author: WEINSTEIN, Chief Judge:

text:
    In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.

    MDL No. 381 (JBW).
    United States District Court, E.D. New York.
    Feb. 11, 1985.

      Stephen J. Schlegel, Schlegel & Trafelet, Ltd., Chicago, 111., Benton Musslewhite, Law Offices of Benton Musslewhite, Inc., Houston, Tex., Thomas Henderson, Henderson & Goldberg, Pittsburgh, Pa., Phillip E. Brown, Hoberg, Finger, Brown, Cox & Molligan, San Francisco, Cal., Stanley Chesley, Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio, John Q. O’Quinn, O’Quinn & Hagans, Houston, Tex., Neil R. Peterson and Gene Locks, Greitzer & Locks, Philadelphia, Pa., Newton B. Schwartz, Houston, Tex., Irving Like, Reilly, Like & Schneider, Babylon, N.Y., David J. Dean, Dean, Falanga & Rose, Carle Place, N.Y., Aaron Twerski, Hempstead, N.Y., of counsel; Robert A. Taylor, Jr., Ashcraft & Gerel, Washington, D.C., H. Kelly Jones, Cayce, S.C., Leonard W. Schroeter, Schroeter, Goldmark & Bender, Seattle, Wash., Anne E. Meroney, Smith & Meroney, Atlanta, Ga., Douglas F. Patrick, Foster, Covington & Patrick, Greenville, S.C., Ronald L. Wolf, Litvin, Blumberg, Matusow & Young, Philadelphia, Pa., Lawrenceville, Va., for plaintiffs.
    Linwood W. Hinson, pro se.
    Richard K. Willard, Jeffrey Axelrad, Arvin Maskin, Leon B. Taranto, Robert C. Longstreth, Washington, D.C.; Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y., for U.S., defendant.

        Loughery v. United States, No. 81-664; Valdez v. Cleland, No. 81-908; Strait v. Cleland, No. 81-909; Hannah v. U.S. Dept. of Defense, No. 81-3816; Clift v. U.S. Dept. of Defense, No. 81-3817; Stevenson v. U.S. Dept. of Defense, No. 81-3818; Bennis v. Cleland, No. 82-214; Hall v. United States, No. 82-686; Burnham v. United States, No. 82-766; Petty v. Veterans Administration, No. 82-769; Wehunt v. Veterans Administration, No. 82-770; Edwards v. Veterans Administration, No. 82-772; Reid v. United States, No. 82-774; Napier v. United States, No. 82-787; Burke v. United States, No. 82-858; Alexander v. United States, No. 82-859; Searcy v. United States, No. 82-1119; Jordan v. United States, No. 82-1264; Lambert v. United States, No. 82-1390; Kitaki v. United States, No. 82-1391; Jordan v. United States, No. 82-2009; Watson v. United

        States, No. 82-2292; Gardner v. United States, No. 82-3107; Matthews v. United States, No. 83- 20; Graves v. U.S. Dept. of Defense, No. 83-3123; Graves v. U.S. Dept. of Defense, No. 83-3124; Zumwalt v. U.S. Dept. of Defense, No. 84- 2456; Benbenek v. Cleland, No. 81-666, Brennon v. United States, No. 82-299; High v. United States, No. 82-777; Patrick v. Veterans Administration, No. 82-779; Aguiar v. United States, No. 82-780; Blackmon v. United States, No. 82-781; Rowland v. United States, No. 82-788; Thomas v. United States, No. 82-1753; Plavner v. United States, No. 83-907; Archibald v. United States, No. 82-778; Dockery-Bay v. United States, No. 82-856; Anderson v. United States, No. 82-767; Clark v. United States, No. 82-771; Johnson v. United States, No. 82-782; Reed v. United States, No. 82-785; Batts v. United States, No. 82-855; Dickerson v. United States, No. 82-1140; Fekete v. United States, No. 82-1141; Gibbs v. United States, No. 82-1850; Baker v. United States, No. 82-2594; Hinson v. United States, No. 84-3819; Armstrong v. Dow Chemical Co., No. 81-2728; Baird v. Dow Chemical Co., No. 80-1277; Balzano v. Dow Chemical Co., No. 79-525; Berg v. Dow Chemical Co., No. 81-943; Brewer v. Dow Chemical Co., No. 81-504; Burke v. Dow Chemical Co., No. 82-857; Butt v. Dow Chemical Co., No. 83-3121; Caldwell v. Dow Chemical Co., No. 82-4031; Chapman v. Dow Chemical Co., No. 79-1195; Clark v. Dow Chemical Co., No. 83-627; Clark v. Dow Chemical Co., No. 83-633; Claxton v. Dow Chemical Co., No. 79-527; Curd v. Dow Chemical Co., No. 79-526; De Bonis v. Dow Chemical Co., No. 82-215; Dowd v. Dow Chemical Co., No. 79-467; Dunn v. Dow Chemical Co., No. 83-4030; Gardner v. Dow Chemical Co., No. 82-776; Green v. Dow Chemical Co., No. 79-1194; Griffen v. Dow Chemical Co., No. 80-1276; Jupin v. Dow Chemical Co., No. 79-1201; Justice v. Dow Chemical Co., No. 81-2345; Martin v. Dow Chemical Co., No. 81-2343; McNichol v. Dow Chemical Co., No. 79-3206; Mees v. Dow Chemical Co., No. 81-512; Newton v. Dow Chemical Co., No. 81-501; Parham v. Dow Chemical Co., No. 81-2344; Peteet v. Dow Chemical Co., No. 79-2846; Petrusha v. Dow Chemical Co., No. 80-1281; Petty v. Dow Chemical Co., No. 80-3259; Reutershan v. Dow Chemical Co., No. 79-1197; Skillings v. Dow Chemical Co., No. 79-1198; Smith v. Dow Chemical Co., No. 81-2339; Smith v. Dow Chemical Co., No. 79-1200; Steinberg v. Dow Chemical Co., No. 79-1199; Snider v. Dow Chemical Co., No. 82-789; Thornton v. Dow Chemical Co., No. 81-659; Tiranti v. Dow Chemical Co., No. 79-1196; Watson v. Dow Chemical Co., No. 81-502; Wehunt v. Dow Chemical Co., No. 81-910; Wilson v. Dow Chemical Co., No. 82-1389; Wrinn v. Dow Chemical Co., No. 81-1200; Xirau v. Dow Chemical Co., No. 79-528.

   MEMORANDUM, ORDER AND JUDGMENT

WEINSTEIN, Chief Judge:

Plaintiffs, Vietnam War veterans and members of their families, sue the United States government to recover damages for injuries allegedly suffered as a result of exposure to Agent Orange in Vietnam. The government has moved to dismiss or, in the alternative, for summary judgment in cases in which it is the only defendant as well as in cases in which it is named as a defendant along with the manufacturers of Agent Orange. For the reasons indicated, the motion must be granted.

I. PROCEDURAL HISTORY IN BRIEF

The history of the “Agent Orange” litigation is set forth in the Preliminary Memorandum and Order on Settlement, 597 F.Supp. 740 (E.D.N.Y.1984). On October 30, 1984 and again on December 10, 1984, the court orally denied plaintiffs’ motion for class certification against the government for reasons stated on the record and summarized below. Subsequently, the government renewed a prior motion to dismiss and moved for summary judgment; oral argument was heard on December 10, 1984. On January 24, 1985, counsel for a number of the plaintiffs moved for voluntary dismissal of the children’s direct claims for genetic damage.

The government’s motion to dismiss the complaint must be granted, as a matter of law, as to the claims by veterans and the derivative claims by their wives and children. The government’s motion for summary judgment must be granted, as a matter of fact, as to the independent claims of plaintiffs’ wives. As to the independent claims of the minor children, they are dismissed voluntarily and without prejudice in the court’s discretion.

II. CLASS CERTIFICATION

Plaintiffs Dan and Christina Ford moved pursuant to Rule 23 of the Federal Rules of Civil Procedure for class certification of all claims asserted against the United States under the Eighth Amended Complaint in Civil Action No. 79-747. Whether to certify a class is a decision “peculiarly within the discretion of the trial judge.” Becker v. Schenley Industries, Inc., 557 F.2d 346, 348 (2d Cir.1977); see also City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295, 298 (2d Cir.1969) (“judgment of trial judge should be given the greatest respect and the broadest discretion, particularly if, as here, he has canvassed the factual aspects of the litigation.”). As explained in the transcript of oral argument, the court has carefully considered the factual aspects of the litigation. Among the factors considered is that the enormous expenditure required to notify potential class members is not justified given the almost nonexistent possibility of recovery against the government on the merits. While plaintiffs have thus far adduced only minimal proof that Agent Orange caused their injuries, studies are continuing. Certifying a class would give res judicata effect to this court’s granting of summary judgment in favor of the government. It would be unfair to preclude children with birth defects — both born and unborn — from someday using studies that may possibly establish the validity of their claims against the government.

III. THE GOVERNMENT’S MOTION TO DISMISS CLAIMS OF VIETNAM VETERANS

Plaintiffs Vietnam veterans’ claims against the government rest on a number of grounds: statutory, international law, and constitutional. The United States moves to dismiss each of these claims. Because the statutory ground is dispositive, the others need not be addressed. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-49, 56 S.Ct. 466, 482-84, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

Plaintiff veterans seek to impose liability upon the government under the Federal Tort Claims Act. 28 U.S.C. § 1346(b). The Act waives the United States’ immunity from suit with certain important exceptions.

A. Introduction: The Feres Exception

One such exception was first enunciated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). It held that a member of the armed forces cannot sue the government in tort for injuries that “arise out of or are in the course of activity incident to service.” Id., 340 U.S. at 146, 71 S.Ct. at 159. As subsequently interpreted, this judicially-created exception to the United States’ waiver of sovereign immunity was found to rest on three grounds:

1. The existence of a separate, uniform, comprehensive, no-fault compensation scheme for members of the armed forces administered by the Veterans’ Administration, similar in effect to workers’ compensation plans;

2. The adverse impact on military discipline and effectiveness were servicepersons allowed to sue the government, United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed.2d 139 (1954); and

3. The distinctively federal nature of the relationship between the United States and members of the armed forces which would make it unfair and irrational to have “the Government’s liability to members of the armed services dependent on the fortuity of where the soldier happened to be stationed at the time of injury.” Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671, 97 S.Ct. 2054, 2058, 52 L.Ed.2d 665 (1977).

The applicability of the Feres doctrine to bar the veterans’ claims — and the derivative claims by wives and children based on such theories as loss of earnings and services — has been considered on two prior occasions in the course of deciding the defendant chemical companies’ third-party claims against the government. See In re “Agent Orange”Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980); In re “Agent Orange” Product Litigation, 580 F.Supp. 1242 (E.D.N.Y.), mandamus denied, In re United States, 733 F.2d 10 (2d Cir.), appeal dismissed, In re “Agent Orange”Product Liability Litigation, 745 F.2d 161 (2d Cir.1984). The implicit ruling against the veterans and the derivative claims of their wives and children in these cases was made explicit in Ryan v. Cleland, 531 F.Supp. 724, 728 (E.D.N.Y.1982); see, C. Wright, A. Miller & E. Cooper, 18 Federal Practice and Procedure § 4477 at 788-89 (1981). No reason has been advanced for departing from the law of the case regarding the veterans’ claims against the government or the derivative claims of the wives and children. Cf. Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 135 (2d Cir.1956) (Hand, J.) (law of case doctrine, although discretionary, is a matter of sound judicial practice).

B. Claims “Incident to Service”

There is no question that the veterans’ claims against the government for injuries arising from exposure to Agent Orange while in Vietnam are “incident to service” and barred by the Feres doctrine. See 506 F.Supp. at 776. Such claims implicate all three elements of the Feres rationale. The first Feres factor — the existence of a comprehensive, no-fault veterans’ compensation scheme — is especially relevant in light of Congress’s recent enactment of legislation aimed at compensating veterans exposed to Agent Orange. The Veterans’ Dioxin and Radiation Exposure Compensation Standards Act of 1984, Pub.Law No. 98-542, 98 Stat. 2725 (1984), establishes a commission to study the effects of exposure to dioxin and creates a presumption of causation with respect to two of the injuries alleged to result from such exposure— chloracne and porphyria cutanea tarda. See id. at §§ 6 and 9(a). Congress has chosen to create these statutory presumptions notwithstanding its conclusion that there is “insufficient credible scientific evidence” to support them. House Rpt. No. 98-592 (Veterans’ Affairs Comm., Jan. 25, 1984), reprinted in 1984 U.S.Code Cong. & Ad.News 4449, 4453. Congress’s decision to legislate in this area tends to confirm the view that Feres remains in force.

C. Post-Discharge Failure to Warn

In an effort to avoid the Feres bar, plaintiffs allege that the government’s tortious conduct occurred “post-discharge.” More specifically, plaintiffs claim that towards the end of the Vietnam War and subsequently, the government experienced an “explosion of knowledge” regarding the harmful effects of exposure to Agent Orange, yet failed to warn plaintiffs and see to it that they were properly treated and compensated for any injury sustained. Plaintiffs argue that this failure exposes the government to liability under the Federal Tort Claims Act as well as under the Constitution and under the Veterans Benefits Act, 38 U.S.C. § 240. The latter two contentions have been rejected by this court in a previous opinion and need not be reconsidered here. See Ryan v. Cleland, 531 F.Supp. 724, 728 (E.D.N.Y.1982).

Plaintiffs’ attempt to circumvent the Feres limitation by pleading post-discharge theories has been explicitly considered and found wanting. See In re “Agent Orange” Product Liability Litigation, 506 F.Supp. 762, 777-80 (E.D.N.Y.1980). Plaintiffs had relied primarily on two classes of cases that have found post-discharge negligence or failure to warn not barred by Feres.

The first kind is exemplified by Schwartz v. United States, 230 F.Supp. 536 (E.D.Pa. 1964). In that case, a military hospital treated a serviceman for his sinus condition by inserting radioactive dye. After discharge the Veterans Administration negligently failed to remove the dye and plaintiff contracted cancer. The court found that Feres did not bar his claims because the government’s actionable negligence lay in the Veterans Administration’s subsequent failure to diagnose and treat plaintiff’s problem.

In the instant case, unlike Schwartz, “plaintiff’s claim of post-discharge failure to warn does not present a separate and distinct act of post-discharge negligence on the part of the government.” 506 F.Supp. at 778. This is not a case of a veteran who was treated negligently in a Veterans Hospital after discharge.

The second kind of failure to warn situation in which Feres has been held not to bar suit is exemplified by Thornwell v. United States, 471 F.Supp. 344 (D.D.C. 1979). There, a former serviceman alleged that he was intentionally drugged with LSD as part of a secret government experiment and that after discharge, the government failed to warn him of medical risks incurred by exposure. The Thornwell court held that Feres would not bar the suit because plaintiff alleged a distinct act of negligence after his discharge — the government representatives’ failure to exercise the “duty of care ... to rescue him from the position of danger which they had created....” 471 F.Supp. at 351. In a similar case the wife of a deceased serviceman sued the government claiming that it had forced her husband to participate in military maneuvers less than one hour after detonation of a nuclear blast as an experimental project to test the effects of nuclear radiation. Everett v. United States, 492 F.Supp. 318 (S.D.Ohio 1980). The Everett court, following Thornwell, found that Feres would not bar the claim because it involved an intentional act incident to service plus a separate wrong of post-discharge negligence. These cases are quite different from the veterans’ “Agent Orange” suit. The veterans do not claim that the government “caused them intentional harm by subjecting them to a form of human experimentation.” 506 F.Supp. at 779. Instead, the veterans concede, as they must, that the government used Agent Orange in Southeast Asia to accomplish military objectives. Id.

Plaintiffs in their Memorandum in Opposition to the Government’s Motion to Dismiss offer no reason to depart from this court’s prior ruling. In addition to the cases already discussed, they cite several cases involving exposure to radiation. Broudy v. United States, 661 F.2d 125 (9th Cir.1981), after remand, 722 F.2d 566 (9th Cir.1983); Targett v. United States, 551 F.Supp. 1231 (N.D.Cal.1982); Seveney v. United States Government, Dept. of Navy, 550 F.Supp. 653 (D.R.I.1982). These cases are distinguishable for several reasons. First, the servicemen in these cases were exposed to such large doses of radiation as to approach the level of intentional experimentation found in Everett. Second, they involved exposure to radiation, a substance considered far more likely to cause adverse health effects than was Agent Orange. Finally, imposing on the Veterans’ Administration a duty to warn of the uncertain consequences of Agent Orange exposure might well encounter another hurdle — the discretionary function exception to the Federal Tort Claims Act. 28 U.S.C. § 2680(a). Cf. United States v. Varig Airlines, — U.S. —, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984). In contrast to the radiation experiments, the decision to use herbicides in Vietnam was made by President Kennedy and had the military objectives of clearing underbrush and jungle that provided cover for the enemy and of denying food for opposing forces who were living off the land.

In sum, plaintiffs’ claims of post-discharge negligence were “inseparably entwined” with their military service and so barred by Feres. Healy v. United States, 192 F.Supp. 325, 328 (S.D.N.Y.), aff’d on opinion below, 295 F.2d 958 (2d Cir.1961). The conclusion that “[t]he important and well established principles of the Feres doctrine cannot be circumvented by inventive presentation or artful pleading [that] attempts to create an actionable post-discharge claim out of what is in reality a claim of continuing neglect,” remains applicable to all the claims currently before the court. In re “Agent Orange” Product Liability Litigation, 506 F.Supp. 762, 779 (E.D.N.Y.1980). The post-discharge claims must be dismissed.

D. Pre-Induction Claims of Negligence

Counts 1 through 28 of the Eighth Amended Complaint in Civil Action No. 79-747 allege numerous acts of negligence on the part of the United States occurring prior to the veterans’ induction. In essence these counts assert that prior to the induction of many of the servicemen who served in Vietnam, the United States knew or should have known of the hazards posed by exposure to Agent Orange and negligently failed to warn servicemen or take precautions for their safety — notwithstanding the United States’ alleged thorough involvement in the manufacture of the herbicides. Pre-induction knowledge claims may be pleaded alternatively with post-discharge theories. MacFarlane v. Grasso, 696 F.2d 217, 224-25 (2d Cir.1982).

Pre-induction negligence claims must be classified as an attempt to circumvent the Feres bar through “artful pleading.” Even if the government’s negligent conduct occurred prior to a serviceman’s induction, his exposure to and alleged injury from Agent Orange “arises out of” his military service. Allowing such a suit to go forward would undermine all three elements of the Feres doctrine. See Healy v. United States, 192 F.Supp. 325 (S.D.N.Y.), affd on opinion below, 295 F.2d 958 (2d Cir.1961). In Healy, plaintiff alleged that when as a civilian he was tested prior to induction, an Air Force physician negligently failed to detect a heart condition that would have disqualified him from military service. Activity during basic training aggravated his heart condition, resulting in hospitalization. Feres barred the lawsuit for the reason that:

To allow this claim to be encompassed within the Federal Tort Claims Act would, in large measure, devitalize the effect of the Feres holding which Congress thus far has not seen fit to overturn: it would open the floodgates of litigation to claims inextricably wound up with active military service incidents.

Id. at 329.

E. Intentional Torts

Counts 19, 20, 47, 48, 67, 68, 81, 82, 89, 95, 99, and 100 of the Eighth Amended Complaint in Civil Action No. 74-747 assert that the United States intentionally committed tortious acts against the plaintiffs. The Second Circuit has held that the policy considerations underlying the Feres doctrine apply with equal force to intentional torts. Kohn v. United States, 680 F.2d 922, 925-26 (2d Cir.1982). Plaintiffs’ allegations of intentional torts, therefore, do not overcome the Feres bar.

All plaintiffs’ efforts to circumvent the Feres doctrine through reliance on post-discharge, pre-induction, and intentional torts must fail. The government’s motion to dismiss the complaints against it by veteran plaintiffs is granted. These same cases also involve claims by members of the veterans’ families. Derivative claims, such as those for loss of society, comfort, companionship, services, consortium, guidance, and support, are equally barred by Feres. See In re “Agent Orange” Product Liability Litigation, 506 F.Supp. 762, 780 (E.D.N.Y. 1980).

IV. INDEPENDENT CLAIMS BY VETERANS’ WIVES AND CHILDREN

A number of the wives and children of veterans also assert independent claims against the government. The wives allege that they suffered miscarriages as a result of damage to the husbands’ sperm caused by Agent Orange exposure. The children claim that they were born with birth defects as a result of their fathers’ exposure.

The court has previously concluded that the independent claims of the wives and children are not, as a matter of law, barred by Feres. See In re “Agent Orange” Product Liability Litigation, 580 F.Supp. 1242, 1247-54 (E.D.N.Y.1984). Nevertheless, plaintiffs must come forward with some evidence of their contentions to withstand the government’s motion for summary judgment. Federal rules of Civil Procedure, Rule 56(e).

In support of its motion, the government relies upon the entire record in this MDL litigation and in particular the Affidavit of Dr. Zena Stein. Dr. Stein concludes that “no laboratory nor epidemiologic evidence exists at this time that is sufficient, to a reasonable degree of certainty or probability, to link embryonal deaths or birth defects to paternal exposure to herbicides while serving in Vietnam.” This conclusion is based on leading epidemiological studies. See generally, Dore, A Commentary on the Use of Epidemiological Evidence in Demonstrating Cause-in-Fact, 7 Harv.Envtl.L.Rev. 429 (1983). The court has, in addition, read the many other studies that are part of the record in the MDL litigation. Judicial notice is taken of the entire record in the files of this court, including these studies. See, e.g., St. Louis Baptist Temple, Inc. v. Federal Deposit Ins. Corp., 605 F.2d 1169, 1171-72 (10th Cir.1979); United States v. Jackson, 712 F.2d 1283,1287 (8th Cir.1983); Baldwin v. Local 843, International Brotherhood of Teamsters, 562 F.Supp. 36, 38 (D.N.J.1982); see also Bulova Watch Co., Inc. v. K. Hattori & Co., Ltd., 508 F.Supp. 1322 (E.D.N.Y.1981) (judicial notice may be taken in deciding motions).

Properly developed epidemiological evidence is sound, can be reliable, is well accepted in the scientific and legal communities, and must be relied upon in cases such as this. Cf United States v. Downing, 753 F.2d 1224 (3d Cir.1985) (rejecting Frye test in favor of a more flexible relevance-prejudice analysis incorporating helpfulness standard of Federal Rule of Evidence 702). Yet, like most other forms of expert evidence, it is subject to abuse. Thus, particular care needs to be taken in examining the bases of the expert opinions proffered. Here, there can be no doubt that the government expert’s analysis is the only one presently acceptable as a matter of science and law.

The studies to date conclude that there is as yet no epidemiological evidence that paternal veteran exposure to Agent Orange causes birth defects or miscarriages. See, e.g., Erickson, Mulinare, et al., “Vietnam Veterans’ Risks for Fathering Babies with Birth Defects,” 252 J.A.M.A. 903-12 (1984) and J.D. Erickson, J. Mulinare, et al., Vietnam Veterans’ Risks for Fathering Babies with Birth Defects, published by the U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control (August, 1984) (“CDC study”); J.W. Donovan, et al., Case-control Study of Congenital Anomalies and Vietnam Service (Birth Defects Study): Report to the Minister for Veterans’ Affairs, January 1983, published by Australian Government Publishing Service, Canberra (1983) (“Australian study”); Donovan, MacLennan and Andena, Vietnam service and the risk of congenital anomalies, 140 Med.J. of Australia 394 (March 31, 1984). See also, e.g., the discussion of lack of proof of causation in In re “Agent Orange” Product Liability Litigation, 597 F.Supp. 740, 749, 775-95 (E.D.N.Y.1984).

In a comprehensive epidemiological examination of ninety-six categories of birth defects occurring among subsequently conceived offspring of American servicemen who served in Vietnam, the authors of the CDC study concluded: “This study provides strong evidence that Vietnam veterans, in general, have not been at increased risk of fathering babies with the aggregate of the types of defects studied here.” CDC study at 2. The CDC study further concluded:

At present, no adverse human reproductive effects have been shown to be related to exposure to phenoxy herbicides and dioxin. Evidence and concern for such ill effects come from animal experiments. These adverse outcomes occur by administering the chemicals to pregnant females at critical times during gestation (e.g., Courtney and Moore, 1971). In all animal experiments in which paternal exposures have been evaluated, results have been negative.
# * Íft * * *
From the few studies done, there is no. conclusive evidence that 2, 4, 5-T or dioxin has caused adverse reproductive outcomes in humans. In certain animal species, when pregnant females were exposed, their offspring have had birth defects. However, in no species have fathers’ exposures been shown to cause congenital defects in offspring.

Id. at 67. (Emphasis supplied.)

The conclusions of the Australian study are similarly negative:

There is no evidence that Army service in Vietnam increases the risk of fathering children with anomalies diagnosed at birth.

Donovan, MacLennan and Andena, Vietnam service and the risk of congenital anomalies, 140 Med.J. of Australia 394 (March 31, 1984). See also CDC study at 6-7 (number of offspring of Vietnam veterans with serious birth defects no greater than the population at large); cf. House Rept. No. 98-592 on Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, reprinted in 1984 U.S.Code Cong. & Ad.News 4449, 4453 (“insufficient credible scientific evidence” that veterans exposed to Agent Orange are experiencing higher incidence of medical problems).

Plaintiffs have produced no evidence of any probative value to contradict the government’s overwhelming showing of no present proof of causation. In the case of Ford v. United States, CV-79-747, plaintiffs rely upon expert affidavits and depositions for their contention that causation presents a material issue of fact. In particular the Ford plaintiffs offer the testimony of Doctors Legator, Levin, Silbergeld, Barsotti, Hatch, and Hay. Pl.Br. at 28-30. We put aside the fact that the Ford complaint involves no children since the court is taking judicial notice of all the records in all related litigation now before it under MDL No. 381.

The conclusions reached by the Ford experts are themselves guarded and unpersuasive. See, e.g., Deposition of Dr. Maureen Hatch at 57 (“I’m not convinced without further evidence that there was a causal relationship between Agent Orange and neonatal deaths.”). In addition, there is no factual foundation for any expert opinion sufficient under Federal Rule of Evidence 703 to withstand summary judgment. See, e.g., Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666 (D.C.Cir.1977); cf. Barrel of Fun, Inc. v. State Farm Fire & Casualty Co., 739 F.2d 1028, 1033 (5th Cir.1984).

In most of the cases against the government plaintiffs’ counsel moved for voluntary dismissal under Rule 41(a)(2) of the minor childrens’ independent claims. The court agrees that it would be both reasonable and fair to avoid dismissing the childrens’ claims on the merits when the scientific evidence may not as yet have been fully developed. Louis v. Bache Group, Inc., 92 F.R.D. 459, 460-61 (S.D.N.Y.1981). The government, consistent with its harsh and unyielding view of its relationship to the veterans, their wives and children in this litigation, In re Agent Orange Product Liability Litigation, 597 F.Supp. 740, 879 (E.D.N.Y.1984), strongly urges that the infants’ cases be dismissed on the merits and with prejudice so that they can never sue again, even if evidence subsequently shows that they have a valid claim against the government.

Rule 41(a)(2) of the Federal Rules of Civil Procedure grants the court broad discretion to permit a voluntary withdrawal without prejudice at this stage of the litigation. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976). Absent a showing of substantial harm to the defendant, discretion should generally be exercised in favor of an infant who lacks evidence to support his or her claim but who may obtain such evidence in the future. Added reason to favor the infants exists when, as here, following the governments’ view would bar a handful of children who have already sued while leaving the thousands of potential claimants who have not sued free to do so in the future.

A vindictive attitude on the part of the government towards the few on whose behalf a suit was filed is particularly inappropriate because plaintiffs’ attorneys have done little to advance the case during the many years it has been pending. Thus, these cases have placed no substantial burden on the government. Zimpro Inc. v. United States Envtl. Protection Agency, 83 F.R.D. 302, 304 (N.D.N.Y.1979); Vienneau v. Shanks, 78 F.R.D. 70 (D.Wisc. 1978).

The prospect of defending a future lawsuit by these plaintiffs does not constitute “plain legal prejudice” to the government. Hamilton v. Firestone Tire & Rubber Co., .679 F.2d 143 (9th Cir.1982); Holiday Queen Land Corp. v. Baker, 489 F.2d 1031 (5th Cir.1974) (per curiam).

It would be unfair to dismiss on the merits the claims of infant children whose counsel did not move for voluntary dismissal. All infants’ claims are, therefore, dismissed without prejudice.

CONCLUSION

In all cases currently pending against the government, summary judgment is granted against all claims direct or derivable of the veterans and their wives and against all of the children’s derivative claims. Direct claims by the children are dismissed without prejudice. No costs or disbursements are granted.

The list of cases being dismissed in which the government alone is defendant is as follows: Brennon v. Federal Gov’t of the United States, No. 82-299; Anderson v. Federal Gov’t of the United States, No. 82-767; Clark v. Federal Gov’t of the United States, No. 82-771; High v. United States, No. 82-777; Archibald v. Federal Gov’t of the United States, No. 82-778; Patrick v. Cleland, No. 82-779; Aguiar v. United States, No. 82-780; Blackmon v. United States, No. 82-781; Johnson v. Federal Gov’t of the United States, No. 82-782; Reed v. Federal Gov’t of the United States, No. 82-785; Rowland v. United States, No. 82-788; Batts v. Federal Gov’t of United States, No. 82-855; Dockery-Bay v. Federal Gov’t of the United States, No. 82-856; Dickerson v. Federal Gov’t of the United States, No. 82-1140; Fekete v. Federal Gov’t of the United States, No.-82-1141; Thomas v. Federal Gov’t of the United States, No. 82-1753; Gibbs v. Federal Government of the United States, No. 82-1850; Baker v. Federal Gov’t of the United States, No. 82-2594; Plavner v. United States, No. 83-907; Hinson v. United States, No. 84-3819.

The court previously dismissed other cases in which the government was the sole defendant. The list is as follows: Loughery v. United States, No. 81-664; Valdez v. Cleland, No. 81-908; Strait v. Cleland, No. 81-909; Hannah v. U.S. Dept. of Defense, No. 81-3816; Clift v. U.S. Dept. of Defense, No. 81-3817; Stevenson v. U.S. Dept. of Defense, No. 81-3818; Bennis v. Cleland, No. 82-214; Hall v. United States, No. 82-686; Burnham v. United States, No. 82-766; Petty v. Veterans Administration, No. 82-769; Wehunt v. Veterans Administration, No. 82-770; Edwards v. Veterans Administration, No. 82-772; Reid v. United States, No. 82-774; Napier v. United States, No. 82-787; Burke v. United States, No. 82-858; Alexander v. United States, No. 82-859; Searcy v. United States, No. 82-1119; Jordan v. United States, No. 82-1264; Lambert v. United States, No. 82-1390; Kitaki v. United States, No. 82-1391; Jordan v. United States, No. 82-2009; Watson v. United States, No. 82-2292; Gardner v. United States, No. 82-3107; Matthews v. United States, No. 83-20; Graves v. U.S. Dept. of Defense, No. 83-3123; Graves v. U.S. Dept. of Defense, No. 83-3124; Zumwalt v. U.S. Dept. of Defense, No. 84-2456; Benbenek v. Cleland, No. 81-666.

In addition, cases in which both the government and chemical companies are defendants are or have been dismissed as to all claims against the government. The list is as follows: Ford v. United States, No. 79-747; Armstrong v. Dow Chemical Co., No. 81-2728; Baird v. Dow Chemical Co., No. 80-1277; Balzano v. Dow Chemical Co., No. 79-525; Berg v. Dow Chemical Co., No. 81-943; Brewer v. Dow Chemical Co., No. 81-504; Burke v. Dow Chemical Co., No. 82-857; Butt v. Dow Chemical Co., No. 83-3121; Caldwell v. Dow Chemical Co., No. 82-4031; Chapman v. Dow Chemical Co., No. 79-1195; Clark v. Dow Chemical Co., No. 83-627; Clark v. Dow Chemical Co., No. 83-633; Claxton v. Dow Chemical Co., No. 79-527; Curti v. Dow Chemical Co., No. 79-526; De Bonis v. Dow Chemical Co., No. 82-215; Dowd v. Dow Chemical Co., No. 79-467 (still pending as to certain intervenors; on appeal) Dunn v. Dow Chemical Co., No. 83-4030; Gardner v. Dow Chemical Co., No. 82-776; Green v. Dow Chemical Co., No. 79-1194; Griffen v. Dow Chemical Co., No. 80- 1276; Jupin v. Dow Chemical Co., No. 79-1201; Justice v. Dow Chemical Co., No. 81-2345; Martin v. Dow Chemical Co., No. 81-2343; McNichol v. Dow Chemical Co., No. 79-3206; Mees v. Dow Chemical Co., No. 81-512; Newton v. Dow Chemical Co., No. 81-501; Parham v. Dow Chemical Co., No. 81-2344; Peteet v. Dow Chemical Co., No. 79-2846; Petrusha v. Dow Chemical Co., No. 80-1281; Petty v. Dow Chemical Co., No. 80-3259; Reutershan v. Dow Chemical Co., No. 79-1197; Skillings v. Dow Chemical Co., No. 79-1198; Smith v. Dow Chemical Co., No. 81-2339; Smith v. Dow Chemical Co., No. 79-1200; Steinberg v. Dow Chemical Co., No. 79-1199; Snider v. Dow Chemical Co., No. 82-789; Thornton v. Dow Chemical Co., No. 81-659; Tiranti v. Dow Chemical Co., No. 79-1196; Watson v. Dow Chemical Co., No. 81-502; Wehunt v. Dow Chemical Co., No. 81-910; Wilson v. Dow Chemical Co., No. 82-1389; Wrinn v. Dow Chemical Co., No. 81-1200; Xirau v. Dow Chemical Co., No. 79-528.

This memorandum constitutes a final judgment.

SO ORDERED.


source: Caselaw Access Project

author: TIDWELL, District Judge.

license: Public Domain

text:
    ROADWAY EXPRESS, INC., a Delaware corporation, v. Raymond J. DONOVAN, Secretary of Labor; Alan C. McMillan, Regional Administrator, Region Four, United States Department of Labor.
    Civ. A. No. C85-997A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Feb. 11, 1985.

      John B. Gamble, Jr., Fisher & Phillips, Atlanta, Ga., for plaintiff.
    J. William Boone, Asst. U.S. Atty., Atlanta, Ga., James L. Stine, David E. Jones, U.S. Dept, of Labor, Atlanta, Ga., for defendant.
   ORDER

TIDWELL, District Judge.

The above-styled action is presently before the court on the plaintiff’s motion for a temporary restraining order or for a preliminary injunction to order the defendants to withdraw that portion of the Secretary of Labor’s preliminary order which requires the plaintiff to reinstate previously discharged employee Jerry W. Hufstetler. The plaintiff contends that the preliminary order is unconstitutional because it violates the plaintiff’s right to procedural due process as guaranteed by the Fifth Amendment to the United States Constitution. After a hearing the parties have agreed that the present motion be treated as a motion for preliminary injunctive relief.

Prior to his dismissal on November 22, 1983, Jerry Hufstetler worked as a driver for the plaintiff. He was dismissed for allegedly intentionally creating a breakdown of his vehicle in order to collect compensation for the time he spent awaiting repair of the vehicle. Five days later Hufstetler filed a grievance, alleging that he had been discharged without just cause, in violation of the National Master Freight Agreement (“NMFA”). A NMFA arbitration panel considered the testimony presented by both Hufstetler and the plaintiff. The panel was composed of an equal number of representatives from a company and a union, none of which was a representative of the plaintiff. The panel rejected Hufstetler’s claim that he had been dismissed in retaliation for his reporting of safety violations and determined that he had committed an act of dishonesty.

Subsequently Hufstetler contacted the Department of Labor and claimed that he had been dismissed for reporting safety violations, in violation of the Surface Transportation Assistance Act of 1982, 49 U.S.C. § 2305. The Secretary then conducted an investigation and determined that there was reasonable cause to believe that Hufstetler’s complaint had merit. On January 21,1985, the Secretary issued a preliminary order that required the plaintiff, inter alia, to pay backpay and to reinstate Hufstetler.

The plaintiff contends that the Secretary’s preliminary order, issued pursuant to 49 U.S.C. § 2305(c)(2)(A), violates its right to procedural due process and causes the plaintiff to experience irreparable harm. Section 2305(c)(2)(A) provides that after the Secretary has issued a preliminary order either the employee or the employer within thirty days may file objections to the preliminary order and request a hearing, which is to be “expeditiously conducted.” The statute specifically states that the request for a hearing does not stay that portion of the preliminary order that provides for reinstatement of an employee. After the conclusion of the requested hearing, the Secretary is to issue a final order within one hundred and twenty days.

To be entitled to preliminary injunctive relief, the movant must prove four elements: (1) there is a substantial likelihood that the movant will prevail on the merits; (2) the movant will suffer irreparable injury unless the injunction issues; (3) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction would not be adverse to the public interest. See Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir.1984). The. requirement that the movant make a showing that there is a substantial likelihood of prevailing on the merits does not mean that the movant must actually succeed on the merits. See Johnson v. United States Department of Agriculture, 734 F.2d 774, 782 (11th Cir.1984). The issue is “likelihood” of success. Id.

“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). “At a minimum, due process assures notice and a meaningful opportunity to be heard before a right or interest is forfeited.” Johnson, 734 F.2d at 782. In Mathews, 424 U.S. at 335, 96 S.Ct. at 903, the United States Supreme Court stated that three factors should be considered in determining the scope of due process:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The balancing test outlined in Mathews requires a court to consider various factors. Although due process generally requires an opportunity for “some kind of hearing” prior to the deprivation of a significant property interest, a deprivation is not unconstitutional if the “potential length or severity of the deprivation does not indicate a likelihood of serious loss and where the procedures underlying the decision to act are sufficiently reliable to minimize the risk of erroneous determination.” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 19, 98 S.Ct. 1554, 1565, 56 L.Ed.2d 30 (1978). Deprivation is also permissible if it is necessary to prevent imminent danger to the public. See Hodel v. Virginia, Surface Mining & Reclamation Association, 452 U.S. 264, 300, 101 S.Ct. 2352, 2372, 69 L.Ed.2d 1 (1981); Burnley v. Thompson, 524 F.2d 1233, 1241 (5th Cir.1975).

Although no appellate court has examined the constitutionality of 49 U.S.C. § 2305(c)(2)(A), a federal district court has considered the constitutionality of regulations similar to the statute in the present case. See Southern Ohio Coal Company v. Donovan, 593 F.Supp. 1014, 1022-24 (S.D.Ohio 1984) (“Southern Ohio”). In Southern Ohio an employer challenged the constitutionality of procedures employed by the Mine and Health Review Commission, 29 C.F.R. §§ 2700 et seq. The employer contended that it was deprived of procedural due process when the Commission issued an ex parte order reinstating a discharged coal miner who had been dismissed for excessive absenteeism and who had alleged that he was discharged in violation of federal mine safety laws. The challenged regulations provided that when the Secretary issues an order of temporary reinstatement the employer may request a hearing and that a judge is to hold the requested hearing within five days. After considering the constitutionality of the regulations, the court declared that a hearing provided to an employer after five days of compelled reinstatement failed to meet the requirements of procedural due process, as articulated by the Supreme Court in Mathews. In an earlier decision involving the same parties, the court had granted injunctive relief to the employer who sought to enjoin enforcement of the order requiring reinstatement. See Southern Ohio Coal Company v. Marshall, 464 F.Supp. 450, 456 (S.D.Ohio 1978).

For relief to be proper in the present case, the plaintiff must satisfy the four elements of preliminary injunctive relief. The court will consider the elements seriatim.

1. Likelihood of Success on the Merits

The plaintiff’s challenge to the constitutionality of 49 U.S.C. § 2305(c)(2)(A) requires this court to consider the three factors articulated by the Supreme Court in Mathews: the private interest affected by the government’s action, the risk of erroneous deprivation, and the government’s interest. 424 U.S. at 335, 96 S.Ct. at 903. In determining the plaintiff’s interest, the court recognizes that property interests “are not created by the Constitution, [but rather] they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Arnett v. Kennedy, 416 U.S. 134, 151, 94 S.Ct. 1633, 1643, 40 L.Ed.2d 15 (1974), quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The plaintiff has an important interest in not being compelled to reinstate an employee that was dismissed for dishonest conduct; that was determined by an arbitration panel, as provided by the contract between the plaintiff and its employees, to be justly dismissed; that could cause the plaintiff to be subject to further acts of dishonesty; and that might cause an innocent employee to be replaced. The plaintiff has an interest in upholding the arbitration provision of its contract and in protecting its business by promptly discharging “deficient employees.” Burnley, 524 F.2d at 1241. See also Southern Ohio, 464 F.Supp. at 456 (employer has a compelling interest in not reinstating person in supervisory position).

There is also a clear risk of erroneous deprivation of the plaintiff's interest in protecting its business. In the present case, the Secretary of Labor conducted an investigation, which included an examination of the plaintiff’s written statement of its view of the facts. The names of the people that the Secretary questioned were not made available to the plaintiff. In a case such as this one, where the employee claims that he was dismissed in retaliation for reporting safety violations and where the employee was determined to have acted dishonestly, an evidentiary hearing prior to compelled reinstatement would clearly lessen the risk of erroneous deprivation because the credibility and veracity of the witnesses would be determined. See generally Mathews, 424 U.S. at 344, 96 S.Ct. at 907.

The government’s interests in protecting employees from retaliation for the reporting of safety violation and in protecting the public by the promotion of safety would not be impaired by requiring that a hearing be conducted prior to reinstatement. Although this court recognizes that the findirigs of an arbitration board that are not appealed are not to be given res judicata or collateral estoppel effect [see McDonald v. City of West Branch, Michigan, — U.S. —, 104 S.Ct. 1799, 1802, 80 L.Ed.2d 302 (1984)], the process afforded the plaintiff and the employee during arbitration is significantly more expansive than the process afforded by the Secretary during his investigation. In addition, the government does not incur any greater burden by being required to hold a hearing prior to deprivation because § 2305(c)(2)(A) already requires it to “expeditiously” conduct the requested hearing. Furthermore, there is no imminent danger to the public requiring the plaintiff to be deprived of its right to procedural due process. The decision of the arbitration panel, however, suggests that there is a clear risk of erroneous deprivation.

After considering the three factors for determining the scope of due process required by Mathews, the court finds that the plaintiff has shown a substantial likelihood of success on the merits of its claim attacking the constitutionality of 49 U.S.C. § 2305(c)(2)(A).

2. Irreparable Harm

The plaintiff maintains that it will incur irreparable harm, harm that cannot be remedied by an award of monetary damages. The plaintiff contends that even if the Secretary determines after a hearing that Hufstetler was properly dismissed it will have been denied not only its right to procedural due process, but it will have also experienced interference with its collective bargaining agreement, disruption in its business caused by low morale and the layoff of an innocent employee, and apprehension of further acts of dishonesty. The harm that the plaintiff would be exposed to if an injunction were not granted would clearly be irreparable under the circumstances of this case.

3. Comparative Harm

The plaintiff argues that the harm caused by compelled reinstatement is greater than any harm that the defendants and Hufstetler would experience if a preliminary injunction were granted. Although the Secretary does have an interest in upholding the validity of statutes designed to promote safety, the court recognizes that the requirement of a hearing prior to ordered reinstatement would nonetheless protect the defendants’ interest in promoting safety. The harm experienced by the plaintiff, however, is much greater because reinstatement would adversely affect its business, as discussed above, and only injunctive relief can adequately protect the plaintiff’s interest, in contrast to Hufstetler’s interest, which can be protected by an award of backpay and other benefits if the decision of the Secretary is favorable to him.

4. Public Interest

The plaintiff contends that the issuance of a preliminary injunction would not be adverse to the public interest because the granting of the injunction does not undermine the promotion of safety, but rather only requires the government to conduct its hearing prior to compelling reinstatement. The plaintiff maintains that the burden on the government to conduct the requested hearing prior to the ordering of reinstatement is minimal, but the burden on businesses forced to reinstate employees dismissed for dishonesty is great. By requiring a hearing prior to compelling reinstatement, the court would be protecting both the public’s interest in safety and in promoting the plaintiff’s business interests. In considering the facts of this case, the court finds that the issuance of a preliminary injunction would not be adverse to the public’s interest.

In conclusion, the court finds that the plaintiff has proved the four elements necessary for the issuance of a preliminary injunction. Although the court is not insensitive to Hufstetler’s economic status as a result of the awarding of injunctive relief, it nevertheless believes that the particular circumstances of this case make such an award equitable as well as legally necessary.

The defendants, and any of their officers, agents and anyone acting in active concert therewith, are hereby restrained and enjoined from enforcing that portion of the Secretary’s preliminary order of January 25, 1985 which requires the plaintiff to temporarily reinstate Hufstetler. The plaintiff is hereby required as a condition of the above restraint to post a bond in the penal sum of $30,000.00 with good security, said bond to secure the payment of any and all damages that may accrue to any party as a result of the erroneous issuance of this order. The restraint imposed herein shall not become effective unless and until said bond is posted and approved as to form and security by the clerk of this court.


author: GESELL, District Judge.

text:
    Andrew Ellsworth MORGAN, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.
    Civ. A. No. 83-3660.
    United States District Court, District of Columbia.
    Feb. 12, 1985.
    Randall J. Turk, Stephen L. Braga, Washington, D.C., for plaintiff.
    Philip T. Vanzile, Asst. Corp. Counsel, Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

GESELL, District Judge.

At the close of all the evidence in this jury trial on claims of negligence and violation of 42 U.S.C. § 1983, the District of Columbia moved for directed verdict as to itself and the only other defendant, Lt. Robinson. The motion was granted as to Robinson and was taken under advisement as to the District pursuant to Fed.R.Civ.P. 50(b), awaiting the jury verdict. Now that the jury has returned its verdict, only one issue in the District’s motion remains for decision. That is whether plaintiff’s case was defective because no expert testified as to the standard of care required of the District in protecting its inmates from unreasonable risk of assault by other inmates. The Court has concluded, for reasons set forth below, that the District’s motion must be denied.

This was a claim arising from an assault that occurred between two inmates assigned to a medical unit of the D.C. Jail. The unit housed in an open environment a general population of individuals requiring various types of medical attention, along with psychiatric inmates for whom in some instances there was no room in a more appropriate neighboring unit that had lock-down facility. The unit where the assault occurred was grossly overcrowded, and assaults and fights, some sexual, among inmates were frequent. Psychiatric care at the jail was admittedly inadequate, and proper record-keeping, supervision, and classification of inmates was not possible under the conditions that existed. Plaintiff was attacked by a psychotic inmate convicted of first-degree murder who the evidence showed was improperly assigned to the unit where plaintiff was housed because of inadequate medical supervision. Only two guards mingled in the unit, which then held about 125 inmates whose beds in the corridors and recreation areas enabled the District to exceed the rated design of 80 for that space. The guards’ reports of the incident were misplaced, no discipline was imposed on the perpetrator, and plaintiff received limited medical attention for his battered face and injured eye.

Under ordinary negligence standards, the supporting evidence was overwhelming that there was a negligent deviation by the District from its clear duty to exercise reasonable care in the protection and safekeeping of inmates at the jail and that this deviation was, as the jury found, the proximate cause of plaintiff’s injuries. Indeed, the undisputed proof made negligence in protecting prisoners at the unit as “plain as the nose on a man’s face.”

There is no hard-and-fast rule in this jurisdiction as to when expert testimony is needed to show whether the District has negligently deviated from its duty to protect inmates. The test is whether the events at issue were within the realm of common knowledge and everyday experience. In some cases involving techniques such as the proper placement of guards at various disparate locations in a prison, “expert testimony or supporting evidence” is required. Hughes v. District of Columbia, 425 A.2d 1299, 1303 (D.C.App.1981). See also Matthews v. District of Columbia, 387 A.2d 731, 734 (D.C.App.1978). In other cases the negligence is obvious and no expert is needed. E.g., Gaither v. District of Columbia, 333 A.2d 57, 60 (D.C.App.1975). See generally W. Keeton, Prosser and Keeton on the Law of Torts 188-89 (5th ed. 1984).

No subtleties were involved in this case. Under the totality of the circumstances, the deviation from any reasonable standard of care was obvious and flagrant. This was underlined by the jury’s finding that the District’s violation rose from negligence to the level of “deliberate indifference,” thus entitling plaintiff to damages under 42 U.S.C. § 1983 for cruel and unusual punishment. The jury was instructed on “deliberate indifference” as follows:

Deliberate indifference occurs if there is an obvious unreasonable risk of violent harm to a prisoner or a group of prisoners which is known to be present or should have been known, and the District through its employees who knew or should have known of the risk were outrageously insensitive or flagrantly indifferent to the situation and took no significant action to correct or avoid the risk of harm to the prisoner or prisoners who were subject to the unreasonable risk of violent harm.

There was ample proof to support its conclusion. No expert was needed.

As the Supreme Court noted in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), when analyzing the meaning of cruel and unusual punishment in the context of prison conditions:

Indeed, generalized opinions of experts cannot weigh as heavily in determining contemporary standards of decency as “the public attitude toward a given sanction.”

452 U.S. at 348 n. 13, 101 S.Ct. at 2400 n. 13 (citation omitted).

No civilized citizen of this community could accept the cruel and inhuman condition existing at the District of Columbia Jail which the record in this case reflects existed in June, 1983, a date immediately before the prisoners rioted and after another judge of this Court had ordered corrective action — action which the District deliberately failed to take. The facts in this case spoke eloquently for themselves and required no expert interpretation.

The motion of the District of Columbia for a directed verdict at the close of all the evidence is denied.

SO ORDERED.

      . The Court instructed the jury that it was not to consider any one factor alone in deciding whether the District was negligent but was to consider together all the factors presented here, including crowding of inmates, guard staffing, classification and assignment procedures, and disciplinary procedures after incidents of assault. If the case had presented only one or some of these factors, an expert might have been required.


author: KANE, District Judge.

text:
    Fredrick B. STROTHMAN, Plaintiff, v. Adam GEFREH, Richard Paynter, Arthur Bleecher, Carl Panzarella, Marvin Harmatz, Jack Bunten and John Wilcox, Defendants.
    Civ A. No. 82-K-32.
    United States District Court, D. Colorado.
    Feb. 12, 1985.
    David S. Yost, George T. Ashen, Denver, Colo., for plaintiff.
    Robert N. Miller, U.S. Atty., Janis E. Chapman, Nancy E. Rice, Asst. U.S. Attys., Denver, Colo., for defendants.
   ORDER

KANE, District Judge.

Plaintiff, Fredrick Strothman, was appointed an Administrative Law Judge (ALJ) for the Office of Hearings and Appeals, Social Security Administration, United States Department of Health and Human Services in April, 1980. In November, 1980, he was selected to be the Administrative Law Judge in Charge (ALJIC) of the Denver Hearing Office. On October 31, 1981, plaintiff was relieved of his duties as ALJIC, whereupon plaintiff filed this suit against the seven other ALJs who were assigned to the Denver Hearing Office during the period in which the events occurred which form the basis of this lawsuit.

The complaint alleges that Paynter, Panzarella, Harmatz and Bunten defamed the plaintiff. My previous order denying the defendants summary judgment on the defamation claim, 552 F.Supp. 41, was reversed by the Tenth Circuit, Strothman v. Gefreh, 739 F.2d 515 (1984). In accordance with that opinion, I now order that judgment be entered on the defamation claim in favor of Paynter, Panzarella, Harmatz and Bunten. Strothman has also alleged that all defendants conspired to remove him from office improperly and engaged in extreme and outrageous conduct, which actions if proven may constitute separate torts in Colorado. Id. at 520. With regard to these latter claims, the Tenth Circuit concluded that the record was insufficiently developed to determine as a matter of law whether the defendants would be immune from liability for such torts. The case was remanded for further consideration of the defendants’ claim of absolute immunity with respect to all remaining claims and defendants.

The defendants have, upon remand, renewed their motion for summary judgment. Summary judgment is a drastic remedy and the Tenth Circuit has cautioned that any relief pursuant to Rule 56 should be applied with care. Jones v. Nelson, 484 F.2d 1165, 1166, 1168 (10th Cir.1973). Rule 56 states that summary judgment shall be rendered when there is no genuine issue as to any material fact. Then the moving party is entitled to judgment as a matter of law. Pleadings and factual inferences tending to show issues of material fact should be viewed in the light most favorable to the party opposing summary judgment. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980). Unless the moving party can demonstrate entitlement beyond a reasonable doubt, summary judgment must be denied.

Under Jackson v. Kelly, 557 F.2d 735 (10th Cir.1977), to evaluate defendants’ claim of immunity, I must apply a “discretionary function” test and balance the policies underlying the official immunity doctrine of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) in the context of the facts. Under Jackson and subsequent cases in this circuit, my inquiry is essentially threefold: (1) whether the defendants were acting within the scope of their official duties; (2) whether the acts complained of involved the exercise of judgment or discretion; and (3) whether a grant of absolute immunity under the circumstances of this case would further the policies underlying the official immunity doctrine. Strothman, supra, at 518.

I. SCOPE OF EMPLOYMENT

In my December 14, 1982 order, I found that “[it] is abundantly clear that the defendants were acting within the scope of their employment by responding to criticisms and questions relating to morale and productivity.” The Tenth Circuit made essentially the same finding, Strothman, supra at 519, although it limited its holding to the defamation claim before it. The same acts which were alleged by plaintiff as the basis for the defamation claim form the basis of the conspiracy and outrageous conduct claims. The plaintiff continues to claim that the defendants criticized him and attempted to have him removed from his position, but now characterizes the same actions which formed the basis of the defamation claims as grounds for the conspiracy and outrageous conduct torts. Judging from the motions, pleadings and briefs now before me, it is apparent that discovery has developed no new evidence of acts which can be characterized as “conspiratorial” or “outrageous”.

Defendants’ brief contends that of the 1,427 pages of discovery material provided to defendants by plaintiff, which material purports to be in support of plaintiffs remaining claims, each and every piece constitutes some type of “agency memorandum or note”. (Defendants’ brief in support of motion for summary judgment, at page 4). Plaintiff does not rebut this contention. I find that to the extent the defendants’ defamatory actions were outrageous or done with the intent to conspire to remove the plaintiff improperly from office, they were done within the scope of the defendants’ official duties and employment. Plaintiff contends that the defendants’ conspiracy focused on efforts to prevent the plaintiff from doing his job. Clearly, however, the defendants didn’t want Mr. Strothman to be their ALJIC. Believing that one of the other ALJs would be a better ALJIC than Mr. Strothman, in whom they had lost confidence, they took affirmative steps to see that he was removed. When internecine disagreements develop, the actions taken (short of criminal assaults) and words said as a result are within the scope of employment. Preble v. Johnson, 275 F.2d 275 (10th Cir.1960).

II. EXERCISE OF DISCRETION

Plaintiff cites McCray v. Maryland, 456 F.2d 1 (4th Cir.1972), for the proposition “when a judge acts in a non-judicial capacity he pro tanto loses his absolute immunity and is subject to liability as is any state official.” McCray is factually inapposite. I have already determined that the defendants were acting within the scope of their employment. Even if the defendants did conspire to remove the plaintiff from the ALJIC position, that was a conspiracy against the ALJIC qua Strothman, and not ALJIC qua ALJIC. The defendants were not attempting to discredit the office of ALJIC, but rather to discredit Mr. Strothman, who happened to be the ALJIC. The defendants did not conspire to impair the functioning of the office of the ALJIC itself, but rather its occupant, and then only because they had lost faith in Mr. Strothman’s management abilities and credibility. Judging has nothing to do with such a controversy.

The Tenth Circuit noted that “the effective functioning of government requires that officials in defendants’ position be free to offer comments and criticisms regarding administrative matter without fear of potentially chilling damage suits.” Strothman, supra at 520. It is clear that the defendants were acting within the scope of their employment and that their complaints involved the exercise of discretion.

III. POLICIES UNDERLYING OFFICIAL IMMUNITY

The final question which must be addressed is that of public policy. Would a grant of absolute immunity under the circumstances of this case further the policies underlying the official immunity doctrine? The parties do not dispute that Mr. Strothman, as ALJIC, was merely the first among equals. His function was more that of an office manager than a supervisor. In such a situation the ALJs may have had strong feelings about Strothman’s administrative decisions having a perceived negative effect on the AUs quasi-judicial functions. They may have believed it not only their right but their duty to speak out. The affidavit of ALJ Bunten expresses just such an opinion. The defendants characterize the core issue in the application of this third test as whether it is in the public interest to subject to judicial scrutiny the in-house arguments of a group of federal employees. Defendants contend that this posturing of the issue is particularly apt in light of the fact that plaintiff suffered no financial harm. I agree with defendants that any interest Mr. Strothman may have in airing perceived wrongs by suing his colleagues individually is outweighed by the need for federal employees to be uninhibited in their criticism of agency problems and perceived management deficiencies.

IT IS ORDERED that the defendants’ motion for summary judgment is granted. Each party to pay its own costs and fees. It is further

ORDERED that this complaint and civil action are dismissed.


author: CARRIGAN, District Judge.

text:
    CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS v. ITT GRINNELL CORPORATION, a Delaware corporation; Martin E. Eby Construction Co., Inc., a Kansas corporation; Insurance Company of North America, a Pennsylvania corporation; Federal Insurance Company, a New Jersey corporation; and Northwest Pipe & Casing Co., an Oregon corporation.
    Civ. A. No. 83-C-1049.
    United States District Court, D. Colorado.
    Feb. 13, 1985.
    Wayne D. Williams, Henry V.S. Hall, Oscar Goldberg, Richard P. Slivka, David L. Dain, Bosworth & Slivka, Denver, Colo., for plaintiff.
    Arthur Downey, Kenneth Gulley, David 6. Palmer, Peter C. Houtsma, Paul D. Rula, Denver, Colo., John R. Trigg, Chris Mattison, Hall & Evans, Denver, Colo., for defendants.
   ORDER

CARRIGAN, District Judge.

By order of October 5, 1984 I struck the plaintiff’s motion for reconsideration of Magistrate Schauer’s order of August 3, 1984 as untimely. Plaintiff has moved for reconsideration asserting that the motion was timely under 28 U.S.C. § 636(b)(1)(A) (1982). The plaintiff continues to misread the statute.

Section 636(b)(1) has two distinct parts. Subsection 636(b)(1)(A) permits non-dispositive pretrial matters to be referred to a magistrate for determination. Local Rule 602C governs motions for reconsideration of such determinations. Subsection 636(b)(1)(B) permits dispositive matters to be referred to a magistrate for the submission of proposed findings of fact and recommendations for disposition to a judge. Local Rule 603 governs objections to such proposed findings and recommendations.

Plaintiff asserts that the following paragraph of 28 U.S.C. § 636(b)(1) applies to motions for reconsideration under subsection 636(b)(1)(A) as well as to objections under subsection 636(b)(1)(B):

“Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.”

Although the paragraph is typeset in such a way as to make it appear to apply to both subsections 636(b)(1)(A) and (B), by its language it very clearly refers only to objections to proposed findings and recommendations. The explicit language of the provision prevails over the placement of the margin.

Local Rule 602 C, therefore, is not inconsistent with the statute. Under that rule, the plaintiff’s motion for reconsideration was untimely.

Accordingly,

IT IS ORDERED that the plaintiff’s motion for reconsideration of this court’s order of October 5, 1984 is denied.


text:
    Norman W. SACKETT, Plaintiff, v. The DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, Defendant.
    Civ. A. 84-C-1059.
    United States District Court, D. Colorado.
    Feb. 13, 1985.
    Joseph Ricci, Colorado Springs, Colo., for plaintiff.
    Charles Johnson, Denver, Colo., for defendant.
   ORDER

CARRIGAN, District Judge.

Plaintiff brings this action under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51 et seq., for damages arising from injuries sustained while working as a carman for the defendant Railroad near Roper, Utah. The Railroad has moved, pursuant to 28 U.S.C. § 1404(a), to transfer this action to the United States District Court for the District of Utah. Section 1404(a) provides:

“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

An action under the FELA may be brought “in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action.” FELA § 6, 45 U.S.C. § 56. Venue for this action, therefore, is proper in either Colorado or Utah because the Railroad does business in both districts.

The Supreme Court has held that, although the doctrine of forum non conveniens was not available in FELA suits prior to the 1948 revision of Title 28 of the United States Code, the newly enacted section 1404(a) is applicable to FELA suits. Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949). In Collett the Supreme Court upheld the district court’s transfer of a FELA case from the Eastern District of Illinois to the Eastern District of Kentucky when all 35 witnesses and the plaintiff lived in Irvine, Kentucky, which also was the scene of the accident. Irvine was 420 miles from the seat of the Eastern District of Illinois but only 26 and 48 miles, respectively, from seats of the Eastern District of Kentucky.

Similar facts support a transfer in this case. Plaintiff has not disputed the Railroad’s statement of the following facts supporting transfer:

1. The plaintiff resides near Salt Lake City, Utah.

2. The accident giving rise to this action occurred in or near Roper, Utah, a suburb of Salt Lake City.

3. Five Railroad employees, in addition to the plaintiff Sackett, gave statements to the Railroad during the Railroad’s investigation of the accident. The Railroad anticipates that these persons will be called as witnesses at trial. All reside in the Salt Lake City area. Two of them no longer work for the Railroad, and therefore it could not ensure their presence at trial.

4. After the accident, Sackett was examined and treated by three doctors, and cared for by other personnel at a hospital in Murray, Utah. The Railroad anticipates that these persons will be witnesses at trial. All reside in the Salt Lake City area.

In contrast, the plaintiff has asserted no facts showing any nexus between his claim and Colorado. Indeed the plaintiff has produced nothing tending to show that the convenience of the parties and witnesses, or the interest of justice, would be served by litigating this action in Colorado. Rather, he relies solely on the fact that he chose Colorado as the forum.

Admittedly, “[t]he right to select the forum granted in [the FELA] § 6 is a substantial right.” Body v. Grand Trunk Western Railroad Co., 338 U.S. 263, 266, 70 S.Ct. 26, 27, 94 L.Ed. 55 (1949). The plaintiff’s privilege of choosing a forum, therefore, must be accorded great weight. I have considered the numerous cases cited in the plaintiff’s brief to this effect. But to accept the plaintiff’s choice as determinative would be to hold, in effect, that section 1404(a) does not apply to FELA suits, a proposition the Supreme Court clearly rejected in Collett.

The burden is on the defendant, as the moving party, to show that there should be a change of forum. See 15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3848 at p. 244 and cases cited therein. Defendant has met this burden. The most important factor here is the convenience of the witnesses. The witnesses normally necessary in a FELA case include the witnesses to the accident and the medical personnel who treated the plaintiff. These are the persons named by the defendant to be called as witnesses. They all reside near Salt Lake City, Utah, where the United States District Court for the District of Utah sits. Salt Lake City is approximately 500 miles from Denver. The expense of transporting witnesses to Colorado would thus be more than negligible.

Furthermore, any unwilling Utah witness would not be subject to subpoena by this court. Fed.R.Civ.P. 45(e). While testimony could be presented at trial by deposition, live testimony certainly is preferable. See 15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3851 at pp. 266-67 and cases cited therein. The balance of convenience for the witnesses, therefore, weighs heavily in favor of Utah. Plaintiff has produced neither evidence nor argument to show that there are other relevant factors favoring Colorado in the balance of forums.

Accordingly,

IT IS ORDERED that this action be transferred to the United States District court for the District of Utah.


author: HUYETT, District Judge.

text:
    Bernardo J. PENTURELLI v. SPECTOR COHEN GADON & ROSEN P.C., et al.
    Civ. A. No. 84-6124.
    United States District Court, E.D. Pennsylvania.
    Feb. 14, 1985.

      Henry H. Janssen, Philadelphia, Pa., for plaintiff.
    Patrick T. Ryan and Peggy L. Snodgrass, Philadelphia, Pa., for Ely & French.
    Allan Windt, Philadelphia, Pa., for Spec-tor, et al.
   MEMORANDUM AND ORDER

HUYETT, District Judge.

Plaintiff Bernardo J. Penturelli filed this action on December 13, 1984, alleging that defendants defrauded him on December 15, 1978, when he subscribed for and purchased 28 fractional undivided working interests in the Addison Development, a program whereby a limited number of persons would sublease certain rights to mine and remove all mineable and merchantable coal from specific seams of coal situated within Addison Township, Somerset County, Pennsylvania. Plaintiff Penturelli seeks recovery from twenty-five defendants who played various roles in the Addison Development project under the Securities Act of 1933, 15 U.S.C. § 77a et seq., (“the ‘33 Act”), the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., (“the ‘34 Act”), the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”), and state common law.

Presently pending are eight motions to dismiss. Defendants have asserted a number of grounds for dismissal including lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. I will review each basis for dismissal in seriatim.

In deciding a motion to dismiss, I must accept as true all factual allegations made in the complaint and must resolve all reasonable inferences to be drawn from those allegations in the light most favorable to plaintiff. Dismissal is appropriate only when it appears beyond a doubt that plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

Statute of Limitations

Defendants’ first contention is that the statute of limitations had expired before plaintiff filed this action. Plaintiff alleges that he was defrauded in December of 1978. Defendants assert that Pennsylvania “blue sky” statute of limitations as embodied in 70 P.S. § l-504(a) should govern this action because no federal statute provides an applicable limitations period. Section 504(a) states in pertinent part:

No action shall be maintained to enforce any liability created under section 501 ... unless brought before the expiration of three years after the act or transaction constituting the violation or the expiration of one year after the plaintiff receives actual notice or upon the exercise of reasonable diligence should have known of the facts constituting the violation, whichever shall first expire.

Application of section 504, however, presumes that there is a private cause of action under the Commonwealth’s “blue sky” law comparable to that raised by the plaintiff under the federal securities acts. As defendants all note, 70 P.S. § 1-401 closely parallels the federal section 10(b) under which plaintiff is proceeding in part, but the sole source of civil liability for any act in violation of section 401 is found in section 501, which provides in pertinent part:

(a) Any person who ... offers or sells a security in violation of sections 401, 403, 404, or otherwise by means of any untrue statement of material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading ... shall be made liable to the persons purchasing the security from him
...
(b) Any person who purchases a security in violation of sections 401, 403, 404 or otherwise by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading, ... shall be liable to the person selling the security to him...

Although these sections give a cause of action to defrauded sellers and buyers, they only give the seller or buyer the right to sue the person purchasing or selling the security. In other words, the Pennsylvania securities statute grants a private remedy to a buyer only against his seller. When there is no private remedy under the state securities statute, but there is a common law fraud action, the federal court must look to the Commonwealth’s statute of limitations for common law fraud.

Applying exactly this type of analysis, the Third Circuit, in Biggans v. Bache Halsey Stuart Shields, Inc., 638 F.2d 605, 610 (3d Cir.1980), held that the Commonwealth’s six year statute of limitations for common law fraud applied to a § 10b action against a brokerage house which handled securities transactions for the plaintiff. Similarly, in Sharp v. Coopers & Lybrand, 649 F.2d 175 (3d Cir.1981), the court held that the common law fraud statute of limitations of six years governed a suit for securities fraud brought by a purchaser of a limited partnership in an oil-and gas-drilling venture against an accounting firm which prepared an opinion letter outlining the tax treatment of investors.

The key question here is which of the defendants, if any, were sellers of the alleged securities involved. Such a determination probably involves a factual determination which is not appropriately made on a motion to dismiss. Furthermore, I am not sure, as defendants contend, that a mere allegation of privity by plaintiff between himself and each defendant is enough to make each defendant a seller for purposes of the securities acts. See Lewis v. Walston & Co., 487 F.2d 617 (5th Cir.1973) (whether the person was the proximate cause of the sale); Hill York Corporation v. American International Franchises, 448 F.2d 680 (5th Cir.1971) (Did the injuries to plaintiff flow directly and approximately from the actions of the defendant?). Because there is another ground upon which I must dismiss plaintiff’s claim under the Federal Securities Acts, it is unnecessary for me to resolve the issue of the statute of limitations at this time.

Definition of Security

Defendants also contend that plaintiff fails to state a cause of action under the Federal Securities Acts because this action does not involve the sale or purchase of a security. The crux of defendants’ position is that plaintiff, as an investor in the Addison Development, retained too much managerial control and responsibility to be treated as a passive investor entitled to protection under the Federal Securities Acts.

In response, plaintiff stated that his interest in the Addison Development was a fractional undivided working interest in a coal mine which by definition is a security. Although the definitional section of the federal securities acts does imply that a fractional undivided working interest in mineral rights is a security, employment of the phrase “fractional undivided working interest” alone is not enough to establish that the interest is a security. In United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975) the Supreme Court rejected a literal approach to determining whether an interest is a security:

We reject at the outset any suggestion that the present transaction, evidenced by the sale of shares called “stock,” must be considered a security transaction simply because the statutory definition of a security includes the words “any ... stock.”

Instead, the Court stated, a court must look to the economic reality of the interest to determine “‘whether the scheme involved an investment of money in a common enterprise with profits to come solely from the efforts of others’ ”. Id. at 852, 95 S.Ct. at 2060 (quoting SEC v. W.J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244 (1946)).

In SEC v. Howey, 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946) the Court held that the offering of units of a citrus grove development coupled with a contract for cultivating, marketing and remitting the net proceeds to the investor was an offering of an investment contract within the meaning of the ’34 Act. In so holding, the Court set forth the test to be applied, the key element of which is, for this case, whether the profits were to come solely from the efforts of others. Contending that the profits to be derived from the Addison Development depended upon the efforts of the promoters and developers, plaintiff correctly notes that the Third Circuit has refused to read the word “solely” literally. When applying the Howey test in Lino v. City Investing Co., 487 F.2d 689, 692 (3d Cir.1973), the court held that an investment contract “can exist where the investor is required to perform some duties, as long as they are nominal or limited” and would have “little direct effect upon receipt by the participant of the benefits promised by the promoters.” The court therefore rejected the literal approach. But, as the Lino court expressly noted, an investor’s duties and responsibilities must be nominal or limited. Because the investors in Lino were required to make significant efforts to ensure the success of the project, the plaintiff’s interest was not a security.

Similarly, in Goodwin v. Elkins & Co., 730 F.2d 99 (3d Cir.1984), the court held that a federal securities claim was properly dismissed when plaintiff's claim was based on the contention that his interest in a brokerage firm partnership was a security. Writing separately, the three judges of the panel agreed that the plaintiff’s interest was not a security despite plaintiffs contentions that he was, in reality, vested with so little power and responsibility that the managing partner and management committee had effective control. The court focused instead on plaintiffs legal status as a partner both under the Pennsylvania Partnership Act and the Partnership Agreement for Elkins & Co. “[A]s we have noted, however, whether a partnership interest constitutes a security depends on the legal rights and powers enjoyed by the investor.” 730 F.2d at 107. In their concurring opinions, former Chief Judge Seitz and Judge Becker concluded that the actual allocation of management power in the partnership, as defined in the Partnership Agreement, accorded general partners a greater degree of participation than permitted a “passive investor” as defined in Howey. Similarly, in Fargo Partners v. Dain Corp., 540 F.2d 912 (8th Cir.1976), the court held that plaintiffs interest in an apartment complex was not a security even though plaintiff entered into a management contract with vendors because plaintiff retained the right to fire the manager on thirty days’ notice.

In this case, plaintiff Penturelli purchased twenty-eight of the sixty undivided fractional interests in Addison Development for $560,000 in cash and $1,330,000 in non-recourse notes. The sale of the interests was made pursuant to a prearranged program, as described in the preliminary private placement memorandum, in which Ashley Mining retained a development contract and other defendants retained prearranged operating contracts. Plaintiff, however, was a co-owner of the Addison Development and enjoyed legal rights and powers beyond those of a passive investor. As stated in the preliminary private placement memorandum, the consent of the co-owners was needed before the operating manager could take any major action with respect to the development (p. 11) and the liability of the co-owners was not limited by the nature of the organization (p. 9). Furthermore, the operating manager was not empowered to make any major decisions concerning the development, to borrow money or execute notes binding the co-owners or make any management decision or any expenditure outside the ordinary course of business until after consultation with the co-owners and the consent of co-owners owning more than 50% of the interests. Co-owners also had the power to remove the operating manager by a vote of co-owners owning more than 50% of the interests, (p. 40). According to the preliminary private placement memorandum, each co-owner could reserve his proportionate share of the coal actually mined and “sell for his own account and on such terms as he sees fit.” (p. 41). Control of this type by a owner of interest in the Addison Development affords the investor considerable means by which to protect his original investment. The federal securities acts were intended to protect passive investors and to restore investors’ confidence in the financial markets, but Congress did not intend to provide a broad federal remedy for all frauds. Marine Bank v. Weaver, 455 U.S. 551, 102 S.Ct. 1220, 71 L.Ed.2d 409 (1981).

In addition to the provisions pertaining to plaintiffs role already cited from the preliminary private placement memorandum, plaintiff, along with the other co-owners, could terminate the Development Contract with Ashley Mining upon 30 days’ notice (Exhibit “E”, § 9), terminate the Mining Services Contract by a vote of the majority of interests at any time, with or without cause, upon 90 days’ notice (Placement Memorandum, Exhibit “H”, Mining Services Contract § 7b. Plaintiff owned 47% of all of the interests to be had in the Addison Development. Furthermore, throughout the preliminary private placement memorandum, investors such as plaintiff were referred to as co-owners. Plaintiff’s role in the Addison Development was that of an active participant rather than a passive investor. Plaintiff’s co-ownership interest therefore is not an investment contract protected by the federal securities act, and plaintiff’s claim therefore must fall for failure to state a claim under those laws. RICO

Plaintiff also alleged that the defendants have violated RICO. Section 1962(c) of RICO provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity ...

19 U.S.C. § 1962(c). Section 1964 provides that “any person injured in his business or property by reason of a violation of section 1962 ... may sue therefore ... and shall recover three-fold the damages he sustains....” 19 U.S.C. § 1964(c). Plaintiffs allege that defendants have participated in the conduct of the Addison Development (“the enterprise”) through a pattern of racketeering activity within the meaning of RICO.

Plaintiff, however, has not sufficiently alleged any injury by reason of a violation of section 1962 as required by section 1964(c). As the Second Circuit recently held in Sedima, S.P.R.L. v. Imrex Company, Inc., 741 F.2d 482 (2d Cir.1984), cert. granted, — U.S. —, 105 S.Ct. 901, 83 L.Ed.2d 917 (1985), in order to maintain a civil RICO action, a plaintiff must allege both (1) an injury different in kind from that occurring as a result of the predicate acts themselves, that is not simply caused by the predicate acts themselves but also caused by an activity which RICO was designed to deter and (2) defendants’ prior criminal conviction on one of the predicate acts. As the Sedima court stated, “[T]here is simply no evidence that in creating RICO, Congress intended to create the broad civil cause of action that the reading of the statute given by its proponents would allow.” 741 F.2d at 487. RICO was designed “to protect legitimate businesses against the syndications’s infiltration. It was an attempt to deal with organized crime as an economic phenomenon.” Id. See also Kronish v. Smith Barney Harris Upham & Co., Inc., et al., No. 84-4182, slip op. (E.D.Pa. February 5, 1985); Bernstein et al. v. Bank Luemi Le-Israel B.M. et al., No. 84-2065, slip op. (E.D.Pa. Dec. 5, 1984); Zap v. Frankel, No. 84-2817 (E.D.Pa. Nov. 26, 1984); Gardner v. Surnames 599 F.Supp. 477 (E.D.Pa.1984). Because plaintiff has failed to allege that his injury was caused by an activity different from that caused simply by the alleged predicate acts or the prior RICO criminal convictions of defendants for the conduct invoked in this civil action, the RICO claim must be dismissed.

State Claims

In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Court stated:

Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. Similarly, if it appears that state issues predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.

Because plaintiffs federal securities and RICO claims must be dismissed, plaintiff’s pendent state law claims should also be dismissed.

      . Section 2(1) of the 1933 Federal Securities Act, 15 U.S.C. § 77b(1) includes within its definition of security: "Any fractional, undivided interest in oil, gas or other mineral rights ...” Section 3(a)(10) of the 1934 Federal Securities Act, 15 U.S.C. § 78c(a)(10) defines security to include "Any ... certificate of interest or participation in ... any mineral royalty or lease ...”

      . Plaintiff relies on Ruefenacht v. O’Halloran, 737 F.2d 320, 337-339 (3d Cir.1984) in support of his contention that if it is concluded that the Addison Development fractional undivided interests are "securities” as expressly defined in the statutory sections, the Howey standards need not be applied. In Ruefenacht, however, the court held that the sale of all or part of business effectuated by transfer of stock bearing traditional incidents of stock ownership is the sale of a "security.” The court noted that the instruments in issue, as a matter of economic reality, had the attributes commonly associated with stock and therefore, the standards of Howey need not be applied. The holding of Ruefenacht must be confined to its facts because the court was concerned with the unique instrument known as a "stock” which has developed easily identifiable characteristics. Fractional undivided interests like interests in Addison Development are much more amorphous taking on different characteristics in different projects. See Parvin v. Davis Oil Company, 524 F.2d 112 (9th Cir.1975). Therefore, in a case such as this one, it is necessary to look beyond the literal language and apply the Howey standard to determine whether plaintiffs interest was a security.

      . In support of his contention that his fractional undivided interest in Addison Development constitutes a security, plaintiff relies on Parvin v. Davis Oil Company, 524 F.2d 112 (9th Cir.1975) in which the court held that fractional undivided interests in oil and gas wells were securities. Noting that both the state and federal securities acts included fractional undivided interests in oil leases within the definition of security, the court nevertheless applied the Howey test to determine whether the interest was an investment contract and therefore a security. In doing so, the court noted that there are no fixed circumstances under which a fractional interest is a security under federal law. Id. at 115. Therefore, the Parvin court examined the facts giving rise to the particular investment interest and the responsibilities and powers the investor retained.

      . In his memorandum of law, plaintiff objects to defendants referring to the "final private placement memorandum" in support of their motions to dismiss on the grounds that it cannot be used as evidence in support of a motion to dismiss. I have made reference to a "preliminary private placement memorandum” which plaintiff attached to his memorandum in opposition to the motions to dismiss. At oral argument, counsel for plaintiff stated that he had no objection to my considering this document as a part of the original complaint. Reference is also made to this document in plaintiffs complaint (paragraphs 29 and 30).

      . The recent Third Circuit decision in Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786 (3d Cir.1984) upon which plaintiff relies, is not dispositive of the present controversy because it involved the resolution of very different issues. In reversing the dismissal of the RICO claim, the Third Circuit limited its focus to the particularity rule of Fed.R.Civ.P. 9(b) and the elements which must be satisfied in pleading the existence of the civil RICO provision or what constitutes a sufficient injury to invoke the treble damages provision of the statute.