author: LATCHUM, Senior District Judge.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, Plaintiff, v. BLUE ROCK SHOPPING CENTER, INC., a Delaware corporation, Max Ambach and Rose Ambach, Defendants and Third Party Plaintiffs, v. The FARMERS BANK OF the STATE OF DELAWARE, a corporation of the State of Delaware, Third Party Defendant.
    Civ. A. No. 80-398-JLL.
    United States District Court, D. Delaware.
    Dec. 4, 1984.

      Gregory A. Inskip of Potter, Anderson & Corroon, Wilmington, Del., for plaintiff.
    John E. Babiarz, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for defendants and third-party plaintiffs.
    Helen L. Winslow of Richards, Layton & Finger, Wilmington, Del., for third party defendant.
   MEMORANDUM OPINION

LATCHUM, Senior District Judge.

On June 28, 1983, this Court issued an opinion as amended in this case, 567 F.Supp. 952 (D.Del.1983), in which it held that Max and Rose Ambach were co-makers of the bond and warrant delivered by them to the Farmers Bank of the State of Delaware, and, based on the best available evidence before it, the Court predicted that the Delaware Supreme Court would adopt the interpretation that 6 Del.C. § 3-606(l)(b) does not discharge or release a co-maker of a bond or note. 567 F.Supp. at 958. A final judgment was thereafter entered by this Court (Docket Item [“D.I.”] 70), from which the defendants took an appeal.

The United States Court of Appeals for the Third Circuit issued an opinion and order on October 19, 1984, 749 F.2d 25, 26, which, without relinquishing appellate jurisdiction, remanded the case to afford this Court an opportunity to determine the propriety of certifying to the Delaware Supreme Court the question of the correct interpretation of 6 Del.C. § 3-606(l)(b). (D.I. 83.)

After considering the letter memoranda of the opposing parties (D.I. 81, 82, 84 & 85), the Court finds that for six independent and equally compelling reasons it would be inappropriate for this Court to certify any issue in this case to the Supreme Court of Delaware.

I. JURISDICTIONAL AND SELF-IMPOSED CONSTRAINTS ON THE DELAWARE SUPREME COURT

The first five reasons for concluding that certification would be inappropriate can all be stated in terms of the jurisdictional and self-imposed constraints on the Delaware Supreme Court. Of those five, the first two hinge on the chronology of this Court’s actions and the events which expanded the Delaware Supreme Court’s jurisdiction.

The Delaware constitution was amended in 1983 to give the Delaware Supreme Court jurisdiction

[t]o hear and determine questions of law certified to it by other Delaware courts and the United States District Court for the District of Delaware where it appears to the Supreme Court that there are important and urgent reasons for an immediate determination of such questions by it.

Del. Const, art. IV, § 11(9). However, that amendment was not made until after this Court had announced its June 28, 1983 opinion. Furthermore, the amendment apparently was not self-effectuating; it states that “[t]he Supreme Court may, by rules, define generally the conditions under. which questions may be certified to it, and prescribe methods of certification.” Id. (Emphasis added.) The Supreme Court did not institute such a rule until six months later, on January 15, 1984. In the meantime, this Court, on October 25, 1983, had entered a final judgment based on its June 28, 1983 opinion.

The sequence of these events makes it .evident that as of the time decision on the now remanded issue was announced, Delaware had not yet made any provision for its Supreme Court to accept certification of questions from this Court. Lacking such a provision, the Delaware Supreme Court lacked the jurisdiction necessary to accept and rule on questions in this case. Steigler v. Superior Court, 252 A.2d 300, 302 (Del.), cert. denied, 396 U.S. 880, 90 S.Ct. 160, 24 L.Ed.2d 139 (1969). It is not the province of this Court to attempt a retroactive expansion of the jurisdiction of a Delaware court.

The sequence of events also shows that even if the present constitutional provision for certification had been enacted before this Court’s decision was announced, it would still be improper to certify a question from this case because the Delaware Supreme Court did not change its rules to take advantage of the opportunity for expanded jurisdiction until after a final judgment had been entered. Although aware of the United States Supreme Court’s footnote dictum that “it is not to be assumed ... that such rules are a jurisdictional requirement” for certification, Clay v. Sun Insurance Office, Ltd., 363 U.S. 207, 212 n. 3, 80 S.Ct. 1222, 1225-26 n. 3, 4 L.Ed.2d 1170 (1960), this Court does not take that as license to assume the contrary. Whether the pertinent rule is jurisdictional or not, however, the fact remains that when this Court entered its final judgment the rule was not a rule at all; the mechanics of certification were hot yet established. The Delaware Supreme Court chose the timing of the rule’s enactment, and it would be awkward at best for this Court to start second-guessing that court’s choices about its own administration.

Independent of the chronology of decisionmaking in this Court and constitutional developments in Delaware, but still based on respect for the jurisdictional and self-imposed constraints on the Delaware Supreme Court, there are three additional reasons for not certifying the question now on remand. One is the very meaning of the word “certify.” Certification is a “procedure by which a Federal Court abstains from deciding a state law question until the highest court of the state has had an opportunity to rule on the question so certified by the Federal Court.” Black’s Law Dictionary (5th ed. 1979) (emphasis added); see 1A, Pt. 2 Moore’s Practice 110.203[5] (2d ed. 1983); 17 Wright, Miller & Cooper, Federal Practice and Procedure § 4248 (1978). This Court cannot abstain from deciding the question; it has already decided it. And, having been decided, the question cannot now be “certified.” Putting it to the Delaware Supreme Court now would be in effect an appeal from this Court, something the state court clearly does not have the jurisdiction to entertain.

Even if it had the jurisdiction, however, the Delaware Supreme Court does not have the inclination to take certification in cases such as this. Delaware Supreme Court Rule 41 states that questions may be submitted “prior to the entry of final judgment____” There is no provision for exception to that time limitation. Because the judgment entered in this case on October 25, 1983, is a final judgment, see 28 U.S.C. § 1291; Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 310, 13 L.Ed.2d 199 (1964), it removes all issues subsumed in it, including the one now on remand, from potential consideration by the Delaware Supreme Court.

That Delaware’s high court could not and would not take certification in the instant case is also evident from the conspicuous omission of the United States Court of Appeals for the Third Circuit from the list of courts authorized by the state to certify questions. See Del. Const. art. IV, § 11(9); Delaware Supreme Court Rulé 41. The majority of states which provide for certification from federal courts permit certification by both trial and appellate courts. 1A, Pt. 2 Moore’s Federal Practice 11 0.203[5] (2d ed. 1983). Some authorize certification only by the courts of appeals and the Supreme Court. Id. Delaware surely knew of these models when it undertook the drafting of its own certification provisions, but it chose not to extend to federal appellate courts the opportunity to certify questions to its supreme court. It would be a contravention of that apparently purposeful decision of the state if this Court were to allow the United States Court of Appeals for the Third Circuit to do indirectly, through remand, what the Delaware constitution does not allow to be done directly. The State of Delaware, not this Court, will decide if and when certification from the Third Circuit should be permitted.

II. THE NATURE OF THE QUESTION ON REMAND

The final reason that certification is not in order in this case is simply that the Uniform Commercial Code question posed is not a difficult one about which there is a dearth of Delaware authority. There are reliable indications of how the state would answer. As the remanding court recognized in an earlier case, “Delaware has published its own comments, prepared by the committee to Study and Report on the Uniform Commercial Code for Delaware, which appear under the heading ‘Delaware Study Comment,’ following the text of each section.” Appeal of Copeland, 531 F.2d 1195, 1203 n. 4 (3d Cir.1976). This Court’s previous opinion grounded its interpretation of 6 Del.C. § 3-606(l)(b) on one of those Delaware Study Comments. See 567 F.Supp. at 957-58. Given the plain implication of the cited study comment, finding the answer to the state law question is neither so pressing nor so perplexing a task that it warrants certification of the question to the Delaware Supreme Court.

The United States Court of Appeals for the Fifth Circuit, the most experienced of the federal courts of appeals in the use of certification procedures, 1A, Pt. 2 Moore’s Federal Practice U 0.203[5], spoke wisely when it said, “We use much judgment, restraint and discretion in certifying. We do not abdicate.” Barnes v. Atlantic & Pacific Life Insurance Co., 514 F.2d 704, 705 n. 4 (1975). This Court intends to follow the same course.

Accordingly, the Court, although grateful for the opportunity afforded it by the court above, declines to certify the remanded question.

      . New Amsterdam Cas. Co. v. First Pennsylvania Banking and Trust Company, 451 F.2d 892, 893 (3d Cir.1971).

      . The defendants argue that the judgment is “not a final judgment since it is presently subject to being altered or overturned.” (D.I. 85 at 2.) This interpretation of the word "final" is manifestly erroneous in light of the language of Delaware Supreme Court Rule 41. It states that “the United States District Court for the District of Delaware may ... certify to this Court for decision a question of law ... prior to the entry of final judgment____” By the defendants’ logic, this language is a nullity, because after every judgment of this Court is entered it is subject to alteration or reversal by a United States Court of Appeals. It does not take lengthy analysis to conclude that “final judgment” means what it ordinarily means when used in reference to this Court.


source: Caselaw Access Project

author: HUNGATE, District Judge.

license: Public Domain

text:
    Richard A. HECHENBERGER, et al., Plaintiffs, v. WESTERN ELECTRIC CO., INC., etc., et al., Defendants.
    No. 82-0145C(3).
    United States District Court, E.D. Missouri, E.D.
    Dec. 4, 1984.
    Sheldon Weinhaus, St. Louis, Mo., for plaintiffs.
    Leo E. Eichhoff, St. Louis, Mo., Carl S. Yendes, Asst. Atty. Gen., Jefferson City, Mo., Henry D. Menghini, Robert J. Krehbiel, St. Louis, Mo., for defendants.
   MEMORANDUM

HUNGATE, District Judge.

This matter is before the Court on plaintiffs’ application for attorneys’ fees and costs. Plaintiffs’ complaint was dismissed as moot on October 17, 1983, and the dismissal was affirmed on August 24, 1984, following plaintiffs’ appeal. The United States Court of Appeals for the Eighth Circuit noted in its opinion that any request for fees under 29 U.S.C. § 1132 “should be presented to the district court in the form of a fee request; it does not save the case from mootness.” Hechenberger v. Western Electric Co., 742 F.2d 453 at 455 (8th Cir.1984).

Plaintiffs’ complaint arose under the Employee- Retirement Income Security Act (ERISA), 29 U.S.C. § 1132. Plaintiffs chailenged the propriety of defendants’ practice of integrating payments under an employee welfare benefit plan with certain payments made under the Missouri Workers’ Compensation Law, Mo.Rev.Stat. §§ 287.010, et seq. Defendants abandoned the integration or offsetting practice in June of 1983, and the case became moot since none of the named plaintiffs had been or would be subjected to an offset.

Despite the claims’ mootness, plaintiffs persisted in opposing dismissal, to the point of appealing the dismissal. In seeking attorneys’ fees, plaintiffs nonetheless assert they are the prevailing party. Under 29 U.S.C. § 1132, “the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” The Eighth Circuit has interpreted § 1132 to mean prevailing plaintiffs should ordinarily recover fees unless such an award would be unjust due to special circumstances. Landro v. Glendenning Motorways, Inc., 625 F.2d 1344, 1356 (8th Cir.1980). The burden of proving special circumstances is on the losing defendant. Id. at n. 19.

Plaintiffs argue that there was a clear causal connection between their initiation of this lawsuit and the defendants’ cessation of the integration practice of which they complained. Assuming, arguendo, that plaintiffs can be said to have prevailed to some extent, the Court nonetheless finds that an award would not be just in this case. The action was filed as a class action, but no class was ever certified. Plaintiffs’ requests for jury trial, for punitive damages, and to disqualify counsel were denied. Plaintiffs received, at best, only a small part of the relief sought, and have continued to litigate their claims long after they became moot. Due to the fact that substantial and unnecessary fees and costs have been generated by such actions, the Court will decline to exercise its discretion to award attorneys’ fees in this case. Nor does the Court find that plaintiffs are entitled to costs herein.


author: SPELLMAN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. George LAYNE, et al., Defendants.
    No. 84-417-CR-EPS.
    United States District Court, S.D. Florida, Miami Division.
    Dec. 5, 1984.

      Jeffrey Fisher, Asst. U.S. Atty., Miami, ■ Fla., for plaintiff.
    Michael H. Bloom, Miami, Fla., for Layne.
    Lance Stelzer, Miami, Fla., for Lall.
    Jerry W. Burford, Miami, Fla., for Casanova.
    Lawrence M. Kasen, Miami, Fla., for Hodgson.
   MEMORANDUM OPINION AND ORDER DENYING DEFENDANT LAYNE’S MOTION TO DISMISS AND/OR SUPPRESS

SPELLMAN, District Judge.

Defendants have been charged with conspiracy to possess and possession with intent to distribute marijuana while in the customs waters of the United States, in violation of 21 U.S.C. Sec. 955a(c). Defendant, George Layne, claims that this statute is unconstitutional, violative of international law and vague. The latter issue is frivolous and will not be discussed. Layne has therefore filed a pre-trial Motion, pursuant to Fed.R.Crim.P. 12, to Dismiss the Indictment and/or to Suppress all tangible evidence seized by the Government and all statements made by the Defendant. Based on the following reasons, however, this Court concludes that the Motion must be denied.

THE FACTS:

On November 27,1984 this Court held an evidentiary hearing at which Lt. Commander James Sether, Lt. Steven Newell and Defendant George Layne testified. At counsels’ request, this Court also viewed the Coast Guard videotape documenting the pursuit, stop, and arrest of the Defendants. After considering all of the evidence, this Court finds the following facts to be true. ■

While on patrol in the Yucatan Channel between Mexico and Cuba on the night of June 18, 1984, the Coast Guard Cutter DAUNTLESS spotted the motor vessel CRAMAY on a course headed toward the United States. When the DAUNTLESS was within 1,000 yards of the CRAMAY it attempted to make contact with the vessel. At this time, the Coast Guard noticed that the CRAMAY was riding low in the water, indicating that it contained cargo. As soon as the DAUNTLESS made contact, the CRAMAY altered its course heading north.

After making contact with the CRA-MAY, Lt. Commander James Sether spoke with Defendant Layne by radio. Layne stated that the vessel was of Turks and Caicos nationality, that its next port of call was Holohit Mexico, and that it was carrying no cargo. Layne refused to permit the Coast Guard to board the vessel to verify the vessel’s nationality.

At 9:50 a.m., the following morning, Lt. Commander Sether received permission from his superiors in Miami and Washington, D.C. to stop and board the CRA-MAY pursuant to United States-United Kingdom agreement (the Turks and Caicos are British possessions). Sether thereafter communicated his authority to Layne and ordered Layne to stop his vessel. Layne refused and the CRAMAY had to be stopped by force. At 5:40 p.m. the CRA-MAY was boarded and 35,000 pounds of marijuana was discovered in the vessel’s main hold.

1. Constitutionality

Defendant asserts that 21 U.S.C. Sec. 955a(c) “is unconstitutional per se and ... as applied in that the Congress of the United States seeks to punish actions of foreign nationals in or on foreign vessels approximately 1,000 miles from the territorial waters of the United States.” This argument, however, lacks merit. It is beyond dispute that Congress has the power to legislate extraterritorially 'and clearly intended Section 955 to have extraterritorial application. See United States v. Flores, 289 U.S. 137, 53 S.Ct. 580, 77 L.Ed. 1086 (1933). Indeed, the fifth circuit, in United States v. Baker, 609 F.2d 134, 137 (5th Cir.1980), noted: “The power to control efforts to introduce illicit drugs into the United States from the high seas and foreign nations is a necessary incident to eradicate all illegal drug trafficking.”

This Court is therefore of the opinion that Sec. 955a(c) is constitutional. In fact the constitutionality of various provisions of 21 U.S.C. Sec. 955 has already been upheld by the eleventh circuit. See United States v. Luis-Gonzalez, 719 F.2d 1539 (11th Cir.1983); United States v. MarinoGarcia, 679 F.2d 1373 (11th Cir.1982). Thus this Court now turns to Defendant’s second assertion, that the statute cannot be constitutionally applied to the circumstances in this case or, in other words, the United States lacks jurisdiction over the cause.

2. Jurisdiction

Title 21 of the United States Code, Section 955a(c) provides that “[i]t is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance.” Because it is not disputed that marijuana is a controlled substance, and that the CRAMAY was in international waters at the time the marijuana was seized and the Defendant arrested, the sole legal issue that must be addressed is whether or not the CRAMAY was within the customs waters of the United States within the meaning of 28 U.S.C. Sec. 955a(c).

Section 955b(a) adopts the 19 U.S.C. Sec. 1401© definition of “customs waters” which provides that:

The term “customs waters” means, in the case of a foreign vessel subject to a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search, seize, or otherwise to enforce upon such vessel upon the high seas the laws of the United States, the waters within such distance of the coast of the United States as the said authorities are or may be so enabled or permitted by such treaty or arrangement and, in the case of every other vessel, the waters within four leagues of the coast of the United States.

On November 13, 1981, the United States entered into an “arrangement” within the meaning of Sec. 1401© with Great Britain respecting the interdiction of vessels suspected of carrying illicit drugs. See TIAS 10296. This agreement provides, in pertinent part, that Great Britain

will not object to the boarding by the authorities of the United States, outside the limits of the territorial sea and contiguous zone of the United States and within the areas described by paragraph 9 below, of private vessels under the British flag in any case in which those authorities reasonably believe the vessel has on board a cargo of drugs for importation into the United States...

Recent appellate decisions have held that the term “arrangement” includes authorization similar to that given in the case at bar by the United Kingdom. See United States v. Green, 671 F.2d 46, 49-52 (1st Cir.1982); United States v. Dominguez, 604 F.2d 304, 308 (4th Cir.1979). In addition, compare United States v. Sandoval-Pallarez, No. 84-55-CR-SMA, Oral Findings, dated April 23, 1984 (consent by the Government of Panama is all that is necessary to support a 1401(j) definition of customs waters) with United States v. Santa-Lara, No. 84-330-CR-ALH, Order Dismissing Indictment, issued November 16, 1984 (Extending “customs waters” definition “to any point in international waters anywhere in the world because of an informal radio or telephone communication with a foreign government is ... outrageous.”).

In Dominguez, a Coast Guard Cutter asked for and received oral permission from the Bahamian government to board and search the SEA CRUST which flew a Bahamian flag. The fourth circuit held that this permission, confirmed in writing, to board and seize the vessel and to arrest its crew was a “special arrangement” within the meaning of the Anti-Smuggling Act of 1935, 19 U.S.C. Sec. 1401(m). This statute first defined “customs waters,” and this definition is the genesis of the current definition.

The facts in this case justify a finding of jurisdiction even more than the facts in Dominguez. Here there is no informal oral conversation but a formal written agreement entered into between the United States and Great Britain. And, after viewing the video tape and considering the testimony of Lt. Commander Sether and Lt. Newell, this Court is of the opinion that the Coast Guard could reasonably believe that the CRAMAY had on board a cargo of drugs for importation into the United States.

When first spotted by the Coast Guard, the CRAMAY was headed toward the United States. The CRAMAY was a fishing vessel yet fishing equipment was almost undetectable. The CRAMAY appeared to be freshly and carelessly repainted and the CRAMAY also appeared to be riding low in the water, indicating that it contained cargo.

It appeared that the “C” was originally a “G”; a vessel named GRAMAY was on a Coast Guard “hit” list. Based on Defendant Layne’s statement that the vessel was carrying no cargo, this Court finds, for the purpose of the pending motion to dismiss and/or suppress, that the Coast Guard could reasonably believe that the vessel was engaged in an illegal activity and thus subject to boarding and search under the laws of the United States and the United States-Great Britain agreement. This Court clearly has jurisdiction under Sec. 955a(c), that statute is constitutional and, additionally, there was no violation of international law. See United States v. Williams, 617 F.2d 1063 (5th Cir.1980) (en banc) (Coast Guard, under Right of Approach, has right to sail up to unidentified vessel to ascertain nationality).

With regard to jurisdiction over the person, although this claim was not made, paragraph 5 of the United States-United Kingdom agreement provides:

The Government of the United Kingdom may, within 30 days of the vessel’s entry into port, object to the prosecution of any United Kingdom national found on board the vessel, and the Government of the United States shall thereupon release such person. The Government of the United Kingdom agree that they will not otherwise object to the prosecution of any person found on board the vessel.

There being no claim that the United Kingdom objected to Layne’s prosecution and this Court being aware of no objection, there is no bar to this Court’s assertion of jurisdiction over the Defendant Layne, even if Layne had raised this claim.

Conclusion:

Thus, for all the foregoing reasons, Defendant George Layne’s Motion to Dismiss and/or Suppress is denied.

      . This ruling applies as well to the co-defendants; on August 15, 1984, this Court, in open Court, advised counsel that it was only necessary for counsel to file one motion attacking jurisdiction.

      . After the close of the evidence in this case but before closing arguments, Lt. Newell indicated to the Court that he had been incorrect in certain testimony. This Court, therefore, while the jury was deliberating, heard further testimony of Lt. Newell. This testimony related to his first boarding the CRAMAY and smelling marijuana. This Court is of the opinion, however, that this testimony in no way affects this Court’s conclusion that the Motion to Dismiss and/or Suppress must be denied.

      . The Dominguez interpretation of the Anti-Smuggling Act is supported by its legislative history. See S.Rep. No. 1036, 74th Cong., 1st Sess. 9 (1935).

      . The Coast Guard “hit” list had the CRAMAY suspected of major smuggling.

      . This Court finds Lt. Newell’s testimony, that he detected the smell of marijuana on board the CRAMAY, to be credible. Even so, in view of the overwhelming evidence and evasive actions of the CRAMAY, there is no need to rely on this fact to “reasonably believe the vessel has on board a cargo of drugs for importation into the United States...”

      . Especially with regard to the Motion to Suppress, this Court orally ruled and made findings of fact in the record. Those findings are, to the extent applicable, made a part of this Memorandum Opinion and Order as further support for the conclusions reached.

      . This Court is of the opinion that the question of whether or not the United States-Great Britain Agreement did in fact confer jurisdiction over the stop, search and seizure of the CRA-MAY is a question of law. Since this Court has ruled that there was a reasonable belief that the CRAMAY had "on board a cargo of drugs for importation into the United States in violation of the laws of the United States," the only issue that was litigated with respect to “customs waters” is whether the seizure occurred within the areas set by paragraph 9 of the Agreement: namely, "the Gulf of Mexico, the Caribbean Sea, that portion of the Atlantic Ocean West of longitude 55° West and South of latitude 30° North and all other areas within 150 miles of the Atlantic coast of the United States.”
      This fact, along with the other essential elements of the offense, is all that the United States Government need prove beyond and to the exclusion of a reasonable doubt to win a conviction.


author: JOHN V. PARKER, Chief Judge.

text:
    Robert L. FORD v. Jesse N. STONE, et al.
    Civ. A. No. 83-1230-A.
    United States District Court, M.D. Louisiana, Division A.
    Dec. 6, 1984.

      Milton J. Osborne, Jr., Baton Rouge, La., for plaintiff.
    Winston J. DeCuir, Dept, of Justice, Baton Rouge, La., for defendants.
   JOHN V. PARKER, Chief Judge.

This matter is before the court on defendants’ motion for summary judgment. Plaintiff has filed an opposition. No oral argument is necessary.

This is a civil rights action in which plaintiff, a former faculty member at Southern University in Baton Rouge, alleges that he was discharged from his public employment in a manner which deprived him of vested property rights, equal protection of the law, and due process of law under the United States Constitution. He also claims that his firing was related to public statements made during the course of his duties as president of the Faculty Senate of Southern University, and that he has therefore suffered infringement of his First Amendment rights. Defendants are Jesse N. Stone, Jr., President of Southern University (sued individually and in his official capacity), Southern University and Agricultural and Mechanical College, and the Board of Supervisors of Southern University. Plaintiff also alleges, without specification, violation of the laws of the state of Louisiana. Subject matter jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343, and the proceeding is brought under 42 U.S.C. § 1981 et seq. Plaintiff seeks reinstatement to his former position, tenure status, back pay and other emoluments of his former position, $350,000.00 in compensatory damages, $350,000.00 in punitive damages, and reasonable attorney fees, together with interest.

Defendants raise several issues in the motion for summary judgment. They contend that this suit, first filed more than two years after the allegedly unconstitutional behavior occurred, is untimely and therefore must be dismissed. They raise the defense of sovereign immunity under the Eleventh Amendment to the Constitution with respect to the University, the Board of Supervisors, and the individual defendants in their official capacities as public officials. Defendants also argue that the affirmative defense of qualified immunity shields them from liability. The first of these defenses, that of prescription, is meritorious. We need not consider the remaining issues raised by defendants.

Federal law governs the question of accrual of federal causes of action. When a plaintiff knows or has reason to know of the injury which is the basis of the action, the cause of action is deemed to have accrued. Lavellee v. Listi, 611 F.2d 1129, 1130 (5th Cir.1980). The latest possible accrual date applicable to this case is May 1981, for plaintiff was then terminated from his employment at Southern University. Plaintiff filed suit in this court in November 1983, more than two years after his termination.

The law of the state in which a federal district court sits governs questions concerning the length and tolling characteristics of limitation statutes in the absence of an applicable federal statute of limitations. There is no general federal tolling principle. Auto Workers v. City of Hoosier, 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). Because no federal statute of limitations relating to civil rights actions applies to suits under 42 U.S.C. § 1981 et seq., federal courts must apply the most appropriate period supplied by the law of state in which the federal court sits. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Tolling or interruption of an applicable state statute of limitation also is a question of state law. Tomanio, supra; Ammlung v. City of Chester, 494 F.2d 811 (3d Cir. 1974).

Louisiana Civil Code art. 3492 provides a prescriptive period of one year for delictual actions brought under La.Civ. Code art. 2315, the general tort article. This is the most analogous type of cause of action to a suit under 42 U.S.C. § 1983. Jones v. Orleans Parish School Board, 688 F.2d 342 (5th Cir.1982). Therefore, it is clear that the plaintiff had one year from the accrual of his federal cause of action in which to file this action, absent interruption or tolling of the prescriptive period. His cause of action accrued, at the very latest, in May of 1981. Absent interruption of prescription, his federal cause of action prescribed in May of 1982.

Louisiana law provides that under certain circumstances, prior filing or pendency or a similar suit in a court of competent jurisdiction and venue interrupts prescription of the cause of action. This rule, pursuant to La.Civ.Code art. 3462, is read within the proviso of La.Civ.Code art. 3463. Under art. 3463, if the plaintiff abandons, voluntarily dismisses, or fails to prosecute the prior claims, interruption of prescription is considered “never to have occurred.” Plaintiff now seeks refuge under art. 3462, claiming that his prior filing of an action in state court, based upon the same core facts as the present action, interrupted prescription as against his federal cause of action. However, as will be explained, prescription cannot be interrupted by a mere announcement of one’s intent to file suit on claims at a future time. Plaintiff’s claim of interruption amounts to nothing more than reliance upon just such an informal announcement.

Federal jurisdiction of § 1983 claims is concurrent with that of the state courts, rather than exclusively federal. State courts may hear and decide claims raised under the civil rights statutes. Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 558 n. 7, 62 L.Ed.2d 481. In the present case, plaintiff contends that his filing of a lawsuit in state court arising out of the same basic facts as this suit interrupted prescription. The state court suit was filed in March of 1981. Although assertion of federal claims in the state action would clearly have constituted an interruption of prescription, neither the original nor the amended state court petitions allege any federal cause of action. No reference was made in either petition to federal statutory or constitutional rights. The wrong specifically complained about is deprivation of a vested property right without due process. The Louisiana Constitution, Article 1, § 2, protects the citizens of Louisiana against deprivations of property without due process; allegations of such a deprivation, therefore are not indicia of the assertion of a federal cause of action.

Plaintiff clearly ruled out consideration of any federal claims by the state court in the following colloquy which occurred early in the state court proceeding:

MR. OSBORNE: Your honor, at this time we would like to, for the record before we commence with this particular action, is to make reservation of our Federal claims in this particular Court. What we intend to do is proceed with the plaintiffs Federal claims in Federal Court, and we just want to make notice of that for the record. More specifically, the plaintiff intends to file a Federal action under 28 U.S.C. Section 1331 and 1343, particularly 14[42] U.S.C. Section 1983. Plaintiff will in fact allege in that particular action or seek redress of his First Fifth and Fourteenth Amendment rights to the U.S. Constitution, and he will be filing, as I indicated, under 42 U.S.C. Section 1981 and subsequent— particularly 42 U.S.C. Section 1983, and I would like for the record to — for that to be known.
THE COURT: Yes, sir.
MR. OSBORNE: So what we’ll deal with today in terms of the plaintiff action is two State. Court issues that we’ll deal with today, has to do with State law.

This court holds that neither plaintiff’s petition nor his state court presentation raised federal claims in a manner sufficient to interrupt prescription.

Some two years after the state suit was filed, plaintiff filed this action in federal court. His federal action differs from the previous state action in that Lionel Johnson, Sr., Chairman of the Southern University Board of Supervisors, named as a defendant in the state suit, is not named in the federal suit and the federal complaint specifically asserts federal claims. Plaintiff also attempts to bring unspecified state law claims under the doctrine of pendent jurisdiction. It is to be noted that plaintiff could have asserted all of his claims in this court, invoking pendent jurisdiction for subject matter jurisdiction over those based in state law. He chose instead to file suit in state court upon state law claims only, and to rely upon a “reservation” of federal claims made orally in the state court trial.

These facts show that defendants received no formal notice of plaintiff’s federal claims until well after passage of the one-year prescriptive period. To permit plaintiff to now assert those claims would subvert the purpose of limitations statutes: The fundamental purpose of prescription

statutes is only to afford a defendant security of mind and affairs if no claim is made timely and to protect him from state claims and from loss or nonpreservation of relevant proof. They are designed to protect him against lack or notification of a formal claim within the prescriptive period...
Norris v. Bell Helicopter-Textron, Inc., 712 F.2d 171, 173 (5th Cir.1983), citing Tate, Amendment of Pleadings in Louisiana, 43 Tulane L.Rev. 211 (1969). (emphasis added)

Plaintiff had the opportunity to assert all his claims in one action brought in either state or federal court. He also could have asserted state claims in state court and federal claims in federal court. He chose neither course. He asserted only state claims in state court (by his “reservation” making it plain that no federal claims were there pursued) and failed to timely make formal demand in federal court. While plaintiffs are given the choice of jurisdiction they must timely choose and file. Accordingly, defendants’ motion for summary judgment is hereby GRANTED, and this action will be dismissed.

      . Paragraph III of plaintiff’s original state court petition alleges: "This action is being brought, and this Honorable Court has jurisdiction to hear this matter and grant the relief sought under the provisions of the Louisiana Code of Civil Procedure, Article 1871-1933, L.S.A.R.S. 49:963 of the Administrative Procedure Act and Article 3601 et seq. of the Louisiana- Code of Civil Procedure."
      Plaintiffs original state court petition further alleges: Paragraph XIX. "Petitioner shows that the Southern University Grievance Committee procedures are invalid due to their not having been properly promulgated in accordance with the requirements of the Louisiana Administrative Procedure Statute.” Paragraph XX. “The Southern University Administrative Officials have attempted to apply its invalid grievance upon Petitioner in violation of Petitioner’s Constitutional Rights and Due Process.” Paragraph XX. “As a direct result of defendant's action and inaction, Petitioner is being deprived of a vested property right without due process of law."


text:
    F.E. MYERS COMPANY, A DIVISION OF McNEIL CORPORATION, and the State of Delaware for the use and benefit of F.E. Myers Company, Plaintiffs, v. PIPE MAINTENANCE SERVICES, INC., and Transamerica Insurance Company, Defendants.
    Civ. A. No. 83-761-JLL.
    United States District Court, D. Delaware.
    Dec. 6, 1984.

      Daniel F. Wolcott, Jr., of Potter, Anderson & Corroon, Wilmington, Del, for plaintiffs.
    Thomas C. Crumplar of Jacobs & Crumplar, P.A., Wilmington, Del., and Nicholas Guarente, Media, Pa., of counsel, for defendants.
   FINDINGS OF FACTS AND CONCLUSIONS OF LAW

LATCHUM, Senior District Judge.

This action arises out of an agreement involving the purchase and sale of equipment used in the construction of a sewage disposal system at Bellevue State Park (“Bellevue”), New Castle County, Wilmington, Delaware. F.E. Myers Company (“Myers”) asserts in its complaint that Pipe Maintenance Services, Inc. (“PMS”), the general contractor responsible for installing the sewage collection project at Bellevue, agreed to purchase materials from Myers for use by PMS in connection with its construction contract with the State of Delaware, and that PMS has refused to pay for the materials specified in the contract after demand was made by Myers. Myers also claims that because defendant PMS executed as principal, and defendant Transamerica Insurance Co., executed as surety a payment bond in connection with the State of Delaware contract, the defendants, as a result of their default under the bond by failing to pay Myers, are jointly and severally liable for $31,868, the total price of the supplied materials.

In its answer PMS denies that the $31,-868 is due to Myers by reason of a counterclaim for damages of $15,777.83 because of Myers’ late performance, defective materials supplied and the wrongful refusal to warrant and guarantee the materials supplied.

The case was tried to the Court without a jury on August 14, 1984.

After carefully considering the sufficiency and weight of the testimony adduced at trial, the demeanor of the witnesses who testified, the exhibits admitted into evidence and the post trial memoranda filed by the parties, the Court makes the following findings of facts and conclusions of law as required by Rule 52(a), Fed.R.Civ.P. FINDINGS OF FACTS

1. Myers is a division of McNeil Corporation, a corporation organized under the laws of the State of Ohio with its principal place of business in the State of Ohio. (Docket Item [“D.I.”] 1, 5.) PMS is a corporation organized under the laws of the Commonwealth of Pennsylvania with its principal place of business in Exton, Pennsylvania. (Id.) Transamerica Insurance Company is a corporation organized under the laws of the State of California, has its principal place of business in Philadelphia, Pennsylvania, and is authorized to do business in the State of Delaware under the Delaware Insurance Code. (Id.) The amount in controversy exceeds $10,000, exclusive of costs and interest.

2. In July of 1982, Mechem Company (“Mechem”) obtained the plans and specifications from the State of Delaware for the proposed construction of a grinder pump pressure collection system at Bellevue State Park. (Tr-A at 170.) Mechem, a distributor for various pump manufacturers, then submitted proposals for pump equipment to the general contractors who were planning to submit bids to the State of Delaware on the Bellevue project. (Id.)

3. On August 3, 1982, PMS was awarded the contract (No. BEL-100-1982) entitled Grinder Pump Pressure Collection System, Bellevue State Park, New Castle County, by the Department of Natural Resources and Environmental Control, Division of Parks and Recreation for the State of Delaware. (PX 1.)

4. On August 18, 1982, PMS as principal, and Transamerica Insurance Co. as surety, executed in connection with the Bellevue project a payment bond which provided that it shall be discharged upon the payment to:

“all and every person furnishing material or performing labor in and about the construction of said Project, all and every sum of money due him, them or any of them, for all such labor and materials for which the contractor is liable.”

(PX 2.)

5. Mechem then approached PMS to determine whether Mechem’s proposal was satisfactory. (Tr-A at 170.) Although PMS indicated that Mechem’s prices were favorable, inasmuch as Mechem was only the distributor and not the original manufacturer, there were some questions as to specifications that needed to be answered. (Id. at 171.) Mechem had included the specifications of pumps manufactured by Myers, however, the Myers pumps, as originally designed, did not meet the specifications for the Bellevue project.

6. On August 20, 1982, there was a meeting among PMS, Hans C. Albertsen, as the owner of Mechem, and the representatives from the state including the engineer at Bellevue. Subsequent to that meeting, Albertsen sent a letter to Harold M. Miller of Andrews, Miller & Associates, the state engineers, in which Albertsen stated that his firm, as the local representative for F.E. Myers, could provide the five grinder pumps needed for the Bellevue project. (Tr-A at 102-103; DX 2.)

7. On September 7,1982, Albertsen submitted a proposal to Michael Carpenter, project coordinator for PMS. (Tr-A at 35; DX 1.) The proposal, Mechem’s price for five grinder pumping stations and one winch unit, was for $31,869.00.

8. On October 1, 1982, Michael Carpenter of PMS verbally authorized Albertsen to proceed with the purchase of the grinder pumps. However, Albertsen told Carpenter that a written purchase order was needed to process the order. (Tr-A at 174.)

9. Because the Myers pumps were not the ones originally specified, the State of Delaware decided to have their consulting engineers evaluate the Mechem submission. (Tr-A at 172.) At the time of the original submission, the State did not have consulting engineers under contract because they had already done their work on the project and been paid. (Id. at 171.)

10. On October 7, 1982, Carpenter submitted the information to Steve Corazza of the Department of Natural Resources & Environmental Control for approval by the consulting engineers, Andrews, Miller & Associates. (PX 3.) Albertsen received the approved drawings dated October 13, 1982. (Id. at 197.)

11. A few days after October 21, 1982, Albertsen received a letter of approval from the consulting engineer and on October 25, 1982, PMS submitted a purchase order to Mechem for the five grinder pumps. (DX 3.)

12. After Mechem received the written purchase order from PMS, Mechem submitted the approved drawings and the purchase order for the five grinder pumps to Myers. (Tr-A at 175.)

13. At the end of October, Myers was shut down three days for annual inventory. In addition, Myers experienced a major reduction in its work force due to poor business conditions during the time the equipment was being manufactured. (DX 7.) Myers, however, completed production of the equipment sometime between the middle of November and the first week of December. (Tr-A at 191, 207.)

14. In early December, 1982, Myers contacted Mechem concerning the PMS contract and Mechem’s outstanding balanees to Myers. (Tr-A at 177.) Because it was a policy at Myers not to ship on credit if there was an outstanding balance due, Myers asked Albertsen whether he had a line of credit to cover the $35,000 purchase. Albertsen did not carry one and could not obtain one because of the time involved. (Id.) Therefore, Myers asked Albertsen if it would be acceptable if Myers dealt directly with PMS. Albertsen agreed.

15. Myers then contacted PMS and received documentation concerning PMS’s financial capabilities. (Id. at 178; DX 6.) When Myers was satisfied with PMS’s financial soundness, it caused the pumps to be shipped to Bellevue. The equipment for the Bellevue project arrived at the project on January 4, 1983. (DX 8.)

16. On January 20, 1983, PMS requested by letter and was granted an extension of time for completion of the contract until March 16, 1983. (Tr-A at 110, 116; DX 9.)

17. When the equipment was delivered to the job site, Albertsen was there to assemble the equipment finger tight. All parts which were necessary for the operation of the pumps were on site. (Tr-A at 178-79.)

18. PMS had allocated sixteen (16) days for the completion of the installation of the grinder pumps. (Tr-A at 137; DX 4.) The size of the crew PMS allocated for the installation consisted of six people including an equipment operator, three laborers, one mechanic and a supervisor. (Id. at 58.) However, at no time during the installation did PMS provide the proposed six-person crew.

19. Albertsen was also on site when the pumps were first operated on February 25, 1983. (Tr-A at 38, 39.) Although the state inspector indicated he was satisfied with the operation (id. at 181-82), a problem subsequently arose with respect to defective check valves at three grinder pump stations. (Id. at 182, 216.)

20. On March 15, 1983, a decision was made to get replacement check valves and by April 18, 1983, three check valves were replaced. (Tr-A at 48.)

21. Even after the three check valves were replaced, the pumps still did not function properly. Therefore, in May of 1983, Steve Corazza from the State of Delaware Parks Department contacted PMS and indicated that Ralph Weeks of Sani-Services, a sales and service organization which specializes in grinder pumps, waste pumps and effluent pumps, was going to Bellevue to determine the problem. (Tr-A at 6, 11, 140.) PMS agreed to pay the Sani-Services expenses in order to resolve the issues concerning the contract and to facilitate dedication of the park for the State of Delaware. (Tr-B at 37.)

22. Weeks discovered that the controls for the pumps malfunctioned due to improper wiring and water in the junction box. (Tr-A at 9.) The wiring which was done in the control panel was the responsibility of PMS. (Tr-B at 37.)

23. Although Weeks found nothing wrong with the grinder pumps, subsequent to his visit, other check valves were replaced and three redundant check valves manufactured by Nebco were installed. (Tr-B at 13; Tr-A at 11, 14, 25.)

24. On February 9, 1983, PMS made a payment application to the State of Delaware for a period between November 30, 1982 and January 24, 1983. (PX 24 at 3.) PMS certified that the work at Bellevue was performed during that period of time. PMS was paid pursuant to that application in March, 1983.

25. Myers refused to warrant the pumps until the defect in the electrical system had been corrected. (Tr-B at 8.)

26. As of August, 1984, the installation of the grinder pump pressure collection system at Bellevue had not been accepted by the State of Delaware because of the electrical and field installation problems. (Tr-B at 35-36.)

CONCLUSIONS OF LAW

1. Jurisdiction exists by virtue of 28 U.S.C. § 1332 (1976).

2. Because jurisdiction is based on diversity of citizenship, the Court is required to apply Delaware’s conflict of laws rules. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Where substantive issues of interpretation of a contract are involved, the Delaware courts have more recently utilized the modern and flexible “most significant relationship to the transaction” test set forth in the Restatement (Second) of Conflict of Laws § 188(1). Oliver B. Cannon and Son, Inc. v. Dorr-Oliver, Inc., 394 A.2d 1160 (Del.1978). See Hill v. Equitable Trust Co., 562 F.Supp. 1324 (D.Del.1983); Process and Storage Vessels, Inc. v. Tank Service, Inc., 541 F.Supp. 725 (D.Del.1982); Sellon v. Gener'al Motors Corp., 521 F.Supp. 978 (D.Del. 1981). In applying this principle the Court must consider: (1) the place of contracting; (2) the place of negotiation of the contract; (3) the place of performance; (4) the location of the subject matter of the contract; and (5) the domicile, residence, nationality, place of incorporation and place of business of the parties. Restatement (Second) of Conflict of Laws § 188(2).

3. Inasmuch as: (1) the State of Delaware, for the use and benefit of F.E. Myers, Co., is a plaintiff in this case; (2) the place of performance and the location of the subject matter of the contract (Bellevue State Park, New Castle County) are located in Delaware; and (3) one of the defendants, Transamerica Insurance Co., is legally authorized to do business in Delaware, the law of Delaware governs this case.

In addition, because this case involves a transaction for the sale of goods, the Delaware Uniform Commercial Code — Sales (“Code”) applies. 6 Del.C. §§ 2-101, 2-102 (1974).

4. Under Delaware law, the party asserting an agency relationship has the burden of proving it. Facciolo v. State of Delaware, 358 A.2d 880 (Del.1976); Taylor v. Armiger Body Shop, 40 Del.Ch. 22, 172 A.2d 572 (1961). In the present case, PMS argues that: (1) Mechem was the “authorized agent” of Myers with respect to grinder pump stations; (2) both Myers and Mechem failed to act in good faith and in a commercially reasonable manner; and (3) Myers and Mechem caused the delay in the delivery to PMS of the five grinder stations. (D.I. 21 at 6, 24.) However, PMS has failed to provide any proof of an agency relationship between Myers and Me-chem. To the contrary, Albertsen testified that Mechem acts as a distributor for a number of companies including Myers. Mechem purchases components from the manufacturers and in turn sells the equipment to a buyer. Additionally, Mechem does its own billing and oftentimes it does some design work. (Tr-A at 170.)

5. In view of the fact that Mechem is not a party to this litigation and that PMS has failed to prove that Mechem is an agent capable of binding Myers.contractually to PMS, Mechem’s alleged promise to PMS concerning the expected delivery date of the grinder pumps is not binding upon Myers.

6. Myers is required to put and hold conforming goods at the buyer’s disposition pursuant to the terms of the agreement. 6 Del.C. § 2-503. It was not until Mechem submitted the approved drawings and order for the five grinder pumps in October, 1982, that Myers entered into a contractual relationship with Mechem.

7. In order to meet its contractual obligations, Myers was required to deliver five (5) Grinder Pump Stations manufactured in accordance with the plans and specifications for the State of Delaware, Department of Natural Resources and Environmental Control contract # BEL-100-1982. Although Mechem had estimated a delivery date 6-8 weeks after the written purchase order, Myers did not guarantee or specify a particular delivery date.

8. PMS is only entitled to damages for delay in delivery if it proves that Myers breached the contract by delivering the pumps on January 4, 1983, and that the delay was the proximate cause for its increase in costs. S.J. Groves & Son Co. v. Warner Co., 576 F.2d 524 (3d Cir.1978); Lichter v. Mellon-Stuart Co., 305 F.2d 216 (3d Cir.1962); Commercial Credit Corp. v. C.F. Schwartz Motor Co., Inc., 251 A.2d 353 (Del.Super.1969); Hajoca Corp. v. Security Trust Co., 41 Del. 514, 25 A.2d 378 (Del.Super.1942).

9. The facts indicate, however, that no delay is attributable to Myers because the five grinder pumps were received by PMS within a reasonable time after the December agreement between PMS and Myers.

10. A warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. 6 Del.C. § 2-314(1).

11. The elements of the merchantability cause of action that a claimant must prove are: (1) that a merchant sold goods, (2) which were not “merchantable” at the time of sale, and (3) injury and damages to the claimant or his property (4) which was proximately and in fact caused by the defective nature of the goods, and (5) notice to seller of injury. Although PMS argues and Myers concedes that Myers delivered grinder pumps with defective check valves, the burden remains on the claimant to establish a “proximate causal relationship” between any breach of the agreement and the damages caused. Commercial Credit Corp. v. C.F. Schwartz Motor Co., Inc., 251 A.2d 353 (Del.Super.1969). Additionally, if the loss caused by the breach cannot be isolated from that attributable to other factors, no damages may be awarded. See S.J. Groves & Son Co. v. Warner Co., 576 F.2d 524 (3d Cir.1978).

12. While it is clear that the grinder pumps as delivered in January, 1983, contained some defective check valves, it is also apparent that the check valves were not the sole proximate cause of the al- . leged damages to PMS.

13. Even if Myers had manufactured and delivered grinder pumps with no defects, the grinder pump pressure collection system at Bellevue as late as May, 1983, did not operate properly because of PMS’s failure to properly wire the pump controls in the junction box.

14. In proving damages, PMS introduced evidence of total additional expenses incurred due to “delay in shipment, defective product, discovery of defects, correction of the defects, increased working time due to adverse weather conditions,' additional material expense, additional equipment expense, additional clean-up time ... was $15,860.15.” (D.I. 21 at 17-18.) While a portion of this expense may be attributable to Myers due to the defective check valves, a substantial amount of this expense is the direct result of factors other than the defective check valves.

15. Because this Court can find no reasonable basis in the record for allocation of expenses, it is, therefore, proper that the Court reject the entire claim for defective materials supplied and late performance. (See Lichter v. Mellon-Stuart Co., 305 F.2d at 220.)

16. In order for Myers to warrant and guarantee the materials supplied in the contract, Myers must be convinced that the equipment, as installed, will function properly. (Tr-B at 8.) Due to the electrical problems related to the junction box, Myers refused to guarantee that the system would function properly. (Id.)

17. Absent proof by PMS that this condition precedent to Myers’ warranty was wrongful under the agreement, the Court finds this argument by PMS to be without merit.

18. Finding that the plaintiff, Myers, has established that: (1) PMS contracted to purchase materials from Myers in connection with the contract between PMS and the State of Delaware for the Bellevue State project; (2) Myers delivered the materials pursuant to the agreement at a total price of $31,868; and (3) PMS has refused to pay the contract price after demand from Myers, a judgment will be entered against PMS as principal and Transamerica Insurance Company as surety, jointly and severally, in the amount of $31,-868.

19. The next items sought by Myers are prejudgment and postjudgment interest and costs on, the amount owed, $31,868. Because this is a diversity suit on a contract, the law of the forum state, Delaware, relating to prejudgment interest applies in the absence of a rate set by the agreement between the parties. Under Delaware law, prejudgment or moratory interest has been permitted as part of the damages in cases which involved a breach of contract. Rollins Environmental Services, Inc. v. WSMW Industries, Inc., 426 A.2d 1363 (Del.Super.1980); E.M. Fleischmann Lumber Corp. v. Resources Corp. International, 114 F.Supp. 843 (D.Del. 1953); Superior Tube Co. v. Delaware Aircraft Industries, 60 F.Supp. 573 (D.Del. 1945).

20. The legal rate of interest is set in 6 Del.C. § 2301(a), as amended on April 23, 1980 (Senate Bill 519), which provides in relevant part:

(a) Any lender may charge and collect from a borrower interest at any rate agreed upon in writing not in excess of 5% over the Federal Reserve discount rate including any surcharge thereon, and judgments entered after May 13, 1980, shall bear interest at the rate in the contract sued upon. Where there is no expressed contract rate, the legal rate of interest shall be 5% over the Federal Reserve discount rate including any surcharge as of the time from which interest is due; provided, that where the time from which interest is due predates April 18, 1980, the legal rate shall remain as it was at such time.

21. PMS breached its agreement with Myers when PMS failed to pay for the equipment manufactured by Myers, therefore, this Court finds that an award of prejudgment interest is warranted.

22. There is, however, some confusion as to the date from which prejudgment interest runs. Myers contends, without stating any reasons, that it is entitled to prejudgment interest from February 4, 1983. (D.I. 22 at 14.) It is clear from the record that although Myers delivered the equipment on January 4, 1983, Myers was still involved in replacing check valves and installing redundant check valves on the equipment “even after Memorial Day” of 1983. (Tr-B at 13.)

23. Because Myers failed to establish the date after Memorial Day, 1983, that the work on the check valves and redundant check valves was completed, it is impossible for this Court to determine exactly when the breach occurred. As a result, the Court, in the exercise of its discretion, has chosen the date the complaint was filed, the next date following Memorial Day, 1983, upon which the work of Myers certainly had been completed.

24. Prejudgment interest, therefore, shall run on the sum of $31,868, at the rate stated in 6 Del. C. § 2301(a) from October 28, 1983, to the date that judgment is entered.

25. Postjudgment interest will be awarded from the date of the entry of the judgment in accordance with 28 U.S.C. § 1961 (1982).

26. Judgment will be entered in accordance with the above findings of facts and conclusions of law.

      . Grinder pumps are large submersible sewage pumps with a grinding device on the end of the shaft which emasculates waste and then discharges it. (D.I. 19 at 18.)

      . References to the plaintiffs’ and the defendants’ exhibits are cited herein as "PX" and “DX” respectively, and to the two volumes of the trial transcript (D.I. 17 & 19) as "Tr-A” and "Tr-B.”

      . Apparently, Myers equipment is distributed by a number of companies in the area including Mechem and Sani-Services. (Tr-A at 204.)

      . The pumps that Myers manufactured were almost identical to the pumps specified in the contract except that Myers’ pumps had steel basins and the State of Delaware requested pumps with fiberglass basins. (Tr-A at 172.)

      . In Ms letter to Harold Miller dated August 23, 1982, Albertsen stated:
      “At the request of the successful contractor, Pipe Maintenance Service, I attended a meeting at Bellevue State Park on August 20, 1982.
      It was emphasized that timing is critical because of various commitments by the Division of Parks and Recreation, and the contractor is committed to make every effort to plan his work to coinside [sic] with certain dates and activities.
      I have the assurance by our factory that they can ship the stations in approximately six weeks from date of authorization to proceed____”
      (DX 2.) The original production schedule for delivery 4-6 weeks after “receipt of order or approved drawing” was later changed to 6-8 weeks because of subsequent engineering changes. (Tr-A at 175.)

      . The proposal submitted to and ultimately accepted by PMS was from Mechem and not Myers. (DX 3.) Mechem is a sales representative for various companies all of which are in the business of water and waste treatment. It has two relationships with its clients: one in which the manufacturer sells directly to the contractor (Tr-A at 169) and one in which Mechem purchases the equipment directly from the manufacturer and then sells to the contractor. After Mechem got paid then they would pay the company. Mechem’s relationship with Myers is the latter. (Id. at 170.)

      . At that time, the only matter that was unresolved related to the horsepower rating of two pumping stations. .(DX 1.)

      . A pumping station consists of a pit in the ground in which a pump is installed. A control panel for the pump is located away from the station itself and is wired to the pump through conduit which runs from the control panel to a junction box near the pump in the pump pit. (Tr-A at 7; PX 4.)

      . All parties, however, have agreed that the total price charged by Myers to PMS was $31,868.00. (D.I. 1, 5.)

      . The purchase order included the statement: “This purchase order subject to the engineers acceptance and final approval of this equip.” (DX 3.)

      . Timothy Sewell, Credit Manager of Myers (Tr-B at 19), indicated that Myers had credit concerns with Mechem from October through December 1982. (Id. at 25; PX 5.) There were several contacts between Myers and Mechem during December regarding the past due account which showed that Mechem, at least as of December 19, 1983, was past due $4,681.58. (Id. at 26-29.)

      . David Bauer, Northeast District Sales Manager for Myers, stated that the equipment was manufactured and ready to ship by the middle of November but it was held up because Myers was unwilling to extend additional credit to Mechem. (Tr-A at 207.)

      . Somers, PMS’s foreman on the Bellevue project, had never installed a grinder pump pri- or to this project. (Tr-A at 53.)

      . From January 4, 1983 to February 25, 1983, the period of installation, while the foreman was on site 27 days, an operator designated as such was on site only 1 day, 2 laborers were on site only 11 days, and only 1 laborer was on site 15 days. (DX 10.)

      . The problem with the check valve was that the valve did not exactly face against the housing to absolutely prevent any backflow. Apparently once enough fluid would pass into the chamber behind the valve, it would appear to flip wide open and allow fluid to flow back into the well as rapidly as the pumps were able to pump it out. (Tr-A at 40.)

      . There were invoices sent to the Division of Parks and Recreation from Sani-Services for the electrical work, for miscellaneous parts and supplies totaling $5,959.42. PMS authorized the payment of the invoices, while it questioned a $129.00 charge that was not identified. (Tr-B at 41.)

      . The Court need not reach the issue of whether or not there are any damages for delay in delivery attributable to Mechem inasmuch as Mechem is not a party to this litigation.

      . Because the record does not reflect the exact date of the Myers-PMS agreement, it is impossible to determine the exact length of time between the December agreement and the January delivery.

      . Because the resolution of the controversy hinges on the issue of causation, the Court need not reach the remaining issues concerning the tender of conforming goods or acceptance by PMS.

      . Those factors include PMS’s failure to fully staff the construction crews and its failure to properly wire the junction boxes.


author: CRABB, Visiting District Judge.

text:
    Loran W. ROBBINS, Harold J. Yates, Earl L. Jennings, Jr., Robert J. Baker, Arthur H. Bunte, Howard McDougall, R.V. Pulliam, and Marion Windstead, as Trustees of Central States Southeast and Southwest Areas Health and Welfare Fund, Plaintiffs, v. LABAR TRANSPORTATION CORPORATION, a corporation, Defendant.
    No. 79-C-5228.
    United States District Court, N.D. Illinois.
    Dec. 7, 1984.

      Coghlan, Joyce & Nellis, Chicago, 111., for plaintiffs.
    Daniel I. Schlessinger, Lord, Bissell & Brook, Chicago, 111., for defendant.
   ORDER

CRABB, Visiting District Judge.

This is an action brought on December 12, 1979, by the plaintiff trustees of Central States Southeast and Southwest Areas Health and Welfare Fund seeking injunctive relief compelling defendant Labar Transportation Corporation to comply with its obligation to make employer contributions to an employee trust fund, instituted in accordance with a collective bargaining agreement between Labar and Local 512 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (Local 512).

After a trial in which I found that defendant was under a valid and binding obligation to make contributions to its employee trust fund in the amounts sought by plaintiffs, I ordered the entry of judgment in favor of plaintiffs. Although the terms of the judgment are not spelled out in the judgment as it was entered, judgment consistent with the relief sought by plaintiffs would enjoin defendant permanently from failing to make contributions to its employee trust fund as required under the collective bargaining agreement and would require defendant to pay to plaintiffs the amount of the past due contributions it had failed to make, plus interest.

Plaintiffs filed a petition for an award of attorneys’ fees pursuant to 29 U.S.C. § 1132(g) and, on March 9, 1984, I granted the petition and awarded the plaintiffs $18,-182.50 in attorneys’ fees, directing that the fees be paid by April 13, 1984. As of July 20, 1984, defendant had not complied with that portion of the judgment requiring it to satisfy its obligation for past due contributions. Also, defendant had not complied with the order directing it to pay plaintiffs their attorneys’ fees. This case is now before the court on plaintiffs’ motion for an order to show cause why defendant should not be held in contempt for its failures to comply with the judgment of this court and to comply with the order awarding attorneys’ fees.

Plaintiffs’ motion raises two questions: 1) whether it is a proper use of the court’s authority to proceed with a contempt proceeding against defendant for its failure to comply with the judgment of the court and 2) whether it is a proper use of the court’s authority to proceed with a contempt proceeding against defendant for its failure to comply with the order of the court directing it to pay plaintiffs their attorneys’ fees by April 13, 1984.

I. Contempt for Failure to Comply with the Court’s Judgment

In the federal courts, Rule 69(a), Federal Rules of Civil Procedure, dictates the procedure for enforcement of a money judgment in a civil case. In pertinent part, the rule provides:

Process to enforce a judgment for the payment of money shall be by writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.

(Emphasis added.) The “unless” clause in Rule 69 appears to give courts means other than execution to satisfy or compel a money judgment. However, it is understood that the use of such means should be confined to those situations in which execution would be an inadequate remedy. See 7 J. Moore, Moore’s Federal Practice 1169.03[2] at 69-10 (2d ed. 1984). “[A] federal court should not ... enforce a money judgment by contempt or methods [ojther than a writ of execution, except in cases where established principles so warrant” as, for example, in a case in which a court has entered a money judgment against a fiduciary for breach of trust and the fiduciary has disobeyed the court’s directions. Id. at 69-11.

A federal court’s authority to hold a judgment debtor in contempt is not limited to the “unless” clause of Rule 69(a). Under 28 U.S.C. § 2007 and Rule 69(a), a judgment debtor may be imprisoned for contempt for nonpayment of a judgment if such a sanction is permitted under the law of the state where the court is sitting, which in this case is Illinois. 7 Moore’s Federal Practice, ¶ 69.04[2], at 69-21. However, 28 U.S.C. § 2007 provides that “[a] person shall not be imprisoned for debt on a writ of execution or other process issued from a court of the United States in any State where imprisonment for debt has been abolished.” Section 14, Art. I of the Illinois Constitution provides that “[n]o person shall be imprisoned for debt unless he refuses to deliver up his estate for the benefit of his creditors as provided by law or unless there is a strong presumption of fraud.”

Notwithstanding the disfavored nature of imprisonment for debt in Illinois, § 14, Art. 1 of the Illinois Constitution permits such imprisonment if there exists a “strong presumption of fraud” or if the judgment debtor has the ability to pay the judgment but refuses to do so. See The People v. LaMothe, 331 Ill. 351, 356, 163 N.E. 6 (1928): “No one should be imprisoned for a failure to pay money unless the evidence clearly shows that the party charged has the money within his power to pay, or that he had the money and wrongfully disposed of it.”

Indeed, although a court sitting in Illinois may have the power to hold a defendant in contempt before other means of enforcement have been attempted if it determines that the defendant’s failure to pay constitutes willful disobedience of a lawful judgment, it would be unusual to take such an action where there exist alternative means of enforcement, and it would be done only in the most egregious cases, upon a finding that the failure to pay is the result of a “wrongful or illegal act or [the judgment debtor] has willfully placed himself in such a position,” Sullivan v. Sullivan, 16 Ill.App.3d 549, 552, 306 N.E.2d 604 (1973). “In the enforcement of this constitutional provision [Ill. Const. art. I, § 14] every doubt should be resolved in favor of the liberty of the citizen.” Tudor v. Firebaugh, 364 Ill. 283, 288, 4 N.E.2d 393 (1936).

Clearly, if the judgment herein were only one for money damages, plaintiffs would not be entitled to seek to enforce the judg ment through invocation of the court’s contempt powers under Rule 69(a), Federal Rules of Civil Procedure, or under 28 U.S.C. § 2007. Although the parties seem to have assumed that the judgment was of such a nature and have framed their arguments accordingly, I believe that they have misconstrued both the nature of the judgment and the national labor policies implicated in the action.

Under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219, it has been held to be error for a district court to refuse to hold an employer in civil contempt for continuing to withhold unpaid wages due his former employees. See, e.g., Hodgson v. Hotard, 436 F.2d 1110 (5th Cir.1971): “ ‘The purpose of the injunction to restrain the withholding of wages due is not to collect a debt owed by an employee to his employer but to correct a continuing offense against the public interest,’ ” quoting Wirtz v. Jones, 340 F.2d 901, 904 (5th Cir.1965). The same considerations apply in this case in which national labor policies are at stake. Just as the Fair Labor Standards Act was enacted to promote an important public goal: the health, efficiency, and general well-being of employees, and § 217 of that act was enacted “as a necessary measure to assure compliance with and adherence to a public policy...” Wirtz v. Jones, 340 F.2d 901, 903 (5th Cir.1965), the Employee Retirement Income Security Program, 29 U.S.C. §§ 1001-1381, was enacted to promote the continued well-being and security of employees, and § 1132 of that act was enacted to provide the appropriate remedies, sanctions, and ready access to the federal courts promised in 29 U.S.C. § 1001(b).

It is true that individual rights under the Employee Retirement Security Income Program derive from contracts between employers and employees and that vindication of the rights may be by private parties, such as the trustees of a fund. In these respects, the program differs from the Fair Labor Standards Act which sets out employment rights in statutes applicable to all covered employees, and which provides for enforcement by the Secretary of Labor. I do not believe that these differences are significant. In either case, what is at stake is the economic well-being of an employees who are entitled to minimum wages and to the pension and health benefits that have been promised them. The assurances of the Employee Retirement Security Income Program would be hollow if the courts could not enforce judgments against employers such as defendant who contest their contractual obligations for five years and then refuse to comply with the terms of the judgment entered against them.

I conclude that the nature of the remedy sought and obtained by plaintiffs and the importance of the public policy embodied in the Employee Retirement Income Security Program leave a district court no alternative in a situation such as this but to hold a hearing to determine whether the defendant is in civil contempt. See generally Rule 65, Federal Rules of Civil Procedure; 7 Moore’s Federal Practice, p. 65-1 et seq. See also McComb v. Jacksonville Paper Co., 336 U.S. 187, 194-95, 69 S.Ct. 497, 501, 93 L.Ed. 599 (1949):

If the court is powerless to require the prescribed payments to be made [under the Fair Labor Standards Act], it has lost the most effective sanction for its decree and a premium has been placed on violations.

See also King v. Greenblatt, 489 F.Supp. 105 (D.Mass.1980) (court authorized the plaintiff in a civil rights case to institute civil contempt proceedings to compel payment of attorneys’ fees ordered pursuant to the Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988):

if a judgment for the payment of money represents a sum payable because of a defendant’s failure to perform a public obligation imposed by a statute, then in order to have “the most effective sanction” for the court’s judgment, it is permissible to vindicate the public policy embodied in the statute by instituting a proceeding for civil or criminal contempt.

Id., 489 F.Supp. at 107. However, because the wording of the final judgment in this case may not have given defendant fair notice of its obligations under that judgment, I will not proceed with a contempt hearing until the defendant has been apprised of those obligations and has had a chance to re-evaluate its response.

2. Contempt for Failure to Comply with Court’s Order to Pay Attorneys’ Fees

An award of attorneys’ fees is authorized explicitly in cases brought under 29 U.S.C. § 1132. An award of attorneys’ fees is “compensatory rather than punitive and constitutes an appropriate item of damages to be awarded by courts in enforcement of the national labor policy.” International Brotherhood of Electrical Workers Local Union No. 2022 v. Teletype Corporation, Little Rock, Arkansas, 551 F.Supp. 676, 681 (E.D.Ark.1982).

The order awarding attorneys’ fees to plaintiffs was designed to further the benefit rights of employees. 29 U.S.C. § 1001 (1982). If the payment of lawfully ordered attorneys’ fees could not be compelled, pension fund fiduciaries would be deterred from vindicating their rights, especially where, as in the present case, the litigation has extended over a period of five years and no money has been paid. Even if the plaintiffs had not initiated an action for contempt, I could act independently to hold defendant in contempt. “For the court need not sit supinely by waiting for some litigant to take the initiative. Vindication of its authority through enforcement of its decree does not depend on such whimsical or fortuitous circumstances.” McComb v. Jacksonville Paper Co., 336 U.S. at 194, 69 S.Ct. at 501.

If the award of attorneys’ fees placed an intolerable burden upon defendant, it could have moved the court for modification of the order. However, defendant has filed no motion, has made no payment, and gives no indication that payment will be forthcoming. Thus, I conclude that a hearing should be held on plaintiffs’ motion for an order to defendant to show cause why it should not be held in contempt for its failure to pay plaintiffs their attorneys’ fees.

ORDER

IT IS ORDERED that the judgment entered herein on February 10, 1984, is AMENDED to read as follows:

Judgment is entered for plaintiffs and against defendant. Defendant, its officers, agents, employees, and attorneys, are enjoined permanently from failing to comply with defendant’s obligations to pay contributions to plaintiffs as such contributions become due and are enjoined permanently from failing to make regular reports of employment information as required by the collective bargaining agreement and the Central States Southeast and Southwest Areas Health and Welfare Fund Trust Agreement. Further, defendant, its officers, agents, employees, and attorneys, are enjoined permanently from continuing to withhold from the Central States, Southeast and Southwest Areas Health and Welfare Fund defendant’s past due contributions plus interest and liquidated damages in the total amount of $36,408.81.

IT IS FURTHER ORDERED that defendant Labar Transportation Company show cause why it should not be held in contempt for its failure to pay the award of attorneys’ fees at a hearing to be held in the United States District Court for the Northern District of Illinois on March 1, 1985 at 11:00 a.m.

IT IS ORDERED that if, after thirty days from the date of entry of the amended judgment herein, defendant has not complied with the terms of the amended judgment, plaintiffs may renew their motion for an order to show cause why defendant should not be held in contempt for its failure to comply with the final judgment of this court, and the hearing on that motion will be held at the United States District Court for the Northern District of Illinois on March 1, 1985, at 11:00 a.m.

      . 28 U.S.C. § 2007 reads:
      (a) A person shall not be imprisoned for debt on a writ of execution or other process issued from a court of the United States in any State wherein imprisonment for debt has been abolished. All modifications, conditions, and restrictions upon such imprisonment provided by State law shall apply to any writ of execution or process issued from a court of the United States in accordance with the procedure applicable in such State.
      (b) Any person arrested or imprisoned in any State on a writ of execution or other process issued from any court of the United States in a civil action shall have the same jail privileges and be governed by the same regulations as persons confined in like cases on process issued from the courts of such State. The requirements governing discharge are those that are applicable in such State. Any proceedings for discharge shall be conducted before a United States commissioner for the judicial district wherein the defendant is held.