P. Rule 56; Abraham v. Graphic Arts International Union, 660 F.2d 811 (D.C.Cir.1981); Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C.Cir.1976): United States v. General Motors Corp., 518 F.2d 420 (D.C.Cir.1975). However, where a party moving for summary judgment has met this burden, an opposing party cannot rest on the mere allegations of his pleadings. Rather, he must present contravening evidence sufficient to create a genuine dispute of a material fact. See e.g., Smith v. Saxbe, 562 F.2d 729 (D.C.Cir.1977); Merit Motors, Inc. v. Chrysler Corp., 417 F.Supp. 263 (D.D.C.1976), aff'd 569 F.2d 666 (D.C.Cir.1977). It is with these principles in mind that the Court concludes that the motions of defendants for summary judgment on Counts three and four of plaintiffs complaint should be granted.

In the chief argument of defendants GE, Leictron, and IDA for summary judgment, in which the Republic of Ireland joins, defendants do not challenge this Court’s subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq. (1982 ed.), and personal jurisdiction over all defendants. Rather, defendants maintain that plaintiff neither possesses any proprietary rights in the patent that is the subject of his patent claim nor any information rising to the level of a trade secret. Thus, defendants argue that plaintiff lacks standing to bring an action for unlawful use and infringement of the patent and misappropriation of trade secrets.

Patent Claims

The material and uncontroverted facts in this case substantiate that plaintiff James K. Gilson is one of four inventors of U.S. Patent No. 3,183,063 covering the growing of quartz crystals by autoclave technology. Plaintiff and his co-inventors, however, assigned the patent to Western Electric Company, Inc., their employer at the time Patent No. 3,183,063 was issued. Indeed, the patent recites that plaintiff and the other three inventors are “assignors to Western Electric Company, Incorporated.” Western Electric, in turn, granted plaintiff and the other inventors a royalty-exempt license to Patent No. 3,183,063. Thus, the question of law for the Court to resolve is whether plaintiff either retained or received a proprietary right in Patent No. 3,183,063 to invoke the protection of U.S. patent laws.

Plaintiff maintains that defendants are not entitled to summary judgment on the patent claims notwithstanding the assignment of the patent to Western Electric, for he still has a legal interest in the patent as a licensee, and his interest is per se subject to trade secret protection. Plaintiff appears to confuse, however, a claim for patent protection with a claim for trade secret protection. The distinctions between patent and trade secret claims are not illusory. For example, any rights plaintiff may possess in the patent are conferred and defined by the patent laws of the United States and as such, are a matter of federal law. To the contrary, a party seeking to protect a trade secret must enforce his rights under the common law principles governing trade secrets. An equally significant line of demarcation between patents and trade secrets is that once a patent is granted, a patentee’s property right in a trade secret ceases prospectively and thus, neither he nor his licensee has a right of action for wrongful appropriation of a trade secret subsequent to the date the patent is issued. See e.g., Scharmer v. Carrollton Mfg. Co., 525 F.2d 95, 99 (6th Cir.1975). In short, the Court must look to U.S. patent law to determine whether plaintiff has sufficient rights in the patent to maintain an action for unlawful use and infringement.

It is a long standing principle of U.S. patent law that in the event of a complete assignment of title to a patent only the assignee or the assignee’s exclusive licensee has standing to claim protection rights under the patent. Waterman v. MacKenzie, 138 U.S. 252, 256, 11 S.Ct. 334, 335, 31 L.Ed. 923 (1891); Acme Highway Products Corp. v. Maurer, 524 F.Supp. 1130, 1131 (D.D.C.1981); Von Brimer v. Whirlpool Corp., 362 F.Supp. 1182, 1193 (N.D.Cal.1973). Thus, where an inventor-employee assigns complete title to a patent to his employer, thereby divesting himself of ownership of the patent, he no longer has a proprietary right in the patent unless the employer-assignee in turn grants him an exclusive license. Id. See also, Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 37, 43 S.Ct. 254, 257, 67 L.Ed. 516 (1923). It is clear from the undisputed record in this case that plaintiff and his co-inventors assigned their title to Western Electric. It is equally certain that plaintiff’s royalty-exempt license in the patent is not an exclusive license as it does not “serve to exclude” Western Electric, the owner assignee of the patent, from the manufacture, use, or sale of the subject invention. See e.g., Rail-Trailer Co. v. ACF Industries, Inc., 358 F.2d 15, 16-17 (7th Cir.1966). As a result, plaintiff has no proprietary right in Patent No. 3,183,063 and therefore no standing to maintain suit with respect to this patent. Accordingly, defendants GE, Leietron, IDA, and Ireland are entitled to judgment as a matter of law on the patent claims of plaintiff embodied in counts three and four of the complaint.

Trade Secrets Claim

The essence of plaintiff’s wrongful appropriation claim is that defendants GE and Leietron misappropriated trade secrets he allegedly possesses in the manufacturing of quartz crystal. The facts material to plaintiff’s trade secret claim are also undisputed. Plaintiff, a mechanical engineer in sodium carbonate technology, is one of nine or ten quartz crystal growers in the United States. Of these nine or ten growers, just three individuals, in addition to plaintiff, are capable of independently developing a quartz growing process. With respect to the process of cutting grown crystals, the uncontroverted record shows that when plaintiff began the venture in Ireland, there were less than seventy-five people worldwide who could properly and successfully cut quartz crystals. None of these individuals was in Ireland at that time. Finally, based upon the undisputed evidence there were no more than one hundred quartz crystal finishing companies throughout the world and none of these companies was in Ireland in 1973. Thus, the question the Court must now address is whether plaintiff’s information regarding the growing, cutting, and finishing of quartz crystal constitutes trade secrets.

In determining whether plaintiff possesses any trade secrets in the processes of quartz crystals, the Court must look to common law as there is no federal statutory or common law governing trade secrets. See e.g., Rohm and Haas Co. v. Adco Chemical Co., 689 F.2d 424, 428 (3d Cir.1982) (district court erred in applying “federal” trade secret law). Moreover, since plaintiff’s claim for misappropriation of trade secrets has contact with more than one jurisdiction, it is incumbent upon this Court to follow the choice of law rules of the District of Columbia See Rohm and Haas Co., 689 F.2d at 429; A.H. Emery Co. v. Marcan Products Corp., 268 F.Supp. 289, 298 (S.D.N.Y.1967) aff'd, 389 F.2d 11 (2d Cir.) cert. denied, 393 U.S. 835, 89 S.Ct. 109, 21 L.Ed.2d 106 (1968); Midland-Ross Corp. v. Sunbeam Equipment Corp., 316 F.Supp. 171, 177 (W.D.Pa.1970), aff'd per curiam, 435 F.2d 159 (3d Cir.1970). It appears that under D.C. choice of law analysis the Republic of Ireland may have the most significant contact with plaintiff’s trade secret claim as the defendants are the Republic of Ireland and its instrumentalities. Moreover, Ireland is the place where the alleged misappropriation occurred. However, this Court is not obligated to apply the law of Ireland since none of the parties to this action gave written notice of an intent to raise the issue of Ireland’s trade secret law. See F.R.C.P. Rule 44.1; Commercial Insurance Co. of Newark, New Jersey v. Pacific-Peru Construction, 558 F.2d 948, 952 (9th Cir.1977). Instead, the Court will apply the law of trade secrets in the United States. Specifically, the Court will look to the basic principles governing the existence of a trade secret as these principles are essentially the same in the relevant jurisdictions thereby rendering the choice of law question moot. Rohm and Haas Co., 689 F.2d at 429; See also, Walker v. University Books, Inc., 193 U.S.P.Q. 596, 603-04 (N.D.Cal.1977), aff'd, 602 F.2d 859, 865 (9th Cir. 1979) (similarity of trade secret law of New York and California rendered choice of law moot).

In deciding claims involving trade secrets, the courts of New York and Massachusetts have adopted the definition of trade secrets contained in the Restatement of Torts. It provides:

A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers____ A trade secret is a process or device for continuous use in the operation of the business. Generally, it relates to the production of goods, as, for example, a machine or formula for the production of an article.

Restatement of Torts, § 757, Comment b (1939). See also Rohm and Haas Company, 689 F.2d at 431 (3d Cir.1982); Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 282 N.E.2d 921 (1972); General Aniline & Film Corp. v. Frantz, 50 Misc.2d 994, 272 N.Y.S.2d 600, 607-08, 151 U.S.P.Q. 136 (Sup.Ct.), judgment modified, 52 Misc.2d 197, 274 N.Y.S.2d 634 (1966). It is elementary that the subject of a trade secret must be secret and, thus, it must not be part of the public knowledge or of general knowledge in the trade or business involved. See Rohm and Haas Company, 689 F.2d at 431; A.H. Emery Co. v. Marcan Products Corp., 268 F.Supp. 289, 299 (S.D.N.Y.1967), aff'd, 389 F.2d 11 (2d Cir.1968) (applying New York substantive law); Materials Development Corp. v. Atlantic Advanced Metals, Inc., 172 U.S.P.Q. 595, 610 ¶ 132 (Mass.Super.Ct.1971). Therefore, a trade secret “ ‘must be particular secrets of the complaining [party] and not general secrets of the trade in which he is engaged.’ ” See Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114, 215 U.S.P.Q. (BNA) 547, 553 (1982) (citing Capital Bakers v. Townsend, 426 Pa. 188, 231 A.2d 293, 294 (1967)). However, persons other than the proprietor of the business may know the secret without destroying the protection afforded trade secrets in the following limited circumstances: 1) the secret is communicated to employees involved in its use; 2) the secret is communicated to others pledged to secrecy; or 3) the secret is known by others by independent discovery and are keeping their discovery secret. See Restatement, Torts § 757 Comment b; A.H. Emery Company 389 F.2d 11. Nonetheless, a substantial element of secrecy must exist, so that, except by the use of improper means, there would be difficulty in acquiring the information. Id.

The significantly probative and uncontroverted evidence in this case substantiates that while only a small number of people in the quartz crystal industry had the requisite technical knowledge to grow, cut, and finish quartz crystal, plaintiff possessed no unique information which gave his company an economic advantage over his competitors in the industry. Indeed, there is undisputed evidence in the record that the information which plaintiff claims is entitled to trade secret protection was in the public domain at the time of the alleged misappropriation. See Affidavit of Brandon T. Davis (January 6, 1984). Significant numbers of books, journals, and other publications disclose the processes in the manufacture of quartz crystals for which plaintiff seeks protection. As a result, this information cannot be entitled to trade secret protection since it is in the public domain or generally available. See Mixing Equipment Co. v. Philadelphia Gear, Inc., 436 F.2d 1308, 1311 n. 2 (3d Cir.1971). Public Relations Aids, Inc. v. Wagner, 37 A.D.2d 293, 324 N.Y.S.2d 920, 922 (1st Dept.1971); Frederick Chusid & Co. v. Marshall Leeman & Co., 279 F.Supp. 913, 917 (S.D.N.Y.1968) (applying New York substantive law). Accordingly, the motions of defendants GE, Leictron, IDA, and the Republic of Ireland for summary judgment on plaintiffs trade secret claim should likewise be granted. Nonetheless, assuming arguendo that plaintiff does possess a proprietary interest in Patent No. 3,183,063 and trade secrets in the manufacture of quartz crystals, summary judgment in favor of defendants Leictron, IDA, and the Republic of Ireland is still appropriate.

Personal Jurisdiction

As previously stated, the basis for jurisdiction in this case is the FSIA, 28 U.S.C. § 1602 et seq. (1982 ed.). In determining the existence of personal jurisdiction in FSIA actions, a court must make a bifurcated analysis. First, a court must determine whether personal jurisdiction exists over a defendant under FSIA and second, it must consider whether the exercise of personal jurisdiction over a defendant under FSIA is permissible under the due process clause of the Fifth Amendment. See Gilson, 682 F.2d at 1028; Gibbons v. Udaras na Gaeltachta, 549 F.Supp. 1094, 1116-17 (D.D.C.1982).

Under 28 U.S.C. § 1330(b), a federal district court has personal jurisdiction over a foreign state with respect to any cause of action that the court has subject matter jurisdiction pursuant to FSIA and service has been made in accordance with 28 U.S.C. § 1608. Assuming that personal jurisdiction under FSIA exists over defendants Leictron and IDA, the jurisdictional facts of this case demonstrate that the exercise of personal jurisdiction would offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

There are four distinct factors a court should consider to determine whether the minimum contacts test of International Shoe is satisfied. The Court must examine “the extent to which defendants availed themselves of the privileges of American law, the extent to which litigation in the United States would be foreseeable to them, the inconvenience to defendants of litigating in the United States, and the countervailing interests of the United States in hearing the suit.” Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 314 (2d Cir.1981), cert. denied, 454 U.S. 1148, 102 S.Ct. 1012, 71 L.Ed.2d 301 (1982); Gibbons, 549 F.Supp. at 1117 (quoting Texas Trading & Milling Corp., 647 F.2d at 314). Applying these principles to this case, the Court holds that an assertion of personal jurisdiction over Leictron and IDA would offend due process. Plaintiff testified in his deposition that Leictron neither used the U.S. mails nor wire communications to consult with him concerning the establishment of his quartz crystal business in Ireland. Leictron neither maintains an office in the United States nor sent one of its representatives to the United States to meet with plaintiff. Plaintiff insists, however, that Leictron is subject to personal jurisdiction since it acted as the agent of GE. This contention is without merit for even if Leictron were in fact acting as GE’s agent, it is rudimentary that an agent cannot be subject to jurisdiction for the activities of its principal. Cf. Daughtry v. Arlington County, 490 F.Supp. 307 (D.D.C.1980); Norair Eng’r Assocs. v. Noland Co., 365 F.Supp. 740 (D.D.C.1973).

Similarly, this Court cannot exert personal jurisdiction over defendant IDA. Although IDA has an office in New York City, the limited acts of IDA performed in the United States which have any relation to plaintiffs claims are too minuscule to form the basis for personal jurisdiction. IDA’s activities in the U.S. consist of telephone conversations regarding the form and content of plaintiffs proposal for a quartz crystal business in Ireland. IDA did not meet with plaintiff, refer him to GE, nor negotiate his contract with GE. Cf. Gibbons, 549 F.Supp. at 1101-02, 1117 (personal jurisdiction over IDA where IDA met with plaintiffs on at least four separate occasions; referred plaintiffs to GE; agreed to make itself, its personnel and its New York City office available to plaintiffs and GE in order to facilitate plaintiffs’ and GE’s negotiations and consummation of arrangements for project in Ireland).

Sovereign Immunity

The Republic of Ireland is alleged to be liable on the ground that GE, Leictron, and IDA were acting as its agents. The Court holds that under the facts of this case the Republic of Ireland was not acting as the principal of GE, Leictron, or IDA and therefore it is not subject to suit for the alleged wrongdoing of its instrumentalities.

Under FSIA, the sovereign is not routinely subjected to suit for the acts of its instrumentalities. See Gibbons v. Republic of Ireland, 532 F.Supp. 668, 672 (D.D.C.1982). In determining whether a sovereign should be held liable along with its instrumentalities, the focal question is whether government officials acted in concert with employees of an instrumentality. Gibbons, 532 F.Supp. at 672. Plaintiff maintains that he “dealt with officials of the ‘Mayo County Development Team’: at [the] formative stages of his venture.” Assuming that the Mayo County Development Team is a branch of the Republic of Ireland Government and that Mayo County officials acted in concert with the employees of GE, IDA, or Leictron, plaintiff’s claims against Ireland are nonetheless barred by the applicable statute of limitations.

In its Opinion, the Court of Appeals determined that the relevant statute of limitations in this case bars “an action on matters arising more than three years before the complaint was filed.” Gilson, 682 F.2d at 1024 n. 7. Plaintiff filed his original complaint on October 3, 1979. However, the most recent contact with the Mayo County Development Team occurred in March 1972, four and a half years prior to the filing of plaintiff’s complaint. As this is the only alleged contact with “government” officials of the Republic of Ireland, any claim plaintiff may assert is barred by the statute of limitations. Id. For all the foregoing reasons set forth in this Opinion, the Court will grant the motions of defendants for summary judgment. An Order consistent with this Opinion will be entered on this date.

      The complaint alleges that all four defendants were "continuously involved in the counts brought.”

       Plaintiff is a U.S. citizen and resident of Massachusetts. Defendants are the Republic of Ireland and instrumentalities of Ireland and defendant IDA maintains an office in New York. Thus, the states that potentially have an interest in the adjudication of this action are Massachusetts and New York as well as the Republic of Ireland.