author: JOSEPH C. HOWARD, District Judge.

text:
    JEFFREY BANKS, LTD. v. JOS. A. BANK CLOTHIERS, INC.
    Civ. No. JH-83-2043.
    United States District Court, D. Maryland.
    July 17, 1985.

      John H. Lewin, Jr. and Venable, Baetjer & Howard, Baltimore, Md., Arthur J. Greenbaum, Mary A. Donovan, and Cowan, Liebowitz & Latman, P.C., New York City, for plaintiff.
    Paul Mark Sandler, Thomas C. Swiss and Freishtat & Sandler, Baltimore, Md., Philip J. Crihfield, Linda J. Chiron and Sidley & Austin, Chicago, 111., for defendant.
   MEMORANDUM AND ORDER

JOSEPH C. HOWARD, District Judge.

On June 16, 1983, Jeffrey Banks, Ltd. (plaintiff) brought suit against Jos. A. Bank Clothiers, Inc. (defendant) seeking a declaratory judgment that it has a right to use the unregistered trademark “Jeffrey Banks” in commerce on various articles of clothing. Confronting the Court is defendant’s motion to dismiss for lack of subject matter jurisdiction or, alternatively, for failure to state a claim. Fed.R.Civ.P. 12(b)(1) and (6).

I.

On October 19, 1981, plaintiff, a designer of men’s and boys’ clothing, filed an application to register the trademark “Jeffrey Banks” for various articles of clothing (Complaint, Exhibit A). Approximately nine months later, Gerald T. Shekleton, an attorney employed by The Quaker Oats Company (defendant’s parent company) wrote plaintiffs president alleging that the use of that mark “violate[d] Jos. A. Bank’s rights under Title 15, Section 1114 of the United States Code,” and in addition, “constitute[d] a false representation of affiliation or association under Title 15, Section 1125(a) of the United States Code” (id., Exhibit B). Mr. Shekleton concluded his letter by stating:

Your adoption of a confusingly similar trademark for use in connection with the sale of clothing will lead to confusion, if it has not already, unless you discontinue use of this name. Please send us your immediate written assurances that you will take immediate steps to case [sic] and desist from all use of the trademark “JEFFREY BANKS” in connection with the sale of clothing so that further harm to Jos. A. Bank’s rights may be avoided. If you have any questions, please call us (id.).

On July 16, 1982, plaintiff’s attorney responded to defendant’s letter. In a nutshell, he asserted that plaintiff had the right to use the “natural name” of its founder and owner and that the names “Jos. A. Bank” and “Jeffrey Banks” were “strikingly dissimilar” and unlikely to engender any confusion with the public.

The Patent and Trademark Office accepted plaintiff’s application and its trademark appeared in the Official Gazette on October 12, 1982. On January 20, 1983, defendant filed a notice of opposition to the proposed registration of plaintiff’s trademark (id. Exhibit D). Four months later, plaintiff formally responded to defendant’s opposition (Defendant’s Motion to Dismiss, Affidavit of Michael T. Welch, Exhibit #2).

On May 20, 1983, plaintiff’s president wrote to William Smithburg, the president of The Quaker Oats Company. He expressed concern over the “attempt” by Mr. Smithburg’s company “to prevent [him] from using [his] own name in connection with [his] business ...” (Plaintiff’s Response to Memorandum in Support of Defendant’s Motion to Dismiss, Exhibit B). Specifically, Mr. Banks stated:

I find it destressing [sic] and unfair that your company would pursue this now and expect me to stop using my own name. There are many designers and manufacturers in the clothing field with the same or similar last names: Anne Klein, Calvin Klein, Bobbie Brooks, Donald Brooks, Cathy Hardwick and Hard-wick Clothes for example. Similiarly [sic] my name and the name of your subsidiary have co-existed without confusion in the clothing area for several years, and without harm to either party (id..).

In closing, Mr. Banks requested Mr. Smith-burg to intercede and “review all aspects of [the] situation[,]” so that they “[could] both continue business as usual” (id.).

On June 1, 1983, Mr. Smithburg responded. He reiterated his company’s concern over plaintiff’s use “of the similar mark ‘Jeffrey Banks[,]’ ” adding that if plaintiff’s “advertising agency should accidentally advertise under the mark ‘J. Banks’ or ‘Banks,’ the likelihood of confusion between the two marks would greatly increase” (Defendant’s Motion to Dismiss, Affidavit of Michael T. Welch, Exhibit # 4). Finally, Mr. Smithburg noted that attorneys for both sides were working on a settlement and that he was “confident ... some form of amicable resolution c[ould] be reached” (id.).

The settlement discussions did not bear fruit and on June 17, 1983, plaintiff filed suit. On October 24, the Trademark Trial and Appeal Board granted plaintiff’s motion to stay the proceedings before the Board pending the resolution of this action.

II.

Defendant argues that this action should be dismissed for lack of subject matter jurisdiction. Specifically, defendant contends that its “statements or conduct [could not] creatfe] a well grounded fear or reasonable apprehension on plaintiff’s part that it would face an infringement suit or the threat of one if it continued its activities with respect to its products” (Defendant’s Motion to Dismiss, at 6). Therefore, since there is no actual controversy the Court lacks subject matter jurisdiction over this action.

Naturally, plaintiff disagrees with this assessment. In support of its position, plaintiff argues that “defendant has, by a letter sent long before the institution of the opposition proceeding, accused plaintiff of trademark infringement and demanded that plaintiff stop using his own name and mark; it has attempted to negotiate restraints on plaintiff’s use of its name and mark; and, it has, by its conduct against other entities using a form of ‘bank(s)’ as part of a trademark indicated a likelihood that it will not be content merely with a determination that plaintiff’s mark is un-registrable ...” (Plaintiff’s Response to Memorandum in Support of Defendant’s Motion to Dismiss, at 14-15). These actions, plaintiff contends, “combined with defendant’s notice of opposition, are legally sufficient to establish a justiciable controversy” (id. at 15).

III.

Article III, Section 2 of the Constitution extends federal judicial power to “cases” and “controversies” of various types. The Declaratory Judgment Act which provides additional judicial relief, where jurisdiction is otherwise present, incorporates the constitutional requirement for it applies only in “a case of actual controversy.” 28 U.S.C. § 2201.

The test to apply in determining whether there is an “actual controversy” is a familiar one. As observed by the Court in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941):

the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

Id. at 273, 61 S.Ct. at 512 (citation omitted); accord Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969). See generally Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Finally, “whether particular facts are sufficiently immediate and real to make an actual controversy is something that must be worked out on a case-by-case basis.” 10A C. Wright, A. Miller & M. Kane, supra n. 7, § 2757, at 580 (footnote omitted).

In trademark cases, the “actual controversy” requirement is met if plaintiff can show “a real and reasonable apprehension that he will be subject to liability” if he continues marketing his product. Chesebrough-Pond’s, Inc. v. Faberge, Inc., 666 F.2d 393, 396 (9th Cir.1982) (quoting Sacie te de Conditionnement v. Hunter Engineering Co., 655 F.2d 938, 944 (9th Cir. 1981). Put another way, “it is sufficient if defendant’s actions create in plaintiff a ‘reasonable apprehension’ of being sued for infringement.” 2 J. McCarthy, Trademarks and Unfair Competition § 32.18, at 710 (2 ed. 1984) (footnote omitted). Moreover,

[a] threat of infringement does not have to be said in so many words. It can be expressed in the attitude of defendant as expressed in ‘circumspect language’ in a letter. Even in the absence of direct charges of infringement against plaintiff by defendant, an ‘actual controversy’ can be found if the commercial realities of the situation puts plaintiff in a position where it must run a real risk of potential liability if it goes ahead to exercise what it believes are its legal rights in the commercial market.

Id. at 710-11 (footnotes omitted); accord 1 J. Gilson, Trademark Protection and Practice § 8.03[2], at 8-19 — 8-20 (1984 ed.).

The record in this case, the Court concludes, supports a finding that there exists an actual controversy. Mr. Shekleton’s letter of July 9 alerted plaintiff that the use of its mark “violate[d] Jos. A. Bank’s rights” under 15 U.S.C. § 1114 and “constitute[d] a false representation of affiliation or association” under 15 U.S.C. § 1125(a) (Complaint, Exhibit B). Furthermore, it directed plaintiff to “send ... immediate written assurances that it w[ould] take immediate steps to case [sic] and desist from all use of the trademark ‘JEFFREY BANKS’ in connection with the sale of clothing ... ” (id.). Plaintiff responded to this letter and several months later discovered that defendant had filed an opposition to its published mark. The parties attempted, without success, to settle their dispute. This failure resurrected the threatening shadow of the July 9th letter, made more ominous by the notice of opposition. Desirous of clarifying its rights, plaintiff filed suit.

Having determined, then, that defendant’s actions created, in plaintiff, a reasonable apprehension of an infringement suit, “[i]t ... becomes necessary to establish one of the usual bases of jurisdiction.” 10A A. Wright, A. Miller, & M. Kane, supra n. 7, § 2766, at 735. Here, diversity jurisdiction, 28 U.S.C. § 1332, as well as federal question jurisdiction under the Lanham Act are present. Apex Beauty Products Manufacturing Corp. v. Brown Shoe Co., 209 F.Supp. 73, 74 (S.D.N.Y.1962); see J. Gilson, supra, § 8.03[2], at 8—18.1 — 8—19. Now, to defendant’s Rule 12(b)(6) challenge.

IY.

It is well settled that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted); accord Harrison v. KVAT Food Management, Inc., et al., 766 F.2d 155 (4th Cir.1985); Caddell v. Singer, 652 F.2d 393, 394 (4th Cir.1981). “The question therefore is whether in the light most favorable to plaintiff, and with every doubt resolved in [its] behalf, the complaint states any valid claim for relief.” 5 C. Wright & A. Miller, supra, n. 7, § 1357, at 601 (footnotes omitted). In this case, the complaint comfortably passes the test.

Accordingly, it is this 17th day of July, 1985,

ORDERED:

1) that defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction or, alternatively, for failure to state a claim is DENIED; and

2) that the Clerk mail copies of this Memorandum and Order to counsel for the parties.

      . Jeffrey Banks, Ltd. is a New York Corporation with its principal place of business in New York (Complaint, at 1).

      . Jos. A. Bank Clothiers, Inc. is a Delaware corporation with its principal place of business in Baltimore, Maryland (Complaint, at 2).

      . 28 U.S.C. § 2201; Fed.R.Civ.P. 57.

      . Additionally, plaintiff "demands” that the Court:
      (ii) permanently enjoin any further threats of infringement by defendant or anyone acting in concert or participation with defendant;
      (iii) direct the defendant to withdraw, with prejudice, its opposition to plaintiffs mark
      (iv) award [it] any and all damages sustained ... as a result of defendant’s wrongful acts;
      (v) award [it] ... reasonable attorneys fees together with the costs and disbursements in this action; and
      (vi) grant [it] such other and further relief as th[e] Court may deem just (Complaint, at 5).

      . On December 15, 1981, the "United States Patent Office issued a federal trademark registration to defendant ... for JOS. A. BANK, Registration No. 1,182,109 (Int. Class 25), for clothing, claiming first use in 1945 (Complaint, Exhibit D). An application to register the mark for retail and mail order services was filed on April 30, 1982, Serial No. 362,504, claiming first use in 1957” (Defendant’s Motion to Dismiss, at 2).

      . In its Notice of Opposition defendant claimed that
      [a]s a result of the similarity of [plaintiffs] mark and JAB’s JOS. A. BANK mark in appearance, sound, connotation and commercial impression, coupled with the similarity of the goods and services, [plaintiffs] use in commerce of its mark has and will continue to damage JAB as such use is likely to cause confusion, deception and mistake in the minds of the public with respect to the origin and source of its goods (Complaint, Exhibit D, Opposition No. 67-180, at 2-3).

      . When a motion under Fed.R.Civ.P. 12 is “based on more than one ground, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350, at 548 (1969) (footnote omitted); accord Jones v. Georgia, 725 F.2d 622 (11th Cir.), cert. denied, — U.S. —, 105 S.Ct. 380, 83 L.Ed.2d 316 (1984). In doing so, the Court may consider matters outside the pleadings. Mims v. Kemp, 516 F.2d 21, 23 (4th Cir.1975); accord Adams v. Bain, 697 F.2d 1213 (4th Cir.1982).

      . The Act "gives a means by which rights and obligations may be adjudicated in cases involving an actual controversy that has not reached the stage at which either party may seek a coercive remedy and in cases in which a party who could sue for coercive relief has not yet done so” 10A C. Wright, A. Miller, & M. Kane, supra n. 7, § 2751, at 569 (footnote omitted).

      . "The standard for finding a justiciable ‘case or controversy’ in a declaratory judgment action is no less demanding than the standard in any other type of action." Keene Corp. v. Insurance Co. of North America, 215 U.S.App.D.C. 156, 162, 667 F.2d 1034, 1040 (1981), cert, denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982) (citations omitted).

      . The "reasonable apprehension” test is also used in patent disputes. See, e.g., Sweetheart Plastics, Inc. v. Illinois Tool & Works, Inc., 439 F.2d 871, 874 (1st Cir.1971).

      . A justiciable controversy, however, is not created simply by the filing of an opposition to plaintiff's trademark application in the Patent and Trademark Office. Topp-Cola Co. v. Coca-Cola Co., 314 F.2d 124, 125-26 (2d Cir.1963); Merrick v. Sharpe & Dohme, Inc., 185 F.2d 713, 717-18 (7th Cir.), cert, denied, 340 U.S. 954, 71 S.Ct. 573, 95 L.Ed. 687 (1951); American Brah-mental Ass’n. v. American Simmental Ass’n, 443 F.Supp. 163, 165 (W.D.Tex.1977); Acme Feed Mills, Inc. v. Quaker Oats Co., 313 F.Supp. 1156, 1158 (M.D.N.C.1970); see Red Lobster Inns, Inc. v. New England Oyster House, Inc., 378 F.Supp. 1144 (S.D.Fla.1974), aff'd, 524 F.2d 968 (5th Cir.1975).


source: Caselaw Access Project

author: WHELAN, District Judge.

license: Public Domain

text:
    OPERATING ENGINEERS PENSION TRUST, et al., Plaintiffs, v. George CUNDIFF, Jr., etc., Defendant.
    No. CV 82-5103-FW.
    United States District Court, C.D. California.
    July 30, 1985.
    Findings of Fact, Conclusions of Law and Judgment Aug. 30, 1985.

      Michael A. Urban, of Jett, Clifford & Laquer, Los Angeles, Cal, for plaintiffs.
    George Cundiff, Jr., in pro. per., individually and doing business as George Cundiff Associates and G.C.A.
   MEMORANDUM OF DECISION

WHELAN, District Judge.

This matter came on for trial and, after the taking of evidence and submitting of additional points and authorities by counsel for plaintiffs, was submitted for decision. The Court has reviewed the evidence and the law pertinent thereto and is of the opinion that plaintiffs are entitled to decision and damages as follows: Plaintiffs are entitled to recover the sum of $43,915.61 in fringe benefit contributions or their equivalent for damages due to breach of contract. Plaintiffs are also entitled to recover the sum of 10 percent of the above-mentioned amount — to wit, $4,391.56 — as liquidated damages pursuant to the collective bargaining agreement. They are also entitled to receive the cost of audit in the sum of $1,000. They are also entitled to receive reasonable attorneys’ fees for the prosecution of this action in the sum prayed for by plaintiffs. They are also entitled to recover from defendant at the prejudgment interest rate fixed by law from the date that the unpaid contributions became due to date of judgment.

Defendant urged, as a defense, that he was entitled to withdraw from the short-form agreement between the parties which, by its terms, bound defendant to the terms of the master labor agreement. Defendant relies on the decision in Seymour v. Coughlin, 609 F.2d 346 (9th Cir.1979). However, the decision in such case has been distinguished and the Ninth Circuit has held that whether or not a contractor can withdraw from the agreement must be decided on a case-to-case basis. In the instant case, the circumstances are such that defendant cannot claim that he is not bound by the terms of the master agreement and his short-form agreement. Throughout the years in question in this case, defendant sought covered employees from the union hiring hall to work for him, and defendant made reports showing that he had employed covered employees and made contributions for some employees to the trust funds involved. What he owes to the trust funds are the contributions required to be made for other employees and other times during the period involved.

Plaintiffs’ counsel are directed to prepare, serve, and lodge proposed findings, including the amount determinable under the contract for reasonable attorneys’ fees and for prejudgment interest and submit a proposed form of judgment. Such findings and conclusions of law are to be prepared promptly and served in accordance with the Federal Rules of Civil Procedure.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above-entitled cause came on regularly for trial before the Honorable Francis C. Whelan, United States District Judge presiding, sitting without a jury, on April 25, 26 and 27, 1984, and July 11, 1984. Michael A. Urban of the law offices of Jett, Clifford & Laquer appeared as counsel for plaintiffs, Operating Engineers Pension Trust, et al., and George Cundiff, Jr., appeared in propria persona as counsel for defendant George Cundiff, Jr., individually and doing business as George Cundiff Associates and G.C.A. The trial was conducted pursuant to the Pre-Trial Conference Order, the documentary and oral evidence presented at trial and the oral arguments by counsel. After the taking of evidence and the submission of additional points and authorities by counsel for plaintiffs, the case was submitted to the Court for decision. The Court now makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. The plaintiffs are the Operating Engineers Pension Trust, Operating Engineers Health and Welfare Fund, Operating Engineers Vacation-Holiday Savings Trust and Operating Engineers Training Trust (hereinafter “Trusts”).

2. The Trusts are express trusts established pursuant to written declarations and agreements of trust between the International Union of Operating Engineers, Local No. 12 (hereinafter “Local 12”) and various multi-employer associations in the construction industry in Southern California and Southern Nevada.

3. Defendant George Cundiff, Jr., (hereinafter “Cundiff”) is an individual doing business as George Cundiff Associates and G.C.A. with his principal place of business in Bakersfield, California, and is an employer engaged in interstate commerce within the meaning of Section 301(a) of the Labor Management Relations Act.

4. At all times relevant herein, Local 12 has been a labor organization representing employees in the building and construction industry in Southern California and Southern Nevada and a labor organization representing the employees of Cundiff in Southern California in a business affecting interstate commerce within the meaning of Section 301(a) of the Labor Management Relations Act of 1947 as amended [29 U.S.C. § 185(a)],

5. On December 9, 1975, Cundiff executed a short form collective bargaining agreement (hereinafter “Agreement”) and signed written acknowledgements and acceptances of trust establishing the four Trusts (hereinafter “Trust Agreements"). By the terms of the Agreement, Cundiff became obligated to all of the terms and conditions (with some exceptions) of a written agreement known as the Master Labor Agreement between Local 12 and the Southern California General Contractors Associations (hereinafter “Master Agreement” ). Defendant Cundiff has remained bound to the terms of the Master Agreement between Local 12 and the Southern California General Contractors Associations at all times since December 9, 1975, including the obligation to pay fringe benefit contributions to the Trusts for all hours worked by or paid to employees doing any work covered by the Master Agreement.

6. At all times since December 9, 1975, the Agreement, Master Agreement and Trust Agreements were in effect and binding upon Local 12 and Cundiff.

7. By the Master Agreement and Trust Agreements, and at all times material herein, defendant Cundiff was obligated to submit monthly reports to the Trusts on a timely basis showing the identity of his employees performing work covered by the Master Agreement and the number of hours worked by or paid to such employees. Further, Cundiff promised he would pay fringe benefit contributions to the Trusts on a monthly basis and at specified rates for each such hour worked or paid as to his employees covered by the Master Agreement. At all times material herein Cundiff was obligated to submit monthly reports and pay contributions to the Trusts at their place of business in Pasadena, California, on or before the tenth day of each successive month.

8. Each of the Master Agreements that Cundiff has been bound to since December 9, 1975, contain a provision regarding work by owner-operators. The 1980-83 Master Agreement provides as follows:

“The Owner-Operator who is not incorporated shall become a bona fide employee of the Contractor, as defined in this Agreement, upon reporting for work____”
(Art. XVI, Par. T, pp. 88-91).

9. The Master Agreement also requires that Cundiff subcontract work covered by the Master Agreement only to signatory subcontractors. Article I, B of the 1980-1983 Master Agreement provides as follows:

“The Contractor agrees that he or his Subcontractor shall employ one or more employees who are represented by the Union, on each jobsite on which he or any Subcontractor on the jobsite on which he or any Subcontractor on the jobsite is performing work of the type covered by this Agreement, as defined in Article I and the classifications contained in Appendix “A”, and that neither the Contractor nor any Subcontractor on the jobsite will subcontract any work to be done at the site of construction, alteration, painting or repair of a building, structure or other work except to a person, firm or corporation, party to a current labor agreement with the Union, or the basic crafts, namely, the Carpenters, Laborers, Cement Masons, and Teamsters who are also party to an agreement covering the particular work generally recognized as the jurisdiction as defined by the Building and Construction Trades Department.

10. On July 26, 1972, the Joint Labor-Management Adjustment Board met and made the following interpretation of the Master Agreement:

“[WJhen an employee has been dispatched by the Union to a Contractor and the employee performs any work whatsoever covered by the Agreement, the Contractor shall be obligated to pay fringe benefit contributions to the Trusts at the rate required for each and every hour worked by the employee or paid for by the Contractor. Further, that in the event the payroll records of the Contractor show that such an employee is paid a salary or any method other than hourly wages, then the employee shall be presumed to have worked a minimum of forty (40) hours during each week of such employment and payment, and fringe benefit contributions shall be paid for such hours.

11. Pursuant to the terms of the Master Agreement, the plaintiffs, by their duly authorized representative, conducted an audit of the payroll and related records of Cundiff on March 30, 1983, for the time period of January 1, 1978, through January, 1982. For the period covered by the audit, Cundiff hired employees, owner-operators and subcontractors to perform work covered by the Master Agreement without paying fringe benefit contributions for all hours worked by or paid to these individuals. For said period of time Cundiff has failed to pay plaintiffs fringe benefit contributions or damages in the amount of $43,-915.61 pursuant to the Agreement and Master Agreement. Of this amount, $24,-444.57 is for contributions on payroll employees, $9,770.94 is for damages for breach of the subcontracting clause in the Master Agreement and $9,700.10 is for damages for breach of the owner-operator clause in the Master Agreement. The damages for breach of the subcontracting clause and owner-operator clause have been calculated by the measure of unpaid contributions that would have been paid for those hours worked by these individuals if the clauses had not been breached by Cun-diff.

12. The Master Agreement and Title 29 U.S.C. § 1132(g) obligate Cundiff to pay to the Trusts as and for liquidated damages for detriment caused by defendants’ failure to pay fringe benefit contributions in a timely manner, a sum equal to ten percent (10%) of the total amount due to the Trusts, $25.00 per month or interest on the unpaid contributions at rates established pursuant to Title 26 U.S.C. § 6621. Liquidated damages are due to the Trusts from Cundiff in the amount of $4,391.56, pursuant to the terms of the Master Agreement.

13. In addition, the Master Agreement provides for payment of the costs of any audits conducted by the Trusts and for payment of reasonable attorney’s fees incurred in collection of delinquent contributions. Audit costs of $1,000.00 have been assessed by the auditors and are due to plaintiffs by defendant.

14. Article II of the Agreement executed by Cundiff provides as follows:

“The EMPLOYER, not being signatory to any recognized Operating Engineers’ multiple-employer agreement, hereby agrees to accept and be bound by all of the terms and conditions of multiple-employer agreements applicable to the EMPLOYER’S operations and in effect in the area in which the work is performed as recognized, modified and renewed from time to time through collective bargaining between the UNION and the applicable multiple-employer group. It is hereby agreed that the multiple-employer agreements) indicated below is the one most applicable to the EMPLOYER’S operations. Such multiple-employer agreements) is hereby adopted in its entirety, except those provisions in such multiple-employer agreements) which are in conflict with this agreement. Wherever such conflict exists the provisions of this agreement shall apply.”

15. Article Y of the Agreement executed by Cundiff on December 9, 1975, provides as follows:

“This Agreement shall become effective as of the date shown above and shall continue in effect for the same term as the applicable multiple-employer labor agreement and for any renewals or extensions thereof, unless either party shall give written notice to the other party, not less than ninety (90) nor more than one hundred twenty (120) days prior to the termination date of the appropriate multiple-employer agreement of its desire to terminate.”

This paragraph is ambiguous when read with Article II of the Agreement and requires the Court to consider extrinsic evidence of the parties’ intent and conduct regarding the termination date of the Agreement. The term for the applicable Master Agreement in effect at all times material herein was July 1, 1977, to June 15, 1980, and July 1, 1980 to June 30, 1983.

16. On March 15, 1981, Cundiff sent a letter to the Trusts alleging that he was out of business and requesting that the Trusts stop sending monthly reports. This letter was not a notice or request to terminate the Agreement and Master Agreement to Local 12 and was an untimely notice of termination even if it had been sent to Local 12 pursuant to Article V of the Agreement signed by Cundiff on December 9, 1974.

17. Local 12 and employers signatory to short form collective bargaining agreements have customarily treated such agreements as continuing to incorporate the amended terms of the Master Agreement when it is renegotiated at the end of its stated term unless a timely written notice of termination is received by Local 12 from the employer party to the short form agreement.

18. Local 12 and employers signatory to short form collective bargaining agreements have not treated such agreements as automatically terminating when the incorporated Master Agreement is renegotiated at the end of its stated term.

19. Local 12 and Cundiff did not treat the short form collective bargaining agreement signed by Cundiff on December 9, 1975, as automatically terminated when the incorporated Master Agreement was extended for the term of July 1,1977, to June 15, 1980, or at any time thereafter. Cun-diff and Local 12 have treated the Agreement as continuing in effect each time the Master Labor Agreement was renegotiated and extended. Cundiff has not given a timely written notice of termination to Local 12 pursuant to Article V in the Agreement.

20. Cundiff continued to enjoy the benefits of the Agreement and Master Agreement when the Master Agreement incorporated in the Agreement signed by Cundiff on December 9, 1975, was renegotiated and extended for the period of July 1, 1977, to June 15, 1980, and July 1, 1980, to June 30, 1983. Cundiff continued to request operating engineer employees from Local 12 and have them dispatched to its construction sites by Local 12 to perform work covered by the Master Agreement. Cundiff reported some, but not all, of the hours worked by or paid to these dispatched employees to the Trusts for purposes of fringe benefit contributions and these employees did receive certain benefits from the Trusts as a result of this reporting. Cundiff was able to maintain a stable work force with fixed labor costs and avoid possible interruption of work by continuing to comply, to some extent, with the terms of the Agreement and Master Agreement in effect for July 1, 1977, to June 15, 1980, and July 1, 1980, to June 30, 1983.

21. The parties to the Master Agreement intended to obligate each employer bound by the Master Agreement to take all steps necessary to establish a bona fide employer-employee relationship with each owner-operator whose services are used by the employer to perform work covered by the Master Agreement.

22. The parties to the Master Agreement intended that any signatory employer failing to make an owner-operator a bona fide employee should be required to pay damages to the Trusts in the amounts which would have been payable if the owner-operator had been made an employee, even though such damages would benefit all participating employees of the Trusts rather than a particular employee.

23. Plaintiffs have incurred reasonable attorney’s fees in prosecuting this action, in the amount of $5,490.00 and defendant Cundiff owes plaintiffs said amount as attorney fees.

24. Pursuant to Title 29 U.S.C. § 1132(g) plaintiffs are also entitled to prejudgment interest on unpaid contributions. The prejudgment interest rate due to plaintiffs is established by Title 26 U.S.C. § 6621. Interest on the $43,915.61 in unpaid contributions and damages due to plaintiffs, from the date that said amounts were due to July 31,1985, is $32,162.42 and plaintiffs are entitled to this sum from defendant.

25. Any Conclusion of Law which is deemed to be a Finding of Fact is incorporated into these Findings of Fact.

CONCLUSIONS OF LAW

1. Any Conclusion of Law which may be either a Conclusion of Law or a Finding of Fact shall be treated as both a Conclusion of Law and Finding of Fact.

2. This Court has jurisdiction over this action under § 301(a) of the Labor Management Relations Act, as amended, and § 502(e)(1) of the Employee Retirement Income Security Act of 1974, as amended 29 U.S.C. § 185(a) and § 1132(e)(1), respectively-

3. Defendant Cundiff has been and is, bound to a collective bargaining agreement with Local 12, which incorporates by reference (with certain exceptions) the Master Labor Agreement between Local 12 and Southern California General Contractors Associations, for the period of July 1, 1974, to July 1, 1977, July 1, 1977, to June 15, 1980, and July 1, 1980, to July 1, 1983, and the Trust Agreements establishing the Operating Engineers Pension Trust, Operating Engineers Health & Welfare Fund, Operating Engineers Vacation-Holiday Savings Trust and Operating Engineers Training Trust. Cundiff has remained bound to the terms of these agreements at all times relevant to this action.

4. The Agreement signed by Cundiff and Local 12 is ambiguous as to whether the Agreement is meant to terminate automatically when the Master Agreement is renegotiated at the end of its stated term, or whether the Agreement is to continue to incorporate the amended terms of the Master Agreement unless a timely written notice of termination is received by Local 12 from the signatory employer. In order to determine the proper interpretation of the Agreement, the Court is required to consider extrinsic evidence of the intent and conduct of the parties to the contract, the custom, usage and practice concerning all similar related agreements, and the law in effect when the Agreement was made.

5. A collective bargaining agreement is different from an ordinary commercial contract. “It is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960). Such an agreement must be interpreted as a whole in light of the law relating to it when made, and in a manner consistent with the scope, practice, usage and custom pertaining to all related agreements. Kemmis v. McGoldrick, 706 F.2d 993, 996 (9th Cir.1983); Transportation— Communication Employees Union v. Union Pacific Railroad Co., 385 U.S. 157, 87 S.Ct. 369, 17 L.Ed.2d 264 (1966). Extrinsic evidence of bargaining history and the parties’ past practices should be considered even if the collective bargaining agreement is clear and unambiguous. See Syufy Enterprises v. Northern Cal. State Ass’n of IATSE Locals, 631 F.2d 124, 126 (9th Cir. 1980).

6. Nothing in Seymour v. Coughlin Co., 609 F.2d 346 (9th Cir.1979), forecloses an employer from agreeing to be bound to the outcome of the renegotiation of the MLA. Construction Teamsters Health & Welfare Trust v. Con Form Construction Corp., 657 F.2d 1101, 1103 (9th Cir.1981). Coughlin did not consider extrinsic evidence of the intent and conduct of the parties to the agreement, the custom, usage and practice in pertaining to all related agreements or the provisions of § 8(d) of the National Labor Relations Act [29 U.S.C. § 158(d)]. The Ninth Circuit has since held that a case by case adjudication is the appropriate method to use when interpreting a short form collective bargaining agreement, and that no per se rule was established by the court in Coughlin. Zin-ser-Furby, Inc. v. San Diego County District Council of Carpenters, 681 F.2d 1171 (9th Cir.1982). Where the termination provisions in short form agreements are subject to more than one interpretation, the Ninth Circuit has directed the court to look at extrinsic evidence of the parties conduct and the custom and practice in the industry to determine if the parties intended the contract to remain in effect until a timely termination notice. See Winton Kemmis v. James P. McGoldrick, 767 F.2d 594 (9th Cir., 1985); William C. Waggoner v. Robert Lee Dallaire, 767 F.2d 589 (9th Cir. 1985) and Arizona Laborers, Teamsters & Cement Masons Local 395 Health & Welfare Trust Fund v. Conquer Cartage Co., 753 F.2d 1512 (9th Cir.1985).

7. Based on the evidence of practice, usage and custom pertaining to all of Local 12’s short form collective bargaining agreements, such agreements continue to incorporate the amended terms of the Master Agreement when the Master Agreement is renegotiated and extended at the end of its stated term unless a timely written notice is received by Local 12 from the employer party to the short form agreement. Such short form agreements do not automatically terminate when the incorporated Master Agreement is renegotiated at the end of its stated term.

8. In the instant case, the circumstances are such that Cundiff cannot claim that he is not bound by the terms of the Master Agreement and his Agreement. Throughout the years in question in this case, Cun-diff sought covered employees from the Local 12 hiring hall to work for him, and Cundiff made reports showing that he had employed covered employees and made contributions for some employees to the trust funds involved. What Cundiff owes to the Trusts are the contributions required to be made for other employees and other times during the period involved.

9. The Agreement signed by Cundiff on December 9, 1975, was not automatically terminated when the incorporated Master Agreement was extended for the term of July 1, 1977, to June 15, 1980, and July 1, 1980, to June 30, 1983. Cundiff has remained bound to the terms of the Agreement and Master Agreement at all times material to this action.

10. The Master Agreement that Cundiff is bound to requires the payment of fringe benefit contributions for all hours worked by or paid to employees performing work covered by the Master Agreement. In Waggoner v. C & D Pipeline Co., 601 F.2d 456, (9th Cir.1979), Burke v. Lenihan, 606 F.2d 840 (9th Cir.1979), and Waggoner v. Wm. Radkovich Co., Inc., 620 F.2d 206 (9th Cir.1980), the Ninth Circuit has interpreted and enforced the identical language in the Master Labor Agreement between Local 12 and the Southern California General Contractors Associations. The business agents for Local 12 or any other union are not the agents of the Trusts, nor do they have any authority to modify the obligations of Cundiff to the Trusts. Any alleged oral agreement to do so would be unenforceable under 29 U.S.C. § 186(c). See Waggoner v. Dallaire, 649 F.2d 1362 (9th Cir.1981) and Kemmis v. McGoldrick, 706 F.2d 993 (9th Cir.1983). Cundiff is obligated to report and pay fringe benefit contributions for all hours worked by or paid to an employee who performs any work covered by the Master Agreement. Cundiff has failed to pay fringe benefit contributions of $24,444.57 on payroll employees who performed covered work and this amount is due to plaintiffs.

11. The Master Agreement which Cun-diff is bound to also requires that he only subcontract work covered by the Agreement and Master Agreement to contractors who are signatory to the proper agreements. These types of subcontracting provisions have been upheld by the United States Supreme Court in Woelke v. Romero Framing, Inc. v. NLRB, 456 U.S. 645, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982). The auditor for the Trusts found several employers who Cundiff had subcontracted work to which was covered by the Master Agreement for which no fringe benefit contributions have been paid to the Trusts. This action by Cundiff is a breach of the express terms of the Master Agreement. The plaintiffs are entitled to damages from Cundiff in an amount “measured by” the hours worked by or paid to the subcontractors and their employees who were performing work covered by the Master Agreement. Damages of $9,770.94 are due to the plaintiffs by Cundiff for this breach of the Master Agreements.

12. The Ninth Circuit previously interpreted an owner-operator clause in the San Diego County Master Labor Agreement in Todd v. Benal Concrete Co., 710 F.2d 581 (9th Cir.1983). In that case, the evidentia-ry record was held to be insufficient to show that the agreement intended a true employer-employee relationship to be established between the signatory employer and the owner-operator. That evidentiary requirement has been satisfied in this case by the extrinsic evidence establishing that the bargaining parties intended to require bona fide, actual employer-employee relationship with any owner-operator whose services are used by the employer.

13. Nothing in federal labor policy prohibits a union and an employer in the construction industry from agreeing that a person working for the employer on a construction site will be made an employee. Section 302(c)(5) of the Labor Management Relations Act of 1947, as amended [29 U.S.C. § 186(c) ], was not intended to inhibit the participation by employees in employee benefit plans, but rather was intended to prohibit payments from employers to union representatives for corrupt purposes and to assure that monies payable to employee benefit plans will be secure and used solely for the benefit of covered employees. Waggoner v. Dallaire, 649 F.2d 1362, 1366 (9th Cir.1981). A collective bargaining agreement clause which measures the employer’s obligation to employee benefit trusts by the amount of work performed by the employees of a non-signatory subcontractor is lawful, even though those employees will not be eligible for benefits from the trusts. Walsh v. Schlecht, 429 U.S. 401, 97 S.Ct. 679, 50 L.Ed.2d 641 (1977). A similar clause designed to assure that the persons performing the work are employees covered by the written agreement is equally lawful, and should be recognized for its salutary effect in assuring that the economic benefits flowing from the work effort will accrue to the persons actually performing the work.

14. Under the Master Agreement, if the employer performs the obligation to establish a bona fide employer-employee relationship with the owner-operator, the employer is obligated to make fringe benefit contributions to the Trusts on behalf of the employee as required elsewhere in the MLA. In addition, if the employer fails to take the action necessary to create an employer-employee relationship with the owner-operator, the Master Agreement provides a remedy in damages to the Trusts for the breach of contract measured by and equal to all amounts which would have been payable to the Trusts if the owner-operator had been made a bona fide employee.

15. Cundiff failed to take any action to establish a bona-fide employer-employee relationship with his owner-operators and, therefore, breached the owner-operator clause of the Master Agreement. The Trusts are entitled to damages measured by and equal to the amounts due for fringe benefit contributions had Cundiff made these owner-operators his bona-fide employee. This amount is the sum of $9,700.10.

16. In addition to the fringe benefit contributions and damages for breach of contract, the plaintiffs are entitled to prejudgment interest through July 31, 1985, in the sum of $32,162.42, audit costs of $1,000.00, liquidated damages of $4,391.56, and reasonable attorney’s fees in the amount of $5,490.00, pursuant to the Master Agreement and 29 U.S.C. § 1132(g)(2). Operating Engineers Pension Trust v. Reed, 726 F.2d 513 (9th Cir.1984); Kemmis v. McGol-drick, 706 F.2d 993 (9th Cir.1983).

17. The Trusts are entitled to their costs of suit from Cundiff.

18. Judgment shall be entered in favor of plaintiffs and against defendant.

JUDGMENT

The above-entitled case came on regularly for trial on April 25, 26 and 27,1984, and July 11, 1984, before the Court, the Honorable Francis C. Whelan, United States District Judge, presiding.

Having reviewed all of the pleadings, records, files and evidence taken at trial in this matter, and the Court having signed its Findings of Fact and Conclusions of Law, it is hereby,

ORDERED, ADJUDGED AND DECREED that plaintiffs, Operating Engineers Pension Trust, Operating Engineers Health & Welfare Fund, Operating Engineers Vacation-Holiday Savings Trust and Operating Engineers Training Trust, shall recover from defendant, George Cundiff, Jr., individually and doing business as George Cundiff Associates and G.C.A., the sum of $43,915.61 in unpaid fringe benefit contributions and contract damages, $4,391.56 in liquidated damages and $1,000.00 in audit costs for a total principal of $49,307.17, plus $32,162.42 in pre-judgment interest through July 31, 1985, and $5,490.00 in attorney’s fees for a total of $86,959.59, plus plaintiffs’ cost of suit of $--


author: SHOOB, District Judge.

text:
    Frank M. BARRON, Jr., as Administrator of the Estate of Frank M. Barron, III, deceased, Plaintiff, v. SPECTRUM EMERGENCY CARE, INC., Defendant.
    Civ. A. No. 83-1672.
    United States District Court, N.D. Georgia, Atlanta Division.
    July 30, 1985.

      Thomas F. Allgood, Jr., Allgood & Childs, Atlanta, Ga., for plaintiff.
    Donald M. Fain, William P. Tinkler, Jr., Fain, Gorby, Reeves & Moraitakis, P.C., Atlanta, Ga., for defendant.
   ORDER

SHOOB, District Judge.

This is a wrongful death action involving alleged medical malpractice. Defendant, Spectrum Emergency Care, Inc. (“Spectrum”), has moved for a stay pending the resolution of a related state court action. Plaintiff, Frank M. Barron, Jr. (“Barron”), has moved to join Elizabeth Ann Fisher Toth pursuant to Fed.R.Civ.P. 19. For the reasons stated below, both motions are denied.

Spectrum’s Motion to Stay

For the purposes of this motion, the facts can be stated simply. On August 26, 1981, Barron’s adult son was seriously injured in an automobile accident. He died later that same day, after receiving treatment in the emergency room of Coweta General Hospital (“Coweta”) in Newnan, Georgia. During the relevant period, Spectrum was contractually obligated to provide physicians to staff Coweta’s emergency room. Barron alleges that his son’s death was proximately caused by the negligence of Dr. Fredrick C. Glass, one of the physicians provided to Coweta by Spectrum.

On August 9, 1983, Barron filed the instant diversity action. The complaint advances two theories: (1) that, under the doctrine of respondeat superior, Spectrum is liable for Dr. Glass’s alleged negligence; and (2) that Spectrum is liable for negligently hiring Dr. Glass, who, according to Barron, lacks the requisite credentials to serve as an emergency room physician. Spectrum maintains that Dr. Glass’s treatment of decedent satisfied the prevailing medical standard. In addition, Spectrum contends that it cannot be held vicariously liable, inasmuch as Dr. Glass was an independent contractor, not its employee. Finally, Spectrum denies that it was negligent in hiring Dr. Glass.

Discovery has been completed in this action, and, by order dated April 2, 1985, the Court denied Spectrum’s motion for summary judgment. As soon as the parties submit an acceptable pretrial order, this case will be eligible for the ready trial calendar.

On August 31,1984, Barron filed a related state court action in DeKalb County, Georgia. In that action, Barron seeks to recover directly from Dr. Glass and Dr. Jack H. Powell, who consulted with Dr. Glass regarding decedent’s treatment. Spectrum is not named as a defendant in the state court action. The parties dispute whether the state court action is properly on the ready trial calendar. However, the Court assumes, arguendo, that the state court action is ready for trial.

It is well settled that “ ‘the pendency of an action in ... state court is no bar to proceedings concerning the same subject matter in ... Federal court. . . .' ” Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)). Indeed, only in “exceptional circumstances” may a district court properly abstain from exercising its jurisdiction until a related state court action is resolved. Moses H. Cone Memorial Hospital v. Mercury Construction Co., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Colorado River, supra, 424 U.S. at 817, 96 S.Ct. at 1246; American Manufacturers Mutual Insurance Co. v. Edward D. Stone, Jr. & Assoc., 743 F.2d 1519 (11th Cir.1984); Forehand v. First Alabama Bank of Dothan, 727 F.2d 1033 (11th Cir.1984).

The abstention doctrine enunciated in Colorado River and further developed in Moses H. Cone is predicated upon a court’s inherent power to control its own docket. See Colorado River, supra, 424 U.S. at 817, 96 S.Ct. at 1246; Kruse v. Snowshoe Co., 715 F.2d 120, 122 (4th Cir. 1983), cert, denied, 465 U.S. at 1065, 104 S.Ct. 1413, 79 L.Ed.2d 739 (1984). Properly employed, Colorado River abstention serves to avoid the wasteful duplication of judicial resources. E.g., Moos v. Wells, 585 F.Supp. 1348 (S.D.N.Y.1984). However, an improvident application of abstention under Colorado River is a “serious abuse of discretion.” Moses H. Cone, supra, 460 U.S. at 28, 103 S.Ct. at 943. Of course, regardless of the abstention doctrine at issue, district courts must always be mindful of “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” Colorado River, supra, 424 U.S. at 817, 96 S.Ct. at 1246. But this obligation is especially weighty where, as here, abstention is sought solely on the grounds of judicial economy. Id. at 818, 96 S.Ct. at 1246. This is so because, in contrast to other types of abstention, Colorado River abstention does not rest upon “considerations of constitutional adjudication and federal-state relations. . . .” Id.; compare Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Therefore, before invoking Colorado River, a district court must make certain that exceptional circumstances are present.

The exceptional circumstances test is not comprised of a “mechanical checklist.” Moses H. Cone, supra, 460 U.S. at 16, 103 S.Ct. at 937. Instead, in ruling on the instant motion, the Court must apply a flexible approach, relying in large part on the factors set forth in Colorado River and Moses H. Cone. These factors include, but are not limited to, the following: (1) whether either court has assumed jurisdiction over a disputed res; (2) whether either forum is inconvenient; (3) the desirability of avoiding piecemeal litigation in the type of action at bar; (4) the progress of the two actions; (5) whether state or federal law is controlling; and (6) whether the parties can adequately protect their rights and obtain complete relief in state court. American Manufacturers, supra, 743 F.2d at 1525; Forehand, supra, 727 F.2d at 1035; Hartford Accident & Indemnity v. Hop-on International Corp., 568 F.Supp. 1569, 1571 n. 5 (S.D.N. Y.1983). In considering these and other relevant factors, there is a presumption in favor of exercising jurisdiction; thus, only a clear and convincing showing by the party seeking a stay will justify Colorado River abstention. Moses H. Cone, supra, 460 U.S. at 15-16, 103 S.Ct. at 936-37; Colorado River, supra, 424 U.S. at 818-19, 96 S.Ct. at 1246-47.

Applying the relevant factors to the instant case, it is clear that a stay is not warranted. Neither the state court nor this Court has been requested to assume jurisdiction over any property. See American Manufacturers, supra, 743 F.2d at 1525; Forehand, supra, 727 F.2d at 1035; compare Moos v. Wells, supra, 585 F.Supp. at 1350. In addition, Spectrum has not suggested that appearing in this Court is any less convenient than appearing in state court.

There is no threat that allowing both actions to remain active will violate an established policy against piecemeal litigation or work an injustice to either party. Spectrum rests much of its argument on the fact that the prompt disposition of the state court action could render moot the instant action. Indeed, if the state court action is tried first and Dr. Glass successfully defends against Barron’s malpractice claim, the doctrine of collateral estoppel may well preclude recovery in the instant case. See Gilmer v. Porterfield, 233 Ga. 671, 212 S.E.2d 842 (1975). However, this fact does not present the danger of piecemeal litigation that so concerned the Colorado River court. In Colorado River, abstention was invoked largely because the controlling statute evinced a “clear federal policy ... [of] avoidance of piecemeal adjudication of water rights in a river system.” Colorado River, supra, 424 U.S. at 819, 96 S.Ct. at 1247. Obviously, this case is devoid of such considerations. Moreover, the Court’s refusal to grant a stay will not prejudice Spectrum, since it will be free to raise collateral estoppel arguments in this action.

Spectrum also argues that abstention is appropriate because the state court action is ready for trial and because state law provides the rule of decision. The Court disagrees. Both actions are at an advanced state. Furthermore, the Court cannot abstain simply because state law is controlling. The “source-of-law-factor” has its greatest significance where federal law issues are present. Moses H. Cone, supra, 460 U.S. at 26, 103 S.Ct. at 942. In such cases, the moving party must make a particularly convincing showing of exceptional circumstances. Id. On the other hand, where, as here, state law issues predominate, the souree-of-law factor is of diminished importance. A contrary view would mean that abstention would be the rule rather than the exception in duplica-tive federal actions brought under diversity jurisdiction.

Finally, the Court must consider whether the parties can obtain complete relief in state court. In this regard, it is significant that there is not a complete identity of parties and issues in the two suits. Hartford Accident & Indemnity, supra, 568 F.Supp. at 1571 n. 5. As noted above, Spectrum is not a party in the state court action. Consequently, even if Barron were to obtain a verdict against Dr. Glass in state court, this action would be required to determine whether Spectrum can be held vicariously liable under the doctrine of re-spondeat superior or directly liable for negligent hiring. For this reason alone, a stay would be improper.

In sum, because Spectrum has failed to demonstrate that exceptional circumstances are present, its motion to stay the instant action is DENIED.

Barron’s Motion to Join a Necessary Party

Pursuant to Fed.R.Civ.P. 19, Barron seeks to join as co-plaintiff Elizabeth Ann Fisher Toth. Ms. Toth is Barron’s ex-wife and decedent’s mother. Barron argues that Ms. Toth’s involvement in the case is necessary for a just adjudication. The Court rejects Barron’s argument.

As Barron correctly points out, because his decedent left no surviving wife or children, Barron and Ms. Toth, as decedent’s parents, enjoy a joint right of action pursuant to Off.C.Ga.Ann. § 19-7-1. Apparently, as alleged by Barron, Ms. Toth had been unwilling to participate in the case until recently. In such circumstances, the controlling statute provides that “the other parent shall have the right to contract for representation on behalf of both parents ... with any ultimate recovery to be shared by the parents____” Id. Thus, in effect, Ms. Toth’s interests are already represented. The fact that she is not a named party will neither impair her ability to protect her interests nor subject either party to inconsistent or multiple obligations. Therefore, Barron has failed to establish that joinder is compulsory under Rule 19. Although it is difficult to discern any potential prejudice to defendant, the Court declines to add an unnecessary party at this advanced stage of litigation.

Accordingly, plaintiff’s motion to join a necessary party is DENIED.

      , The Court has rejected the parties’ proposed pretrial order for failure to comply with L.R. 235-5, N.D.Ga.

      . Barron has filed several related state and county court actions. However, defendant’s motion is based solely on the action filed in DeKalb County.

      . It is worth noting that the Court might well have viewed Spectrum's motion in a more favorable light had it been filed in a timely fashion. The Court has already devoted considerable time and energy to this case, having supervised discovery and ruled on Spectrum’s motion for summary judgment. To be frank, it is a little late in the day for Spectrum to express concern about conserving judicial resources.

      . As Justice Brennan explained in Moses H. Cone,

      When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any serious doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all---- Thus, the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case____
      460 U.S. at 28, 103 S.Ct. at 943 (citations omitted).


author: ASPEN, District Judge:

text:
    Max LIBERLES, As President of and on Behalf of the Illinois Union of Social Service Employees, American Federation of State and Municipal Employees, AFL-CIO, Alice Allen, and All Those Persons Listed in Appendix A of the Complaint (Sub-Class A), Individually and on Behalf of All Others Similarly Situated, Wilhelmena Ashby and All Other Persons Listed in Appendix B of the Complaint (Sub-Class B), Individually and on Behalf of All Others Similarly Situated, Dorothy Bently, and All the Persons Listed in Appendix C of the Complaint, Individually and on Behalf of All Other Persons Similarly Situated, Catherine Alexander, and Other Persons Listed in Appendix D of the Complaint, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. David L. DANIEL, Director of the Cook County Department of Public Aid, George Dunne, President of the Cook County Board of Commissioners, Joseph M. Solon, Chairman of the Civil Service Commission of Cook County, Joel Edelman, Director of the State of Illinois Department of Public Aid, Nolan B. Jones, Director of the State of Illinois Department of Personnel, Defendants.
    No. 73 C 3217.
    United States District Court, N.D. Illinois, E.D.
    July 31, 1985.
    George Galland, Davis, Miner, Barnhill & Galland, Chicago, 111., for plaintiffs.
    Barbara L. Greenspan, Asst. Atty. Gen., Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

After eleven years of litigation, the class in this Title VII ease was awarded and has been paid a judgment of more than $13 million — one of the largest race discrimination money judgments ever paid in this country. Presently before the Court is the petition of plaintiffs’ counsel (“petitioners”) for attorney’s fees and costs. For the reasons set forth below, we find that petitioners are entitled to an award of $451,208.69 in fees and costs from the State defendants.

I.

Title VII of the Civil Rights Act of 1964 provides that a court, “in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs____” 42 U.S.C. § 2000e-5(k). Pursuant to this statutory provision, petitioners request a total award of $960,424.75 in attorney’s fees and out-of-pocket costs from the State. Petitioners reach the attorney’s fee figure through a two-step calculation. First, they multiply the number of hours they worked by their requested hourly rates to obtain a “lodestar fee.” Second, petitioners increase most of the lodestar fee by a multiplier of 3.5, which they contend is appropriate here. The State concedes that petitioner’s lodestar fee is reasonable. Thus, the only contested issue is what, if any, multiplier is proper to yield an attorney’s fee that is reasonable under the circumstances of this ease.

Both the Supreme Court and the Seventh Circuit have recently discussed the use of multipliers in civil rights cases. In Blum v. Stenson, 465 U.S. 886, 104 S,Ct. 1541, 79 L.Ed.2d 891 (1984), the Supreme! Court reaffirmed its holding that although the “product of reasonable hours times a reasonable rate” normally provides a “reasonable” attorney’s fee, “in some cases of exceptional success an enhanced award may be justified.” Id., 465 U.S. at-, 104 S.Ct. at 1548, quoting Hensley v. Eck-erhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). The Court then discussed some of the factors which might be used to increase the lodestar figure.

The Blum Court first rejected the use of the novelty or complexity of the issues to enhance a fee award. The Court reasoned that these factors presumably are reflected already in the number of billable hours recorded by counsel. Moreover, any special skill of the attorney in handling novel or complex issues should be reflected in the reasonableness of the attorney’s hourly rates. Blum, 465 U.S. at-, 104 S.Ct. at 1548-49.

Similarly, the Court noted that the quality of representation is generally reflected in the reasonable hourly rate. However, this factor may warrant an upward adjustment in rare cases where the fee applicant offers specific evidence that the quality of legal services rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was “exceptional.” Id., 465 U.S. at -, 104 S.Ct. at 1549.

The Court also considered whether a fee award should be increased because of the “results obtained.” In Hensley, the Court had noted that this factor was especially important in determining reasonable attorney’s fees where the plaintiff prevailed only on some of his claims for relief. Hensley, 461 U.S. at 436, 103 S.Ct. at 1940. However, in Blum the Court held that the results obtained “normally should not provide an independent basis for increasing the fee award” because the results generally will be subsumed within other factors used to calculate a reasonable fee. Blum, 465 U.S. at-, 104 S.Ct. at 1549.

The Court mentioned one other factor sometimes used to justify an upward adjustment of fees: the risk of not prevailing and thus not recovering any attorney’s fees. The majority opinion did not resolve the question whether this factor may be used properly to enhance an award of attorney’s fees. Id., 465 U.S. at-n. 17, 104 S.Ct. at 1550 n. 17. Justice Brennan, on the other hand, in a concurring opinion reaffirmed his view that the risk of not prevailing is indeed a proper factor. Id., 465 U.S. at -, 104 S.Ct. at 1550-51 (Brennan, J., concurring).

Thus, in Blum the Supreme Court repeated its statement that the use of a multiplier may be justified in “some cases of exceptional success,” and it left open the possibility that the risk of nonpayment may require an upward adjustment to provide a reasonable fee. Unfortunately, the Court did not explain what constitutes a case of exceptional success. Rather than defining the term, the Court simply ruled out certain factors which do not justify using a multiplier: novelty, complexity and, in most cases, quality of representation and the results obtained.

Although the Seventh Circuit Court of Appeals has not had occasion to define “cases of exceptional success” subsequent to Hensley and Blum, earlier Seventh Circuit opinions have discussed at some length the use of multipliers. In In re Illinois Congressional Districts Reapportionment Cases, 704 F.2d 380 (7th Cir.1983), the Seventh Circuit noted that although the award of attorney’s fees is committed to the sound discretion of the district courts, they should not lightly employ multipliers in making fee awards. Rather, multipliers “should be given only in cases that are significant and where the quality of the attorney’s work is considerably above average.” Id. at 384.

In that case, the Seventh Circuit approved the use of a multiplier based upon several factors. These included: the contingent nature of the attorney’s fee, the magnitude and complexity of the case, the excellent quality of the attorneys’ work, the public interest served by plaintiff’s counsel and the preclusion of plaintiff’s attorneys from other employment because of the case. Id. at 382-83. This approach is consistent with that established by the Seventh Circuit in previous cases — after calculating the lodestar fee, the court may make adjustments for various other factors set out in the Code of Professional Responsibility as adopted by the American Bar Association. E.g., Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 763-64 n. 5, 769 (7th Cir.1982), cert. denied, 461 U.S. 956, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983); Muscare v. Quinn, 614 F.2d 577, 579 (7th Cir. 1980).

After the Supreme Court’s opinion in Blum, however, some of the factors previously considered by the Seventh Circuit should no longer be used to justify the use of a multiplier. For example, the Blum Court clearly barred the use of the complexity or novelty of the issues. Blum, 465 U.S. at-, 104 S.Ct. at 1549. The Seventh Circuit has not yet addressed the question of what factors should be considered still, nor has it had the occasion to explain its interpretation of the Supreme Court’s phrase “cases of exceptional success.”

Perhaps the most detailed attempt so far to define “exceptional success” has been that of the Tenth Circuit Court of Appeals in Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983). The Tenth Circuit stated that “ ‘[e]xceptional success’ justifying an enhanced fee may be based upon the performance of counsel — for example, victory under unusually difficult circumstances or with an extraordinary economy of time — or upon the result achieved — total victory or establishment of significant new law.” Id. at 557. However, like the Illinois Reapportionment Cases, Ramos was decided a year before Blum, and its explanation of “exceptional success” has been limited to some extent by the Supreme Court. In particular, the Supreme Court rejected (in most cases) one of the two primary reasons offered by the Tenth Circuit for enhancing a fee: the results achieved in the case. Blum, 465 U.S. at —, 104 S.Ct. at 1549.

To summarize, the Supreme Court has held that an enhanced fee might be reasonable in “cases of exceptional success” — and possibly where the attorneys risked not being paid for their work. But the Court has not defined “exceptional success” and in fact has ruled out certain factors previously used by the Seventh Circuit and other courts to decide whether a multiplier was justified. We will now consider the specific arguments petitioners make in favor of a multiplier and will attempt to determine their significance in light of the decisions discussed above.

II.

Petitioners assert that their lodestar fee should be adjusted upward because of both the exceptional success they achieved and the substantial risk they incurred. To explain their exceptional success, petitioners refer to the four factors outlined in Ramos. They contend that although only one of the factors enumerated by the Tenth Circuit is required to justify an enhancement of their fee, all the factors are present here.

First, petitioners argue that they attained “victory under unusually difficult circumstances.” They begin by stating that the case took eleven years to win and then claim that any case that takes so long “clearly presents ‘unusually difficult circumstances.’ ” We decline to recognize such a universal principle. Petitioners also stress the case’s complexity, both factual and legal. However, the Supreme Court has ruled out complexity as a basis for a multiplier. Blum, 465 U.S. at -, 104 S.Ct. at 1548-49.

Petitioners next explain how the rapid and significant changes in Title VII law during the pendency of this suit threatened at various points to obliterate plaintiffs’ case. They also point out that there were significant factual gaps in the defendants’ records concerning who had taken and passed hiring tests. Together, these circumstances required petitioners to “shift theories in midstream” and present a new theory focussing on the disparate racial impact of defendants’ facially neutral assignment policy. To the extent that petitioners rely on the novelty of this theory to justify a fee multiplier, Blum defeats them. Id. But petitioners seem to argue, and we agree, that the quickly changing body of Title VII law coupled with the testing information missing from defendants’ records presented “unusually difficult circumstances” above and beyond the novelty or complexity of this case.

Second, petitioners argue that they achieved “victory with an extraordinary economy of time.” Acknowledging that this case took eleven years to be litigated, petitioners emphasize that they spent just over 2,000 attorney hours on the case. Considering the size of the judgment they obtained and the numerous legal battles they fought, this may indeed be considered unusually economical. The case was never settled; rather, it was litigated to judgment and to the Court of Appeals. Defendants filed several motions to dismiss, opposed class certification (even up to the Seventh Circuit), resisted legitimate discovery requests and raised numerous issues on appeal. See Liberies v. County of Cook, 709 F.2d 1122 (7th Cir.1983).

Third, petitioners claim a “total victory” from any perspective. This seemingly boastful claim appears to be well founded. Plaintiffs won one of this nation’s largest race discrimination money judgments ever. The judgment is especially large given the relatively modest class size — some individual awards exceeded $45,000. Moreover, the class received every single dollar to which it claimed it was legally entitled, including prejudgment interest. In addition to money damages, class members were elevated in their job positions and will receive increased pensions. Plaintiffs’ victory indeed is a total one.

Fourth, petitioners assert that they achieved the “establishment of new law.” Most notably, they claim to have demonstrated the full range of the “disparate impact” theory and to have shown that individual damage hearings are not always necessary in this type of case. Petitioners also claim responsibility for minor clarifications in the law regarding EEOC charges, the need for an immediate motion for class certification, and the “necessary party” requirements of Fed.R.Civ.P. 19.

The one obstacle to petitioners’ reliance on these third and fourth factors to justify a multiplier here is the Blum Court’s holding that the “results obtained” normally do not warrant increasing the fee award. Blum, 465 U.S. at-, 104 S.Ct. at 1549. As the Tenth Circuit explained in Ramos, a “total victory” or the “establishment of new law” are aspects of the “results obtained.” Ramos, 713 F.2d at 557. However, the Supreme Court did not categorically bar the use of this factor, but only ruled it out “normally.” We find that if the totality of victory or establishment of new law may ever properly be considered elements of “exceptional success,” then they should be so considered in this case.

Petitioners also argue that the risk of nonpayment that they faced warrants the use of a multiplier. They claim that the risk was increased in this case by the great instability of the relevant body of law as well as by the long period of time in which they went uncompensated. In support of their claim, petitioners cite the affidavits of different academics which identify the risk factors present in Title VII litigation generally and in this action specifically. They also cite the affidavit of then Professor Richard Posner (now a judge on the Seventh Circuit Court of Appeals), filed in Arenson v. Board of Trade, 372 F.Supp. 1349 (N.D.Ill.1974), an antitrust case. In the affidavit Posner explains that a bonus is necessary to fully compensate attorneys who handle a suit on a contingency-fee basis.

The State concedes that the risk to counsel may justify the use of a multiplier. Apparently assuming that the multiplier should be inversely proportional to the risk (e.g., a multiplier of 3.0 would be proper when the attorneys had a lh chance of succeeding and thus being paid), the State contends that a multiplier of 2.0 is the highest adjustment appropriate in this case because plaintiffs always had at least a 50 percent chance of prevailing.

Petitioners also seem to assume that the multiplier and risk should be inverse proportions. However, they disagree strongly with the State’s estimate of the plaintiffs’ likelihood of success, arguing that “this was always an extraordinarily risky piece of litigation,” thus justifying their request for “a multiplier well in excess of 2 on grounds of riskiness alone.” Freed Affidavit at 14.

We agree that risk is a proper basis for applying a multiplier, see, e.g., Blum, 465 U.S. at-, 104 S.Ct. at 1550-51 (Brennan, J., concurring); Illinois Reapportionment Cases, 704 F.2d at 382; Chrapliwy, 670 F.2d at 770, and that petitioners should be compensated for the risk they faced in this case. We also agree that the multiplier and risk should be inversely related; that is, the upward adjustment for risk should be greater in a ease where the attorney’s chances of being paid are relatively smaller. However, the multiplier and risk should not be completely proportional. The problem of such a scheme was discussed recently by Judge Posner (who appears to view this issue differently from when he prepared the affidavit used in Arenson) in McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.1984):

The fundamental problem of a risk bonus is that it compensates attorneys, indirectly but effectively, for bringing unsuccessful civil rights suits, even though the attorney’s fee statute is expressly limited to cases where the party seeking the fee prevails. See 42 U.S.C. § 1988. Suppose a plaintiff asks for and receives a multiplier of 2 because he had a 50 percent chance of losing the case. This means that if the plaintiff’s lawyer tries 10 such cases and wins 5 (as one would expect, if the risk of loss is indeed 50 percent), he will be paid as if he had won them all; that is, he will be paid twice his normal charge for each of the 5 cases he won, to compensate him for getting nothing in the 5 cases he lost. Indeed, if the logic of the risk multiplier were applied consistently, the attorney’s fee would be larger the riskier the case, even though this would mean rewarding lawyers for flooding the courts with unmeritorious litigation, something we very much do not need. Imagine a class of cases where only one in 50 plaintiffs prevails. Then the risk multiplier would be 50, and a lawyer who brought all 50 cases and lost 49 would receive the same compensation that he would have received had he been certain to win all 50 cases (in which event there would have been no multiplier), rather than (virtually) certain to lose 98 percent of them.

Id. at 1392. Even the cases cited by petitioners do not support using the inverse proportion of the risk as the appropriate multiplier. For example, in Thompson v. Barrett, 599 F.Supp. 806 (D.D.C.1984), the court found that the plaintiffs’ statistical chances of success were much lower than 19 percent. Id. at 815. The court did not apply a multiplier of over 5.26 (the inverse of 19 percent), but awarded a risk bonus of 50 percent (a multiplier of 0.5). Id.

Thus, petitioners are entitled to some enhancement of their fee to compensate them for both the risk they incurred and the extraordinary success they achieved. The question remains just what multiplier is proper. Petitioners claim that a 3.5 multiplier is reasonable, citing four pre-Blum / Hensley district court cases (two from the Northern District of Illinois) in which multipliers ranging from 3.5 to 4.5 were applied. Not surprisingly, the State cites several other cases in which a very meager multiplier (or none at all) was used. Indeed, as petitioners acknowledge, “cases can be found setting multipliers at virtually any level on any set of facts.”

The Seventh Circuit, as noted earlier, has cautioned that “the district courts should not lightly apply large multipliers.” Illinois Reapportionment Cases, 704 F.2d at 382. The Seventh Circuit has also stated that “we have never approved a multiplier as high as three.” Id. at 384. In that particular opinion, the Court of Appeals decided that the multiplier of 3.0 awarded by the district court was to be replaced with a bonus of 20 percent. Id. The Court’s other decisions have been just as parsimonious.

Considering this precedent and the import of Blum and Hensley, we believe a multiplier of 1.5 is reasonable here. Although this may appear generous in light of the awards in the opinions discussed above, the facts of this case clearly demonstrate that petitioners faced a significant risk of working without compensation, and they truly achieved an “exceptional success,” if that term has any meaning.

III.

In its memorandum opposing petitioners’ request for fees and costs, the State claimed that the County defendants should be held liable for half of any fee award. We ruled to the contrary in an order dated December 17, 1984, holding that liability for fees and costs was to be allocated between the State and County defendants in proportion to their respective monetary liabilities for damages. After that order was entered, the County settled its fee liability with petitioners. Thus, we must calculate and reduce to judgment only the amount attributable to the State.

Petitioners actually have filed two requests for fees and costs in this case. They filed their original petition before we decided the question of allocation, so we must reduce this request by the percentage attributable to the County. Applying a 1.5 (rather than the requested 3.5) multiplier to the attorney’s fees sought yields a total fees amount of $532,547.75. The original petition also asks for $13,651.74 in costs, which the State does not contest. Of the total fees and costs of $546,199.49, the State is liable for 77.3 percent, or $422,-212.21.

Petitioners also filed a supplemental fee petition asking for another $20,972.34 in fees and $8,024.14 in costs. These fees were calculated without any multiplier, and both fees and costs represent amounts attributable only to the State. Although we gave the State an opportunity to respond to this supplemental petition, the State raised no objection to it. Therefore, the supplemental fee petition will be granted in its entirety, raising the total fees and costs due to petitioners from the State to $451,-208.69.

In sum, we find that a multiplier of 1.5 is appropriate in the calculation of the State’s attorney’s fee liability to petitioners, based on the exceptional success petitioners achieved and the substantial risk they incurred. Petitioners are entitled to a total award of $451,208.69 in fees and costs from the State. It is so ordered.

      . As explained in Part III of this opinion, petitioners already have entered into a settlement with the County defendants regarding the County’s share of attorney’s fees and costs.

      .. The Supreme Court has observed that the provision for attorney’s fees in 42 U.S.C. § 1988 was patterned after the fees provisions in Title II and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b) and 2000e-5(k), and § 402 of the Voting Rights Act Amendments of 1975, 42 U.S.C. § 19731(e). Moreover, the legislative history of § 1988 indicates that Congress intended that "the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act.” S.Rep. No. 94-1011, p. 4 (1976), U.S.Code Cong. & Admin. News 1976, 5908, p. 5912. Thus, the Court has stated that the same standards are generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party. Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933 n. 7, 76 L.Ed.2d 40 n. 7 (1983). Accordingly, we need not distinguish the particular civil rights laws involved in each of the cases discussed below.

      . Related to this, the Court also stated its belief "that the number of persons benefited is [not] a consideration of significance in calculating fees.” Blum, 465 U.S. at-n. 16, 104 S.Ct. at 1549-50 n. 16 (emphasis in original).

      . The Seventh Circuit has repeatedly held that this factor alone does not justify the use of a multiplier. McKinnon v. Berwyn, 750 F.2d 1383, 1392 (7th Cir.1984); Bonner v. Coughlin, 657 F.2d 931, 936 (7th Cir.1981). However, it may properly be considered as one of several factors in favor of a multiplier. Illinois Reapportionment Cases, 704 F.2d at 382.

      . Disciplinary Rule 2-106 states
      Factors to be considered as guides in determining the reasonableness of a fee include the following:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.

      . The State rather surprisingly claims that Blum eliminated "exceptional success” as a basis for a multiplier. As should be clear from Part I of this opinion (or a simple reading of the Supreme Court’s opinion), this claim is flatly wrong. Blum, 465 U.S. at -, 104 S.Ct. at 1548.

      . For example, attached to petitioners’ reply is the affidavit of Professor Mayer Freed, which states that "if a case has a 0.5 probability of success (and therefore the attorney has 0.5 probability of being compensated), the appropriate multiplier would be 2." Freed Affidavit at 3.

      . See Strama v. Peterson, 689 F.2d 661, 665 (7th Cir.1982) (bonus of more than 50 percent totally rejected); Tidwell v. Schweiker, 677 F.2d 560, 570 (7th Cir.1982) (1.5 multiplier rejected), cert. denied, 461 U.S. 905, 103 S.Ct. 1874, 76 L.Ed.2d 806 (1983); Chrapliwy, 670 F.2d at 770 (application of $200,000 quality bonus limited); Bonner, 657 F.2d at 936-37 (rejecting any multiplier);
        Kamberos v. GTE Automatic Electric, Inc., 603 F.2d 598, 604 (7th Cir.1979) (reducing multiplier from 50 percent to 25 percent), cert. denied, 454 U.S. 1060, 102 S.Ct. 612, 70 L.Ed.2d 599 (1981).

      . Petitioners assert, and the State does not dispute, that the County was liable for 22.7 percent of the money damages, leaving the State with 77.3 percent of the total liability.

      . This is consistent with the State's previously stated position that the lodestar amount requested by petitioners was reasonable, but the use of a multiplier was improper.