text:
    UNITED STATES of America, Plaintiff, v. VALDOSTA-LOWNDES COUNTY HOSPITAL AUTHORITY, Defendant.
    Civ. A. No. 79-31-VAL.
    United States District Court, M.D. Georgia, Valdosta Division.
    Feb. 21, 1986.
    Raphael O. Gomez, Judith Scolnick, Dept, of Justice, Washington, D.C., for plaintiff.
    John Bennett, Valdosta, Ga., for defendant.
   ORDER

OWENS, Chief Judge.

The United States filed this action against the Hospital Authority on June 29, 1979, alleging that it is entitled to recover its proportionate share of a construction grant awarded to defendant pursuant to the Community Mental Health Centers Act, 42 U.S.C. §§ 2681-2695 (as in effect prior to July 29,1975) for construction of a Community Mental Health Center (CMHC). In essence, the government alleges that defendant breached and violated the terms of its construction grant and the Act by ceasing to operate the facility in question as a community mental health center within twenty years after its construction.

After a trial before the Honorable J. Robert Elliott, the jury returned a verdict in favor of the Hospital Authority on October 29, 1980; and the court entered judgment in conformity therewith on October 30, 1980. The United States moved for judgment notwithstanding the verdict (filed November 12, 1980) which was denied as untimely filed on August 24, 1981. In the interim, the United States appealed the judgment of the district court to the United States Court of Appeals for the Fifth Circuit. With the creation of the United States Court of Appeals for the Eleventh Circuit in 1981, this case fell within its jurisdiction. Accordingly, the Eleventh Circuit rendered the appellate opinion in this case, United States v. Valdosta-Lowndes County Hospital Authority, 696 F.2d 911 (11th Cir.1983), holding that the trial court erred in denying the government’s motion for a directed verdict. Id. at 916. The case was reversed and remanded for a new trial, id., and is presently before the court on the United States’ motion for summary judgment.

The Undisputed Material Facts

1. The Hospital Authority received construction grant funds of $412,929.93 from the United States beginning in 1967 for the purpose of constructing a facility to be used as a Community Mental Health Center. Government’s Exhibits 5, 6; Answer, fifth defense, paragraph 3.

2. The United States Court of Appeals for the Eleventh Circuit found as fact that “there can be no doubt that the services comprehended by the application for the grant were not provided either in or by Lowndes County-Valdosta Hospital Authority, the grantee.” Id. at 915.

3. The Hospital Authority has not reimbursed the government its proportionate share of the construction grant funds. Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Summary Judgment at 9; Answer, paragraph 6.

Conclusions of Law

The law of the case doctrine “invokes the rule that findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.” Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir.1984) (citations omitted). The doctrine “generally operates to preclude a reexamination of issues decided upon appeal ... by the district court ____ In sum, ‘once a case has been decided on appeal, the rule adopted is to be applied, right or wrong, absent exceptional circumstances, in the disposition of the lawsuit.’ ” Id. (citations omitted). The three narrow exceptions where the law of the case doctrine is not applied occur when “(1) the evidence on a subsequent trial was substantially different, (2) controlling authority has since made a contrary decision of the law applicable to the issue or (3) the previous decision was clearly erroneous and would work a manifest injustice.” Id. at 768-769. The court concludes that none of the above exceptions apply to preclude the doctrine in the instant case. Accordingly, the Eleventh Circuit’s opinion in United States v. Lowndes County Hospital Authority, 696 F.2d 911 (11th Cir.1983), is the law of this case and is binding upon this court.

The Eleventh Circuit found that “prior to the filing of this action the facility was no longer being used for the purpose for which it was built, it then follows as a matter of law that the government was entitled to recover. ” Id. at 916 (emphasis added). The case was then “remanded to the trial court for further proceedings not inconsistent with this opinion.” Id.

Summary judgment on remand is appropriate in accordance with the law as stated by the appellate court where there is no genuine issue of material fact to be tried. See 6-Pt. 2 J. Moore & J. Wicker, Moore’s Federal Practice § 56.27[3] (2d ed.1985); United States v. United States Gypsum Co., 340 U.S. 76, 86, 71 S.Ct. 160, 168, 95 L.Ed. 89 (1950) (permitting a summary judgment under Rule 56 on remand). Defendant contends that summary judgment is not appropriate because the Eleventh Circuit improperly reviewed the sufficiency of the evidence and “overstepped its bounds by indicating the plaintiff was entitled to a directed verdict.” Brief in Opposition to Plaintiff’s Motion for Summary Judgment at 7. This contention is without merit as both a motion for a directed verdict and a motion for judgment notwithstanding the verdict raise the sufficiency of the evidence on appeal. Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969). In the case at bar, the government properly moved for a directed verdict. Additionally, the appellate court clearly concluded that “A party’s failure to move for JNOV does not preclude appellate review of an earlier motion for a directed verdict.” Valdosta-Lowndes County Hospital Authority, 696 F.2d at 912 (citation omitted).

The Eleventh Circuit cited the trial testimony of defendant’s own officers in support of its conclusion that defendant was not providing all the essential services of a CMHC as contemplated by the Act. Id. at 915. The court found that it was undisputed that “the United States advanced the sum of $412,929.93” for construction of a CMHC. Id. at 913. The court also concluded that the statutory section in effect at the time funds were granted to the Hospital Authority “contemplate[d] that the hospital shall reimburse the government its share of the current value of the facility as represented by the proportion it paid to help build it in the first place” under circumstances similar to those existing here. Id. at 916. Finally, the Eleventh Circuit found that “as a matter of law the government was entitled to recover.” Id.

CONCLUSION

Bearing the unequivocal admonition of the appellate court in mind, the court notes that the evidence the government has produced to establish its claim of $549,413 has not been disputed by affidavit or expert deposition testimony. See Fed.R.Civ.P. 56(e). Furthermore, the court believes this to be an appropriate case for an award of prejudgment interest. Based on the law of the case, the United States’ motion for summary judgment is hereby GRANTED. Judgment is awarded against defendant in the amount of $549,413 and prejudgment interest is awarded on this sum at the rate established under the Contract Dispute Act, 41 U.S.C. § 611, from August 1, 1976, up to and including the date of judgment, with the rate computed every six months. Further, post judgment interest is awarded from the date of judgment to the date of final payment as provided under 28 U.S.C. § 1961.


source: Caselaw Access Project

author: JACKSON, District Judge.

license: Public Domain

text:
    NATIONAL RIFLE ASSOCIATION OF AMERICA, et al., Plaintiffs, v. J. Craig POTTER, Acting Assistant Secretary for Fish and Wildlife and Parks, et al., Defendants.
    Civ. A. No. 84-1348.
    United States District Court, District of Columbia.
    Feb. 24, 1986.

      Stephen N. Shulman, Washington, D.C., for plaintiffs.
    Frank E. McAnear, Dept, of Justice, Land & Natural Resources Div., Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

JACKSON, District Judge.

In this action for declaratory and injunctive relief plaintiff National Rifle Association of America (“NRA”) and plaintiff-intervenor Wildlife Legislative Fund of America ask the Court to set aside a certain regulation promulgated under the aegis of the Secretary of the Interior which prohibit hunting and trapping in the National Park System except where specifically contemplated by Congress. Upon consideration of cross-motions for summary judgment — the principal legal issue being the accuracy of the Secretary’s divination of legislative intent and the material facts largely matters of history — the Court finds that the regulation is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706, and defendants’ motions for summary judgment will, accordingly, be granted and that of plaintiff denied.

I.

The first national park, Yellowstone, was created by Congress in 1872 as a “public park or pleasuring ground for the benefit and enjoyment of the people.” 16 U.S.C. § 21 (1982). By 1916, 13 national parks and 19 national monuments had been established, responsibility for their administration, however, having been dispersed among a number of government agencies, including the Departments of Interior, Agriculture and War. To provide more cohesive management for this expanding corpus of publicly-owned repositories of the nation’s natural and historic heritage, Congress in that year created the National Park Service (“NPS”), whose mission, it said, was:

[To] promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified ... by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1 (1982) (hereinafter, the “Organic Act”). The Secretary of the Interior was authorized to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of .the parks____” 16 U.S.C. § 3 (1982). Although the Secretary was permitted in his discretion to provide “for the destruction of such animals and of such plant life as may be detrimental to the use of any of said parks, monuments, or reservations,” id., the paramount objective of the park system with respect to its indigenous wildlife, and the philosophy which came to pervade the new Park Service to whom it was entrusted, was, from the beginning, one of protectionism. Witness an early directive from the Secretary of the Interior to NPS’ first director: “[h]unting will not be permitted in any national park.” Administrative Record (“A.R.”) Doc. 1 at 70.

Beginning in the late 1930’s, Congress began to add to the system a number of “nontraditional” park areas, such as national seashores, lakeshores and scenic river-ways, in many of which Congress itself specifically undertook to authorize hunting, trapping and fishing as permitted recreational activities. In the 1960’s, in recognition of the heterogeneous character of the territories it was now overseeing, the Park Service evolved on its own a concept of “management categories” as a means to differentiate the administration required for them. Under the new taxonomy, outlined in a memorandum in July of 1964 from then-Secretary of the Interior Udall to the Director of the Park Service, the park system was divided into three categories— natural, historical and recreational — with the policies for their governance to reflect the nature of the areas and the uses to which they had historically been put. See A.R. Doc. 6. Thus, in the case of recreation areas, which had traditionally accommodated multiple uses, the Park Service began to allow hunting, trapping and fishing on its own initiative if otherwise in accordance with federal, state and local laws. See A.R. Doc. 9 at 32; 31 Fed.Reg. 12,750, 12,754 (1966).

Two subsequent amendments to the Organic Act, however, caused the Park Service to doubt the extent of its autonomy in the matter. In a 1970 amendment, known as the General Authorities Act, 16 U.S.C. §§ la-1, lc (1982), Congress declared:

[T]hat the national park system, which began with establishment of Yellowstone National Park in 1872, has since grown to include superlative natural, historic, and recreation areas in every major region of the United States ...; that these areas, though distinct in character, are united through their inter-related purposes and resources into one national park system as cumulative expressions of a single national heritage; ... and that it is the purpose of this Act to include all such areas in the System and to clarify the authorities applicable to the system.

16 U.S.C. § la-1 (emphasis added). The Act continued: “[e]ach area within the national park system shall be administered in accordance with the provisions of any statute made specifically applicable to that area,” as well- as any other applicable authorities, “including, but not limited to the [Organic Act].” 16 U.S.C. § 1c (1982). Eight years later, in a rider to the Redwood National Park Expansion Act, Pub.L. No. 95-250, 92 Stat. 163, Congress reiterated its intention that:

[T]he promotion and regulation of the various areas of the National. Park System ... shall be consistent with and founded in the purpose established by [the Organic Act], to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress.

16 U.S.C. § 1a-1 (emphasis added). Perceiving in these amendments an implied reproof for having strayed from the true purpose of the Organic Act (and, specifically, for its “management categories” system), NPS concluded that Congress conceived of the park system as an integrated whole, wherein the Park Service was to permit hunting and trapping only where it had been specifically authorized, or discretion given it to do so, by Congress in the applicable enabling act. See A.R. Doc. 40; NPS Management Policies (1975), A.R. Doc. 18 at 1-3; NPS Management Policies (1978), A.R. Doc. 19 at 1-3.

Shortly thereafter NPS began the task of revising its regulations to bring them into harmony with the revealed congressional will by abandoning the “management categories.” Proposed regulations were first published in the Federal Register on March 17, 1982, 47 Fed.Reg. 11,598 (1982), and, after consideration of the comments received, final regulations, including that presently in dispute, were published on June 30, 1983, to take effect on October 3, 1983. 48 Fed.Reg. 30,252 (1983). The contested regulation reads as follows:

§ 2.2 Wildlife protection.
(a) The following are prohibited:
(1) The taking of wildlife, except by authorized hunting and trapping activities conducted in accordance with paragraph (b) of this section.
(b) Hunting and trapping
(1) Hunting shall be allowed in park areas where such activity is specifically mandated by Federal statutory law.
(2) Hunting may be allowed in park areas where such activity is specifically authorized as a discretionary activity under Federal statutory law if the superintendent determines that such activity is consistent with public safety and enjoyment, and sound resource management principles. Such hunting shall be allowed pursuant to special regulations.
(3) Trapping shall be allowed in park areas where such activity is specifically mandated by Federal statutory law____
(4) Where hunting or trapping or both are authorized, such activities shall be conducted in accordance with Federal law and the laws of the State within whose exterior boundaries a park area or a portion thereof is located. Nonconflicting State laws are adopted as a part of these regulations.

36 C.F.R. § 2.2 (1985) (emphasis added).

II.

Plaintiff NRA filed this action on April 30, 1984, contending that the regulation arbitrarily and capriciously reverses a by-now venerable, and beneficent, Park Service policy of permitting hunting and trapping in recreational areas of the park system in the sound, i.e., conservation-conscious, discretion of individual park superintendents, and that no express congressional command is, or has ever been, necessary to empower it to do so. Defendants respond that the philosophy of the Park Service, since its first expression in the Organic Act, has always been exclusively protectionist; that hunting and trapping have never been permitted in traditional parks and monuments; and that, while the Service may have succumbed to error in the late 1960’s and 1970’s, it has now acted to restore itself to grace by conforming its policy to a constant congressional intent of which it was pointedly reminded by the 1970 and 1978 amendments to the Organic Act.

Standing

At the threshold the Court must determine whether plaintiff NRA has standing to bring this action, either on its own behalf or as the representative of its members. It is now familiar learning that Article III requires a plaintiff to show that it has suffered some actual or threatened injury as a result of the defendant’s allegedly illegal conduct, that its injury is fairly traceable to the challenged action, and that it is likely to obtain redress by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). See also Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607-1608, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). In addition, the plaintiff must satisfy the so-called “prudential” requirement, viz., that its asserted interests “fall within the ‘zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. at 475, 102 S.Ct. at 760 (quoting Association of Data Processing Service Organization v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)); accord, American Friends Service Committee v. Webster, 720 F.2d 29, 49-52 (D.C.Cir.1983); FAIC Securities, Inc. v. United States, 768 F.2d 352, 356-57 (D.C.Cir.1985).

An organization has standing to sue in its representational capacity when: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977).

The NRA asserts without contradiction that it is a not-for-profit organization with approximately three million members, many of whom are hunters and trappers who would like to pursue their avocations in the areas affected by the offending regulation. See Affidavits of James M. Norine, Director of Hunter Services, NRA. The Association’s by-laws state that the purpose of the organization is “to promote hunter safety, and to promote and defend hunting as a shooting sport and as a viable and necessary method of fostering the propagation, growth, conservation, and wise use of our renewable wildlife resources.” First Aff. of James M. Norine at 2. Plaintiff contends that its members have suffered injury both in their inability to hunt and trap in the now-proscribed areas, and in their loss of the opportunity to convince individual park superintendents of the desirability of permitting hunting and trapping where those superintendents formerly had discretion to do so. The NRA reminds that regulations governing the park system should endeavor to accommodate the interests of all Americans in a safe and enjoyable National Park System, of whom hunters and trappers, too, must be numbered and, thus, fall within the relevant “zone of interests.”

The Court concludes that the NRA does have standing to pursue this action in its representational capacity. NRA members have suffered a specific injury which is traceable to the federal defendants’ actions and would be redressed by a favorable decision. Furthermore, the interests of its members are indisputably within the zone of interests protected by the regulations, namely, the right of all citizens to use the national parks in any manner consistent with the congressional mandate.

Review of Agency Action

The Court of Appeals for this circuit has recently restated the analysis to be undertaken in determining whether agency action conforms to law:

“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” If, however, “the statute is silent or ambiguous with respect to the specific issue,” we are not to give effect to our own estimation of intent, but must accept the agency’s if it is “based on a permissible construction of the statute.” A “permissible construction” has been helpfully defined as one that is “sufficiently reasonable to be accepted by a reviewing court.”

FAIC Securities, Inc. v. United States, 768 F.2d at 361 (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) and FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981)) (emphasis in original). The reviewing court is, thus, forbidden to substitute its judgment for that of the agency, but must consider only “ ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971)), reh’g denied, 420 U.S. 956, 95 S.Ct. 1341, 43 L.Ed.2d 433 (1975). See also Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694.

In the instant case, it is the intent of Congress, as expressed in the Organic Act, the amendments, and the enabling acts creating the individual park units, which is to be ascertained. Specifically, the Court must determine whether the Park Service has made a “permissible construction” of them as precluding hunting and trapping unless Congress says otherwise, or whether, as plaintiff argues, the absence of a direct prohibition should be construed as authorizing the Secretary to exercise his own good judgment in the matter.

“The starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring). The Organic Act directs the Park Service to promote and regulate the use of the national parks “by such means and measures as conform to [their] fundamental purpose ... which purpose is to conserve the scenéry and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 16 U.S.C. § 1 (emphasis added). Plaintiff contends that this language is certainly not inconsistent with properly regulated hunting and trapping, while defendants argue that “conservation” of wildlife means just that: safeguarding it from harm, whether from natural or human causes.

Although the language of the Organic Act, standing alone, may not be plainly inconsistent with the concept of limited hunting and trapping, plaintiff’s interpretation of it is nevertheless inconsistent with that principle of' statutory interpretation known as expressio unius est exclusio alterius, i.e., that omissions from enumerated specifics are generally presumed to be deliberate exclusions from the general unless otherwise indicated. See Sutherland, Statutes and Statutory Construction § 47.23 (1984). In the Organic Act Congress speaks of but a single purpose, namely, conservation; and the fact that Congress thereafter saw fit in the various acts creating individual units of the Park System to authorize hunting and/or trapping expressly (or to leave such matters to NPS’ discretion) leads to a supposition that it expected that they would not be allowed to take place elsewhere.

It may also be significant that section three of the Organic Act permits the Secretary to “provide in his discretion for the destruction of such animals and of such plant life as may be detrimental to the use of any ... parks, monuments, or reservations.” 16 U.S.C. § 3. Had Congress intended section one of the Act to allow the Secretary discretion to permit hunting and trapping — certainly a most efficient form of destruction of undesirable wildlife — it would hardly have been necessary to grant him specific authority elsewhere to destroy for purpose of preventing “detriment.” Finally, in its 1978 rider to the Redwood National Park Expansion Act, Congress reiterated its intention that the National Park System be administered in furtherance of the “purpose” (not “purposes”) of the Organic Act, that being, of course, the conservation of, inter alia, wildlife resources. See 16 U.S.C. §§ 1a-1, 1c.

Nonetheless, if the statutory language may still be thought to be inconclusive (which it may in truth be; Congress is surely able to say “no hunting or trapping” in the park system unless it ordains) the Court must therefore turn to other sources, including the legislative histories of the various acts, for such light as they may shed on the issue.

Although the legislative history of the Organic Act itself is not teeming with references to the taking of fauna, such as there are lead to the conclusion that Congress did not contemplate any so-called “consumptive” uses of the new park system it was creating. For example, there is a House Report that states that the overriding purpose of the bill was to preserve “nature as it exists.” H.Rep. No. 700, 64th Cong., 1st Sess. 3 (1916). Another speaks of a unit of the park system as a “game preserve,” see H.Rep. No. 1763, 53d Cong., 3d Sess. 2 (1895). Then again, the act creating Yellowstone directed the Secretary to “provide against the wanton destruction of the fish and game found within the park, and against their capture or destruction for the purposes of merchandise or profit.” 16 U.S.C. § 22 (1982). Subsequent legislation, enacted in response to a series of buffalo-poaching incidents in Yellowstone, imposed criminal penalties for hunting or other killing of animals or birds, except in self-defense. See 16 U.S.C. § 26 (1982); H.Rep. No. 658, 53d Cong., 2d Sess. 1 (1894); Sen.Rep. No. 295, 53d Cong., 2d Sess. 1-2 (1894).

Moreover, the interpretations given the Organic Act and the first enabling acts by those officials initially charged with their implementation in the early days of the park system reveals that they understood hunting and trapping were not to be permitted. Secretary of the Interior Franklin Lane emphasized in a 1918 memo to the first director of the Park Service that “[hjunting will not be permitted in any national park.” A.R. Doc. 1 at 70. In 1925, Secretary Work used similar language in a directive to the then-director, noting that Mount McKinley National Park was a lone exception to the no-hunting rule because its own enabling act said otherwise. A.R.Doc. 2 at 74. Secretary Work emphasized that “[t]he duty imposed upon the National Park Service in the organic act creating it to faithfully preserve the parks and monuments for posterity in essentially their natural state is paramount to every other activity,” id. at 72, and he contrasted the consumptive resource management philosophy of the Forest Service with NPS policy. “Hunting is permitted in season in national forests but never in the national parks, which are permanent game sanctuaries. In short, national parks unlike national forests, are not properties in a commercial sense, but natural preserves for the rest, recreation and education of the people. They remain under Nature’s own chosen conditions.” Id. at 75. In fact, the first official regulations ever promulgated by the Park Service declared that “parks and monuments are sanctuaries for wildlife of every sort, and all hunting, or the killing, wounding, frightening, capturing, or attempting to capture at any time of any wild bird or animal ... is prohibited____” 1 Fed.Reg. 673-74 (1936). It is a well-recognized principle of statutory construction that contemporaneous interpretations of dated legislation are ordinarily given considerable deference when its meaning is later questioned. See Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933); State of Oklahoma v. Schweiker, 655 F.2d 401, 416 (D.C.Cir.1981); Lenkin ¶. District of Columbia, 461 F.2d 1215, 1227 (D.C.Cir.1972).

The language and legislative histories of the several enabling acts creating park areas which are “silent” as to hunting are similarly subversive of plaintiffs position. For example, the enabling act for the Padre Island National Seashore says nothing with respect to hunting, but it does state that the Organic Act governs its administration, “except that authority otherwise available to the Secretary for the conservation and management of natural resources may be utilized to the extent he finds such authority will further the purposes” of the enabling act. 16 U.S.C. § 459d-4 (1982) (emphasis added). The accompanying Senate Report states that the “otherwise available” language was seen to give the Secretary authority to permit hunting, and so the Park Service allows it. S.Rep. No. 1226, 87th Cong., 2d Sess. 11 (1962). Comparable language appears in the committee report for the Cuyahoga Valley National Recreation Area, H.Rep. No. 1511, 93rd Cong., 2d Sess. 10 (1974), and the NPS is, accordingly, considering permitting hunting there. A.R. Doc. 40 at 4.

There is no such permissive language to be found in any of the enabling acts of the other recreation areas, however, and their legislative histories do not imply the same congressional-tolerance towards hunting and trapping in them. The committee report for Golden Gate National Recreation Area, for example, stresses the need for expanded outdoor recreation opportunities but makes no mention of hunting, or any “otherwise available” authority of the Secretary. H.Rep. No. 1391, 92d Cong., 2d Sess. 2 (1972). The House Report on the Indiana Dunes National Lakeshore similarly omits hunting from an extensive list of acceptable recreational activities, H.Rep. No. 1782, 89th Cong., 2d Sess. 3 (1966), U.S.Code Cong. & Admin.News 1966, p. 4116, and the act itself commands that the lakeshore shall be “permanently preserved” in its present state. 16 U.S.C. § 460u-6(b) (1982). And again, the committee report on the Santa Monica Mountains National Recreation Area states that the park was created to preserve the natural resources of the area and to assure that they would not be lost “through adverse actions by special interest groups.” H.Rep. No. 1165, 95th Cong.2d Sess. 58 (1978).

Finally, with respect to the extent trapping must be regarded as a discrete predatory activity, plaintiff submits that the use of the word “hunting” in the relevant legislation implicitly subsumes trapping as a subset. However, although the enabling acts for two parks do contain provisions allowing hunting, fishing and trapping despite titles reading simply “Hunting and Fishing,” 16 U.S.C. §§ 4591-4, 460dd-4 (1982), when Congress has intended to provide for trapping, it has generally done so explicitly, and its omission in other statutes must be presumed to be intentional. Thus, hunting and trapping have been expressly authorized in 20 park areas, but in 25 others Congress authorized only hunting. On this record, the Court cannot but find that Congress considers the two activities to be distinct.

In sum, upon review of the relevant legislative histories and the statutes themselves, the Court is satisfied that the Park Service’s reading of the statutory law comports with the apparent legislative intent; its interpretation is at least a reasonable one, and that is all it need be in the circumstances. The Secretary and the Park Service have been charged by Congress with the responsibility for achieving the sometimes conflicting goals of preserving the country’s natural resources for future generations while ensuring their enjoyment by current users. Notwithstanding his recent predecessors may have permitted hunting and trapping in selected park areas of their choosing, the present Secretary has re-examined the subject in the light of recent amendments to the Organic Act and has concluded that his primary management function with respect to Park wildlife is its preservation unless Congress has declared otherwise. The regulation thus issues rationally from that conclusion, and if relief is to be forthcoming, plaintiff must look to Congress for it, not the courts.

Therefore, for the foregoing reasons, it is, this 24th day of February, 1986,

ORDERED, that plaintiff’s motion for summary judgment is denied; and it is

FURTHER ORDERED, that defendants’ motions for summary judgment are granted, and the complaint is dismissed with prejudice.

      . The Court has jurisdiction under 28 U.S.C. §§ 1331 and 2201 (1982); review is in accordance with the Administrative Procedure Act ("APA") 5 U.S.C. § 701 et seq. (1982 & Supp. II 1985).

      . Named Defendants are J. Craig Potter, Acting Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior, and the National Park Service. Defendant-intervenors are the National Parks and Conservation Association, Defenders of Wildlife, the Humane Society of the United States, the Wilderness Society, and the Sierra Club. All parties except plaintiff-intervenor Wildlife Legislative Fund of America have filed motions for summary judgment, defendant-intervenors filing jointly.

      . Implementation of the hunting regulation was delayed three times, see 48 Fed.Reg. 43,174 (Sept. 22, 1983); 48 Fed.Reg. 54,977 (Dec. 8, 1983); 49 Fed.Reg. 7,125 (Feb. 27, 1984), but they finally took effect on April 30, 1984. The trapping regulation was also delayed until January 15, 1985, at the request of trapping supporters, to allow Congress to act on proposed legislation specifically authorizing trapping in certain areas, but the legislation was never passed.

      . The regulations apply to all 338 units of the National Park System (including four areas administered by the Park Service under cooperative agreements with other agencies), of which 44 are considered recreation areas. See 36 C.F.R. § 1.2(1) (1985). Of these, 40 were established by federal enabling acts, 31 of which expressly permit hunting, and three of which leave the matter to the Secretary’s discretion. Six units have enabling acts which are silent as to hunting: Padre Island National Seashore, Cuyahoga National Recreation Area, Golden Gate National Recreation Area, Indiana Dunes National Lakeshore, Santa Monica Mountains National Recreation Area, and Chattahoochee River National Recreation Area. In one of these, Padre Island National Seashore, the Park Service permits hunting because it reads the legislative history to evince Congress’ intent to allow it. In another, Chattahoochee River National Recreation Area, hunting is not permitted, but plaintiff concedes that the legislative history indicates Congress’ intent to prohibit it.
      There are 11 recreation areas whose enabling acts are silent as to trapping: Assateague Island National Seashore, Bighorn Canyon National Recreation Area, Buffalo National River, Cape Cod National Seashore, Delaware Water Gap National Recreation Area, John D. Rockefeller, Jr. Memorial Parkway, New River Gorge National River, Ozark National Scenic Riverways, Pictured Rocks National Lakeshore, Saint Croix National Scenic Riverway, and Sleeping Bear Dunes National Lakeshore.

      . The predecessor regulation read, in pertinent part:
      (a) In natural and historical areas and national parkways.

      (1) The hunting, killing, wounding, frightening, capturing, or attempting to kill, wound, frighten, or capture at any time of any wildlife is prohibited, except dangerous animals when it is necessary to prevent them from destroying human lives or inflicting personal injury.
      (b) In recreational areas (except national parkways).

      (1) Except as otherwise provided herein, hunting and trapping are permitted in accordanee with all Federal, State and local laws and regulations applicable to these areas or portions thereof____
      36 C.F.R. § 2.32 (1982).

      . Plaintiff also asserts that it represents the interests of trappers, as evidence of which it tenders its 1974 resolution endorsing trapping "as a legitimate use of our renewable wildlife resources when carried out by methods which are in full compliance with existing laws.”

      . As an example plaintiff cites the Cuyahoga Valley National Recreation Area which had previously been the subject of a study as to the feasibility and desirability of permitting hunting therein. The effect of the new regulation, however, is to foreclose absolutely the Park Service's discretion to permit hunting notwithstanding an eventual favorable determination.

      . It need not, therefore, decide whether plaintiff has standing to sue in its own right.

      . It is well-established that the injury need not be economic in nature to satisfy Art. III requirements. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727. 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

      . See, e.g., 16 U.S.C. § 460n-4 (1982) (hunting and trapping shall be permitted in Lake Mead National Recreational Area); 16 U.S.C. § 460m-20 (1982) (Secretary “may permit hunting and fishing” in New River Gorge National River); 16 U.S.C. § 460m-10 (1982) (Secretary "shall permit hunting and fishing" in Buffalo National River); 16 U.S.C. § 460q-4 (1982) (Secretary "shall permit hunting and fishing” in Whiskey-town-Shasta-Trinity National Recreation Area).

      . Similar statutes imposing penalties for hunting and trapping in other national parks followed. See, e.g„ 16 U.S.C. §§ 60, 63, 98, 117c, 127, 170, 198c, 204c, 256b, 395c, 403c-3, 403h-3, 404c-3 and 408k (1982).

        . The Court notes that comments received by the NPS following publication of its proposed regulations in the Federal Register in 1982 favored a trapping ban in parks whose enabling acts were silent on the subject by a 1584 to 137 margin. A.R. Doc. 45 at 2. In adopting the new regulations, the Park Service explained that trapping reduced the opportunities for the pub-lie to view certain wildlife species, that it was predominantly a commercial activity which also threatened public safety, and that it could be allowed only in park areas whose enabling acts specifically provided for it. A.P.. Doc. 46 at 2.


author: COHILL, Chief Judge.

text:
    Raymond C. SEYBOLD, Plaintiff, v. FRANCIS P. DEAN, INC. and Peugeot Motors of America, Inc., Defendants.
    Civ. A. No. 83-137.
    United States District Court, W.D. Pennsylvania.
    Feb. 24, 1986.

      Daniel Gramc, Goerhring, Rutter & Boehm, Pittsburgh, Pa., for plaintiff.
    Michael Wallisch, John R. Luke, Pittsburgh, Pa., for Francis P. Dean, Inc.
    Donald A. Kortlandt, Thomas E. Birsic, Pittsburgh, Pa., for Peugeot Motors.
   OPINION

COHILL, Chief Judge.

Presently before us is Plaintiff’s “Petition to Allow Attorney’s Fees, Expenses and Costs” pursuant to § 2310(d)(2) of the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301-2312 (1976) (“MMA”). Plaintiff initiated the underlying action on January 19, 1983 seeking damages for alleged uncorrected defects in his 1982 Peugeot 505 Turbo Diesel Sedan.

Background

The Complaint alleged diversity jurisdiction, 28 U.S.C. § 1332(a), and set forth three counts based on New Jersey law: (1) revocation of acceptance under § 2-608 of the New Jersey Uniform Commercial Code, NJSA 12A:2-608; (2) breach of express warranties; and (3) breach of implied warranties of merchantability. Generally, Plaintiff averred that he ordered an automobile from Defendant Peugeot Motors of America, Inc. (“Peugeot”) through Defendant Francis P. Dean, Inc. (“Dean”) of Pittsburgh, an authorized Peugeot dealer, arranging for delivery in France. The automobile, according to the Complaint, arrived in a defective condition and, despite numerous attempts by various Peugeot dealers in France and the United States, was never properly repaired. There was no reference in the Complaint to the MMA.

Both Defendants filed crossclaims, Peugeot seeking to recover the commission it paid Dean should Plaintiff succeed in revoking his acceptance, and Dean seeking indemnification from Peugeot in the event that Dean was found liable. At the close of Plaintiff’s case, we granted Dean’s Motion for a directed verdict dismissing both Plaintiffs claim against Dean and Dean’s cross-claim against Peugeot. The jury, using special interrogatories, returned a verdict for Plaintiff permitting him to revoke acceptance and recover the full purchase price of the car, $14,260.00, plus $298.00 in consequential damages. Since Defendant Peugeot did not recover on its crossclaim, Dean has no part in the present proceeding.

Although Plaintiff never formally pled a claim for attorney’s fees under the MMA, both Plaintiff and Defendant Dean raised the issue prior to trial. See Plaintiff’s Answers to Defendant Peugeot’s Interrogatories, at ¶ 17; Defendant Dean’s Answer and Crossclaim, at 1146. At a pretrial conference, the parties were directed to submit briefs on the issue. However, since the issue would not be submitted to the jury, we reserved judgment until after trial. Post-trial arguments were held on February 3, 1986.

Pleadings

Initially, we must address Peugeot’s contention that Plaintiff is precluded from raising a claim for attorney’s fees under the MMA because his pleadings do not contain a claim for relief under the Act. Under the facts and circumstances of this case, we do not believe this failure precludes us from entertaining this fee application filed pursuant to the MMA.

The Federal Rules of Civil Procedure and the decisions construing them evince a philosophy that when a party has a valid claim, he should recover on it regardless of his counsel’s failure to perceive the true basis of his claim at the pleading stage, provided that permitting this relief does not work to the prejudice of the opposing party. Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir.1983). Rule 15(b) of the Federal Rules of Civil Procedure provides: “[wjhen issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Under this- rule, even if the parties do not consent to trial of an issue beyond the scope of the pleadings, and an objection is made at trial on those grounds, amendment may still be allowed unless the objecting party satisfies the court that he would be prejudiced by the amendment. Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 457 (10th Cir.1982). Prejudice is indicated when the amendment deprives the Defendant of a fair opportunity to defend against the new issues raised and deprives him of the chance to offer additional evidence. Evans Products Co. v. West American Insurance Co., 736 F.2d 920, 924 (3d Cir.1984); R.A. Pohl Const. Co. v. Marshall, 640 F.2d 266 (10th Cir.1981). This interpretation reflects the purpose of pleadings under the Federal Rules: to give notice to the opposition as to what it must defend against.

Defendant has not shown how it will be unduly prejudiced if we deem the Complaint to be amended to include a claim under the Act. We do not accept the Defendant’s contention that the issue did not occur to Plaintiff until the eve of trial. Defendant was put on notice of the MMA claim more than two years before the trial. On June 13, 1983, Defendant Peugeot served Plaintiff with its first set of interrogatories wherein Plaintiff was asked to itemize the costs he incurred as a result of any defect in the automobile or any breach of warranty by Peugeot. On October 11, 1983, Plaintiff responded, claiming attorney’s fees under the MMA. Plaintiff’s Answers to Interrogatories at 1117. On October 28, 1983, Defendant Peugeot denied any liability under the MMA for attorney’s fees in answer to Defendant Dean's cross-claim. Peugeot Answer to Dean Cross-claim at If 6. The issue of attorney’s fees also was raised at a hearing on August 6, 1984 when the Court instructed counsel to be prepared to address the issue at the next scheduled hearing. On April 26,1985, the parties filed their pretrial stipulation wherein Plaintiff claimed as part of his damages attorney’s fees in connection with his breach of warranty claims. Again during a pretrial conference on July 10, 1985, six months before trial, Plaintiff’s counsel stated his position that Plaintiff is entitled to attorney’s fees under the MMA. At the Court’s direction, the parties briefed this issue prior to trial. Thus, it is clear that Defendant Peugeot was not prejudiced by lack of notice of this claim.

Furthermore, Defendant was not prejudiced by an inability to present additional evidence on this claim. Plaintiff’s MMA claim relates to the same conduct alleged in the Complaint. Plaintiff premised his claim under the Act upon the same breach of warranty theories alleged in his Complaint. The Act creates a Federal private cause of action for breach of a written or implied warranty obligations similar to those provided under New Jersey law. 15 U.S.C. § 2310. The additional MMA claim would not alter Defendant’s defense.

Defendant may be prejudiced in the sense that he could be liable for attorney’s fees if the Complaint is deemed to be amended. However, this prejudice is not the type sought to be prevented by Rule 15’s restrictions. Cunningham v. Quaker Oats Co., 107 F.R.D. 66, 71 (W.D.N.Y.1985). In addition Fed.R.Civ.P. 54(c) supports a finding that plaintiff is not barred from seeking a fee award in this case for failure to formally plead a claim under the MMA. Under Rule 54(c), it is not necessary that plaintiff set forth the legal theory on which he relies if he sets forth sufficient factual allegations to state a claim showing that he is entitled to any relief which the court may grant. Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir.1978). See Engel v. Teleprompter Corp., 732 F.2d 1238 (5th Cir.1984) (Failure to seek attorney’s fees in its pleadings did not bar “prevailing party” from seeking a fee award under a contract).

Because we find no undue prejudice to Defendant Peugeot, we find that Plaintiff’s failure to plead the MMA claim in his complaint does not bar his present petition for attorney’s fees under that Act.

Jurisdiction

Defendant contends that Plaintiff’s failure to satisfy the jurisdictional parameters of the MMA precludes a fee award under that Act.

An MMA action may be brought in state or federal court. 15 U.S.C. § 2310(d)(1)(A)-(B). However, federal jurisdiction is restricted by § 2310(d)(3) which provides that no claim can be brought in a United States district court:

(A) if the amount in controversy of any individual claim is less than the sum or value of $25;
(B) if the amount in controversy is less than the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be determined in this suit; or
(C) if the action is brought as a class action, and the number of named plaintiffs is less than one hundred.

15 U.S.C. § 2310(d)(3).

Plaintiff admits that his claim was for an amount less than $50,000, but contends that the $50,000 jurisdictional amount applies only to actions relying on the MMA for federal jurisdiction. He argues that this court has pendent jurisdiction over his MMA claim because his claim under NJSA 12A:2-608 is fully cognizable in federal court by reason of diversity jurisdiction.

In Lieb v. American Motors Corp., 538 F.Supp. 127, 140 (S.D.N.Y.1982), the only case directly on point which Defendant cited, the buyer of a vehicle sued the vehicle’s manufacturer in federal court alleging three state law claims and an MMA class action claim. The court found that diversity jurisdiction supported one of the state law claims, but that Plaintiff did not fulfill the MMA amount in controversy requirement of $50,000 with regard to his claim under that Act. Although it had the power to hear the MMA claim under pendent jurisdiction, the court declined to exercise that power reasoning that the exercise of pendent jurisdiction would create a risk of disturbing the balance of judicial power. The court was concerned that, without the $50,000 jurisdictional requirement, any consumer action arising under the Act could be brought in federal court under 28 U.S.C. § 1337 (1976). This risk outweighed considerations of judicial economy, convenience and fairness to the litigants. Further, the court noted that courts should decline to exercise pendent jurisdiction where congressional intent clearly opposes such jurisdiction. Lieb, 538 F.Supp. at 139-140. The court then found that Congress “implicitly” negated pendent jurisdiction of claims for less than $50,000 made under the MMA. Lieb, 538 F.Supp. at 140.

In Brummett v. Skyline Corp., 38 Fed.R.Serv.2d (Callaghan) 1443 (W.D.Ky.1984), the case Plaintiff relies on, plaintiff made a claim for attorney’s fees under MMA. After defendant removed the case to federal court on diversity grounds, it sought to have the MMA count dismissed. The court refused, holding that the court should exercise pendent jurisdiction over the MMA claim to prevent .the defendant from taking unfair advantage of removal. To decline pendent jurisdiction, the court reasoned, would be to encourage duplicative parallel actions in state and federal court. Brummett, 38 Fed.R.Serv.2d at 1444. We agree with the philosophy expressed by the Brummett court and feel that requiring Plaintiff to pursue the MMA claim in state court would be a wasteful gesture.

We respectfully decline to adopt the rationale of the Lieb court. First, we find no congressional intent opposing the exercise of pendent jurisdiction. In fact, legislative history states that “The purpose of [the Act’s] jurisdictional provisions is to avoid trivial or insignificant actions being brought as class actions in the federal courts.” House Report No. 93-1107, 4 U.S. Code Cong. & Admin.News, 7702, 7724 (1974). Such intent will not be frustrated in this case since this action was already properly before us on diversity grounds. By exercising pendent jurisdiction, we simply allow the additional MMA claim to be raised in an action already pending. As noted earlier, the issues are the same in this case, and no additional evidence would be required due to the addition of this claim. Joinder of this claim did not lengthen the trial nor affect this court’s ability to function efficiently. We concur with the Brummett court’s belief that “congressional intent does not dictate our remanding one integrally involved claim to state court, thereby creating the unfavored situation of piecemeal litigation.” Brummett, 38 Fed.R.Serv.2d at 1444-45.

Furthermore, the Lieb court’s concern that should federal courts exercise pendent jurisdiction of MMA claims, any consumer action could be brought in federal court, pursuant to 28 U.S.C. § 1337 (1976) is unfounded. Section 1337, permitting jurisdiction over civil controversies arising out of an Act of Congress regulating commerce, does not provide a jurisdictional basis independent of those jurisdictional requirements enumerated in the MMA, 15 U.S.C. § 2310(d)(3). Abraham v. Volkswagen of America, Inc., 103 F.R.D. 358, 360 (W.D.N.Y.1984); Schafer v. Chrysler Corp., 544 F.Supp. 182, 184 (N.D.Ind.1982); Watts v. Volkswagen Artiengesellschaft, 488 F.Supp. 1233, 1236 (W.D.Ark.1980). See House Report No. 93-1107, 4 U.S.Code Cong. & Admin.News, pp. 7702, 7724 (1974). See also 32 Federal Procedure, L.Ed. § 75: 441, p. 401 (T. Goger ed. 1985).

Our decision is further supported by the Supreme Court’s 6 to 3 decision in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). In that case, the plaintiff alleged one constitutional claim and another federal question claim which failed to satisfy the then existing amount in controversy requirement. 28 U.S.C. § 1331. Although the statutory claim had no independent jurisdictional basis, the Supreme Court held that the federal court had pendent jurisdiction over that claim, reasoning that consolidating claims within the court’s subject matter jurisdiction with claims arising under federal law, but not satisfying the amount-in-controversy requirement of the jurisdictional statutes, enhanced efficiency without the risk of misreading state law or encroaching upon state sovereignty. Lieb, 538 F.Supp. at 139 (citing Hagans, 415 U.S. at 548, 94 S.Ct. at 1385).

Finally, the fact that Plaintiff did not plead pendent jurisdiction is no bar. Plaintiff’s pleading diversity jurisdiction and the facts that arise out of the same nucleus of operating facts is sufficient. See 3A Moore’s Federal Practice 1118.07 [i.-5], pp. 18-65, 67; see also Aguirre v. Automotive Teamsters, 633 F.2d 168, 174 (9th Cir.1980); Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474 (3d Cir.1979). We believe our exercising pendent jurisdiction over Plaintiff’s MMA claim in this case will result in substantial judicial economy and the promotion of justice.

Attorney’s Fees

Having found the MMA claim properly before us, we must now consider whether Plaintiff is entitled to attorney’s fees under that Act.

Section 2310(d)(2) provides:

If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.

Insofar as it pertains to the MMA, Plaintiff’s claim arises pursuant to paragraph (1); however, this claim was never submitted to the jury. We refused to submit instructions to the jury regarding the Act because Plaintiff would not be entitled to any additional relief under the Act than he would under his claim for revocation. Plaintiff’s substantive MMA claim, had it been submitted to the jury as such, would have mirrored his claim under NSJA 12A:2-608. The jury was instructed that in order to find that Plaintiff revoked his acceptance, he must show that the vehicle contained defects which substantially impaired the value of the car and that the value of the car would be substantially impaired only if the defects substantially interfered with the safety, integrity, and operation of the car. The jury was further instructed that if they found that Plaintiff did not provide Defendant with a reasonable opportunity to correct those defects, they must find that the value of the car was not substantially impaired. The jury answered special interrogatories which clearly indicate that they found that the car contained defects, that the value of the car was substantially impaired and that Defendant Peugeot was given a reasonable opportunity to correct the defects. To prevail on his MMA claim, Plaintiff would have to prove: (1) that Defendant Peugeot breached an implied or written warranty and (2) that Defendant Peugeot was afforded a reasonable opportunity to cure the failure to comply with its warranty obligations. 15 U.S.C. § 2310(d) and (e).

As stated above, the second element was clearly established as it was a necessary element of the revocation of acceptance claim. Although the jury did not expressly decide whether the defendant breached an express warranty or an implied warranty of merchantability, such a finding was implicit in its verdict. To establish that Defendant Peugeot breached the implied warranty, the jury would have to have found that at the time of sale, the vehicle was not reasonably fit for the ordinary purpose for which vehicles of this type are usually used. Such a finding was likewise required in the jury verdict to permit revocation of acceptance under NJSA 12A:2-608. See Black v. Don Schmid Motor, Inc., 232 Kan. 458, 657 P.2d 517 (1983), (MMA attorney’s fees awarded where jury found that Plaintiff had properly revoked acceptance).

For this reason, we believe Plaintiff prevailed on his MMA claim and although we recognize that an award under that Act is discretionary, we believe Plaintiff is entitled to attorney’s fees in this case. Where a statutory provision authorizes a fee award, such an award becomes the rule rather than the exception and should be awarded routinely. See Engel v. Teleprompter Corp., 732 F.2d at 1241.

In Smith v. Robinson, 468 U.S. -, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the court held that attorney’s fees must be denied where Plaintiff’s recovery clearly did not stem from the statute under which attorney’s fees were requested. Plaintiffs in Smith had amended their complaint to seek relief under a fee generating statute after it had already been determined that they were entitled to relief under a statute not providing for fees. The court held that “[tjhere is, of course, nothing wrong with seeking relief on the basis of certain statutes because they provide for attorney’s fees, or with amending a complaint to include claims that provide for attorney’s fees,” but where it is clear that the claims that provide for attorney’s fees had nothing to do with a plaintiff’s success, attorney’s fees cannot be awarded on the basis of those claims.

In this case, Plaintiff’s MMA claim was reasonably related to his success on his revocation of acceptance claim. Plaintiff first asserted his claim for attorney’s fees under the MMA over two years before trial and before the jury verdict granting him relief on his non-fee claim. Further, his MMA claim arose from a common nucleus of operative facts and was closely related to the claim on which he prevailed. See McDonald v. Doe, 748 F.2d 1055, 1057 (5th Cir.1984) (because a court may ássume jurisdiction of a pendent claim only where it and the federal claim arise from a common nucleus of operative fact, success on the state law claims is sufficiently related to the Plaintiff’s success to require a fee award). See also Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980).

Conclusion

We find that Defendant Peugeot will not be prejudiced by amending the complaint to include a claim under the MMA, that this court can properly exercise pendent jurisdiction over the MMA claim even though it does not meet independent federal jurisdictional requirements, and that Plaintiff prevailed on the substantive elements of an MMA claim. Consequently, we will grant Plaintiff’s Petition for Attorney’s Fees and direct that Plaintiff’s counsel file an affidavit within 20 days setting forth the hours reasonably expended by him preparing and prosecuting his claim under the MMA and his usual hourly rate for such services in accordance with the principles set forth in Tomallo v. Heckler, 623 F.Supp. 1046 (W.D.Pa.1985).


author: PLUNKETT, District Judge.

text:
    R. Anthony MARRESE, M.D., and Michael R. Treister, M.D., Plaintiffs, v. AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS, Defendant.
    No. 80 C 1405.
    United States District Court, N.D. Illinois, E.D.
    Feb. 24, 1986.

      John J. Casey, Mathewson & Hamblet & Casey, Stephen B. Cohen, George C. Pontikes, Michael T. Sawyier, Foss, Schuman, Drake & Barnard, Chicago, 111., for plaintiffs.
    D. Kendall Griffith, Thomas M. Crisham, Robert Nord, Pamela . S. Hollis, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

By instruction of the United States Supreme Court, Marrese v. American Academy of Orthopaedic Surgeons, — U.S. -, 105 S.Ct. 1327, 1335, 84 L.Ed.2d 274 (1985), we must decide the nearly metaphysical question of whether Illinois courts would treat the Circuit Court’s dismissal of plaintiffs’ original complaints on the merits as a bar to plaintiffs’ present complaint, brought under the exclusive antitrust jurisdiction of the federal courts. The state court complaints charged that defendant’s denial of plaintiffs’ membership applications violated defendant’s by-laws and the federal and state constitutions, and constituted a breach of contract; the complaint in this court claims that defendant’s membership practices, including the denial of plaintiffs’ applications, violate the Sherman Act, 15 U.S.C. § 1 et seq. For the full history of this case, see id., 105 S.Ct. at 1329-1330; the (now reversed) Seventh Circuit decision, Marrese v. American Academy of Orthopedic Surgeons, 726 F.2d 1150 (7th Cir.1984); and the federal trial court decisions and state appellate court decision cited therein.

Our task is an exercise in extrapolation because, of course, the Illinois courts never address issues pertaining to exclusively federal lawsuits. Nevertheless, the Supreme Court instructs that under the full faith and credit statute, 28 U.S.C. § 1738, we must “rely in the first instance on state preclusion principles to determine the extent to which an earlier state judgment bars subsequent litigation.” Marrese, 105 S.Ct. at 1332 (citation omitted).

Illinois courts adhere to the familiar rule of res judicata, or “estoppel by verdict,” that:

a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action____ The doctrine of res judicata, in all cases where the second suit is upon the same cause of action and between the same parties or their privies as the former action, extends not only to the questions actually litigated and decided, but to all grounds of recovery or defense which might have been presented.

People v. Kidd, 398 Ill. 405, 408, 75 N.E.2d 851, 853 (1947) (citations omitted). In this case, it is undisputed that the Circuit Court rendered final judgments, within its jurisdiction, on the merits, as to both plaintiffs. The possible reasons why the res judicata rule would not apply are: (1) the subsequent antitrust suit involves a different “claim, demand or cause of action,” as Illinois courts construe those terms, than did the prior suit; (2) the “court of competent jurisdiction” requirement of the rule means that the former court must have had jurisdiction over the latter suit for res judicata to apply; (3) to the same end, the “might have been presented” language of the rule limits its application to suits which would have been within the jurisdiction of the court rendering the prior judgment; or (4) as to plaintiff Marrese, the state court did not enter the final judgment on his suit (which was stayed pending the outcome of plaintiff Treister’s suit) until after plaintiffs filed their federal complaint.

We evaluate these reasons by a two-step analysis. First, considering the “same claim, demand or cause of action” requirement, we analyze whether under Illinois law the original judgment would have been res judicata if plaintiffs had subsequently filed a state law antitrust suit in state court. If not, because of differences in the theories or proof involved, then a fortiori, this suit is not barred. But if, as we conclude, such a suit would have been barred, then the second question, considering the state’s lack of jurisdiction to entertain the latter claim, is whether a judgment on the merits in a state antitrust suit would bar a subsequent federal antitrust suit. If not, then by extension, the prior judgment here does not bar this suit. We believe that by so hypothesizing an intermediate state antitrust suit, we can most clearly determine the full faith and credit to be given the judgment of the Circuit Court of Cook County.

The first question, whether a claim alleging violations of the Illinois antitrust laws would be barred by plaintiffs’ state court suits, depends on whether antitrust allegations would be considered the same “claim, demand or cause of action” as the claims raised by the state court suits. Illinois courts have recited various standards for determining whether there is identity of cause of action. The Illinois Supreme Court has stated that “[a] decree operates as res judicata of the claim presented in a later action when the facts and relief sought ‘are substantially the same.’ ” Housing Authority for LaSalle v. YMCA of Ottawa, 101 Ill.2d 246, 254, 78 Ill.Dec. 125, 129, 461 N.E.2d 959, 963 (1984) (quoting Midlinsky v. Rubin, 341 Ill. 378, 385, 173 N.E. 368 (1930)). In Kahler v. Williams Co., 59 Ill.App.3d 716, 718, 16 Ill.Dec. 927, 929, 375 N.E.2d 1034, 1036 (3d Dist.1978), the Illinois Appellate Court for the Third District stated “the test to be applied is whether there is identity of facts essential to the maintenance of both cases or whether the same evidence would support both.” Other courts have stated that for purpose of res judicata, a cause of action consists of the right conferred upon the plaintiff for the wrongful act committed by the defendant. See Morris v. Un ion Oil Co., 96 Ill.App.3d 148, 156-157, 51 Ill.Dec. 770, 776, 421 N.E.2d 278, 284 (5th Dist.1981).

We find it less useful to attempt to harmonize the boilerplate language of these standards than to see how Illinois courts deal with particular situations. We find two consistently guiding principles under which we can examine this case.

On the one hand, the Illinois courts do not allow a party to create a new cause of action out of the same basic act or transaction merely by alleging a different legal theory than alleged in a prior suit. In Pratt v. Baker, 79 Ill.App.2d 479, 223 N.E.2d 865 (2d Dist.), cert. denied, 389 U.S. 874, 88 S.Ct. 165, 19 L.Ed.2d 157 (1967), the plaintiff, the conservator of an estate, alleged the same facts he had alleged in a prior suit against the executor in which he had claimed breach of the executor’s bond; but added as theories of recovery “common law tort” and fraud. The court found that each theory was “bottomed on the same duties allegedly owed by defendant.” In holding that the second action was barred by the first, the court stated that when a party brings a claim against another party, the law requires him to bring forth all grounds of recovery or defense that he may then have.

Similarly, in Morris v. Union Oil of California, 96 Ill.App.3d 148, 157, 51 Ill.Dec. 770, 777, 421 N.E.2d 278, 285 (5th Dist.1981), the court held that the plaintiffs’ action was barred by a prior action because the underlying facts in both actions were the same. The defendants had a leasehold interest in the minerals in a certain tract of property. Plaintiffs owned the surface interest in the tract and had rights to the mineral interest upon termination of the lease. When the tract was consolidated with neighboring land, plaintiffs had brought suit seeking to rescind the consolidation agreement and collect damages. The court had dismissed plaintiffs’ complaint with prejudice. Soon thereafter, plaintiffs brought a second suit seeking to quiet title, ejection, and damages. The Morris court determined that the second action was barred because plaintiffs were merely substituting new legal theories based on the same underlying facts. The court reasoned that a cause of action consists of the rights conferred upon a plaintiff by the wrongful act committed by the defendant. In both actions, the plaintiffs’ claims were based upon the same instruments of title, the same oil leases and the same acts of the defendants. Thus, the causes of action were the same. See also Village of Northbrook v. County of Cook, 88 Ill.App.3d 745, 43 Ill.Dec. 792, 410 N.E.2d 925 (1st Dist.1980); Baird & Warner, Inc. v. Addison Industrial Park, 70 Ill.App.3d 59, 64, 26 Ill.Dec. 1, 8, 387 N.E.2d 831, 838 (1st Dist.1979).

On the other hand, where the plaintiff brings a suit against the defendant and claims that he is entitled to recover for a wrong committed by the defendant in a separate and distinct act or transaction from the wrong complained of in the first suit, the Illinois courts do not let the first suit operate as a bar to the second suit. In Turzynski v. Liebert, 39 Ill.App.3d 87, 350 N.E.2d 76 (1st Dist.1976), the prior suit resulted when the defendant, who had sold the plaintiff his medical practice, announced his intentions to begin a new medical practice next door to plaintiff’s. Plaintiff had brought suit seeking injunctive relief, claiming that defendant had breached his covenant not to compete. The prior court had found that plaintiff had waived his right to defendant’s compliance with the covenant and therefore was not entitled to relief. The plaintiff then brought a second suit claiming that the defendant had failed to comply with other terms of the contract requiring him, for example, to transfer the accounts receivable. The defendant claimed res judicata. The court found no bar. Because the same evidence would not sustain both claims, the causes of action were not the same. Although both suits ultimately arose under the sales contract, the first sought redress for defendant’s act of deciding to compete, and the second for other distinct acts, such as failure to transfer accounts. Each suit rested on different acts breaching different provisions of the same contract. See also Gittings v. Hilton, 124 Ill.App.3d 594, 79 Ill.Dec. 935, 464 N.E.2d 839 (1984); Kahler v. Williams, 59 Ill.App.3d 716, 16 Ill.Dec. 927, 375 N.E.2d 1034 (1978).

In the instant case the various claims arise from a single act, denial of membership, allegedly committed by defendant. In plaintiffs’ state court complaints and antitrust complaint (which we take for these purposes to resemble closely our hypothetical complaint alleging violations of Illinois antitrust law, see Marrese, 726 F.2d at 1155-1156), plaintiffs essentially allege that the actions taken by the Academy with respect to rejecting the plaintiffs’ membership applications violated plaintiffs’ rights and therefore entitled them to relief. In Treister’s state court complaint, Treister alleged that the Acadamy widely distributed a list of applicants which included his name, denied him the opportunity of knowing or denying the charges made against him, denied his application and refused to let him see his file. In so doing, the Acadamy deprived him of a practical necessity of his profession and impaired his professional reputation and earning capacity. Marrese’s state court complaint was virtually the same. The federal complaint alleges the same acts on the part of the Academy, and alleges that the Academy’s practices have resulted in lower quality orthapedic surgical care, and loss to the plaintiffs of an economic advantage, referrals, and advantageous professional opportunities. The similarity of the complaints demonstrates that a new legal theory of a state antitrust violation could have been founded on the facts supporting the original complaint.

We acknowledge that to state a cause of action under the Illinois antitrust laws, plaintiffs would need additional factual allegations, such as of the Academy’s anti-competitive effect, which were not required for their state court complaints. However, the antitrust evidence was available to plaintiffs when they filed their first suit. Under Illinois principles of res judicata, their failure to utilize an antitrust theory in their first action would prevent a second state court action based on that theory. The court in Prochotsky v. Union Central Life Insurance Co., 2 Ill.App.3d 354, 276 N.E.2d 388 (1st Dist.1971), so decided in a similar situation in which a latter-raised theory required proof of some new elements. In Prochotsky, plaintiff had first brought suit in law to recover commissions allegedly due to him under an insurance policy. The plaintiff had claimed that the defendant, in failing to pay plaintiff the commissions, breached an insurance industry practice. The trial court had granted summary judgment in favor of defendant. Plaintiff subsequently brought a suit in equity claiming that the defendant breached an oral contract. The plaintiff contended that the second suit arose from a separate cause of action because the proof in the first case was restricted to evidence of custom and usage whereas the second action required proof of an oral contract. The court, finding res judicata, stated: “[pjlaintiff could have presented both theories in his first action. Merely alleging that one action is based on an oral contract while the other is based on an industry practice is not sufficient to show a distinct cause of action.” 276 N.E.2d at 390.

Hence, Illinois law bars subsequent suits based on the same operative facts as an earlier suit. We find that a state antitrust action would have been based on the same operative facts as the plaintiffs’ original actions and thus would have been barred.

Our determination is consistent with Illinois policy regarding relitigation of actions between the same parties. In Morris, the court stated that res judicata is based upon the “public necesity that disputes be resolved and ended. It is a fundamental principle of procedure that in law and equity a party must set out in his pleadings all of the grounds for recovery he may have.” 51 Ill.Dec. at 775, 421 N.E.2d at 283. Further, the court stated that the doctrine is “founded on the desire for judicial economy and consistency and upon equity of preventing harassment of a defendant who has already come to the bar to answer for the entire matter concerned.” Id. Given these guiding considerations and our analysis of the Illinois law governing res judicata we find that plaintiffs’ state court actions would have barred a subsequent action under Illinois antitrust law.

We note, parenthetically, that plaintiff Treister alleges in his federal complaint that he reapplied for membership and awaits a decision. If a second rejection has occurred, that would be a subsequent fact that might change the res judicata analysis.

Having determined that a state antitrust suit would have been barred, we turn to consider the more abstract question of whether a judgment in such a suit, and by extension the prior judgment here, would bar this suit. In other words, does the existence of an exclusive federal forum created by a federal statute, even where a parallel state statute provides a state forum for the same type of claim, render the principle of res judicata inapplicable?

We do not believe the answer is found in the “court of competent jurisdiction” language of the Illinois rule of res judicata. The plain meaning of that language, and the understanding evidenced by Illinois courts, is merely that the prior court must have been competent to entertain the prior suit in order for its judgment in that suit to have preclusive effect in a subsequent suit. See People v. Kidd, 398 Ill. 405, 409-410, 75 N.E.2d 851, 854 (1947).

Plaintiffs primarily rely on the “might have been presented” language of the rule, contending that since they could not present their Sherman Act claim in state court, res judicata cannot bar it. Defendant maintains on the other hand that this language expands, rather than contracts, the range of cases to which res judicata applies, and should include this case where plaintiffs raised a “claim, demand or cause of action” concerning the membership denial, and could have brought an antitrust count as an alternative ground to recovery either under state law or under federal law (with the other grounds pled as pendent state claims).

The courts of Illinois have applied the “might have been presented” language in cases without relevance here, as, for instance, where a party was not permitted to intervene in a prior suit and hence could not present the issue upon which it later filed suit, see Inter-Insurance Exchange v. Truck Insurance Exchange, 88 Ill.App.3d 733, 44 Ill.Dec. 11, 12-13, 410 N.E.2d 1103, 1104-1105 (3d Dist.1980). Slightly more relevant is the nineteenth century dictum that public policy does not allow a plaintiff to harass a defendant with multiple suits “when one suit in the proper court would have been all the litigation necessary.” Lucas v. Compte, 42 Ill. 303, 305 (1866). But the real concern in that case, where a plaintiff had divided a debt exceeding $100 into subparts and brought suit on each one before a justice of the peace with jurisdiction limited to $100 claims, is that a party should not be able to defeat jurisdictional limitations by filing piecemeal suits. Id. at 305. Here, plaintiffs, far from circumventing jurisdictional limitations, abided precisely by them. Further, the Lucas court was mindful that a proper court was available within the Illinois court system to hear the entire claim. Thus we are hesitant to discern a principle applicable here from the above quote.

More to the point, as the Supreme Court noted in Marrese, 105 S.Ct. at 1333 and n. 3, is the Restatement (Second) of Judgments (1982), which provides that state proceedings do not bar lawsuits in the exclusive jurisdiction of federal courts. See §§ 25(1) comment e, 26(1) comment c(l); cf. id. § 24 comment g (rules against claim-splitting to defeat jurisdictional limitations assume that “a court was available in the same system of courts — say a court of general jurisdiction in the same state— where [the plaintff] could have sued for the entire amount”). The following pertinent illustration is given:

A Co. brings an action against B Co. in a state court under a state antitrust law and loses on the merits. It then commences an action in a federal court upon the same facts, charging violations of the federal antitrust laws, of which the federal courts have exclusive jurisdiction. The second action is not barred.

The question is whether this rule reflects the law of Illinois.

Illinois courts have not cited to this section of the Restatement of Judgments, but have widely relied on portions of the Restatement concerning other aspects of res judicata law. For instance, Illinois courts have cited its statement of the policy underlying res judicata doctrine, see Raper v. Hazelett & Erdal, 114 Ill.App.3d 649, 651, 70 Ill.Dec. 394, 396, 449 N.E.2d 268, 270 (1st Dist.1983); its general rule of res judicata, see Branom v. Miller, 25 Ill.App.2d 94, 96-97, 166 N.E.2d 123, 125 (4th Dist.1960); its definitions and requirements concerning same parties and privies, see Williams v. Madison County Mutual Automobile Ins. Co., 40 Ill.2d 404, 407, 240 N.E.2d 602, 604 (1968); Smith v. Bishop, 26 Ill.2d 434, 440, 187 N.E.2d 217, 220 (1962) (Schaefer, J., dissenting); Sweeting v. Campbell, 2 Ill.2d 491, 496, 119 N.E.2d 237, 240 (1954); Ayers Asphalt Paving, Inc. v. Allen Rose Cement and Construction Co., 109 Ill.App.3d 520, 523, 65 Ill.Dec. 52, 54, 440 N.E.2d 907, 909 (1st Dist.1982); Johnson v. Nationwide Business Forms, Inc., 103 Ill.App.3d 631, 634, 59 Ill.Dec. 339, 341, 431 N.E.2d 1096, 1098 (1st Dst.1981); its test for identity of causes of action, see Pierog v. H.F. Karl Contractors, Inc., 39 Ill.App.3d 1057, 1061, 351 N.E.2d 249, 253 (1st Dist.1976); and its rules for which types of judgments govern for res judicata purposes, see Adams v. Pearson, 411 Ill. 431, 442, 104 N.E.2d 267, 273 (1952); Sullivan v. Sullivan, 98 Ill.App.3d 928, 931-932, 54 Ill.Dec. 207, 210, 424 N.E.2d 957, 960 (3d Dist.1981); Rotogravure Service, Inc. v. R.W. Borrowdale Co., 77 Ill.App.3d 518, 525, 32 Ill.Dec. 762, 768, 395 N.E.2d 1143, 1149 (1st Dist.1979); People v. Seidel, 22 Ill.App.2d 316, 319-320, 160 N.E.2d 681, 683 (1st Dist.1959). Thus Illinois courts appear to consider the Restatement an accurate reflection of or reliable basis for Illinois law, and would seemingly accept the rule of inapplicability of res judicata to exclusively federal suits exemplified by the illustration.

Several known principles of Illinois law lend some support to this conjecture. Res judicata is not a bar where the court which entered the prior judgment lacked jurisdiction over the matter, see People v. Kidd, 398 Ill. 405, 410, 75 N.E.2d 851 (1947); Seafkas v. Evey, 29 Ill. 178, 179 (1862), or where the prior court dismissed the matter for lack of jurisdiction, see Adams v. Pearson, 411 Ill. 431, 442, 104 N.E.2d 267, 273 (1952); Rotogravure Service, Inc. v. R.W. Borrowdale Co., 77 Ill.App.3d 518, 525, 32 Ill.Dec. 762, 395 N.E.2d 1143, 1149 (1st Dist.1979). As plaintiffs here argue, it would be paradoxical if they could have preserved their right to bring their Sherman Act suit by improperly filing it in state court with their original action, but, after not having done so, are now barred from pursuing the action in the appropriate jurisdiction.

Furthermore, in our view, the cases of Barton v. Southwick, 258 Ill. 515, 101 N.E. 928 (1913), and Howell v. Goodrich, 69 Ill. 556, 558-559 (1873), of which the parties disagree over the implication, support plaintiffs’ position. Those cases establish that a party who does not raise a claim that can be raised defensively, but not offensively, in the prior court, preserves the right to raise it offensively in the court of proper jurisdiction. Specifically, at the time of those decisions, justices of the peace lacked jurisdiction to hear malpractice claims. However, malpractice could be raised within their jurisdiction, as a defense to suits by doctors for payment for services rendered. In Howell, where the plaintiff had in the prior suit raised such a defense and lost, the plaintiff was barred from pursuing a malpractice suit in a court of general jurisdiction. The court’s reasoning amounts to the familiar rule of issue, as opposed to claim, preclusion — the justice of the peace, having found for the doctor in the original suit, implicitly decided that malpractice did not occur. Howell, 69 Ill. at 559. In Barton, where the plaintiff had not raised malpractice as a shield in the prior suit, the court found him entitled to raise it as a sword in a court with jurisdiction to hear it. 258 Ill. at 520-521, 101 N.E. 928.

These holdings are pertinent in the following respects. First, once a matter is raised in any form in a court with jurisdiction over it, any issues decided are precluded from relitigation. Hence, all issues decided by the Circuit Court of Cook County, such as the issue of economic necessity, cannot be relitigated in this antitrust suit. Had plaintiffs pursued the hypothesized state antitrust action, it might have precluded consideration of virtually all relevant issues. Then, defendants would not have been made twice to proceed through discovery and a trial on the merits of each issue. But second, plaintiffs’ interpretation of the “might have been presented” rule, as a restriction on the scope of res judicata, is supported. A claim must be able to have been brought in the same form, in order for a party to a prior action to be barred by failure to raise it. The implication is that since a Sherman Act claim cannot be raised, except in federal court, a state court action cannot bar it.

Accordingly, we conclude that Illinois law does not bar this suit. We note that the Ninth Circuit, applying Marrese and analyzing California law, reached the same result. See Eichman v. Fotomat Corp., 759 F.2d 1434 (9th Cir.1985). Because we so conclude, we need not consider the effect of the fact that Marrese’s state suit was still pending when this federal suit was filed. Defendant’s motion to dismiss is denied.