author: CALLISTER, Chief Judge.

text:
    Melvin A. McCABE, et al., Plaintiffs, v. Arvon J. ARAVE, et al., Defendants.
    Civ. No. 84-1251.
    United States District Court, D. Idaho.
    Jan. 27, 1986.

      Melvin A. McCabe, pro se.
    Anthony G. Cootz, Lay Representative, Idaho State Correctional Institution, Boise, Idaho, for plaintiffs.
    Jim Jones, Atty. Gen., State of Idaho, Robert R. Gates and Timothy R. McNeese, Deputy Attys. Gen., State of Idaho, Boise, Idaho, for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

CALLISTER, Chief Judge.

This matter came on for trial before the Court on December 16, 1985, at the Idaho State Correctional Institution in Boise, Idaho. The Court has reviewed the testimony and evidence presented at trial and the pleadings and memoranda on file herein. The following are the Court’s findings of fact and conclusions of law made pursuant to Fed.R.Civ.P. 52(a).

FINDINGS OF FACT

1. This is a civil rights action brought under 42 U.S.C. § 1983 by plaintiffs Melvin A. McCabe and Mark Madsen, inmates of the Idaho State Correctional Institution (ISCI).

2. Defendants are Arvon Arave, Warden of the ISCI, and A1 Murphy, Director of the Idaho State Department of Corrections (Department).

3. Plaintiffs claim to be members of the Church of Jesus Christ Christian (CJCC) and allege that defendants have violated their , first amendment rights of free exercise of religion by denying them permission:

a. To conduct CJCC worship services in the prison chapel;
b. To hold CJCC group study classes;
c. To hold banquets on religious holidays;
d. To distribute literature of the church;
e. To confer with CJCC ministers on a personal and group basis;
f. To grow facial hair;
g. To have special dietary considerations;
h. To receive and keep in their possession all books and pamphlets pertaining to the church.

4. Defendants contend that plaintiffs’ beliefs are not “religious” and thus do not come within the protection of the first amendment. Further, even if plaintiffs’ beliefs are religious, defendants maintain that the restrictions imposed upon the practice of those beliefs are necessary for prison security and other legitimate penalogical purposes.

5. There are approximately 8-12 inmate members of the CJCC at the ISCI; a somewhat greater number of inmates have demonstrated interest in attending church services or classes, though they are not members of the church.

6. At present, the following religious denominations are allowed entrance into the ISCI to conduct religious services and study classes:

a. Catholic
b. Church of Jesus Christ of Latter-day Saints (Mormon)
,c. Jewish
d. Islamic
e. Protestant (includes approximately 20 distinct denominations).
f. Jehovah’s Witnesses
g. Native American

Religious groups which are allowed entry hold their worship services in the prison chapel; study classes are also held in the study rooms adjacent to the chapel.

8. Medium custody inmates are allowed free access to any religious worship services and study classes held in the chapel facility; close custody inmates are not allowed to attend worship services and study classes held in the chapel facility. There are some intra-denominational services and classes held in the close custody housing units, these services and classes being provided by Mormon, Catholic and some Protestant denominations. These services are not held on a regular basis each Sunday as are those held in the prison chapel. Both plaintiffs are presently in close custody.

9. Plaintiffs have sought permission for the CJCC to be allowed to conduct worship services and study classes at the ISCI. Presumably, plaintiffs desire that these services and classes be held both in the prison chapel and in the close custody units.

10. The ISCI administration denied plaintiffs’ request. This denial was based on prison officials’ conclusion that CJCC doctrines do not amount to religious beliefs, that the CJCC is not a religion, and that admission of the church into the ISCI would create serious security problems and promote violence. This conclusion was based on the administration’s investigation of CJCC beliefs, their knowledge of corrections problems nationwide, and on incidents at the ISCI, discussed below.

11. The ISCI administration based its decision, in part, upon the recommendation of the Community Religious Advisory Council, a volunteer organization composed of various religious leaders in the Boise area. The Council was originally formed to advise the ISCI administration on religious matters affecting the facility. Don Stephan, prison chaplain of the ISCI, is the chairman of the Council. The Council’s recommendation to the ISCI administration was embodied in a position paper authored by Stephan. Exhibit 9. The Advisory Council reviewed CJCC literature which had been provided to Chaplain Stephan by plaintiff McCabe in the form of Aryan Nations publications. Based on this literature, which was the only information provided by plaintiffs at Stephan’s request, the Council took the position that the CJCC and an organization known as the Aryan Nations are essentionally one and the same. Because of the racist and violent attitudes espoused by these groups, the Council recommended that the CJCC not be admitted to the ISCI.

12. Director Al Murphy, as head of the Department of Corrections, determines Department policy regarding personal property. The Department has determined that inmates can have no more than six cubic feet of space for personal property, excluding televisions, guitars, radios and fans. Exhibit 1. There are no exceptions to this policy. Its purpose is to allow ease and rapidity of cell searches, which are conducted frequently and regularly throughout the ISCI. These frequent searches are made necessary by the Prison’s major problem, contraband, and the need for rapidity in daily cell searches. Inmate-constructed weapons are also a problem which necessitates the above measures. Officers are required to examine all pages of books and magazines in cell searches; large numbers of books .would greatly prolong the time required to search a cell. As part of the six cubic feet rule, inmates are allowed to have ten books and/or magazines. An exception to the ten-book/magazine rule could be made depending on the inmate and reason for the exception, so long as all personal property does not exceed six cubic feet. Exhibit 1.

13. Plaintiffs have not requested an exception to the ten-book/magazine rule nor filed a grievance with regard thereto.

14. Plaintiffs believe that 20-40 books or booklets are necessary in order for them to properly study and understand CJCC doctrine. These books are not strictly required of church members but are strongly suggested.

15. Plaintiffs presented no evidence regarding restrictions on their distribution of church literature to other inmates, aside from the fact that the church is not permitted entry to conduct study classes and worship services.

16. Religious organizations are not allowed to hold banquets in the ISCI on religious holidays. Plaintiffs presented no evidence that they had made requests to hold banquets, when such banquets would be desired, or why such banquets are a requirement or practice of church membership.

17. CJCC pastors are allowed to visit inmates individually and have done so for the last 3-4 years. Pastors John Miller and Robert Mansger have made several visits to the ISCI, including a number to plaintiff McCabe. At such visits, the pastors could only take a Bible into the visiting room.

18. Religious dietary and grooming practices are generally allowed at the ISCI with certain restrictions, outlined below.

19. Any inmate asserting that his religious beliefs prohibit the cutting of facial or head hair must comply with the following criteria:

a. Within seven days of initial reception at the facility or immediately upon determination that the cutting of hair violates his religious principles, the inmate will inform the facility head in writing:
(1) The name of the religion to which he is an adherent.
(2) That the prohibition of the cutting of head or facial hair is “deeply rooted in the religious beliefs” of those who adhere to that religion.
(3) That he sincerely believes that the cutting of his own facial or head hair would violate his religious beliefs.
(4) That he requests to be excluded from the enforcement of any haircut-ting regulation of the facility where he is housed.
b. If the above criteria are met, the request for exclusion from enforcement of any haircutting regulation will be granted for a period of ninety days. For an indefinite continuance of the exclusion, the inmate must provide to the facility head, at the end of that ninety-day period, one written statement from a recognized spokesman or authority of the professed religion stating that the prohibition of the cutting of facial or head hair is “deeply rooted in the religious beliefs” of the religion, and one notarized written statement from a person who can verify from personal knowledge that the inmate requesting a continuance of the exclusion is a sincere adherent to that belief.
c. These criteria will be liberally construed to assure that those inmates requesting exclusion from haircutting regulations are requesting exclusion for reasons of sincere, religious convictions, and not from a desire to circumvent institutional rules designed to facilitate the orderly and secure operation of the correctional facility.
d. A thirty-day extension to produce the documentation listed in paragraph [b], above, may be granted by the facility head upon a showing by the inmate that he has made an attempt to acquire the necessary documentation, but has been prevented from doing so by no fault of his own.
e. All beards will be shaved for the purpose of taking identification photographs during an inmate’s initial processing at the facility reception unit, whether or not he has requested permission to grow and maintain a beard because of religious beliefs.

Exhibit 16.

20. The plaintiffs now have beards under ninety-day permits. No evidence was presented as to whether plaintiffs intend to obtain or have obtained a statement from any authoritative source which would enable them to maintain beards on a permanent basis. At the present time, over 200 inmates have temporary permits; eight inmates have permanent permits. Church doctrine does not require beards. Plaintiffs’ beliefs regarding beards, though rooted in their interpretation of the Bible, are strictly personal and voluntary and not common among church adherents.’ None of the three pastors called to testify, including the founder of the Hayden Lake Assembly, had beards nor did several inmate members who testified.

21. The hair and beards restrictions are based largely on the need to identify prisoners, particularly in the event of an escape or other disturbance. Bearded or long-haired inmates often cannot be identified from mugshots on escape fliers if the inmate was clean-shaven at the time of the mugshot. Further, there have been occasions in which prisoners concealed weapons, such as razor blades, in beards.

22. Any inmate asserting that his religious beliefs require that he follow a special diet is subject to the same conditions quoted above regarding facial and head hair. See Exhibit 16. Plaintiffs are now allowed pork-free diets under ninety-day permits. No evidence was presented as to whether plaintiffs intend to obtain or have obtained a statement from an authoritative source which would allow them to continue their dietary habits on a permanent basis. Church doctrine does not require the dietary practices requested by the plaintiffs. Plaintiffs’ beliefs regarding these dietary practices, though rooted in their interpretation of the Bible, are strictly personal and not common among church adherents.

23. The CJCC was founded in 1946 by one Wesley A. Swift. Church members look to Swift and his collaborator, Bertrand L. Comparet, for their doctrinal foundations. Central to CJCC theology is the tenet that white Anglo-Saxons (Aryans) are direct decendents of Adam and Eve through the Twelve Tribes of Israel and the other prophet patriarchs of the Old Testament and that they are the sole chosen people of God. Jews are represented to be the literal seed of Satan and Eve. Blacks are represented to be the seed of Cain — one of the offspring of Satan and Eve. All other non-whites are “mongrelizations” of various kinds. The church teaches the inevitability of a race war between whites and non-whites, this war being a fulfillment of biblical Armageddon prophecies. The church’s creed is “Christianity is race and race is Christianity.” Based on these doctrines, the CJCC emphasizes and teaches strict racial separatism. In other words, white “Aryans” are to be kept separate from all other “mongrel” races.

24. The CJCC as founded by Swift is not and has never been a monolithic national organization; several congregations or assemblies exist in the United States, each with total autonomy from the others on ecclesiastical and administrative matters. Indeed, the Hayden Lake congregation of Richard Butler has set up its own hierarchy and procedure for establishing member churches. Exhibit 10. Though tracing its doctrinal roots to Swift and Comparet, the Hayden Lake church, and its member congregations, look solely to Butler for guidance on secular and spiritual affairs. See Exhibit 10. Member churches within the Hayden Lake realm are given financial, membership and theological guidelines by Pastor Butler from Hayden Lake. See Exhibit 10. The Hayden Lake church is thus an independent, autonomous church.

25. Richard Butler founded the Hayden Lake branch of the CJCC in 1975. At approximately the same time he founded an organization known as Aryan Nations. Butler’s CJCC assembly in Hayden Lake and the Aryan Nations, while conceptually distinct entities, are in practice, ideology, facilities, leadership, and to a large extent membership, simply different sides of the same coin. The Court finds that the two entities are alter-egoes as evidenced by the following facts:

a. CJCC of Hayden Lake and Aryan Nations were founded and are presently headed by the same man, Richard Butler, Exhibit 18;

b. CJCC and Aryan Nations have identical aims and goals;

c. CJCC and Aryan Nations share the same facilities at the Hayden Lake Compound, including the printing facilities;

d. The names CJCC and Aryan Nations appear together as part of a single logo in church publications and on church letterhead along with the Aryan Nations insignia, indicating that they denominate one entity or organization, Exhibits 18, 24 — 26;

e. Butler and other CJCC members have commonly referred to CJCC and Aryan Nations as being one and the same; the names are used interchangeably in church and/or Aryan Nations literature, Exhibits 18, 22-26;

f. Aryan Nations is a facade through which the CJCC conducts “secular” activities, e.g., distribution of propaganda, paramilitary training, etc.;

g. Religious matters are discussed at Aryan Nations’ functions just as political matters are discussed in CJCC services; the CJCC and Aryan Nations are two halves of one theopolitical organization.

26. Butler espouses and preaches racial hatred, revenge and violence. In a videotaped sermon at the Hayden Lake compound Butler states: “[A]s long as there were [sic] adversaries in the land, hatred is our law and revenge is your first duty.” Videotapes also showed CJCC/Aryan Nations ceremonies and services in the chapel at Hayden Lake. Predominant on the chapel walls and member uniforms are swastikas and other Nazi memorabilia. Videotapes showed Butler’s followers engaged in paramilitary maneuvers with firearms and live ammuniton; during these exercises followers are shown shooting at targets depicting Menachim Begin. Exhibits 30-81. Some of Butler’s closest associates at Hayden Lake have been recently convicted of racketeering charges in the “Order” trial in Seattle; another has been recently convicted of murder in Missouri.

27. Several incidents of racial violence have occurred at the ISCI during the 1980’s, though it is unclear whether the violence involved CJCC members or simply inmates holding similar beliefs. On one occasion, unidentified inmates burned a black inmate’s cell door, leaving the outline of a cross on the door. On another occasion, a black inmate was beaten up by white inmates, some of whom having previously expressed white supremacist views, shortly after being moved to their cell-block.

28. The Aryan Nations and CJCC are closely associated and involved with other radical right-wing organizations espousing racial hatred and violence such as the Ku Klux Klan (KKK) and Posse Comitatus. Richard Butler is an active member of the KKK and is an honorary Grand Dragon of the California KKK.

29. Admission of the CJCC into the ISCI would have a strong potential of escalating prison tension, threatening and intimidating minority racial groups, and compromising prison security.

CONCLUSIONS OF LAW

1. Plaintiffs’ claims in this case arise under the free exercise clause of the first amendment. The basic statement regarding first amendment rights of prisoners was enunciated by the United States Supreme Court in Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2827, 41 L.Ed.2d 495 (1974):

We start with the familiar proposition that lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. In the first amendment context a corollary of this principle is that a prison inmate retains those first amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penalogical objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit first amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system to whose custody and care the prisoner has been committed in accordance with due process of law.

Id. at 822, 94 S.Ct. at 2804 (emhasis added); cited with approval in Jones v. North Carolina Prisoners Union, 433 U.S. 119, 125, 97 S.Ct. 2532, 2537, 53 L.Ed.2d 629 (1977).

2. Federal courts have generally followed a two-step analysis in cases similar to this one:

(1) The prisoner has the burden of showing that
(a) His beliefs are sincerely held; the first amendment does not extend to so-called religions which are obviously “shams and absurdities” and whose members are lacking in religious sincerity.
(b) The claim must be rooted in religious belief, not in purely secular or philosophical concerns; however, the court is not to inquire into the truth, validity or reasonableness of religious beliefs.
(2) If the plaintiff successfully shows the above items, the Government then has the burden of showing that the prisoner’s alleged religious rights have been restricted for legitimate reasons such as prison security and rehabilitation.

See, e.g., Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 713, 101 S.Ct. 1425, 1429, 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972); Callahan v. Woods, 658 F.2d 679 (9th Cir.1981).

3. Regarding the first of the above tests, the Court will assume, for the sake of argument, that plaintiffs’ beliefs are sincerely held and “religious” in nature and thus entitled to first amendment protection which is not inconsistent with plaintiffs’ status as prisoners.

4. Regarding the second of the above tests, federal courts have applied a varying number of different standards to government action allegedly infringing on prisoners’ free exercise rights. Capoeman v. Reed, 754 F.2d 1512, 1515 (9th Cir.1985). The Ninth Circuit has not firmly determined the applicable standard, though the court has cited with approval the standard used in Jones v. Bradley, 590 F.2d 294 (9th Cir.1979), cited in Capoeman, supra, 754 F.2d at 1515. In Jones, supra, an inmate challenged the prison’s denial of his use of the prison chapel. The court concluded that a prisoner must be given a “reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.” 590 F.2d at 296. Prison regulations are to be evaluated in light of the state’s legitimate interest in prison security. Id. The Jones court concluded that the state had a legitimate interest in placing appropriate restrictions on chapel use that were reasonable to maintain order and security. Id. There is no indication that “appropriate restrictions” meant the least restrictive means. See Capoeman, supra, 754 F.2d at 1515-16. The Court will apply the Jones/Capoeman standard to the specific claims made by the plaintiffs in this case.

5. The United States Supreme Court has stated:

Because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators.
“[Cjourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.”

Jones v. North Carolina, 433 U.S. at 126, 97 S.Ct. at 2538 quoting Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974).

6. Right to Hold CJCC Worship Services

Initially, the Court notes that both plaintiffs are held in close custody and are thus not entitled to attend the worship services of any denomination in the prison chapel. As with other close custody inmates, plaintiffs can attend the intra-denominational services provided by the LDS, Catholic or Protestant denominations in the close custody housing units. Thus, plaintiffs have not shown that they are treated any differently than other close custody inmates. The testimony presented by the defendants showed that additional security is necessary when services are held in the close custody housing units and thus those services are held on a more limited basis than in the prison chapel. Plaintiffs presented no evidence and elicited no testimony showing that this restriction on close custody inmates is unreasonable or discriminatory. Thus, the Court concludes that plaintiffs’ free exercise rights are not infringed by the ISCI denying them permission to hold CJCC worship services in the prison chapel. The Court further concludes that the restrictions imposed by the defendants are reasonable, consistent with the plaintiffs’ status as prisoners, and with the legitimate operational considerations of the institution.

7. Right to Hold CJCC Study Classes

The Court’s discussion regarding worship services in conclusion No. 6 also disposes of this claim. The defendants have a legitimate penalogical interest in seeing that groups such as the CJCC/Aryan Nations are not allowed to congregate in the ISCI. Plaintiffs can discuss informally their religious views as circumstances permit with other inmates — and have obviously done so — but may be prevented, in the interest of prison security, from having formal group meetings.

8. Right to Hold Banquets on Religious Holidays

The evidence is undisputed that no banquets are allowed for any religious denominations in the ISCI. Plaintiffs failed to present any evidence on the religious basis for their banquets, that they made requests for banquets, or when such banquets-would be desired.

9. Right to Distribute Church Literature

Plaintiffs presented no evidence regarding any restrictions on their right to distribute CJCC literature. Testimony showed that plaintiffs and other inmate members may receive church literature by mail and in fact have done so. Other testimony indicated the plaintiffs have discussed and shared church literature with other inmates. Plaintiffs have failed to satisfy their burden of proof on this claim. Further, in North Carolina Prisoners Union, supra, the Supreme Court held that state correctional officials were not required under the first amendment to allow prisoners labor union to solicit other inmates to join the union or to allow inmate union members to distribute literature about the union to other inmates. The Court found that the institution’s interest in avoiding “friction” between inmates and between inmates and prison personnel justified the restriction on first amendment rights. 433 U.S. at 130-33, 97 S.Ct. at 2540-41.

10. Right to Confer with CJCC Ministers on a Personal and Group Basis

The testimony indicated that plaintiffs have been allowed individual visits from CJCC ministers. Plaintiffs presented no evidence of discrimination against them regarding visitation rights. As to visits on a group basis, the Court’s discussion in conclusions Nos. 6 and 7, above, is dispositive in denying this claim also.

11. Right to Grow Facial Hair

Like all other inmates, plaintiffs are allowed to grow beards on a temporary permit basis. Beards may be kept permanently if inmates, regardless of which religion they belong to, can satisfy reasonable administrative requirements as listed in Exhibit 16, quoted above. The Court concludes that these restrictions are consistent with prison objectives of identifying prisoners and preventing concealment of weapons and contraband in facial hair. The record shows that religious groups are treated equally on this matter. Thus, no constitutional infringement exists.

12. Right to Special Dietary Considerations

The Court’s discussion in conclusion No. 11, above, is also dispositive of this issue.

13. Right to Unlimited Number of Church Publications

The Court believes that the prison’s personal property limitation of six cubic feet per inmate is reasonable in light of the need for rapidity and thoroughness of cell searches. Prison officials stated that so long as personal property does not exceed six cubic feet, exceptions may be made to the ten-book and/or magazine rule on a case-by-ease basis. To this date, plaintiffs have made no such request nor have they filed any grievance.

14. Prison officials, such as defendants Murphy and Arave, are entitled to qualified immunity from money damages in § 1983 suits. Cleavinger v. Saxner, — U.S. _, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985). Insofar as the defendants’ conduct did not violate clearly-established statutory constitutional rights of which a reasonable person would have known, they are immune from money damages. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Defendants testified that they believed that their actions were in line with existing caselaw. The Court’s present ruling as well as the authorities cited herein support their conclusion. Plaintiffs presented no evidence which would justify imposition of punitive damages in this case and the Court will deny such.

      . Items f, g and h are not alleged specifically in plaintiffs’ complaint but were made part of the case at trial.

      . The decision was also based on information obtained by Director AI Murphy in a visit to the Hayden Lake compound in May 1983.

      . It is unclear whether plaintiffs seek to assert the rights of inmate members of the CJCC who are in medium custody and are thus allowed to attend chapel worship services. Even assuming that plaintiffs have standing to assert such third party rights, it would not change the outcome in the present case. In Cruz v. Beto, 405 U.S. 319, 322, n. 2, 92 S.Ct. 1079, 1081, n. 2, 31 L.Ed.2d 263 (1972), the United States Supreme Court stated:
      We do not suggest, of course, that every religious sect or group within a prison — however few in number — must have identical facilities or personnel. A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest or minister be provided without regard to the extent of the demand. But reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty.
      Testimony indicated that there are only eight to twelve inmates who are members of the CJCC, though a somewhat greater number have interest in church teachings. More importantly, however, the defendants have a legitimate security interest in excluding the CJCC from holding group meetings in the ISCI because of the potential for escalating racial tensions within the prison.


source: Caselaw Access Project

author: PEREZ-GIMENEZ, Chief Judge.

license: Public Domain

text:
    Raymond J. DONOVAN, Secretary of Labor, U.S. Department of Labor, Plaintiff, v. STAR BAKERY, INC., et al., Defendants.
    Civ. No. 84-2102(PG).
    United States District Court, D. Puerto Rico.
    Jan. 27, 1986.

      Luis A. Micheli, U.S. Dept. of Labor, New York City, for plaintiff.
    Daniel Domínguez, Hato Rey, Puerto Rico, for defendants.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

This is a civil action brought by the Secretary of Labor under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq. (hereinafter referred to as FLSA or the Act) against Star Bakery, Inc., and Panadería y Repostería El Rincón Español, Inc. The complaint was filed on August 17, 1984, alleging that defendants’ employees were employed in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of section 3(s)(2) of the Act (29 U.S.C. § 203(s)(2)) and that from August 1, 1981, to January 1984 defendants had violated the provisions of sections 6„ 7,11(c), 15(a)(2) and 15(a)(5) of the Act.

Plaintiff asserts that the business activities of defendants Star Bakery, Inc., and Panadería y Repostería El Rincón Español, Inc., are related and performed through unified operation or common control for a common business purpose, thus constituting an “enterprise” within the meaning of section 3(r) of the Act.

Defendants contend that the enterprise provisions of the FLSA do not bring them within the coverage of the Act because they are not related activities performed through unified operation or common control for a common business purpose so as to constitute a single enterprise within the meaning of the Act.

On November 14, 1985, defendants filed a motion requesting that summary judgment be entered in their favor. They allege that the concept of “enterprise” is not applicable to defendants. On November 22, 1985, plaintiff filed its opposition to the motion for summary judgment. On November 25, 1985, the Court heard arguments from both parties on the motion for summary judgment. Without opposition thereto, defendants requested a bifurcation of the proceedings in order that the issue of enterprise coverage under the FLSA be tried before the issue of liability. Marshall v. Sideris, 524 F.Supp. 521 (D.Neb. 1981), reversed and remanded on other ground, Donovan v. Sideris, 688 F.2d 74 (8th Cir.1982). Trial was bifurcated and this Court proceeded to receive evidence exclusively on the issue of whether there existed coverage under the FLSA. Upon consideration of all the evidence adduced at trial and the documents and motions filed by the parties, this Court enters the following findings of facts and conclusions of law.

Findings of Fact

1. Star Bakery, Inc., (hereinafter Star Bakery) was incorporated in 1966 by Mr. Arturo Suárez and Mr. Héctor M. Lauzurique, each owning 50% of the outstanding stock. Mr. Laurzurique sold 25% of his stocks to Mr. Tomás Pérez and the remaining 25% to Mr. Ceferino González. They each paid $10,000 for the stocks.

2. The officers of Star Bakery are Tomás Pérez, President; Arturo Suárez, Vice President; Ceferino González, Treasurer; and Ilia Maria Pérez, Secretary. These same persons are the directors of the corporation.

3. Panadería y Repostería El Rincón Español, Inc., (hereinafter El Rincón Español) was incorporated in 1977 by Mr. Arturo Suárez, who owns 60% of the outstanding stock, and Mr. José González, who is the proprietor of the remaining- 40% of the stock, having paid $12,000 for said participation.

4. The officers of El Rincón Español are Arturo Suárez, President; José González, Treasurer; Ilia Maria Pérez, Secretary. The Board of Directors is composed of these same officers.

5. José González and Ceferino González are brothers and they are cousins of Arturo Suárez. Tomás Pérez and Ilia Maria Pérez are brother and sister. Ilia Maria Pérez is married to Arturo Suárez.

6. Star Bakery is located at Royal Palm 1F-29, Lomas Verdes, Bayamón; its telephone number is 785-9422, operating for business from 6:00 a.m. to 11:00 p.m.

7. El Rincón Español is located at Santa Juanita Avenue, BR-11, Bayamón; its telephone number is 787-0222, open for business from 6:00 a.m. to 10:30 p.m.

8. The business store of Star Bakery looks physically different from El Rincón Español.

9. At all times relevant to the complaint, the annual dollar volume of Star Bakery was less than $362,500; its income for 1981 was $245,675.88; $265,530.41 for 1982; and $280,802.95 for 1983.

10. At all times relevant to the complaint, the annual dollar volume of El Rincón Español was less than $362,500: $207,359 for 1981; $204,789.21 for 1982; and $193,076.69 for 1983.

11. At all times pertinent to this action Star Bakery and El Rincón Español had separate and independent utilities accounts, banking accounts, funds, inventory, offices, warehouses, accounts with suppliers, purchasing, insurance policies and lease agreements. Each corporation maintained at all times relevant hereto its own separate and independent unemployment, social security and State Insurance Fund accounts. They each filed their own separate and independent municipal taxes, movable property taxes, income taxes and domestic corporation reports. Each corporation has its own separate and independent advertisement and publicity and pays for it from its own independent funds.

12. The employees of each corporation are not the same and there is no evidence of hourly, daily, weekly or monthly interchange of personnel during the periods referred to in the complaint. They each have separate pay weeks and pay days.

13. The hiring and firing, supervision and job assignment of employees is done by the corporate officials of each respective corporation. There is no interchange in these duties and there has been none during the periods referred to in the complaint.

14. Mr. Ariel Silva worked part-time as a baker for El Rincón Español and for a short period during his free time he also worked part-time for Star Bakery as a baker.

15. Mr. Arturo Suárez, from 1981 to 1984 did not personally hire any of the employees of Star Bakery or El Rincón Español.

16. Mr. Tomás Pérez and Ceferino González did all the hiring, firing and determination of the employees’ schedules at Star Bakery from 1981 to 1984. They did no hiring or firing for El Rincón and they did not participate in operational decisions of El Rincón.

17. Mr. José González did all the hiring and firing of employees at El Rincón Español. He also determined the working schedules of the employees during the periods referred to in the complaint. He did no hiring or firing and he did not participate in operational decisions of Star Bakery.

18. Each corporation paid the salaries of its employees from its own funds at all times relevant hereto.

19. Each corporation owns its equipment and machinery and is responsible for its maintenance. No interchange of machinery or equipment transpired between defendants during the periods referred to in the complaint.

20. Some items in the menus of each defendant corporation are the same; others are not. There are items not served by the other. The prices are mostly more expensive at Star Bakery than at El Rincón Español. The sector of the public to which Star Bakery caters is more affluent.

21. Each corporation has had its own separate financing. Mr. Arturo Suárez has not been the sole financial source of either corporation. The funding for each corporation between 1981 and 1984 came from their own respective shareholders, all of whom paid for their stocks.

22. There is no intermingling of funds between the corporations, and they do not participate in the profits and losses of the other.

23. The corporate defendants kept separate records for profits, expenditures and personnel matters at all times relevant to the complaint.

24. Fifty per cent (50%) of the stockholders of Star Bakery do not participate operationally or financially in activities of El Rincón Español.

25. Forty per cent (40%) of the stockholders of El Rincón Español do not participate operationally or financially in activities of Star Bakery.

26. At all times pertinent hereto, all the decisions regarding Star Bakery were made by Tomás Pérez, Ceferino González or Arturo Suárez.

27. At all times pertinent hereto, all the decisions regarding El Rincón Español were made by José González or Arturo Suárez.

28. Each corporation buys from local distributors separately and independently. The corporations sometimes buy from the same distributors since said distributorships are exclusive in nature.

29. There are some common elements between Star Bakery and El Rincón Español, to wit: Mr. Arturo Suárez is a stockholder, officer and director in both corporations; Mrs. Ilia Maria Pérez is the secretary of both corporations; both use the same outside accountant.

Conclusions of Law

This Court has jurisdiction over the subject matter and the parties pursuant to 29 U.S.C. § 217. The sole question now before the Court for determination is whether the activities of Star Bakery and El Rincón Español are covered by the FLSA as an “enterprise” engaged in commerce or the production of goods for commerce within the meaning of 29 U.S.C. §§ 203(r) and 203(s).

Should there exist an “enterprise” under the Act, it is undisputed that the gross volume sales will exceed the amount designated in the statute. On the other hand, if there is no “enterprise”, the gross volume sales of each does not reach the designated jurisdictional amount and defendants are not covered by the Act.

The determination as to whether two businesses constitute a single enterprise for purposes of the FLSA is an issue to be resolved case by case based upon the particular facts of each case. Wirtz v. Barnes Grocer Co., 398 F.2d 718 (8th Cir.1968); Wirtz v. Hardin Co., 253 F.Supp. 579 (D.Ala.1964), affd., 359 F.2d 792 (5th Cir. 1966). There must coexist three elements before defendants’ activities can be considered a single enterprise: (1) related activities, (2) performed through unified operation or common control, (3) for a common business purpose. 29 U.S.C. § 203(r); Brennan v. Amheim & Neely, Inc., 410 U.S. 512, 93 S.Ct. 1138, 35 L.Ed.2d 463, reh. denied, 411 U.S. 940, 93 S.Ct. 1888, 36 L.Ed.2d 402 (1973).

The Court turns now to an examination of each of the three above-listed elements in light of the factual circumstances present in this case.

A. Related Criteria

The Act does not define the term “related activities”, but the term is explained in the legislative history and in the Secretary of Labor’s (hereinafter the Secretary) interpretations. The Senate Report states that businesses are “related” within the meaning of section 3(r) either when they are the same or similar, such as individual stores in a chain or when they are auxiliary or service activities. (S.Rep. No. 145, 87th Cong. 1st Sess., 1961 U.S.Code Cong, and Ad.News 1620, 1660). The Secretary’s interpretative bulletin adopts these definitions and explains them in detail. 29 C.F.R. §§ 779.205, et seq.

In accord with the legislative history and regulations this Court finds that both corporate defendants are engaged in the same business activities. Both are engaged in the business of baking and pastries and of selling food stuffs and beverages. Because of this, we find that the difference in clientele, in prices and in the menu items is not dispositive of the issue at hand.

We find that the present case is clearly distinguishable from Donovan v. Eastern Land & Development, 723 F.2d 1549 (11th Cir.1984), and from Hodgson v. University Club Tower, Inc., 466 F.2d 745 (10th Cir. 1972), eases cited by defendants. In both of these cases the activities performed by the corporate defendants were clearly not the same. In Hodgson v. University Club Tower, supra, the Court of Appeals held that apartment buildings serving primarily permanent tenants did not perform the same or similar activities as a hotel serving transients and that they were, therefore, not engaged in related activities. By way of explanation, the Court of Appeals stated:

With regard to similarity, we have establishments which are alike in that they furnish living space and accompanying facilities and services. They are different in that they attract and serve different customers and furnish different products. One provides for temporary quarters for travelers and the other permanent residence for homemakers.

466 F.2d at 748.

In Donovan v. Eastern Land & Development, supra, the Court of Appeals held that a lounge providing food and bar service did not perform the same or similar activities as a hotel providing for overnight accommodations. They were not involved in similar activities because of the different clientele each entity served. The hotel offered rooms to lower income people while the lounge offered food and liquor to middle and upper income people.

In the present case, this Court finds that the difference in clientele is not relevant on the issue of “relatedness” when the two entities perform the same activities.

B. Unified Operation or Common Control

In order to constitute an “enterprise” for FLSA purposes the related activities of the businesses must be conducted through unified operation or common control. 29 U.S.C.A. § 203(r). Plaintiff has to establish only one of these two alternative requirements. Dunlop v. Ashy, 555 F.2d 1228 (5th Cir.1977).

In assessing whether the requisite “unified operation” is present, the determinative question is whether the businesses are conducted or operated as a unit or as a single business. 29 C.F.R. § 779.-217. We find that they are not. The two businesses at hand keep their own records and their separate insurance policies, each file separate and independent income tax returns, social security, unemployment, State Insurance Fund, movable property tax, municipal taxes and domestic corporation reports. See, Donovan v. Eastern Land & Development, supra.

Each corporation does not intermingle funds as each maintains its own separate bank account. Id. Also, each corporation does not participate in the profits and losses of the other. Brennan v. Electronics Corp., 21 W.H. Cases 1042 (W.D.Tenn. 1974). The funds of each corporation are utilized only for said corporation.

• Each of the corporate entities have separate and independent accounts with their suppliers, buy their own equipment and pay for its maintenance without there being any interchange of equipment or materials. See, Hodgson v. Perkins, 19 W.H. Cases 672; and Donovan v. Eastern Land & Development, supra.

In assessing whether the requisite “common control” is present, the determinative question is whether a common entity has the power to control the related business operation. Shultz v. Mack Far-land and Sons Roofing Co., 413 F.2d 1296, 1301 (5th Cir.1969). Sufficient ownership to exercise “control” will be regarded as adequate to meet the common control requirement. 29 C.F.R. § 779.222 (1985). And ownership sufficient to exercise “control” exists where there is more than 50% of the voting stock, 29 C.F.R. § 779.223 (1985). In the present case, Mr. Arturo Suarez owns 60% of the outstanding stock of El Rincón Español but only owns 50% of the outstanding stock of Star Bakery. Therefore, the right to control each business does not rest exclusively with Mr. Suarez. Furthermore, Mr. Arturo Suarez is not the exclusive actual decision maker of both corporations. At all times pertinent hereto the decisions regarding El Rincón Español were made by Arturo Suárez and José González. The decisions regarding Star Bakery were made by Tomás Pérez, Ceferino González and Arturo Suárez.

The family ties between stockholders do not establish by themselves a unified operation or common control. Wirtz v. Hardin Co., supra. In that case there were six defendant corporations, all of which had as stockholders, officers and directors Mary G. Hardin and J.C. Goss, who were daughter and father. Mrs. Hardin’s former husband was a stockholder in three of the six corporations and in two of the corporations Mrs. Hardin’s daughters were stockholders. In determining there was no enterprise the Court stated:

Nor does the stock ownership of or the offices held by the members of the Hardin family in the corporations substitute for the absence of facts establishing the criteria of the statute. In the first place, the stock ownership and offices of the Hardins is entirely consistent with normal business investment practices. In • the second place, the facts as found by the Court are that the businesses are operated separately and independently and that the stock ownership and offices of the Hardins does not control or unify the operations or activities of the stores for the performance of a common business purpose.

Wirtz v. Hardin, at 587-88.

Therefore, in light of the above, we find that the requisite of common control is not present.

C. Common Business Purpose

The term common business purpose “encompasses activities whether performed by one or more persons or by a corporation or other business organization, which are directed to the same business objective or to similar objectives in which the group has an interest.” 29 C.F.R. § 779.213. It is well established that a profit motive alone is insufficient to justify the conclusion that related activities are performed for a common business purpose. Marshall v. Lideris, supra, reversed on other grounds, 688 F.2d 74 (8th Cir.1982); Hodgson v. Univ. Club Tower, 350 F.Supp. 817 (D.Fla.1972), affd., 466 F.2d 745 (10th Cir.1972); Donovan v. Eastern Land & Development, supra.

In the present action, the only common elements between Star Bakery and El Rincón Español are that Mr. Arturo Suárez is a stockholder, officer and director of both corporations; Mrs. Ilia María Pérez is the Secretary of both corporations; and both corporations use the same outside accountant. However, the two corporate defendants are not operated in order to improve the public image of the other. They do not facilitate internal operations and do not further the business of the other. These two corporate defendants operate in a separate and independent fashion. Physically, operationally and administratively they are distinct and separate with no intermingling in these areas. University Club Tower, Inc., 350 F.Supp. 817. Economically, they are also independent from each other as there are no pooling of profits. Donovan v. Eastern Land & Development, supra.

Furthermore, common purpose means “shared in like manner by members of the group.” Hodgson v. University Club Tower, Inc., 350 F.Supp. 817. The facts in this case demonstrate that 50% of the stockholders of Star Bakery do not participate in any manner in the decisions, profits and losses of El Rincón Español. Forty per cent (40%) of El Rincón Español’s shareholders do not participate in Star Bakery’s profits, losses or decisions. There is not one policy-making body for both corporations. Therefore, the stockholders herein do not share in like manner. In light of all the above, we find no common business purpose.

WHEREFORE, in light of the applicable law and jurisprudence this Court finds that Panadería y Resposteria El Rincón Español, Inc., and Star Bakery, Inc., are related activities but not performed through unified operation or common control. We also find no common business purpose. Therefore, since these two corporate defendants are not an enterprise within the meaning of the Fair Labor Standards Act, the Secretary of Labor’s complaint is hereby DISMISSED.

IT IS SO ORDERED.

      . 29 U.S.C. §§ 206, 207, 211(c), 215(a)(2), 215(a)(5), respectively.

      . 29 U.S.C. § 203(r).

      . The two stores are not similar in appearance like two retail Burger Kings or McDonalds.

      . El Rincón Español has its account at Banco de Ponce and Star Bakery at Citibank.

      . 29 U.S.C. 203(r) provides in part:
      (r) "Enterprise” means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements____ 29 U.S.C. § 203(s) states in pertinent part: (s) "Enterprise” engaged in commerce or in the production of goods for commerce means an enterprise which has employees engaged in commerce or the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person, and which—
      (2) is an enterprise which is comprised exclusively of one or more retail or service establishments, as defined in section 213(a)(2) of this title ..., after December 31, 1981, whose annual gross volume of sales made or business done is not less than $362,500 (exclusive of excise taxes at the retail level which are separately stated); ...

      . For example, 29 C.F.R. § 779.206(a) states: Thus, activities will be regarded as "related” when they are the same or similar or when they are auxiliary or service activities such as warehousing, bookkeeping, purchasing, advertising, including, generally, all activities which are necessary to the operation and maintenance of the particular business. So also, all activities which are performed as a' part of the unified business operation will be “related,” including, in appropriate cases, the manufacturing, warehousing, and distribution of its goods, the repair and maintenance of its equipment, machinery and its premises, and an other activities which are performed for the common business purpose of the enterprise. The Senate Report on the 1966 amendments makes it plain that related, even if somewhat different, business activities can frequently be part of the same enterprise, and that activities having a reasonable connection with the major purpose of an enterprise would be considered related.

      . The sector of the public to which Star Bakery caters is more affluent and some items in the menu are the same but others are not.

      . Aside from Mr. Suárez, there are no common stockholders between the two corporations.

      . The case of Donovan v. Grim Hotel Company, 747 F.2d 966 (5th Cir.1984), cited by plaintiff as authority, is clearly distinguishable from the present case. In it, Mr. Alberding, the principal stockholder, was at the apex of all five hotel corporations. He personally funded the hotels when necessary and had final and virtually sole authority to approve significant expenditures. He controlled the hotel operations. He held their purse strings and guided their policies.


author: CARRIGAN, District Judge.

text:
    Thomas E. JACKSON, III, Plaintiff, v. Gary E. BROOKE, et al., Defendants.
    Civ. A. No. 85-C-2514.
    United States District Court, D. Colorado.
    Jan. 27, 1986.

      Gene M. Hoffman, David E. Boyd, Denver, Colo., for plaintiff.
    Theodore S. Halaby, Robert M. Liechty, Halaby & McCrea, Denver, Colo., for defendants City and County of Denver and Arthur Dill.
    Leonard Chesler, Denver, Colo., for defendant Gary E. Brooke.
    Robert Dill, Denver, Colo., for defendants Greg Cook and Dallas Lane.
   ORDER

CARRIGAN, District Judge.

Plaintiff filed this action in state court on June 8, 1984. The complaint asserted seven claims for relief, all of which appeared to be grounded in state tort law. No federal statute was pleaded, and no basis for federal jurisdiction could be gleaned from the complaint.

On May 28, 1985, the defendant City and County of Denver moved for summary judgment on the ground that all of the plaintiff’s claims against it were barred by the Colorado Governmental Immunity Act, Colo.Rev.Stat. §§ 24-10-101, et seq. (1973). On or about June 28, 1985, the plaintiff filed a response to the summary judgment motion stating as one argument in support of his position that the complaint adequately pleaded a claim for relief under 42 U.S.C § 1983 (1982). On October 28, 1985, the state district court judge denied the motion for summary judgment, in part on the ground that the complaint set forth cognizable § 1983 claims.

Defendants removed the case to this court on November 21, 1985. In their verified petition for removal, the defendants stated that, “since it is now the law of the case that there is a “cognizable” § 1983 claim ... and in effect no amendment is required as of October 28, 1985, Defendants have understood for the first time the suit to be brought under § 1983.” On December 18, 1985, the plaintiff moved to remand this case to the state court on the ground, inter alia, that the petition for removal was untimely. Defendants oppose the motion to remand. The parties have briefed the issues, and oral argument would not assist in resolving them.

The procedure for removal of civil actions is governed by 28 U.S.C. § 1446 (1982), which states as follows:

“(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based____
If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the ease is one which is or has become removable.”

As stated before, the initial complaint in this case made no mention of any federal statute. While it may have pleaded the allegations necessary to state a claim for relief under 42 U.S.C. § 1983 (1982), it did not purport to rely on this statute. The action appeared, from its initial filing, to be a state tort action. Therefore, the case was not removable in its original form.

The issue is whether the petition for removal was filed “within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable.”

Defendant argues that this case did not become removable until the state trial judge issued his order stating that the complaint set forth claims cognizable under § 1983. Plaintiff argues that the defendant was first apprised that he was pursuing a § 1983 claim by his reponse to the motion for summary judgment, which was filed on June 28, and that the thirty-day period began to run on that date.

Neither party has cited any cases to support its position on this issue, and my research has failed to uncover any case in which this precise factual situation has occurred. However, the statute itself provides sufficient guidance for resolution of the issue. The statute declares that the petition must be filed within thirty days after receipt by the defendant of a pleading, motion, order, “or other paper from which it may first be ascertained that the case is one which is or has become removable.” (Emphasis added.) The date of receipt of that paper was the date on which the defendants received the plaintiff’s response to the motion for summary judgment. At that time, the defendants were apprised that the plaintiff was pursuing a claim under § 1983. The fact that the court had not yet ruled that the § 1983 claim could survive a motion to dismiss is irrelevant. Defendant was then put on notice that the plaintiff intended to pursue a federal claim, and could have then ascertained that the case was removable. Therefore, the defendant’s petition for removal, filed over four months after their receipt of the plaintiff’s response to the summary judgment motion, was untimely.

Accordingly, it is ordered that this case is remanded to the District Court in and for the City and County of Denver.


author: NOLAND, Chief Judge.

text:
    David L. RUSSELL, Administrator of the Estate of Cynthia G. Russell, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
    No. IP 84-835-C.
    United States District Court, S.D. Indiana, Indianapolis Division.
    Jan. 28, 1986.
    As Amended Feb. 5, 1986.

      L. Mark Bailey, D. Bruce Kehoe, Indianapolis, Ind., for plaintiff.
    Jeffrey L. Hunter, Asst. U.S. Atty., Indianapolis, Ind., for defendant.
   MEMORANDUM ENTRY

NOLAND, Chief Judge.

Before this Court is the defendant’s motion for summary judgment on the negligence claim filed against it by David Russell. The Court heard oral argument on the motion, and, for the reasons stated herein, grants the defendant’s motion and hereby enters judgment in favor of the defendant, the United States of America.

The defendant has challenged the plaintiff’s complaint on three grounds. First, the defendant alleges that as a sovereign authority, it has not waived its sovereign immunity and is therefore not susceptible to suit in this Court. Secondly, the defendant alleges that because of the earlier state court litigation related to this case, the doctrines of res judicata and collateral estoppel bar the plaintiff’s present cause of action. Finally, the defendant alleges that, as a matter of law, it is entitled to a judgment in its favor.

I. Factual and Procedural Background

For the purposes of this motion for summary judgment, this Court must construe the facts in a light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. .993, 994, 8 L.Ed.2d 176 (1962) (per curiam). The following facts are not disputed by the parties.

On February 5, 1981, at approximately 10:00 a.m., on a clear dry morning, a westbound vehicle collided with a northbound vehicle at an intersection in central Indiana. The roadways and the surrounding topography are flat and were without foliage or other significant obstructions on the date in question. Jerry Hale of the Indiana National Guard was operating the westbound vehicle at the posted speed limit of 55 m.p.h., and Cynthia Russell was operating the northbound vehicle. Hale’s vehicle was a commercially produced one and one-quarter ton Dodge pickup truck with the bottom half of the body painted-in a green, gold, black and white “camouflage” configuration in accordance with National Guard Bureau and Department of the Army Regulations; the top half was covered with a plain green canvas. The truck possessed all necessary equipment for highway use and no efforts were undertaken to alter the light reflecting surfaces or the shape of the vehicle in any way.

The traffic at the relevant intersection was controlled by a stop sign. This sign obligated the northbound vehicle to stop, but did not restrict or affect the westbound vehicle; thus, Hale, in operating the National Guard vehicle, had the legal right of way. This accident was caused when Mrs. Russell advanced into the path of Hale’s vehicle.

Mr. Russell filed a wrongful death action against Hale and the Indiana National Guard in state court alleging that Hale was negligent in the operation of the National Guard vehicle, and that the Indiana National Guard was negligent in painting the camouflage pattern on the vehicle as such pattern “subdued” the visibility of the truck. Upon the close , of the plaintiff’s evidence at trial, the trial court judge granted the defendant’s motion for judgment on the evidence on all counts. Russell v. Hale, et al., No. 81/451, slip op. (Del.Cir.Ct., June 9, 1982). On appeal, the circuit court’s decision was unanimously affirmed in its entirety. Russell v. Hale, 453 N.E.2d 1201, slip op. at 11 (Ind.App., 1983).

Undeterred by these unequivocal setbacks, the plaintiff refashioned his complaint and filed it with the United States Department of the Army. On February 23, 1981, the Department of the Army rejected his claim, and the plaintiff proceeded to file his complaint in this Court. The complaint before this Court alleges that the United States was negligent both in painting the vehicle in such a manner so as to intentionally conceal its presence, and for allowing a vehicle painted in this fashion to be operated on the public roadways. More specifically, the plaintiff contends that the United States breached its statutory duty to Mrs. Russell to maintain the visibility of its vehicles on the roadway.

II. Discussion

Summary judgment should be granted when “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). This Court concludes that no genuine issue of material fact exists and that, as a conclusion of law, the United States is entitled to a judgment in its favor.

A. Waiver of Sovereign Immunity

It is a well established principle of law that the United States may not be sued without its consent. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). In the sphere of tort law, the United States has provided a limited statutory waiver of its sovereign immunity pursuant to the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 1346, 2671-80 (1982). The FTCA provides:

the district courts ... have exclusive jurisdiction of civil actions on claims against the United States, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the .act or omission occurred.

28 U.S.C. § 1346(b) (1982). The statute and subsequent case law clearly indicate that the United States cannot be held civilly liable unless the tort-feasor is an employee of the federal government. United States v. Orleans, 425 U.S. 807, 813-15, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976). Therefore, in order to recover under the FTCA, a plaintiff must establish that the injurious conduct was perpetrated by an employee of the United States.

On the date that this claim arose, February 5, 1981, the status of state national guard personnel was settled. The case law held that a member of the national guard was not an employee of the federal government within the meaning of the FTCA, unless such party was engaged in active service for the federal government. United States v. Prager, 251 F.2d 266, 267 (5th Cir.), cert. denied, 356 U.S. 939, 78 S.Ct. 781, 2 L.Ed.2d 814 (1958). The plaintiff has neither alleged nor argued that Sergeant Hale was in active service for the federal government at the time of the accident. Furthermore, although the FTCA was subsequently amended to include members of the National Guard as employees of the United States, 28 U.S.C. § 2671 (1982), that amendment applied only with respect to claims arising on, or after, December 29, 1981. Act of Dec. 29, 1981, Pub.L. No. 97-124, § 4, 95 Stat. 1666 (1981). Therefore, on February 5, 1981, Jerry Hale was not an employee of the United States and his alleged negligence on that date could not constitute a waiver of sovereign immunity pursuant to the FTCA. For these reasons, the actions of Jerry Hale on that date cannot inculpate the United States in this instance.

B. Collateral Estoppel and Res Judicata

The concepts of collateral estoppel and res judicata are commonly lumped together even though they involve distinct principles. Collateral estoppel, or issue preclusion, refers to the conclusive effect given an issue of fact or law that was actually litigated and resolved by a final judgment in a previous litigation between the parties. Wright, The Law of Federal Courts, § 100A (4th ed. 1983). True res judicata, or claim preclusion, on the other hand, bars the litigation of claims that were not previously litigated between the parties but “should have been advanced in the earlier suit.” Id.

In federal court, the res judicata and collateral estoppel effect that attaches to a prior state court decision is controlled by state law. Migra v. Warren City School District Board of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984). Therefore, this Court must look to Indiana law to determine the preclusive effect of the earlier Indiana state court decision in this case. A succinct statement of the necessary elements to establish the preclusivity of a prior judgment under Indiana law is found in Peterson v. Culver, 402 N.E.2d 448 (Ind.App.1980).

(1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the matter now in issue was, or might have been determined in the former suit; (3) the particular controversy adjudicated in the former action must have been between the parties to the present suit or their privies; and (4) the judgment in the former suit must have been rendered on the merits.

Id. at 460.

In the instant suit, the only one of these elements that appears to be lacking is the “identity of the parties” element. The United States was not a party to the prior state court suit because the FTCA reserves exclusive jurisdiction over negligence claims against the United States for the federal district courts. 28 U.S.C. § 1346(b) (1982). Furthermore, the United States does not qualify under the “or their privies” exception provided in item 3 above because the necessary mutuality of estoppel element is absent from the prior state court judgment.

There is, however, one exception to the requirement of mutuality that is particularly pertinent to this case. If the liability of a defendant in a subsequent suit is reasonably dependent on the culpability of a person that has been exonerated in a prior suit on the same facts by the same plaintiff, then mutuality of estoppel is not required. Tobin v. McClellan, 225 Ind. 335, 346, 73 N.E.2d 679, 684 (1947). See also Indiana State Highway Commission v. Speidel, 181 Ind.App. 448, 456 n. 6, 392 N.E.2d 1172, 1177 n. 6 (1979); Mayhew v. Deister, 144 Ind.App. Ill, 122, 244 N.E.2d 448, 454 (1962). Therefore, because the Indiana National Guard and Jerry Hale were both exonerated in the previous state court judgment, the liability of the United States cannot be premised upon the conduct of either of the former defendants.

C. Conduct of the United States as the Basis for Liability

In his brief and oral argument to this Court, the plaintiff attempted to circumvent the aforementioned jurisdictional and res judicata bars by reconstruing the theory of his complaint and focusing on the United States. The plaintiff argued that the United States, by painting the vehicle in a camouflage pattern, had violated a “duty of visibility” that it owed to Indiana highway travelers.

1. Strict Liability

In its bare form, the plaintiff’s complaint alleges that the employees of the United States were negligent in painting the camouflage pattern on the vehicle because such design rendered the vehicle unreasonably dangerous. In Mann v. United States, 294 F.Supp. 691 (E.D.Tenn.1968), the federal district court for the Eastern District of Tennessee faced a similar allegation. In that case the court reasoned that “[t]his is an abortive attempt on the part of the plaintiff to plead liability of the defendant without fault. Such a theory cannot provide the basis of liability on the part of the national sovereign. Dalehite v. United States, 346 U.S. 15, 45, 73 S.Ct. 956, [972,] 97 L.Ed. 1427.” Mann, at 694 n. 10. The Dalehite and Mann cases dictate that the FTCA does not encompass remedies premised upon a theory of strict liability; therefore, if the plaintiff’s complaint is to survive, it must do so under a theory of negligence.

2. Negligent Conduct of the United States

It is classic hornbook law that in order to recover pursuant to a tort law negligence theory, the plaintiff must show that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that such breach was the proximate cause of the plaintiff’s injury. The plaintiff in the instant case is unable to satisfy these three elements and therefore is susceptible to a summary judgment against him.

The plaintiff cites a number of Indiana statutes and army regulations to impose upon the United States a duty to make its vehicles visible. Construing these provisions in the plaintiff’s favor, motorists appear to have an affirmative duty to make their vehicles visible under certain circumstances when such vehicles might not be otherwise visible. The duty imposed by these statutes and regulations, however, is narrowly drawn to address only the headlamp and other illuminating device requirements for specific vehicles operated on the public roadways. Because this accident occurred in broad daylight on a clear day, artificial illuminating devices were not necessary to achieve “visibility.” Moreover, the plaintiff has not alleged that the lighting on the vehicle was deficient in any way, or that it was in violation of the aforementioned statutes and regulations. For these reasons, the defendant was not in breach of any “duty of visibility” that rationally' could be inferred from the statutes and regulations cited.

In his brief to this Court, the plaintiff tendered a second and slightly different theory, arguing that the United States owed a more general duty to the decedent, a duty to provide proper instruction on how to make its camouflaged vehicles “more visible.” The plaintiff derived this duty from the lighting statutes and regulations discussed above. The plaintiff cited no other authority to support the imposition of this burdensome responsibility, and this Court was unable to locate any such authority independently. This Court believes that the imposition of such a duty on the United States is not only an unwarranted extension of the FTCA, but an unreasonable perversion of basic tort law principles. Therefore, this Court concludes, as a matter of law, that the United States does not have a duty to instruct potential vehicle operators on how to make the government’s camouflaged vehicles “more visible.” Thus, this alternative construction of the plaintiff’s complaint also fails' as it has not stated any duty that the United States owed the decedent.

Finally, the plaintiff failed to establish that the camouflage pattern was the proximate cause of the accident in the state court. Russell v. Hale, 453 N.E.2d 1201, slip op. at 9-11 (Ind.App., 1983). The vehicle in question was a standard pickup truck traveling down an open, unobstructed flat road at 10:00 a.m. on a clear day in February. The vehicle was traveling at the posted speed limit, had all of the conventional lighting features, and its physical shape had not been altered in any way. Only one half of the vehicle, the lower half, was painted with the green, gold, black, and white foliage configuration, the upper half was covered with a plain green canvas. This Court fails to comprehend how, under these circumstances, this vehicle was substantially different from any other vehicle on the highway that day. This Court therefore concludes that the camouflage pattern was not the proximate cause of the accident in question. After a careful review of the plaintiff’s complaint, it is clear that the plaintiff has no legal claim for relief under any theory of tort law against the United States.

III. Conclusion

For the reasons stated herein, the defendant’s motion for summary judgment is GRANTED, and JUDGMENT is heretofore ENTERED in favor of the defendant and against the plaintiff.

IT IS SO ORDERED AND ADJUDGED.

      . David Russell is the administrator of the estate of Cynthia Russell, the operator of an automobile involved in the accident that gave rise to this action. Cynthia Russell died as a result of that accident.

      . The plaintiff filed a negligence claim in Indiana state court against the Indiana National Guard and Jerry Hale, a sergeant in the Indiana National Guard and the operator of the other vehicle involved in the aforementioned accident. The final judgment rendered in that case is pertinent to the instant case and will be addressed subsequently.

      . A review of the trial court transcript submitted to this court indicates that the trial judge found no evidence to indicate that the defendants (Jerry Hale and the Indiana National Guard) were negligent. Moreover, the trial judge explicitly found that Mrs. Russell was contributorily negligent.

      . With regard to the alleged negligence of the Indiana National Guard, the appellate court concluded that Russell failed to introduce any evidence that the National Guard had breached its duty of care to Mrs. Russell by permitting the camouflaged vehicle to be operated on the highway. Russell, 453 N.E.2d 1201, slip op. at 8-9.

      . In Indiana, a prior judgment has no preclusive effect unless the party asserting the preclusivity doctrine would have been bound by that same adjudication — mutually estopped — had the judgment gone against him. Burtrum v. Wheeler, 440 N.E.2d 1147, 1150 (Ind.App. 1982). Because the United States would not have been bound by that prior state court decision, they do not qualify as a party “in privity” with Jerry Hale and the Indiana National Guard in the previous suit.

      . The Indiana statutes cited by the plaintiff are Ind.Code §§ 9-8-6-1 to -32 (1982). The army regulations (AR) cited by the plaintiff are AR 55-29, AR 55-29 §§ 7c, 7e, and AR 385-55 § 2-16.

      . The actual language in the plaintiffs brief reads as follows:
      The scope of the prior suit related solely to the negligent operation of the truck and thus it did not include nor afford within its scope an opportunity to litigate the alleged negligence of employees of the United States for improper instruction on how to make the truck more visible, which is the theory under which this action has been brought.

        Plaintiffs Brief in Opposition to Defendant’s Motion to Dismiss/Motion for Summary Judgment at 9.


author: CALDWELL, District Judge.

text:
    John SLATKY, Plaintiff, v. AMOCO OIL COMPANY, Defendant.
    Civ. A. No. 85-1122.
    United States District Court, M.D. Pennsylvania.
    Jan. 28, 1986.
    Joel Weisberg, Harrisburg, Pa., for plaintiff.

      John A. Guernsey, William A. DeStefano, Philadelphia, Pa., for defendant.
   FINDINGS OF FACT

CALDWELL, District Judge.

1. Plaintiff, John Slatky, operates a service station located at 1001 West Market Street in the City of York, Pennsylvania under a lease agreement and dealer supply agreement with defendant, Amoco Oil Company.

2. Defendant, Amoco Oil Company, is the owner of a service station facility located at 1001 West Market Street, York, Pennsylvania.

3. Plaintiffs and defendant’s most recent lease and supply agreements are dated August 17, 1982 and run from September 1, 1982 until August 31, 1985.

4. By a letter dated May 29, 1985, defendant informed plaintiff that his lease would not be renewed and that any attendant franchise relationship would be terminated effective August 31, 1985.

5. The letter of May 29, 1985, further stated that in compliance with the requirements of the PMPA defendant would by separate letter, provide plaintiff with “a personal and nontransferable opportunity to purchase defendant’s fee property and improvements thereon.”

6. By letter dated June 28, 1985, defendant offered to sell plaintiff the station property for $306,300.00. This initial offer did not include the underground tanks and pumps.

7. Defendant’s offering price for the property was determined by its employees who value any property that defendant intends to buy, sell or lease. Defendant’s employees followed the procedures which it uses in the valuation of any of its property being offered for sale.

8. Defendant’s general procedure for determining the offering price of property is to conduct an initial appraisal of the land and real estate improvements by its employees. The initial appraisal is transmitted for review to the real estate manager and project team director. If there are any questions from the review, the property is . reappraised or the appraisal otherwise corrected. The offering price is then determined by defendant’s capital asset Manager. The district manager for the area in which the property is located also participates in this process.

9. Mr. M. O’Dell performed the initial appraisal of the land value of 1001 West Market Street in York in early May, 1985. Mr. C. Bogdanowicz performed the initial appraisal of the property improvements. These appraisals were reviewed by Messrs. Compton (Real Estate Manager), O’Brien (Project Team Manager) and L. Warfield (District Manager). A reappraisal of the land value was requested and was performed by Mr. O’Dell in latter May, 1985. The offering price was determined to be $306,300.00 and was communicated to plaintiff.

10. By a letter dated July 25, 1985, plaintiff through counsel advised defendant that he was interested in purchasing the property, and that his independent appraisal had valued the property at only $158,-200.00, including the tanks and dispensers.

11. Through a telephone conversation with plaintiff’s counsel and by a letter dated July 30, 1985, defendant rejected plaintiff’s counter offer.

12. ' The parties through a stipulation filed by counsel on August 16, 1985, and approved by the court, agreed to maintain the status quo pending a determination of the merits of the issues raised by plaintiff.

13. In a letter to plaintiff’s counsel dated August 26, 1985, defendant through its counsel, amended its offer to sell from $306,300.00 to $256,300.00, not to include the pumps and tanks. Defendant indicated that it was prepared to negotiate for the sale of the underground tanks and pumps at an additional price of $50,000.00.

14. Defendant’s policy in offering service stations properties for sale is to exclude underground tanks and pumps for environmental reasons. Should the prospective purchaser wish to purchase such items, its policy is to negotiate for their sale as long as all Amoco-identifying marks on the pumps are removed, the underground tanks pass Kentmoor tests to verify structural integrity and the purchaser agrees to indemnify defendant for any liability arising from the use of the underground tanks.

15. Plaintiff had two appraisals performed by MAI certified appraisers which valued the property at $158,200.00 and $145,000.00 respectively. The $145,000.00 appraisal does not include the pumps and tanks but the $158,200.00 appraisal did.

16. Defendant also hired a MAI certified appraiser who appraised the property at $221,000.00, not including the pumps and tanks.

CONCLUSIONS OF LAW

1. This court has jurisdiction of this action under the Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq.

2. Plaintiff and defendant have established a franchise relationship through the written lease and other agreements of the parties.

3. Defendant determined in good faith and in the normal course of business that renewal of the franchise relationship with plaintiff was likely to be uneconomical to it despite any reasonable changes or reasonable additions to the provisions of the franchise which may be acceptable to plaintiff.

4. Defendant’s notice to plaintiff of its determination not to renew the lease agreement complied with the requirements of the PMPA.

5. Defendant’s offer to sell its interests in the station premises to plaintiff was bona fide under the PMPA. Plaintiff did not accept the offer.

6. Defendant is entitled to an order of ejectment directing that Mr. Slatky vacate the premises within twenty (20) days of this order.

7. Plaintiff was lawfully in possession of the service station in accordance with the terms of the stipulation signed by the parties on August 16, 1985 and thus defendant is not entitled to judgment on its counterclaim.

MEMORANDUM

Plaintiff brought this action under the Petroleum Marketing Practices Act (“PMPA”), 15 U.S.C. § 2801 etseq. alleging that defendant did not make a bona fide offer to sell him the service station located at 1001 West Market Street. Pursuant to 15 U.S.C. § 2802(b)(3)(D)(iii) defendant was obligated to make “a bona fide offer to sell, transfer, or assign to the franchisee such franchisor’s interests in such premises ____” The term “bona fide” however, is neither defined by the PMPA nor discussed in its legislative history. Defendant has the burden of proving that its offer to sell was “bona fide.” S.Rep. No. 731, 95th Cong., 2d Sess. 15, reprinted in 1978 U.S. Code Cong. & AD.News 873, 874.

We have only found two cases which have defined the term “bona fide.” In Brownstein v. Arco Petroleum Products Co., 604 F.Supp. 312 (E.D.Pa.1985) the plaintiff brought an action substantially identical to the present one. There, the plaintiff complained that defendant’s offer of $290,000.00 was not a “bona fide” offer because it was greater than the fair market value of the property. Defendant argued that it may offer the property to plaintiff at any price so long as the offer is made without malice. Rejecting defendant’s contention, the court established the following two-part test:

First, I believe that for a court to conclude an offer is bona fide or actual, especially when viewed against the PMPA’s concern about pretextual nonrenewals, the defendant must demonstrate at the very least that the offer was made in conformity with the offeror’s general practice for selling property____
Moreover, even had Arco demonstrated that the procedures by which it arrived at the offering price were consistent with those utilized in non-PMPA-restricted cases, I am not convinced that it would have satisfied the strictures of the Act. In light of the generally slim profit margins available to petroleum franchisees, see Brown, supra, at 657, and Congress’ desire to avoid pretextual terminations or nonrenewals, a proper reading of the Act compels the conclusion that for an offer to be bona fide — that is actual — it must meet or very nearly approach what the offeror believes to be the fair market value of the property. Any increase over fair market value could clearly make a difference in the ability of the franchisee to accept the offer. I cannot believe Congress intended that the elaborate mechanism which it set up in the PMPA could be by-passed by a franchisor’s simply setting a price substantially in excess of what it believes to be the fair market value, whether or not it is beyond the franchisee’s ability to pay.

Id. at 315. (footnote omitted).

More recently in Robertson v. Mobil Oil Corp., 778 F.2d 1005 (3d Cir.1985) the Third Circuit interpreted the term “bona fide” in a slightly different context. In Robertson, the plaintiff challenged the decision of defendant not to renew the franchise agreement. Defendant discontinued the agreement because it had received numerous complaints from customers concerning plaintiff’s operation of the service station. The issue before the court was whether the customer complaints were “bona fide” within the meaning of the PMPA. Defining the term “bona fide” the court stated:

A definition of “bona fide” in PMPA that accommodates (sic) common usage and is fair to all parties is “sincere and having a reasonable basis in fact.” The “basis in fact” requirement entails that the circumstance complained of does, in fact, exist, and that the franchisee can reasonably be held accountable for it. Thus the receipt of numerous sincere complaints is not ground for non-renewal if the complaints are false or if they pertain to matters about which the franchisee is not culpable, e.g., policies required by the franchisor. This interpretation comports with both purposes of PMPA: protection of franchisees from arbitrary non-renewal and protection of franchisors from disruptive franchisee conduct that damages the brand name. See Rodgers v. Sun Refining and Marketing Company, 772 F.2d 1154, 1158 (3d Cir.1985).

At 1008.

Applying the Robertson definition, we conclude that defendant’s offer was “bona fide.” Plaintiff maintains that defendant’s offer was not “bona fide” because the selling price was not reached in a reasonable manner. The purpose of PMPA is to “protect franchisees from arbitrary or discriminatory termination or non-renewal of their franchises.” S.Rep. No. 731, 95th Cong., 2d Sess. 15, reprinted in 1978 U.S. Code Cong. & Ad.News 873, 874. Thus, we must determine whether defendant had a reasonable basis for making its offer. See Brownstein, supra; Shell Oil Co. v. Neuenfeldt, 2 CCH Business Franchise Guide Para. 8120 (C.D.Cal.1983). The evidence produced at the hearing revealed that defendant’s offer was made in the ordinary course of business, employing the procedures normally used for evaluating property. More specifically, Mr. O’Dell and Mr. Bogdanowicz showed precisely how they appraised the respective values of the land and the improvements on the land. Although Mr. O’Dell was requested to reappraise the land which resulted in a higher valuation, there is no evidence that he was directed to increase his appraisal. Instead, as Mr. O’Dell testified, the increased valuation was the result of a more critical and thorough appraisal. Although Mr. O’Dell and Mr. Bogdanowicz did not apply formal appraisal techniques, the procedures used by them were reasonable. Additionally, we note that the PMPA does not require the use of accepted appraisal methods, but only seeks to prevent arbitrary decisions. Here, we find that defendant’s offer was not arbitrarily made.

Plaintiff relying upon Brownstein, supra, maintains that the offer must approach the fair market value of the property. We reject this contention for two reasons. First, the PMPA does not require franchisors to sell the property at the fair market value. If Congress had intended for sales to be made at the fair market value, Congress would not have used the term “bona fide.” Second, plaintiff’s reliance upon Brownstein is misplaced. In Brownstein, the defendant’s offer was substantially greater than what it believed to be the fair market value of the property. Responding to this excessive offer, the court held that the offer must approach what the offeror believes is the fair market value. It does not follow, however, that defendant’s offer must approach the fair market value as determined by plaintiff’s appraisers. Furthermore, defendant has offered the property at what it believes is the fair market value of the property. Based upon these considerations, we find that defendant’s offer was sincere and has a reasonable basis.

Plaintiff argues next that defendant’s offer was not “bona fide” because it did not include an offer to sell the underground tanks and gasoline dispensers. In support of their position plaintiff cites Roberts v. Amoco Oil Corp., 740 F.2d 602 (8th Cir.1984) and Greco v. Mobil Oil Corp., 597 F.Supp. 468 (N.D.Ill.1984). To the contrary, defendant asserts that the Roberts decision has been rejected by the Third Circuit and even if it has not, it has made an offer to sell the tanks and dispensers.

As plaintiff correctly points out, several courts have held that a bona fide offer must include an offer to sell the tanks and dispensers. See e.g. Roberts, supra. In the instant case, defendant’s original offer did not include tanks and dispensers. This offer was, however, amended on August 26, 1985, to include this equipment. Without deciding whether Roberts is good law in this circuit, we conclude that defendant, by amending its original offer to include tanks and dispensers, made a bona fide offer. The fact that they were not included in the original offer does not change our decision since the offer to sell them was made within the 90 day limitation imposed by 15 U.S.C. § 2802(b)(3)(D)(iii).

Finally, defendant has made a counterclaim for damages caused by plaintiff’s unlawful possession of the service station beyond August 31, 1985, the lease expiration date. Defendant claims that it is entitled to either lost profits arising from diminished gasoline sales or liquidated damages as provided by the lease. Plaintiff maintains that he remained in possession of the property in accordance with the terms of a stipulation signed by the parties. Based upon this stipulation plaintiff argues that defendant is not entitled to damages. The record reveals that the parties entered into a stipulation on August 16,1985 which provides that the parties would maintain the status quo pending resolution of their dispute. Based upon this agreement, we conclude that plaintiff was properly in possession of the premises and therefore defendant is not entitled to damages. In addition, we note that an award of damages would be inconsistent with the PMPA.

      . Pursuant to 15 U.S.C. § 2802(b)(3)(B) the receipt of numerous bona fide consumer complaints is a basis for nonrenewal of a franchise agreement.

      . Section 2802(b)(3)(D)(iii) provides that the franchisor must make a bona fide offer to sell within ninety (90) days of the notice of nonrenewal.


author: ORINDA D. EVANS, District Judge.

text:
    Harold J. FARRIS v. LANIER BUSINESS PRODUCTS, INC.
    Civ. No. C83-1631.
    United States District Court, N.D. Georgia, Atlanta Division.
    Jan. 28, 1986.

      Harold J. Farris, pro se.
    Robert N. Godfrey, David P. Phippen, Smith, Currie & Hancock, Atlanta, Ga., for defendant.
   ORDER

ORINDA D. EVANS, District Judge.

Judgment was entered in this pro se employment discrimination action on October 2, 1985, following a trial to the bench. At the conclusion of Plaintiff’s case, the court determined that Defendant was entitled to judgment as a matter of law. Defendant has now moved for an award of attorney’s fees and costs, and Plaintiff has moved to have Defendant’s costs dismissed.

The court concludes that Defendant’s motion should be granted, as Plaintiff’s action was “frivolous, unreasonable, [and] without foundation.” Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980); Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). Plaintiff brought this action after the EEOC had investigated the charge which Plaintiff filed against Defendant and determined that there was no reasonable cause to believe the Plaintiff’s discharge had been motivated by racial discrimination. At trial, Plaintiff failed to demonstrate any unlawful discrimination by Defendant.

Further, this lawsuit is but one of several which Plaintiff has brought against former employers following termination. See Farris v. Marta, Civil Action No. C791779A (N.D.Ga. April 6, 1982); Farris v. Royal Business Machines, Inc., Civil Action No. C81-1227A (N.D.Ga. Sept. 21, 1983). In each of those cases, Plaintiff sued his past employers for race discrimination, and in each case his claims were found to be meritless. Plaintiff’s propensity for meritless litigation reflects poorly upon his good faith in filing the present lawsuit.

The fact that Plaintiff appeared pro se in this action does not preclude a decision to impose attorney’s fees and costs. Beard v. Annis, 730 F.2d 741, 745 (11th Cir.1984); Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911, 916 (11th Cir.1982). Plaintiff’s, litigiousness forced Defendant to expend time and effort in preparation for an essentially useless trial. Plaintiff must accept responsibility for the burden which he imposed upon Defendant. Further, the court finds that Defendant’s Bill of Costs is reasonable and that the expenses charged therein are allowable.

Accordingly, Defendant’s motion for attorney’s fees and costs is GRANTED; Plaintiff’s motion to have Defendant’s costs disallowed is DENIED. Defendant is DIRECTED to file an itemized statement of the fees which it actually and reasonably incurred in the defense of this action within fifteen (15) days of date of entry of this order. Plaintiff shall have fifteen (15) days within which to file any objections. The Clerk is DIRECTED to resubmit the file in thirty (30) days.