author: BIGGERS, District Judge.

text:
    Jesse BROOKS, Plaintiff, v. Herbert MILLER, Individually and the City of Artesia, a Municipal Corporation, Defendants.
    No. EC84-397-NB-D.
    United States District Court, N.D. Mississippi, E.D.
    Sept. 30, 1985.

      Bennie L. Jones, Jr., West Point, Miss., for plaintiff.
    David A. Smith, Thomas C. Harvey, Jr., Robert L. Lancaster, Columbus, Miss., for defendant.
   MEMORANDUM OPINION

BIGGERS, District Judge.

Plaintiff Jesse Brooks brought this action against the defendants, The City of Artesia, Mississippi (“the City”) and Herbert Miller, under 42 U.S.C. § 1983 (1981) and the Sixth and Fourteenth Amendments to the United States Constitution to recover money damages for an alleged deprivation of constitutional rights. Jesse Brooks also asserts pendent state claims of assault and intentional infliction of emotional distress. The City and Herbert Miller have separately moved to dismiss pursuant to Fed.R. Civ.P. 12(b)(6). Because the parties have submitted, and this court has considered, affidavits in support of their memoranda, the motions will be treated as motions for summary judgment. Fed.R.Civ.P. 12(c). For purposes of judicial economy, the court will address both motions in this opinion.

The facts, viewed in the light most favorable to the non-moving party, Brooks, are as follows. On the evening of July 31, 1984, the defendant Herbert Miller and family were returning home after a Wednesday night revival meeting at his church. As they drove down the main avenue of the City of Artesia, Herbert Miller observed several individuals standing on the street corner drinking what he believed to be beer. Miller stopped his car, walked over to the individuals and informed them that drinking beer on a public street was a crime. Furthermore, he requested that they either leave the street or return to the establishment that sold them the beer. He then returned to his car but remained to watch over the scene and noticed that another individual was also apparently drinking beer. Miller approached this individual, Jesse Brooks, notified him that drinking beer on -a public street was a crime, and asked Brooks for his name, which Brooks declined to divulge. Someone standing with Brooks asked Miller to identify himself, whereupon Miller replied that he was the Acting Mayor of Artesia and a Member of the Board of Aldermen. Miller threatened to swear out an affidavit against Brooks and left.

Several minutes later Miller returned to the scene and resumed his conversation with Brooks. This time, however, Miller was armed with a loaded shotgun, presumably to facilitate a more productive conversation. He approached Brooks with the gun to his side, stopped approximately ten to fifteen feet away, and again asked Brooks to identify himself. Brooks responded by inquiring as to whether Miller really intended to shoot him merely because of his refusal to disclose his name. At this point, Miller raised the barrel of the gun and fired. The buckshot struck the ground immediately in front of Brooks and also struck Brooks in the legs and chest. Miller then reloaded the shotgun, aimed the barrel directly at Brooks and again asked him for his name, to which request Brooks complied. Thereupon, Miller picked up the spent shell and left. Brooks was then taken to the emergency room at the Golden Triangle Regional Medical Center in Columbus, Mississippi and received treatment for his wounds.

Brooks asserts that Herbert Miller, in his capacity as Acting Mayor and Alderman for the City of Artesia, intentionally violated his sixth amendment right to be “informed of the nature and cause of the accusation against him,” and his fourteenth amendment right not to be deprived of life, liberty and property without due process of law. Plaintiff also alleges that the City of Artesia is liable under section 1983.

I. Herbert Miller

(a) Procedural Due Process

The defendant Miller asserts that the injuries allegedly sustained by Brooks do not amount to a deprivation of life, liberty or property without due process of law and thus he is not liable under section 1983. It is clear that in order to state a claim under 42 U.S.C. § 1983, a plaintiff must submit proof tending to establish both that the conduct complained of is committed by a person acting under color of state law and that the conduct deprived him of rights, privileges or immunities secured by the United States Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420, 428 (1981).

According to the United States Supreme Court in United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368, 1383-84 (1941), a person acts under color of state law only when exercising power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law.” See also Monroe v. Pape, 365 U.S. 167, 184-87, 81 S.Ct. 473, 482-84, 5 L.Ed.2d 492, 503-05 (1961). In the present case, plaintiff points to Miss.Code Ann. § 21-15-9 (1972) in order to demonstrate that Miller, as Acting Mayor, was charged with an affirmative duty to oversee the law enforcement activities of the City. The statute provides:

The Mayor shall be active and vigilant in enforcing all laws and ordinances for the government of the municipality, and shall cause all other officers to be dealt with promptly for any neglect or violation of duty.

Thus, the grant of power embodied in Miss. Code Ann. § 21-15-9, at least for the purposes of this summary judgment motion, raises an inference that Miller was acting under color of state law at the time the incident with Brooks took place. The plaintiff has therefore satisfied the “under col- or” prong of the Parratt test.

The plaintiff Brooks also asserts that Miller has deprived him of rights secured to him under the Constitution of the United States. Specifically, it is contended that Miller intentionally deprived Brooks of life, liberty and property without due process of law.

Of course, the due process clause, as a constitutional right, protects individuals only from government action, that is, “state action.” Accordingly, the plaintiff, as a prerequisite to maintaining his due process claim, must demonstrate that Miller’s conduct constituted state action. In Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S.Ct. 2744, 2749-50, 73 L.Ed.2d 482, 490 (1982), the United States Supreme Court made clear that in a section 1983 action brought against a state official, the “under color of state law” requirement and the “state action” requirement of the fourteenth amendment are identical. Thus, in the present case, because this court has determined that Miller was acting under color of law, “state action” has also been found to exist.

Considering the merits of Brooks’ due process claim, this court must now ascertain whether the particular actions undertaken by Miller may have amounted to a violation of the procedural due process protections afforded Brooks and thus cognizable under section 1983. Our first task is to examine what process was due Brooks in this circumstance.

A mere deprivation of a life, liberty or property interest suffered at the hands of an individual acting under color of state law is insufficient to establish a violation of the Due Process Clause of the Fourteenth Amendment. Instead, the deprivation must be without due process. As a general proposition, due process requires some sort of a pre-deprivation hearing. Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 5705-06, 33 L.Ed.2d 548, 556-57 (1972). However, in cases where the particular deprivation is the result of random and unauthorized conduct by state employees, rather than an "established state procedure," see Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148, 71 L.Ed.2d 265, 277-78 (1982), a pre-deprivation hearing is obviously impractical. In these cases, whether the conduct inflicting the deprivation may be characterized as negligent or intentional, an adequate post-deprivation remedy will satisfy due process. See Hudson v. Palmer, - U.S. -, 104 5.Ct. 3194, 3203, 82 L.Ed.2d 393, 407 (1984) (intentional conduct); Parratt v. Taylor, 451 U.S. at 541, 101 S.Ct. at 1916, 68 L.Ed.2d at 432 (negligent conduct). In addition, the analysis employed by courts to determine what due process may require in a given case is the same regardless of whether the alleged deprivation involves life, see State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.1983), liberty, see Thibodeaux v. Bordelon, 740 F.2d 329, 337 (5th Cir.1984), or property, see Parratt v. Taylor, 451 U.S. at 541, 101 S.Ct. at 1916, 68 L.Ed.2d at 432.

In the case sub judice, the plaintiff alleges that he was intentionally deprived of life, liberty and property without due process by Herbert Miller, who, at the time of the incident, was acting pursuant to his official duties as Acting Mayor. Although Miller’s actions may be deemed official action undertaken pursuant to official municipal policy and thus “authorized” conduct, the action is nonetheless random in nature in the sense that the action was not taken pursuant to “established state procedure.” There is no proof offered in this case that a state system or procedure itself worked a deprivation of plaintiff’s liberty interest. All that is before this court is the allegation, supported by sufficient evidence, that a single, isolated, and arguably official act by Miller inflicted the particular injury herein complained of. Thus, it would seem “impractical” in this situation to have afforded Brooks a pre-deprivation hearing. Therefore, because adequate post-deprivation remedies are available to the plaintiff in the form of the state claims of assault and intentional infliction of emotional distress, the plaintiff may not pursue his procedural due process claim under section 1983. Accordingly, defendant Miller’s motion for summary judgment on this claim is well taken and should be granted.

(b) Substantive Due Process

The due process clause, however, also imposes substantive limitations on state action, which may be implicated even where the state procedures available to an individual have been found to be adequate. See Parratt v. Taylor, 451 U.S. at 552-53, 101 S.Ct. at 1921-22, 68 L.Ed.2d at 439-40 (Powell, J. concurring). In an effort to define the nature of the substantive guarantees implicit in the due process clause, Justice Frankfurter, in Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183, 188 (1952), stated:

Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cordozo twice wrote for the Court, are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ... or are ‘implicit in the concept of ordered liberty.'

Id. Thus understood, due process of law, in its substantive sense, is not susceptible to precise definition. Instead, a case-by-case inquiry must be undertaken to determine whether, as in this case, the essentially tortious conduct of an individual acting under color of state law and which conduct is deemed to be state action has transgressed the constitutional parameters established by the substantive guarantees of the due process clause.

Generally, the due process clause is implicated where conduct causing a deprivation literally “shocks the conscience” and is “brutal.” Johnson v. Glick, 481 F.2d 1028, 1032-33 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). In making this determination, this court is aided by the standard formulated in Hamilton v. Chaffin, 506 F.2d 904, 909 (5th Cir.1975):

In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

See also Raley v. Fraser, 747 F.2d 287, 289 (5th Cir.1984). Applying the above formulation to the facts in this case, this court, for the purposes of this summary judgment motion, cannot hold as a matter of law that Miller’s actions were not “brutal” or “shocking to the conscience.” Here, Miller attempted to prevent what he believed to be a continuing violation of a city ordinance. Finding that his verbal requests were unsuccessful, Miller then resorted to the display and use of force. There is no indication that Brooks ever threatened Miller; therefore, there seems to be no apparent justification for the injury inflicted on Brooks. Accordingly, defendant Miller’s motion for summary judgment as to plaintiff’s substantive due process claim is not well taken and should be denied.

(c) Sixth Amendment

The defendant Miller also asserts that summary judgment is appropriate on plaintiff’s sixth amendment claim. In his complaint, the plaintiff asserts a violation of his sixth amendment right to be “informed of the nature and cause of the accusation against him.” However, the sixth amendment by its terms and according to its judicial gloss, is applicable only to adversary criminal proceedings. See United States v. Zucker, 161 U.S. 475, 481, 16 S.Ct. 641, 643, 40 L.Ed. 777, 780 (1896); Reilly v. Leonard, 459 F.Supp. 291, 301 (D.C.Conn.1978). There is no allegation in the record before this court that Brooks was ever subject to a criminal proceeding, and it would indeed be farfetched to characterize the confrontation between Miller and Brooks on a public street as an adversary criminal judicial proceeding. Accordingly, defendants’ motion as to the sixth amendment claim is well taken and should be granted.

II. City of Artesia

The defendant City asserts that plaintiff has failed to state a claim for relief under section 1983 against the City because of a failure to allege a causally related policy or custom regarding the actions here in question. The City contends that the claim as stated amounts to an assertion of municipal liability under a theory of respondeat superior which the City contends is the incorrect standard for municipal liability under section 1983.

Without question respondeat superior may not be the basis for municipal liability. Monell v. New York City Department of Social Services, 436 U.S. 658, 690-95, 98 S.Ct. 2018, 2035-38, 56 L.Ed.2d 611, 635-38 (1978). Instead, as established by Monell, a, municipality may be liable where it is shown that a pervasive custom or official policy “caused” a municipal employee acting under color of the policy to violate another’s constitutional rights. Id. at 692, 98 S.Ct. at 2036, 56 L.Ed.2d at 636. Thus, the pertinent question is whether the defendant Miller was acting under color of official municipal policy when he allegedly shot the plaintiff.

In Bennett v. City of Slidell, 735 F.2d 861 (5th Cir.1984), the Fifth Circuit, in succinct fashion, defined “official policy” for purposes of establishing municipal liability under section 1983:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such customs must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.

Id. at 862.

It is beyond doubt that a municipal official’s actions or decisions, in those areas in which he is considered to be final authority or ultimate repository of municipal power, may be attributed to the municipality for purposes of establishing municipal liability under section 1983. Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980). Thus, in order to ascertain whether the particular action of a municipal official constitutes official policy we must examine whether the official had been granted policy-making authority in the areas in which the official undertook to act. In the present case, it is admitted that Miller was, at the time of the incident, Acting Mayor and Member of the Board of Aldermen of the City of Artesia. As May- or, Miller is delegated, by statute, certain duties. Specifically, Miss.Code Ann. § 21-15-9 charges the Mayor with the responsibility of remaining “active and vigilant in enforcing all laws and ordinances for the government of the municipality, and shall cause all other officers to be dealt with promptly for any neglect or violation of duty.” The rather broad authority delegated to the mayor in the area of law enforcement at least raises the presumption that Miller, while he was Acting Mayor, possessed policy-making authority as that term is defined in Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir.1984), as to the area of law enforcement for the City of Artesia. Certainly, the defendant City has not indicated otherwise. Thus, any action which Miller undertook to enforce the laws and ordinances for the City may be properly considered those of one “whose edicts or acts may fairly be said to represent official policy” for which the City may be held liable under section 1983. Monell v. New York City Department of Social Services, 436 U.S. at 694, 98 S.Ct. at 2037, 56 L.Ed.2d at 637-38; Familias Unidas v. Briscoe, 619 F.2d at 404. Accordingly, the City’s motion for summary judgment is not well taken inasmuch as the court finds that genuine issues of material fact exist, including but not limited to whether Miller’s actions may constitute the official policy of the City of Artesia. However, defendant City’s motion for summary judgment as to plaintiff’s claims for punitive damages under section 1983 is well taken and should be granted since municipalities are immune from punitive damages under section 1983. See City of Newport v. Fact Concerts, 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616, 635 (1981).

Furthermore, the defendant City raises the defense of sovereign immunity in regard to the state law claims of assault and intentional infliction of emotional distress. Because sovereign immunity remains a viable doctrine in the State of Mississippi by virtue of Miss.Code Ann. § 11-46-1 et seq., the court finds that the motion of the defendant City for summary judgment as to these claims is well taken and should be granted.

Let an order issue accordingly.

ORDER

In accordance with a memorandum opinion this day issued with regard to the defendants’ motions to dismiss which were treated by the court as motions for summary judgment, it is hereby ORDERED:

That defendant Herbert Miller’s motion as to plaintiff’s claims alleging violations of procedural due process and the sixth amendment brought under 42 U.S.C. § 1983 is GRANTED;

That in all other respects defendant Herbert Miller’s motion is DENIED;

That defendant City of Artesia’s motion as to plaintiff’s state law claims of assault and intentional infliction of emotional distress and prayer for punitive damages is GRANTED; and

That in all other respects defendant City of Artesia’s motion for is DENIED.


source: Caselaw Access Project

author: BONSAL, District Judge.

license: Public Domain

text:
    GENERAL ATLANTIC INVESTMENTS LIMITED and Medac, Inc., Plaintiffs, v. BUSINESS DEVELOPMENT CAPITAL LIMITED PARTNERSHIP-II, John Foster, Michael Connelly, FC Partners, Braxton Development Capital Limited Partnership, and George B. Bennett, Defendants.
    No. 85 Civ. 4127(DBB).
    United States District Court, S.D. New York.
    Oct. 2, 1985.
    Paul, Weiss, Rifkind, Wharton & Garrison by Lewis A. Kaplan, New York City, for plaintiffs.
    Haythe & Curley by David Wawro, New York City, for defendants.
   MEMORANDUM

BONSAL, District Judge.

In this civil action, plaintiffs General Atlantic Investments Limited (“GAIL”), a limited liability company organized under the laws of Bermuda, and Medac, Inc., an Ohio corporation, are suing the defendants Business Development Capital Limited Partnership-II (“BDC-II”), John Foster, Michael Connelly, FC Partners, Braxton Development Capital Limited Partnership, and George B. Bennett. Plaintiffs seek specific performance, and alternatively, damages, with respect to a letter contract entered into on May 24,1985 between plaintiffs and defendant BDC-II.

The Amended Complaint alleges that GAIL is a limited liability company organized under the laws of Bermuda and that Medac is an Ohio corporation, and that the defendant BDC-II “is a limited partnership organized under the laws of the State of Connecticut having its principal place of business in the City, County and State of New York.”

Plaintiffs allege jurisdiction based on diversity of citizenship (Judicial Code § 1332).

Under the Bermuda Companies Act, GAIL is an exempt company which may carry on business outside of Bermuda from an office within Bermuda. It may not do business in Bermuda. To transact business in Bermuda, 60% of a company’s voting rights must be exercisable by Bermudians and 60% of its directors must be Bermudians. (The Companies Act 1949, Part I, Item 10; Exempt Companies Act 1950, Title 17, Item 11.).

The contract, a copy of which is attached to the Amended Complaint, states that GAIL carries on its business from an office at 120 East 55th Street, New York City, and that BDC-II has its office at 437 Madison Avenue, New York City. Section 1332(c) of the Judicial Code provides that a corporation shall be deemed a citizen of any State in which it has been incorporated and of the State where it has its principal place of business. A reading of the Amended Complaint and the briefs filed herein satisfies the court that both GAIL and BDC-II have their principal offices in New York where the contract here sued upon was entered into. Therefore, there is no diversity of citizenship under Sections 1332(a) and (c). A distinction has been made between corporations organized under laws of different States of the United States and alien corporations. For example, in Eisenberg v. Commercial Union Assurance Co., 189 F.Supp. 500 (S.D.N.Y.1960), Judge Dimock of this court held that Section 1332(c) did not apply to alien corporations which remain citizens of the foreign country, regardless of where their principal office is located. In Eisenberg, Judge Di-mock considered the status of Commercial Union Assurance Co., a British corporation having branches in the United States, finding that its contact with New York might be so slight that it could still be an outsider. Judge Dimock then went on to say, “On the other hand, if a Bahaman [sic] corporation, for example, has located its principal place of business in New York, the inference is legitimate that it has adopted New York as its actual residence and that it is no longer entitled to be considered an outsider and to deserve the protection accorded outsiders.” Such an inference is even stronger in the case of a Bermuda exempt company which is not authorized to do business in Bermuda, so that its principal place of business must be outside of Bermuda. Since GAIL is not authorized to do business in its country of incorporation, Bermuda, Section 1332(c) will be applied.

Since Eisenberg, several cases in this district have held that there is no diversity under Section 1332(c) in cases involving alien corporations having their principal office in New York. See Oppenheimer Reinsurance Company, Ltd. v. Alexander & Alexander, Inc., 79 Civ. 2151 (LWP) (S.D.N.Y. January 2, 1980); Bergen Shipping Co. v. Japan Marine Services, Ltd., 386 F.Supp. 430 (S.D.N.Y.1974); Jerro v. Home Lines, Inc., 377 F.Supp. 670 (S.D.N.Y.1974).

While this circuit has not ruled on the issue, the Court of Appeals for the Fifth Circuit, in Jerguson v. Blue Dot Investment, Inc., 659 F.2d 31 (5th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982), held that a Panamanian corporation having its principal place of business in Florida was a Florida citizen, so that there was no diversity of citizenship in a litigation where the other parties were residents of Florida.

In view of the foregoing, the court holds that it is without jurisdiction, and the action is dismissed, without prejudice.

It is So Ordered.


author: NORGLE, District Judge.

text:
    The COCA-COLA COMPANY FOODS DIVISION, a Delaware corporation, Plaintiff, v. OLMARC PACKAGING COMPANY, an Illinois corporation, Defendant. OLMARC PACKAGING COMPANY, an Illinois corporation, Counterplaintiff, v. The COCA-COLA COMPANY FOODS DIVISION, a Delaware corporation, Counterdefendants.
    No. 84 C 5746.
    United States District Court, N.D. Illinois, E.D.
    Oct. 4, 1985.

      Michael W. Coffield, Kevin M. Flynn, Michael T. Trueco, Coffield, Ungaretti, Harris & Slavin, Chicago, Ill., for plaintiff.
    Steven J. Rosenberg, Chicago, Ill., for defendant.
   ORDER

NORGLE, District Judge.

Plaintiff, Coca-Cola Foods (“FOODS”) sued Defendant, Olmarc Packaging Company (“OLMARC”) for breach of contract. Foods filed a single count complaint. Ol-mare answered and pleaded two affirmative defenses, along with two counterclaims. Foods’ motion to strike the affirmative defenses and dismiss the counterclaims is the subject matter of this Order. For the following reasons, Foods’ motion is granted in part and denied in part.

In early 1977 Foods and Olmarc entered into a Packing Agreement (“AGREEMENT”). Essentially Olmarc agreed to mix, package, store and ship dry powdered drink bases received from Foods in return for payment from Foods in accord with a set “Fee Schedule.” The Agreement required Foods to furnish Olmarc with instructions and specifications for Olmarc’s performance.

In addition to Olmarc’s packaging and shipping obligations under the contract, Paragraph 8 required payments for certain losses and shortages of materials provided by Foods. Paragraph 8 states

[Olmarc] shall ... be responsible for all packing supplies and all other property of [Foods] in its (Olmarc’s) care, custody or control and shall be responsible to and ... reimburse [Foods] for any unauthorized usage or any unaccounted for or unauthorized losses or shortage of ... packing materials, finished products and property or for damages [to them], regardless of the cause ... [for such] shortage or damage. At the end of each month or such other manufacturing period as may be established by [Foods] ... [Foods] will furnish ... [Olmare] a schedule showing the authorized usage of ... supplies based upon the quantity of powders packed and the Manufacturing Specification [sic] for powders as from time to time amended in writing by [Foods], [Olmare] shall promptly reimburse [Foods] for any unauthorized usage, losses, variances, shortages or damages to packing supplies, and other property ... in ... [Olmarc’s] ... control.

Paragraph 5 of the Agreement required Olmare to make certain reports to Foods “in such forms as [Foods] may from time to time request, including weekly reports showing packing supplies received and ... used and inventories of packing supplies and daily reports of powders packed and ... shipped and powders on hand.”

Further, Olmare was required to make periodic reports to Foods (“Daily report of Hi-C DM and MMC,” “Weekly Co-Packer Production and Inventory Report”) in accord with the “Co-Packers Accounting Procedures Manual.” Based on the various reports submitted by Olmare and its own annual inventory, Foods calculated Ol-marc’s “actual performance” and billed or credited Olmare for “authorized or unauthorized usage, losses, variances, shortages and damages.” Complt at 5.

Foods determined Olmare had “unfavorable usage variations, and physical inventory shortages” totalling $92,829.29 for the period January through December, 1981. Further variations shortages and damaged goods were found for the period December, 1981 through December, 1982 ($38,309.96 and $329.19). The Agreement was terminated in January of 1983. Thereafter Foods billed Olmare for “net unfavorable usage variations, physical inventory shortages and damages” ($10,432.11) and for 5,500 “pallets” which were unaccounted for by Olmare ($24,700.00). Foods has repeatedly requested a total payment of $166,649.55 from Olmare. Olmare has repeatedly refused to pay Foods.

In its Answer Olmare generally denies it is in breach of the Agreement and raises two affirmative defenses (estoppel and changed conditions) as well as two counterclaims (promissory estoppel and fraud by omission). Before the Court at this time is a motion by Foods to strike the affirmative defenses and to dismiss the counterclaims.

I. AFFIRMATIVE DEFENSES

Ruling on Foods’ attack of Olmarc’s affirmative defenses requires a three part analysis.

1) Is the alleged “affirmative defense” really an affirmative defense, or is it simply a mistitled denial already contained in the answer?
2) If the matter is properly designated an affirmative defense, is it adequately pleaded under the Federal Rules of Civil Procedure (e.g., Fed.R.Civ.P. 8 and 9)?
3) Finally, is the affirmative defense legally sufficient under the standard identified in Fed.R.Civ.P. 12(b)(6)?

See Instituto Nacional de Commercializacion Agricola v. Continental Illinois National Bank & Trust Co., 576 F.Supp. 985, 988 (N.D.Ill.1983); Bobbitt v. Victorian House, Inc., 532 F.Supp. 734, 736-37 (N.D.Ill.1982).

A. ESTOPPEL

In support of its first affirmative defense Olmare alleges the following:

1) Foods was informed of usage variations and inventory shortages in excess of those originally contemplated by the parties throughout the life of the Agreement;
2) with that information in its possession, Foods took no action against Ol-marc;
3) Foods’ inaction constituted acquiescence in Olmarc’s performance;
4)Foods should be estopped from asserting the excess variations and shortages as a basis for recovery.

Ans at 3-4.

Olmarc must plead and prove six elements in order to make out an estoppel defense to Foods’ claims. Olmarc must allege

1) words or conduct by Foods amounting to a misrepresentation or concealment of material fact;
2) either actual or implied knowledge by Foods that its misrepresentations were false when made;
3) a lack of awareness of the falsity of the representations at the time they were made and at the time there were relied upon;
4) Foods intent or its expectation that its representations or conduct would be acted upon by Olmarc (or the public in general);
5) actual reliance and action upon Foods’ representations or conduct;
6) prejudice if Foods is allowed to deny its conduct or the truth of its representations.

Lowenberg v. Booth, 330 Ill. 548, 162 N.E. 191, 195 (1928); Gary-Wheaton Bank v. Meyer, 130 Ill.App.3d 87, 85 Ill.Dec. 180, 473 N.E.2d 548, 554-55 (2d Dist.1984); Willowbrook Development Corp. v. Illinois Pollution Control Bd., 92 Ill.App.3d 1074, 48 Ill.Dec. 354, 416 N.E.2d 385, 389-90 (2d Dist.1981). See also Saverslak v. Davis-Cleaver Produce Co., 606 F.2d 208, 213 (CA 7 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 762 (1980) (estoppel arises when a party’s conduct misleads another to believe a right will not be enforced and causes him to act to his detriment in reliance upon this belief).

Foods contends Olmarc has failed to plead the elements of equitable estoppel. First Foods argues Olmarc fails to allege it relied on any conduct suggesting a waiver of Foods’ right to seek reimbursements for variances and shortages. Foods identifies a second defect in that Olmarc failed to allege it changed its position to its detriment in reliance on any Foods conduct approximating waiver. The Court agrees both of these allegations are absent from. Olmarc’s Answer and, therefore, the first affirmative defense cannot stand.

The Court’s decision takes into account Olmarc’s suggestion that this Court may infer detrimental reliance from what is stated in the Answer. On this motion, Olmarc is entitled to have its allegations taken as true; it also receives the benefit of all reasonable factual inferences following from those allegations. See generally Wright & Miller, Federal Civil Procedure: Civil § 1363. But Olmarc is not entitled to factual assumptions nor leaps in logic in the construction of its Answer.

Turning to the issue of amending the first affirmative defense, Foods offers two persuasive arguments why Olmarc should tread carefully. See generally Fed.R. Civ.P. 11. First, Foods argues that Olmarc could not have relied on any inaction or silence because the Agreement specifically and clearly holds Olmarc liable for any variances and shortages. Moreover, Illinois law suggests any reliance by Olmarc on Food’s silence or inaction would not be reasonable. See Town & Country Bank of Springfield v. James M. Canfield Contracting Co., 55 Ill.App.3d 91, 12 Ill.Dec. 826, 370 N.E.2d 630, 633 (4th Dist.1977).

Second, Foods argues Olmarc may not allege reliance because it has already admitted (in its Answer) to receiving invoices from Foods for the variances and shortages which serve as the basis for this lawsuit. There would, of course, be no acquiescence or waiver by Foods if it requested reimbursement from Olmarc and Olmarc was aware of these requests. Hence no reliance by Olmarc could be justified. 01-marc claims that argument constitutes a misreading of the Answer because “while the defendant admits receiving invoices, it does not admit these invoices are the results of the audits now specified by the plaintiff. Consequently, as the nature of these invoices is still in dispute, the Court should not use them as the basis for negating the defendant’s ability to amend.” Deft’s Memo at 3. This counter argument is unsound. While it is true that Foods cannot prevail unless it supplies facts to support the invoices this action is predicated upon, that does not mean Olmarc’s disputation of those underlying facts rises to the level of an estoppel defense. Olmarc’s theory appears to be that Foods’ claim for reimbursement rests on faulty accounting, not that Foods has waived its right to reimbursement. The Court believes Ol-marc’s theory will be adequately preserved if it merely contests the factual basis supporting the invoices (Foods’ basis for recovery), rather than raise the matter as an affirmative defense. For these reasons, Olmarc should consider very carefully any future amendment.

B. CHANGED CONDITIONS/COMMERCIAL FRUSTRATION

The second affirmative defense is a rather brief allegation of what Olmarc calls “changed conditions”; Foods calls it “commercial frustration.” Olmarc alleges Foods changed the “nature and composition of the substances to be mixed, packaged and stored.” These changes were made without prior notice to Olmarc and without Olmarc’s agreement. Olmarc further alleges these changes caused usage variations and inventory shortages not contemplated by the parties. Ans at 4.

“Changed circumstances” constitutes an avoidance and is therefore properly pleaded as an affirmative defense under Fed.R.Civ.P. 8(c). Paragraph 23 of the Answer also comports with Federal pleading rules. Thus, the only issue is whether Ol-marc has pleaded “changed circumstances” in accord with the Rule 12(b)(6) standard: can Olmarc prove any set of facts in support of its “changed circumstances” defense which would defeat Foods’ complaint? Foods argues it cannot; the Court agrees.

The pleading of the following two elements would entitle Olmarc to relief (e.g. a defense) under a theory of commercial frustration:

1) the event leading up to the frustration of performance was not foreseeable;
2) the unforeseen event totally, or nearly totally, destroyed the value of the contract.

Northern Illinois Gas Co. v. Energy Cooperative, Inc., 122 Ill.App.3d 940, 78 Ill.Dec. 215, 461 N.E.2d 1049, 1059-60 (3d Dist.1984); Smith v. Roberts, 54 Ill.App.3d 910, 12 Ill.Dec. 648, 370 N.E.2d 271, 272 (4th Dist.1977). Neither of these allegations is contained in Olmarc’s Answer.

For example, Olmarc does not allege formula changes by Foods were not foreseeable. Olmarc does allege Foods made changes “without prior notice ... and without [Olmarc’s] agreement,” but those allegations do not constitute a lack of foreseeability. Indeed, rather specific language in the Agreement (granting Foods the right to vary specifications) seems to negate any finding of unforseeability. Additionally, Olmarc fails to allege the value of the contract was totally or nearly totally destroyed. The only allegation in support of this element is that changes by Foods caused shortages and variations not contemplated by the parties. There simply is no allegation of the effect of those shortages and variations on the value of the contract to Olmarc. Consequently, the motion to strike the second affirmative defense must be granted.

II. THE COUNTERCLAIMS

Olmarc lodges two counterclaims against Foods: 1) promissory estoppel and 2) fraud by omission. Foods moves to dismiss both counterclaims.

A. PROMISSORY ESTOPPEL

The elements of an action for promissory estoppel are 1) an unambiguous promise, 2) which is expected or foreseeable to induce reliance, 3) which, in fact, causes reliance and 4) results in injury or detriment to the promisee. Levitt Homes, Inc. v. Old Farm Homeowner’s Asso., 111 Ill.App.3d 300, 67 Ill.Dec. 155, 444 N.E.2d 194, 204 (2nd Dist.1982); Illinois Valley Asphalt v. J.F. Edwards Construction Co., 90 Ill.App.3d 768, 45 Ill.Dec. 876, 413 N.E.2d 209, 211 (3d Dist.1980). See Restatement (2d) of Contracts § 90. While the alleged promise need not be express, Bank Computer Network Corp. v. Continental Illinois Nat’l Bank & Trust Co., 110 Ill.App.3d 492, 66 Ill.Dec. 160, 442 N.E.2d 586, 591 (1st Dist.1982), it must be unambiguous and must be made so as to reasonably expect it to produce action or forebearance. Huggins v. Central Nat’l Bank of Matoon, 127 Ill.App.3d 883, 82 Ill.Dec. 768, 469 N.E.2d 302 (4th Dist.1984).

Olmarc’s allegations regarding promissory estoppel are as follows:

1) Foods’ representative promised Ol-marc all of Foods’ packaging business for Hi-C and Minute Maid drink bases if Olmarc “would secure sufficient machinery to handle all of [Foods] packaging needs.”
2) Olmarc purchased and leased over $750,000.00 of machinery in reliance on the Foods’ promise.
3) Olmarc informed Foods of its purchase and lease of machinery.
4) Despite its knowledge that Olmarc relied upon its promise (by purchasing and leasing machinery), Foods agreed to various packing arrangements with other packers.
5) Olmarc suffered damages as a result of the above actions by Foods.

Ans at 4-5. These allegations state a claim for promissory estoppel. All of the elements for a cause of action under Illinois law are pleaded. Foods certainly can ask no more under federal notice pleading requirements. See Fed.R.Civ.P. 8. Moreover, Foods’ arguments in opposition to this counterclaim are essentially factual and are thus more properly addressed on a motion for summary judgment. For example, the Agreement, standing alone, is not so inconsistent with Olmarc’s reasonable reliance claim that dismissal is appropriate. Consequently, the motion to dismiss the first counterclaim is denied.

B. FRAUD BY OMISSION

Olmarc alleges Foods failed to inform it of certain material facts which ultimately misled and damaged Olmarc. Olmarc cites three material omissions by Foods.

a) Foods was building its own packing plant which would compete with Olmarc and eventually draw off a “substantial part of the business promised to [Ol-marc].”
b) Foods negotiated and agreed to have its bases mixed and packed by companies other than Olmarc.
c) In light of (a) and (b) Foods failed to inform Olmarc that Olmarc could not possibly “employ in a profitable fashion, the equipment it had bought in reliance on [Foods’] promise.”

Presumably the promise referred to in part (c) above is the same promise identified in Answer 1125 (e.g., to the effect that Foods promised Olmarc that Olmarc would receive all of Foods’ Hi-C and Minute Maid packaging business).

In order to prevail on its fraud theory Olmarc must plead and prove Foods 1) made a misrepresentation of a material fact 2) knowing it was false 3) with intent to induce Olmarc to rely upon it 4) which Olmarc reasonably relied and acted upon 5) to its detriment or damage. Redarowicz v. Ohlendorf, 92 Ill.2d 171, 65 Ill.Dec. 411, 441 N.E.2d 324 (1982); Dolce v. Dolce, 108 Ill.App.3d 817, 64 Ill.Dec. 363, 439 N.E.2d 1028, 1032 (1st Dist.1982). Because Ol-marc alleges Foods failed to make a representation when it ought to have made one, Olmarc must plead and prove a duty on behalf of Foods to make an affirmative statement. Manning v. Ashland Chemical Co., 498 F.Supp. 1382, 1383 (N.D.Ill.1980). Cummings v. Dusenbury, 129 Ill.App. 338, 84 Ill.Dec. 615, 472 N.E.2d 575, 581 (2d Dist.1984). Generally, such a duty arises in two circumstances: 1) when the defendant’s acts contribute to the plaintiff’s misapprehension of a material fact and the defendant intentionally fails to correct plaintiff’s misapprehension, or 2) when the defendant owes some fiduciary duty to the plaintiff to make full and fair disclosure and fails to correct a misapprehension of a material fact. Manning supra, at 1383; Tcherepnin v. Franz, 393 F.Supp. 1197, 1217, (N.D.Ill.1975), cert. denied, 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1976); Obermaier v. Obermaier, 128 Ill.App.3d 602, 83 Ill.Dec. 627, 470 N.E.2d 1047, 1051 (1st Dist.1984).

Additionally, Fed.R.Civ.P. 9(b) requires Olmarc to plead fraud with particularity. That requires Olmarc to plead the “time, place and particular contents of the false representations.” Bennett v. Berg, 685 F.2d 1053, 1062 (CA 8 1982), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). The object of such specificity is to apprise the defendant of the claim against him and of the acts which the plaintiff alleges constitute fraud. See generally Wright & Miller § 1297. But Rule 9(b) does not negate the general pleading requirements of Rule 8 {viz, a short, plain statement of a claim and simple, concise, direct allegations). Thus, the balance between Rules 9(b) and 8 requires Olmarc to plead the particularities of fraud (time, place, contents), but it does not require Olmarc to plead evidence.

Many of Foods’ attacks on this counterclaim are focused on the Rule 9(b) particularity requirement. For example, Foods wants to know who was responsible for the omissions (Olmarc alleges Foods representatives were responsible) and the date of the omissions (Olmarc alleges the fraud took place in 1978). The Court finds Rule 9(b) entitles Foods to no more particularity than Olmarc has alleged in the Answer. To find otherwise would allow Rule 9(b) to swallow up the general pleading requirements of Rule 8. See generally, Wright & Miller, supra, § 1297-98.

More significant is Foods’ argument that Olmarc fails to allege a duty on behalf of Foods to correct any particular misapprehension held by Olmarc. Foods argues that because neither a contractual nor a fiduciary relationship existed between the parties at the time of the alleged omission, Olmarc cannot expect the Court to find “a statement allegedly made in arms length negotiations ... somehow imposes a duty on a party to the contract to disclose all he ... knows about the pending transaction.” From this Foods concludes Olmarc is unable to prove any set of facts which would allow it to recover on the counterclaim. Pltf s Memo at 18. Olmarc counters with the suggestion that Foods mistakes its motion to dismiss as a motion for summary-judgment. The Court agrees.

The arguments made by Foods require factual determinations which the Court is unable to make on this motion to dismiss. Foods invites factual assumptions in its favor as a basis for the Court’s review of its own arguments. On a motion to dismiss, the facts as alleged by Olmarc are taken as true. Thus, the only argument the Court can consider is whether Olmarc has alleged that Foods had a duty to disclose information which would correct Olmarc’s misapprehension of material facts.

It is true that no fiduciary relation existed between Olmarc and Foods. They were parties to negotiation and contract, nothing more. So in order to impose a duty upon Foods to speak and correct misapprehensions, Olmarc must plead and prove that 1) Foods’ acts contributed to Olmarc’s misapprehension 2) of a material fact 3) which Foods intentionally failed to correct. These elements are alleged in the counterclaim.

Olmarc alleges a representation by Foods that Olmarc would receive all of Foods’ packaging business for Hi-C and Minute Maid. Ans at 4. That fact is material either to the terms of the Agreement or to Olmarc’s subsequent purchase and lease of packing machinery. See Ans at 4-5. So too are the alleged omissions material (Foods was building its own packaging plant; Foods was making contemporaneous agreements with other packers; Foods knew Olmarc could not profitably operate on Foods’ false promise). Ans at 5. Taking Olmarc’s allegations as true for the purposes of this motion, such facts, if proved, could contribute to a misapprehension by Olmarc of which Foods was aware and which it intentionally failed to correct. If Olmarc can prove what it alleges, then Foods had a duty to speak and correct any misapprehension it helped create. The motion to dismiss the second counterclaim is denied.

CONCLUSION

The motion to strike Olmarc’s two affirmative defenses is granted. The motion to dismiss the two counterclaims is denied. This case is set for a status hearing 21 days from the date of this Order.

IT IS SO ORDERED.

      . This is only true in part. Foods could have waived its right to reimbursement from Olmarc, but the facts (at least so far) seem to contradict any waiver by Foods. See John Kubinski & Sons, Inc. v. Dockside Development Corp., 33 Ill.App.3d 1015, 339 N.E.2d 529, 31-32 (1st Dist.1975). See also Saverslak v. Davis-Cleaver Produce Co., 606 F.2d 208, 213 (CA 7 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 762 (1980).

      . These allegations are contained in ¶ 23 of Ol-marc’s Answer. Although the Court finds Ol-marc has failed to plead "commercial frustration,” it is worth noting that ¶ 23 suggests paramount contract interpretation issues. Two of these issues are identified in the next footnote.

      . Foods argues it had the right to vary the specifications of its formula packed by Olmarc and, because Olmarc consented to the Agreement, Olmarc also "assumed the risk that it could pack the powdered mixes within the contract's variance limits even though the instructions of mixing and packing these powders were changed.” Deft’s Memo at 12. The Court agrees Foods had the express contract right to vary its formula as packed by Olmarc and that the existence of that right, more likely than not, rendered a formula change foreseeable. However, the Court does not agree Olmarc assumed the risk of shortages and variances resulting from a formula change. The logical extension of an assumption of risk theory in this case would provide Foods with the unilateral power to cause shortages and variances (attributable to Olmarc) simply by varying the formula specifications. That is a questionable interpretation of the Agreement and leads to a couple of fundamental issues: 1) Does the Agreement give Foods the right to reimbursement for shortages and variances which were caused by its own formula changes? 2) Even if Foods had such a right, does its exercise of that right comport with the good faith and fair dealing requirements read into every Illinois contract? See Dayan’s v. McDonalds Corp., 466 N.E.2d 758 (1st Dist.1984); Criscione v. Sears Roebuck & Co., 66 Ill.App.3d 664, 23 Ill.Dec. 455, 384 N.E.2d 91 (1st Dist.1978); Martindell v. Lake Shore National Bank, 194 N.E.2d 683 (1st Dist.1958); Foster Enterprises Inc. v. Germania Federal Savings & Loan Asso., 97 Ill.App.3d 22, 52 Ill.Dec. 303, 421 N.E.2d 1375, 1381 (3d Dist.1981); Stevenson v. ITT Harper, Inc., 51 Ill.App.3d 568, 9 Ill.Dec. 304, 366 N.E.2d 561, 567 (1st Dist.1977). See also Rao v. Rao, 718 F.2d 219, 222-23 (CA7 1983).


author: FELDMAN, District Judge.

text:
    Ray Gilmer JOHNSTON, Sr. v. ATLANTIC RICHFIELD COMPANY, ARCO Oil and Gas Corporation, McDermott, Inc., Hartmann & Braun AG.
    Civ. A. No. 84-3808.
    United States District Court, E.D. Louisiana.
    Oct. 4, 1985.

      Harvey J. Lewis of Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, La., for plaintiff.
    John E. Galloway of McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for McDermott.
    Donald Abaunza of Liskow & Lewis, Curtis Boisfontaine and Sally Shushan of Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, La., for defendants.
   ORDER AND REASONS

FELDMAN, District Judge.

In this Section 905(b) suit, plaintiff claims to have been injured on December 20, 1983 while employed by Atlantic Rich-field and while working on a stationary platform in the Outer Continental Shelf. Atlantic Richfield owned and operated the platform, which McDermott designed and constructed. McDermott cross-claimed against Atlantic Richfield. Subsequently, Atlantic Richfield was granted a summary judgment as to all claims asserted by the plaintiff; that motion was unopposed. Now, Atlantic Richfield moves for a summary judgment against McDermott and asks that McDermott’s cross-claim be dismissed on the ground that Section 905(a) of the Longshoremen and Harbor Workers’ Compensation Act prohibits McDermott’s cross-claim against plaintiff’s employer, Atlantic Richfield.

The Court has considered the motion and memorandum in support thereof and in opposition thereto, all exhibits, and the pertinent law. Accordingly, the Court is now prepared to rule. For the reasons hereinafter stated, Atlantic Richfield’s Motion for Summary Judgment is GRANTED.

No genuine issue of material fact is in dispute, and it is clear as a matter of law that Section 905(a) of the LHWCA provides the sole and exclusive remedy against plaintiff’s employer. Therefore, McDer-mott’s cross-claim is barred.

Plaintiff was injured on December 20, 1983 while working on a stationary platform designated as “South Pass 60 F” off the coast of Louisiana; he was injured in the course and scope of his employment with ARCO Oil and Gas Company, a division of Atlantic Richfield. The employer was engaged in the development, removal, and transportation by pipeline of natural resources on the Outer Continental Shelf. At the time of the accident, plaintiff was working on the platform. The parties do not dispute that Atlantic Richfield is plaintiff’s employer. After his injuries, plaintiff began receiving compensation pursuant to Section 904 of the Act. McDermott’s cross-claim against Atlantic Richfield is not based on any contract between McDermott and ARCO or Atlantic Richfield but, rather, is based on tort concepts of indemnity and contribution.

The sole question presented by this Motion for Summary Judgment is whether or not the exclusive remedy provisions of Section 905(a) bar McDermott’s cross-claim for indemnity and contribution from plaintiff’s employer. Section 905(a), regarding exclusive remedy, provides:

“The liability of an employer prescribed in Section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee ..., and anyone otherwise entitled to recover damages at law or in admiralty on account of such injury....”

The Fifth Circuit has long held that Section 905(a) bars direct suits in tort by an injured employee against his employer as well as third party suits for non-contractual indemnity or contribution from the employer. See Ocean Drilling and Exploration Company v. Berry Brothers Oilfield Service, Inc., 377 F.2d 511, 514 (5 Cir.1967), cert. den. 389 U.S. 849, 88 S.Ct. 102, 19 L.Ed.2d 118 (1967). Section 905(a), according to Berry Brothers, effectively abrogates any independent tort liability of the employer.

McDermott places a weighty reliance on the recent Supreme Court decision in Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d 911 (1983). But that decision does not apply here. In Lockheed, the Supreme Court considered the effect of a similarly worded exclusivity provision in the Federal Employees Compensation Act, 5 U.S.C. § 8116(c). The Court ruled that the exclusivity provision did not bar an indemnity action asserted against the United States under the Federal Tort Claims Act. Lockheed, however, was expressly limited by the Supreme Court to the facts of the case. The Court noted, “We ... hold only that FECA’s exclusive liability provision, 5 U.S.C. § 8116(c), does not directly bar a third-party indemnity action against the United States.” 103 S.Ct. at 1038. The exclusivity of § 905(a) of LHWCA and its legislative history were not at issue in Lockheed. Further, the statutory scheme and the public policies at issue in Lockheed were vastly different. In fact, the Supreme Court explicitly recognized that the statutory scheme of the LHWCA, particularly the 1972 Amendments, makes the Longshoremen and Harbor Workers’ Compensation Act clearly different from the policies and purposes at issue under the Federal Employees Compensation Act in Lockheed. The Court noted quite pointedly:

“The most relevant changes since Weyerhaeuser [S.S. Co. v. United States, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963) ] have been in the LHWCA Amendments of 1972, 88 Stat. 1251. While these changes are illuminating, they do not help the Government’s position. Under the amended LHWCA, an injured longshoreman’s employer is no longer liable to a shipowner for tort damages that the shipowner has paid the employee. See 33 U.S.C. § 905(b). Congress thus overruled the result in Ryan [Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956)], supra, and abolished the shipowner’s indemnity action. But in so doing, Congress also abolished the injured employee’s seaworthiness remedy against the shipowner — a strict-liability action that the Court had recognized in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). In other words, Congress abolished' the third-party indemnity action only in conjunction with a “quid pro quo” to benefit the third parties. Here there has been no FECA amendment to abolish the third-party indemnity action recognized in Weyerhaeuser. The Government nevertheless invites us to abolish the action without the benefit of an amendment. We are requested to do this even though Congress has provided no “quid pro quo” as it thought appropriate in the LHWCA context. We decline the invitation.” 103 S.Ct. at page 1038

Thus, it is clear from the Lockheed opinion itself that the Supreme Court did not intend for its decision to reach the exclusivity provisions of Section 905(a). Finally, it is important to note that the underlying substantive law in Lockheed (FECA) clearly created a right of tort indemnity; on the other hand, Louisiana law applies here as surrogate to federal law by virtue of the provisions of OCSLA and it is beyond dispute that under Louisiana law no third party contribution or indemnity actions are permitted in the Louisiana Workmen’s Compensation scheme. LeJeune v. Highlands Insurance Company, 287 So.2d 531 (La.App.1973), writ den., 290 So.2d 903 (La.1974). See General Electric Co. v. Cuban American Nickel Co., 396 F.2d 89 (5 Cir.1968).

Few cases have spoken about the effect of Lockheed, and one finds little unanimity. A recent decision of the U.S. First Circuit Court of Appeals is consistent with this Court’s views. In Drake v. Raymark Industries, Inc., 772 F.2d 1007 (1985), the First Circuit expressly rejected the claim made by third-party claimants that their tort indemnity claim was permitted under LHWCA as a result of Lockheed. The Court held that Lockheed was confined to the exclusive remedy provisions of the Federal Employees Compensation Act and “does not overrule three decades of consistent Supreme Court jurisprudence regarding the interpretation of § 905(a).” The Court affirmed the dismissal of the third-party complaint and held that non-contractual indemnity and contribution claims are barred by the exclusive remedy provisions of section 905(a). The Louisiana Fourth Circuit Court of Appeal agrees. See Causey v. K & B Equipment Co., Inc., 467 So.2d 1266 (La.App.1985). Lockheed, said the state court, “did not involve LHWA and on that basis is distinguishable.” Id. at 1268. The legislative history of the 1984 Amendments to LHWCA supports this result as well. In discussing this very problem, Senator Donald Lee Nickles, the chair of the Senate Labor Subcommittee and one of the managers of the 1984 Amendments, explained the Conference Committee’s concerns about Lockheed as follows:

“The conferees were also concerned over the effect of the Supreme Court’s decision in Lockheed Aircraft Corp. v. United States et al. [460] U.S. [190, 103 S.Ct. 1033, 74 L.Ed.2d 911], which decided that the Federal Employees’ Compensation Act did not bar third-party claims for indemnification. Because section 5(a) of the Longshore Act contains nearly identical language to FECA, we considered an amendment to section 5(a). However, the plain meaning of the existing language indicates that there should be no third-party liability. In addition, the clear Congressional intent of the 1972 Amendments to the act was to eliminate the problem of “circular suits” whereby employers paid workers compensation and then through suits by third-parties became liable for additional amounts.”

130 Cong.Rec. 11621 (daily ed. Sept. 20, 1984). Quoted in Drake.

This result is inconsistent with a District of Hawaii decision in 1984. Judge Tashi-ma, held in In Re All Asbestos Cases, 603 F.Supp. 599 (1984), that Lockheed applied in a LHWCA asbestos claim. But the Hawaii case is also distinguishable from this case. In the Hawaii decision the United States was a third-party defendant. The United States was brought into the case under the Federal Tort Claims Act. Like Lockheed, the underlying substantive law, the Federal Tort Claims Act, did not preclude a tort claim for contribution and indemnity. Here, however, underlying substantive law (Louisiana law) does preclude such a claim. To the extent that this holding is inconsistent with the Hawaii case, this Court does not agree with the result reached in the Hawaii case and believes that Lockheed, for the reasons already indicated, does not apply to LHWCA cases and the Supreme Court did not intend for Lockheed to have that reach. Accordingly, for the foregoing reasons,

IT IS ORDERED:

The Motion of Atlantic Richfield for Summary Judgment is GRANTED and McDermott’s cross-claim is hereby DISMISSED.