source: Caselaw Access Project

author: ZOBEL, District Judge.

license: Public Domain

text:
    BI-RITE ENTERPRISES, INC., Artemis, Inc., Andy Taylor, John Taylor, Nick Rhodes, Simon Lebon, Bob Halford, K.K. Downing, Ian Hill, Glen Tipton, Dave Holland, Steve Harris, Dave Murray, Adrian Smith, Bruce Dickinson and Niko McBrain v. BRUCE MINER POSTER COMPANY, INC. and Bruce Miner.
    Civ. A. No. 84-611-Z.
    United States District Court, D. Massachusetts.
    April 9, 1984.
    Amended Order April 11, 1984.
    On Motion to Modify Injunction April 16, 1984.

      Wendy E. Parmet, Hill & Barlow, Boston, Mass., Jules Zalon, David O’Driscoll, South Orange, N.J., for plaintiffs.
    M. Lawrence Oliverio, Mark A. Fischer, Jerry Cohen, Cohen & Berg, P.C., Boston, Mass., for defendant.
   MEMORANDUM OF DECISION AND ORDER

ZOBEL, District Judge.

Plaintiffs Bi-Rite Enterprises, Inc. (“Bi-Rite”) and Artemis, Inc. (“Artemis”) are in the “popular music novelty merchandise” business. They are major manufacturers and distributors of novelty merchandise, such as posters, buttons, patches, stickers, emblems, and transfers bearing the names, trademarks, logos and likenesses of major popular musical performers and groups. Bi-Rite and Artemis obtained the rights to market this merchandise pursuant to licensing agreements with various performers and groups. The members of three of these groups, Duran Duran, Judas Priest, and Iron Maiden, are here named as individual plaintiffs.

Plaintiffs claim that defendant Bruce Miner Poster Co., a poster distributor, and its principal have infringed plaintiffs’ exclusive rights to commercially exploit the names and likenesses of various performers and groups in North America by distributing posters without proper authorization. On March 5, 1984, plaintiffs obtained an ex parte temporary restraining order and seizure order. They now seek a preliminary injunction against the manufacture, distribution and sale by defendants of posters bearing the names or likenesses of those performers or groups to whom plaintiffs claim exclusive rights.

Plaintiffs must satisfy a four part test in order to be entitled to injunctive relief. As recently set out by the First Circuit, plaintiffs must establish:

(1) that the plaintiff will suffer irreparable injury if the injunction is not granted;
(2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.

Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981); Georgi v. Doody, 537 F.Supp. 1251, 1253 (D.Mass.1982).

A. Likelihood of Success on the Merits

Plaintiffs’ chief claim is that defendants have misappropriated plaintiffs’ rights of publicity. The right of publicity, where recognized, “grants a person an exclusive right to control the commercial value of his name and likeness and to prevent others from exploiting that value without permission.” Bi-Rite Enterprises v. Button Master, 555 F.Supp. 1188, 1198 (S.D.N.Y.1983); see, e.g., Martin Luther King, Jr. Center for Social Change v. American Heritage Products, 694 F.2d 674, 676 (11th Cir.1983); Memphis Development Foundation v. Factors Etc., Inc., 616 F.2d 956, 958 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980); Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866, 868 (2d Cir.1953).

The right of publicity is assignable and may be licensed by its owner. American Heritage Products, 694 F.2d at 680-81; Button Master, 555 F.Supp. at 1199-1200. Thus, in the instant case, Bi-Rite and Artemis, Inc. assert their rights as exclusive licensees of various performers, while the individual plaintiffs assert their own rights of publicity.

Bi-Rite and Artemis, Inc. claim that their rights of publicity have been violated by virtue of exclusive licenses with the following groups and performers:

Bi-Rite
Billy Squier
Asia
Fastway
Quiet Riot
The Who
Stray Cats
Quarter Flash
Nazareth
Phil Collins
Genesis
Doobie Brothers
Rainbow
Motley Crue
Donna Summers
Artemis
Barry Manilow
Belle Stars
Thomas Dolby
Culture Club

Closer examination of these licenses reveals, however, that many are nonexclusive, or, at most, exclusive with respect only to particular photographs to be designated by the licensors. Bi-Rite and Artemis seek a preliminary injunction extending only to its exclusive licenses (see note 1, infra). I find that Bi-Rite and Artemis hold exclusive rights to the following groups or performers:

Bi-Rite
Billy Squier
Asia
Fastway
Quiet Riot
The Who
Stray Cats
Motley Crue
Donna Summers
Artemis, Inc.
Thomas Dolby

As to these, plaintiffs have shown a likelihood of success on the merits. The parties agree that nearly all states in the United States recognize the right of publicity, but that no such right exists in Great Britain, where many of the performers or groups listed above are domiciled. Defendants argue that domicile is determinative of choice of law in right of publicity cases. As a result, they say, the British performers have no protected right of publicity. The parties agree that, because a right of publicity is a proprietary interest, property conflict of laws rules apply in determining whether such a right exists. See Groucho Marx Productions v. Day and Night Co., 689 F.2d 317, 319 (2d Cir.1982); Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278, 281 (2d Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d 442 (1982); Bi-Rite Enterprises v. Button Master, 555 F.Supp. 1188, 1197 (S.D.N.Y.1983). They also agree that Massachusetts courts would look to the law of the situs of the property in property cases. The only question, therefore, is how to determine the situs of a right of publicity.

In Massachusetts, the right of publicity is protected statutorily by Mass.Gen. Laws Ann. ch. 214, § 3A. The Supreme Judicial Court has said that the statute protects “the interest in not having the commercial value of one’s name, portrait or picture appropriated to the benefit of another.” Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 400 N.E.2d 847, 850 (1980) (emphasis added). Although the Massachusetts courts have not addressed the issue now before me, I hold that the situs of the right of publicity is where the “commercial value” of one’s persona is exploited. While in some cases, the plaintiff’s domicile may be a relevant factor, it will generally be more important to consider where the plaintiff has developed and exploited his right of publicity through licensing agreements, assignments or merchandising schemes. Indeed, the New York courts have held that to establish a violation of his right of publicity, a plaintiff must show “(1) that his name or likeness has publicity value; [and] (2) that he himself has ‘exploited’ his name or likeness by acting ‘in such a way as to evidence his ... own recognition of the extrinsic commercial value of his ... name or likeness, and manifested that recognition in some overt manner ...,” Lerman v. Chuckleberry Publishing, 521 F.Supp. 228, 232 (S.D.N.Y. 1981), in addition to showing unauthorized appropriation by the defendant.

This conflicts rule is in accord with the outcome of the few cases which have addressed the choice of law issue in right of publicity cases. In Groucho Marx Productions v. Day and Night Co., 689 F.2d 317 (2d Cir.1982), the court applied California law to determine whether the Marx Brothers’ rights of publicity survived their deaths. The court noted that the Marx Brothers were California residents at their death, the plaintiff corporation to which Groucho assigned his right of publicity was a California corporation, and the assignment contract was executed in California. Id. at 321. Thus, the right of publicity was exercised in California.

Similarly, in Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278 (2d Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d 442 (1982), the court applied the law of Tennessee in a case involving Elvis Presley’s right of publicity. The court considered that Presley was a Tennessee domiciliary, that he assigned his rights to a Tennessee corporation, which in turn licensed the rights in Tennessee to plaintiff corporation, the agreement to be construed in accordance with Tennessee law.

Finally, the court in Bi-Right Enterprises, Inc. v. Button Master, 555 F.Supp. 1188 (S.D.N.Y.1983), stated that “the law of the states in which plaintiffs or their exclusive licensees reside controls.” Id. at 1197. In that case, the court applied Illinois law to Bi-Rite, an Illinois corporation. The court determined that Georgia law controlled the rights of the musical groups Judas Priest and Iron Maiden; although the group members resided in Great Britain, they marketed themselves through a Georgia-based merchandising representative. Bi-Rite and the members of Judas Priest and Iron Maiden are plaintiffs in the case before me.

I reach the same result in the instant case. Although the members of the groups at issue here reside both in the United States and abroad, they have all exploited their rights in the United States through licensing agreements with Artemis, Inc. and Bi-Rite. The law of Georgia governs the rights of Judas Priest, Iron Maiden, and Duran Duran, the members of which are named as individual plaintiffs. Although all of the members live in Great Britain, their merchandising representative is located in Macon, Georgia and is responsible for policing and protecting the use of the groups’ names, logos, and likenesses. Bi-Rite is an Illinois corporation; the law of Illinois governs with respect to it. Finally, Artemis is a Connecticut corporation; the law of that state, therefore, controls its rights.

Defendants argue that, notwithstanding any rights of publicity, because the groups and performers at issue authorized photographers to photograph them and imposed no explicit restrictions, the photographers were free to commercially exploit these photographs in any way that they chose. This argument, tantamount to a claim that by allowing himself to be photographed, a performer gives up his right of publicity, falls of its own weight. The right to control the use and exploitation of one’s name and likeness through sale of merchandise is an extremely valuable asset to popular performers and groups. By authorizing photographs, a performer does not, without more, license their commercial exploitation. See Ali v. Playgirl, Inc., 447 F.Supp. 723, 727 (S.D.N. Y.1978) (“That [plaintiff] may have voluntarily on occasion surrendered [his] privacy, for a price or gratuitously, does not forever forfeit for anyone’s commercial profit so much of [his] privacy as [he] has not relinquished.”) As the Supreme Court has said, “No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.” Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 576, 97 S.Ct. 2849, 2857, 53 L.Ed.2d 965 (1977) (quoting Kalven, Privacy in Tort Law—Were Warren and Brandéis Wrong?, 31 Law & Contemp.Probs. 326, 331 (1966)).

Defendants concede that Georgia, Connecticut and Illinois all recognize a right of publicity. Accordingly, plaintiff has demonstrated a likelihood of success on the merits.

B. Irreparable Injury

As was previously noted, plaintiffs’ rights of publicity are extremely valuable proprietary rights. The value of these rights depend, in large part, on plaintiffs’ ability to maintain their exclusivity. See Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866, 868 (2d Cir.1953). In light of the ephemeral nature of stardom in the popular music industry, plaintiffs’ rights of publicity may be commercially valuable for only a short period of time. Moreover, courts have repeatedly noted the difficulty of proving monetary damages in cases involving violation of rights of publicity. See, e.g., Factors Etc., Inc. v. Creative Card Co., 444 F.Supp. 279, 285 (S.D.N. Y.1977); Ali v. Playgirl, Inc., 447 F.Supp. 723, 729 (S.D.N.Y.1978); Uhlaender v. Hendrickson, 316 F.Supp. 1277, 1283 (D.Minn.1970). Finally, plaintiffs are unable to approve defendants’ posters to assure that they are in keeping with the carefully crafted public images of the performers and groups depicted. I find, therefore, that plaintiffs will be irreparably harmed if no injunctive relief is granted.

C. Weighing of the Potential Harms

Defendants claim that they will be irreparably harmed if injunctive relief is granted. In light of the small number of groups or performers exclusively controlled by plaintiffs, and the rapid turnover in “hot” groups, I find that the potential harm to defendants is, in fact, small. The harm to plaintiffs in being unable to reap the benefits of their exclusive rights outweighs the harm to defendants that may be caused by curtailing the sale of certain posters.

D. Public Interest

I find that the public interest is best served by protecting “the right of the individual to reap the reward of his endeavors.” Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573, 97 S.Ct. 2849, 2856, 53 L.Ed.2d 965 (1977). The public interest will not be adversely affected by injunctive relief.

In light of the foregoing, plaintiffs’ motion for a preliminary injunction is granted with respect to the following groups or performers:

Thomas Dolby
Asia
Quiet Riot
Stray Cats
Motley Crue
Iron Maiden
Billy Squier
Fastway
The Who
Donna Summers
Judas Priest
Duran Duran

Defendants, their agents, servants, employees, attorneys, officers, directors, successors, assigns and/or any other individual or entity within their control or supervision and/or all other individuals or entities acting in concert with the defendants or on their behalf are hereby enjoined from:

(a) manufacturing, distributing, selling, offering for sale or advertising posters bearing the names or likenesses of the aforementioned performers or groups;
(b) effecting assignments, issuing licenses, forming new entities or associations or utilizing any other devices for the purpose of circumventing or otherwise avoiding the prohibitions set forth in subparagraph (a) above; and
(c) aiding, abetting, encouraging or inducing any other parties, including customers of the defendants, to do any of the aforementioned acts.

Plaintiffs’ motion for preliminary injunction is denied with respect to all other performers and groups.

Plaintiffs are ordered to return to defendants forthwith all materials seized from defendants not pertaining to the performers and groups that are the subject of this preliminary injunction.

AMENDED ORDER

The order dated April 9, 1984, requiring plaintiff to return to defendants all materials seizéd from defendants not pertaining to the performers and groups that are the subject of the April 9 preliminary injunction, is amended to exclude posters bearing the name and/or likeness of Michael Jackson (“Michael Jackson posters”). Michael Jackson posters need not be returned, defendants having conceded that they have no rights to them.

ON MOTION TO MODIFY INJUNCTION

On April 9, 1984, this Court issued a preliminary injunction enjoining defendants from manufacturing or selling posters bearing the names or likenesses of those popular music performers and groups to which I found plaintiffs hold exclusive “poster rights.” With respect to those performers and groups to which plaintiffs had failed to prove their exclusive rights, I ordered plaintiffs to return to defendants all materials seized from defendants. On April 11, 1984, I amended this order to exclude the return of posters bearing the name or likeness of Michael Jackson, defendants having conceded at the evidentiary hearing that they had no rights to Michael Jackson posters. Plaintiffs now move for relief from my Order of April 9, 1984. They seek to expand the preliminary injunction to include Michael Jackson and Rick Springfield. In addition, they request an opportunity to present evidence to prove the existence of oral exclusive licenses with other performers and groups and to prove the exclusivity of licenses previously submitted so that these performers and groups too can be added to the preliminary injunction.

Defendants have represented to this Court that it will cease to merchandise Michael Jackson posters. In light of this representation and the Amended Order of April 11, 1984, no further action need be taken with respect to Mr. Jackson.

As for plaintiffs’ other requests, the parties in this case had approximately five hours, over the course of three days, to present evidence and argument in this ease. The hearing was held on a priority basis. At that time no evidence was presented as to the existence of oral contracts or to explain ambiguities in the written contracts introduced into evidence. Moreover, no licensing agreement between plaintiffs and Rick Springfield was entered into evidence. The Court addressed in its April 9, 1984 Order, as amended, all of the contracts that were before it. Accordingly, plaintiffs’ motion to modify the Order of April 9, 1984 is denied. To the extent that plaintiffs seek to reopen this matter for the introduction of additional evidence, the Court will schedule a hearing as its calendar permits.

      . Although Bi-Rite and Artemis, Inc. assert rights to market merchandise pursuant to exclusive licenses for some groups and nonexclusive licenses for others, in this proceeding they seek a preliminary injunction against defendants with respect only to the groups from whom they claim to have exclusive licenses.

      . Plaintiffs’ complaint lists eleven other groups and performers with whom it claims to have exclusive licenses. These licenses were not introduced into evidence and so are not before me.


text:
    PAPA GINO’S OF AMERICA, INC. and Ralph J. Guarino, Trustee of the 71 Summer Street Realty Trust v. Anthony V. TAURASI, Jr., Marie-Louisé Kehoe, George R. Hoell and Richard C. Nota, Individually.
    Civ. A. No. 83-3605-Z.
    United States District Court, D. Massachusetts.
    Sept. 14, 1984.

      Evan T. Lawson, Howard J. Wayne, Peter M. Malaguti, Lawson & Wayne, Boston, Mass., for plaintiffs.
    Paul D. Maggloni, Dedham, Mass., for defendants.
   MEMORANDUM OF DECISION

ZOBEL, District Judge.

This action arises out of plaintiffs’ attempts to obtain a common victualler’s license from defendants, members of the Dedham Board of Selectmen. Their five-count complaint alleges that defendants’ conduct relating to the license violated 42 U.S.C. §§ 1983, 1985(3) and 1986 by depriving them of property without due process of law; and constituted the common law torts of civil conspiracy and intentional interference with advantageous relations. They seek damages and attorneys’ fees. The case is before me on defendants’ motion to dismiss the complaint for failure to state a cause of action. The following facts, alleged in the complaint, must therefore be taken as true.

Plaintiff Papa Gino’s of America, Inc. (“Papa Gino’s”) owns and operates restaurants in the New England area. Papa Gino’s and plaintiff Ralph Guarino, trustee of a realty trust which owns land in Dedham, developed a “mini-mall” on that land. After receiving a building permit and other necessary approvals for construction of the development, including an 80-seat restaurant, Papa Gino’s applied to the Dedham Board of Selectmen (“the Board”) on September 29, 1982 for issuance of a common victualler’s license for the restaurant. After a public hearing the Board denied the application.

Plaintiffs brought suit in the Massachusetts Superior Court seeking relief from the denial of the license. On May 12, 1983 the court ordered the matter remanded to the Board “in order that the Board may review the sufficiency of Papa Gino’s plans to determine if ... [plaintiffs] ... can provide an adequate solution to the legitimate concern of the Board concerning traffic exiting on the right of way to Eastern Avenue.” It is the events following this remand which plaintiffs contend gave rise to this lawsuit.

Plaintiffs assert first that defendants delayed in considering the license application until plaintiffs moved in the Superior Court for an order for a hearing; and that after a hearing on the matter on July 14, 1983 defendants made no decision until plaintiffs had obtained a court order directing them to do so at their meeting on July 27, 1983. Moreover, the license approved at that meeting was subject to certain conditions relating to the back exit of plaintiffs’ parking area and the size of the sign to be erected for the mall. Plaintiffs allege that these conditions were not only improper but that the Board thereafter repeatedly changed the prerequisites to the license. The first conditions appeared in a letter of July 28, 1983, which purported to set forth the Board’s decision. New conditions relating to hours of operation were imposed at an irregular meeting of the Board on August 9, 1983 and again at a meeting on August 11, 1983. Papa Gino’s received its license at the August 11, 1983 meeting, but in a letter of August 15, 1983 the Board referred to still other restrictions not voted at that meeting.

Plaintiffs returned to court on September 28, 1983 with a motion to strike the conditions. After a court hearing the parties’ attorneys negotiated a compromise, which was presented to the Board on October 22, 1983. On November 3, 1983, although town counsel told the Board that the compromise conditions were some which the Board had approved on previous occasions, the Board voted not to “reconsider” the current license conditions.

The first count of plaintiffs’ complaint alleges a deprivation of property without due process of law in violation of 42 U.S.C. § 1983. Plaintiffs do not seriously contend that as applicants they had a right to an unrestricted victualler’s license under state law, nor could they in light of the broad discretion given licensing authorities by the governing statute. Thus, plaintiffs have alleged no deprivation of a “legitimate claim of entitlement” amounting to a property interest to which the requirements of the due process clause apply. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Medina v. Rudman, 545 F.2d 244, 249-51 (1st Cir.1976); O’Neill v. Town of Nantucket, 545 F.Supp. 449, 452-53 (D.Mass.1982).

However, they strenuously urge that defendants’ actions were so egregious as to constitute in themselves a denial of due process. They rely heavily upon Roy v. City of Augusta, Maine, 712 F.2d 1517 (1st Cir.1983). There the First Circuit held that a plaintiff had a due process claim under § 1983 sufficient to withstand a motion for dismissal, where local licensing authorities were alleged to have “flouted” the mandate of the state’s highest court that a license be granted to plaintiff, thereby rendering the process afforded by the state a nullity. Id. at 1523. In so doing, the court stressed as a “crucial element” of the due process claim the allegation that defendants’ refusal to issue a license was “totally without reasonable sanction” and thus “so plainly contrary to the ... [state court] judgment as to have been a subversion of the state’s process.” Id. at 1524.

The facts alleged in Papa Gino’s complaint, even viewed most favorably to plaintiffs, do not contain that crucial element. Unlike the state court decision in Roy, the Superior Court’s order here did not declare plaintiffs to be entitled to the license sought. Rather, it stated that “it would not be an abuse of discretion for the Board to consider restaurant traffic exiting onto Eastern Avenue as not being in the public good when compared to other uses. However, if Papa Gino’s is eligible for a license, except for the effect of restaurant traffic on Eastern Avenue, and if Papa Gino’s can prevent traffic, to the satisfaction of the Board, from exiting onto Eastern Avenue, that reason for denial would no longer apply.” Remand to the Board was for the purpose of considering whether the traffic problem could be resolved. Although the facts alleged in the complaint suggest that the Board’s compliance with the remand order was dilatory and reluctant, even on plaintiffs’ allegations, defendants did consider whether Papa Gino’s could prevent objectionable traffic to their satisfaction, as the order directed. A license was issued with some conditions relating to the traffic problem. The extreme circumstances amounting to action in defiance of the state court’s order, as found in Roy, are therefore not present here. In the absence of such egregious conduct claims, that local licensing officials acted in violation of state law in making licensing decisions, they do not state a cause of action under the federal constitution. Id. at 1523-24; see also Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 831-34 (1st Cir.1982).

Because plaintiff’s allegations do not support a cause of action for deprivation of their right to due process of law under the Fourteenth Amendment, upon which their claim under § 1983 is based, defendants’ motion to dismiss the complaint is allowed with respect to Count I.

Plaintiffs have likewise failed to state a cause of action under 42 U.S.C. §§ 1985(3) and 1986 for deprivation of the right to equal protection of the laws. The complaint does not allege the necessary facts “showing that the defendants conspired against the plaintiffs because of their membership in a class and that the criteria defining the class were invidious.” Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir.1975); see also Landrigan v. City of Warwick, 628 F.2d 736, 739 n. 1 (1st Cir. 1980) ; Harrison v. Brooks, 519 F.2d 1358 (1st Cir.1975). Without a § 1985(3) claim to support it, plaintiffs’ § 1986 claim also fails. Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 834-35 (1st Cir. 1982). Defendants’ motion to dismiss Counts II and III is therefore also allowed.

Two counts of the complaint alleging that defendants’ conduct violated state law remain. Particularly in light of the history of this dispute and the prior involvement of the state court, I decline to exercise pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); B.C. Recreational Industries v. First National Bank, 639 F.2d 828, 834 (1st Cir. 1981) ; Landrigan v. City of Warwick, 628 F.2d 736, 748 (1st Cir.1980).

Defendants’ motion to dismiss all counts of the complaint is therefore allowed.

      . The court found the other reasons given by the Board for denial of the license to be insufficient to support denial, except for the Board's failure to receive plans of the restaurant.

      . Mass.Gen.Laws ch. 140, § 2 provides that licensing authorities "may” grant licenses to persons to be common victuallers or innkeepers. Further, "[t]his section shall not require the licensing authorities to grant either of said licenses, if in their opinion, the public good does not require it.”

      . The plaintiff in Roy was denied renewal of his yearly license to operate a pool hall by the defendant city council. He sought relief in the state courts and ultimately received an order from the Maine Supreme Judicial Court declaring that he was entitled to the license under state law. On remand, however, the city issued him a license for the year originally sought, so that by its terms it had expired when granted. Defendants then denied plaintiff’s application for a current license. By the time he obtained further relief in the state court, he had exhausted his financial resources and lost his premises. The state’s highest court could thereafter grant him no relief because he no longer owned the property for which he had sought the license.

      . The Supreme Court in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 920-21, 79 L.Ed.2d 67 (1984) left open the question whether the Eleventh Amendment bars federal courts from entertaining claims against local officials for conduct in violation of state law. Neither party has addressed the issue and in view of the disposition of the claim I need not do so.


text:
    BRAINTREE BAPTIST TEMPLE, et al. v. HOLBROOK PUBLIC SCHOOLS, et al.
    Civ. A. No. 83-0580-Z.
    United States District Court, D. Massachusetts.
    Sept. 18, 1984.

      Richard G. Gay, Colby M. May, May, Dunne & Gay, Washington, D.C., John C. Sandelli, Dracut, Mass., for plaintiff.
    Diana S. Gondek, Maria I. Lopez, Ass’t Atty. Gen., Boston, Mass., for defendant.
   MEMORANDUM OF DECISION

ZOBEL, District Judge.

This case illustrates the admonition articulated in Matthew 22-.21. Plaintiffs are two sectarian schools, their teachers, students, the students’ parents, the churches operating the schools, and a pastor who heads one of the schools. They challenge the constitutionality of the Massachusetts compulsory education laws as applied to them and seek to enjoin enforcement of the laws against them by defendants, the Massachusetts Board of Education (and its chairman and vice-chairman), the Massachusetts Department of Education, and the Commissioner of Education (referred to collectively as the state defendants); the Holbrook Public Schools, their superintendent, John Moran, and the Holbrook School Committee and its individual members (the Holbrook defendants); the East Longmeadow Public Schools, their superintendent, Wayne Porter, and the East Longmeadow School Committee and its individual members (the East Longmeadow defendants); and the Boston Public Schools, their superintendent, Robert Spillane, the Boston School Committee and its individual members, and Richard Allen, Advisor of Attendance for the Committee (the Boston defendants). Plaintiffs further seek damages and attorneys’ fees.

Mass.Gen.Laws ch. 76, § 1 provides in relevant part that “Every child ... shall ... attend a public day school ... or some other day school approved by the school committee [of the child’s town of residence]____ For the purposes of this section, school committees shall approve a private school when satisfied that the instruction in all the studies required by law equals in thoroughness and efficiency, and in the progress made therein, that in the public schools in the same town; but shall not withhold such approval on account of religious teaching____ The school committee of each town shall provide for and enforce the school attendance of all children actually residing therein in accordance herewith.” Mass.Gen.Laws ch. 76, § 2 mandates that “[e]very person in control of a child described in the preceding section shall cause him to attend school as therein required and if he fails so to do for seven day sessions or fourteen half day sessions within any period of six months, he shall, on complaint by a supervisor of attendance, be punished by a fine of not more than twenty dollars.”

In their amended complaint, plaintiffs allege that these statutes and defendants’ action in accordance therewith violate plaintiffs’ rights under the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution, and under Amendment Article 18, sections 1 and 2 of the Massachusetts Constitution. They also allege that the Commissioner of Education has exceeded the scope of the powers accorded him by Mass.Gen.Laws ch. 69, § l, and assert an independent claim on the purported basis of 42 U.S.C. § 1983. The case is before me on defendants’ motions to dismiss all counts of the complaint.

The. following facts, set forth in the amended complaint, are not in dispute. Plaintiff Braintree Baptist Temple is an incorporated church located in Holbrook. (¶ 4). It operates plaintiff Temple Christian Academy. Id. Plaintiff New Life Baptist Church is an incorporated church, located in East Longmeadow. (¶ 5). It operates plaintiff New Life Baptist Church Academy. Id. The members of the two churches believe that the Bible is the inspired word of God and must serve as a source of guidance for all aspects of life, and as the source of all teaching and knowledge. (¶ 8). They regard the schools as a completely integral part of the churches, for they believe Christian education to be a necessary part and purpose of the churches’ existence, (¶ 10) and this religious mission is the only reason for the schools’ existence. The schools’ primary goal is to assure future adherents their Christian faith (11 11(d)) by training children up in the Way they should go.

The schools are operated in facilities owned by the churches, (II 10) which are in compliance with applicable health, fire, safety and building codes. (116). They are not separately incorporated and have no separate governing body or finances from those of the churches. (1110). They receive no direct local, state or federal tax support (H 5).

The plaintiff teachers are all “Bible-believing and practicing Christians” (1111(1)) and are dedicated to rearing their students in their faith. (11 ll(k)). Plaintiff David Chase, pastor of New Life Baptist Church, is also head of its school. (¶ 14). He believes it is part of his duty as pastor to establish this religious school to further the educational mission of the church. (1116).

Plaintiff parents are “born again Christians” who believe they have the duty to give their children an education that inculcates their religious values, “a complete biblical Christian perspective.” (111119, 25). They believe that all knowledge is inescapably religious, so that it is impossible to separate a secular from a religious aspect of education (II10); and part-time instruction or attendance at a nonsectarian school is insufficient (IT 21) to attain their educational goals. The parents will continue to send their children to the plaintiff schools. (1125).

Plaintiff students attend the schools pursuant to the direction of their parents and the mandate of their own religious convictions (1125) and will continue to do so.

On July 21, 1981, defendant Moran, the Holbrook school superintendent, wrote to Reverend Bruce Turner, pastor of Brain-tree Baptist Temple and head of the Temple Christian Academy, informing him that the Academy must provide certain information to the Holbrook School Committee in order to comply with the approval provision of Mass.Gen.Laws ch. 76, § 1. (¶ 67, Exhibit 2). His letter stated that in order for the Academy to open, Reverend Turner must show “provision for proper safety and attendance coverage for all pupils” and for proper transportation “to be reviewed and approved.” He requested Reverend Turner to show that the school’s teachers were certified and that the length of the school day and year met state requirements. He further asked Reverend Turner to submit the school’s curriculum for all grade levels, “to be approved by appropriate Holbrook principals, department heads, and/or supervisors for recommendation to the School Committee,” and stated that “various personnel involved, i.e., principals, department heads” would visit to verify the materials submitted; if deemed necessary, the School Committee would visit. He noted that the School Committee would request the town building inspector to visit and approve the building as a school facility-

In October or December 1982, plaintiff parents of children attending Temple Christian Academy and New Life Academy notified the district school committees of the districts in which they reside that their children of compulsory school age were having their educational needs met by attendance at those schools. On December 23, 1982, Richard Allen, Advisor of Attendance for the Boston School Committee, sent a letter to plaintiff Charles Nelson asking him to contact him “[r]egarding the educational needs of your children Jennifer and James.” (Complaint, Exhibit 3).

The complaint alleges that on January 4, 1983, a truant officer employed by the Boston School Committee told Mr. Nelson that he should place his children in an approved school or face prosecution for violation of the state compulsory attendance laws. The Boston defendants dispute this allegation.

The following allegations concerning the East Longmeadow defendants I take, for purposes of the motion to dismiss, as true. On September 9, 1982, Wayne Porter, superintendent of the East Longmeadow schools, wrote to Reverend David Chase, informing him Of the private school approval requirement, and asking him to submit materials to the committee “as outlined in the enclosed checklist” within “a couple of weeks.” (¶ 71). He noted that the need for approval was urgent to avoid continued violation of the compulsory attendance law by the students and their parents. (Complaint, Exhibit 4). The “checklist” to which Porter referred, enclosed with his letter, was a four-page form entitled, “Checklist for Approval of Private Schools by Local School Committees.” It was issued as part of a memorandum, dated August 19, 1982, to School Committee Chairpersons and Superintendents of Schools from the Massachusetts Commissioner of Education, entitled “Guidelines for Approval of Private Schools” (Complaint, Exhibit l). On October 19, 1982, Porter wrote again in response to an inquiry from Chase, giving Chase a list of twelve areas of specific data the School Committee desired. (Complaint, Exhibit 5). He concluded, “it is not the School Committee’s intention of qualifying [sic] your school program except for meeting the basic standards of attendance, curriculum coverage, the standards of safety for the building, and non-discrimination regulations.” In response, Reverend Chase gave Porter the names and addresses of the students from East Longmeadow who attended the school. (Complaint, Exhibit 7). He provided further information in all twelve areas about the school by a letter of November 24, 1982. (Complaint, Exhibit 6). His letter stated that, “We have never sought the approval of any of our church ministries by non-religious organizations and we appreciate your concern in this area.” In a letter of January 20, 1983, Mr. Porter asked for clarification of the educational backgrounds of the school’s teachers and further explanation of the curriculum; he also asked if he might visit the school to observe it. (Complaint, Exhibit 8). On March 9, 1983, Reverend Chase responded to the letter, giving Mr. Porter more information and inviting him to visit the school. He also told him that the church did not want an outside organization to approve any of its ministries, and advised him that this suit had been filed. On July 13, 1983, Mr. Porter wrote to Reverend Chase, again informing him of the information necessary for approval. He stated that “[u]nless you take the steps for approval soon ... I will have to recommend that the School Committee refer this matter to town counsel for legal proceedings.” (Complaint, Exhibit 9).

All defendants assert, first, that plaintiffs have presented no case or controversy justiciable under Article III of the United States Constitution; second, that the court should in any event abstain from exercising jurisdiction; and, finally, that the complaint fails to state any cause of action.

In order to have standing, plaintiffs must have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues____” Larson v. Valente, 456 U.S. 228, 238, 102 S.Ct. 1673, 1680, 72 L.Ed.2d 33 (1982). Plaintiffs challenging a statute have such a stake if they allege an intention to engage in a course of conduct arguably affected with a constitutional interest but proscribed by the statute, and further show a credible threat of prosecution under the statute, or some other realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298-99, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979). A case presents a “ripe” controversy if the issues it presents are fit for judicial determination at the time of suit and denial of judicial review would cause hardship to the plaintiff. Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The First Circuit recently summarized the test for application of these two related doctrines as “one of realistic danger to plaintiff.” McCollester v. City of Keene, New Hampshire, 668 F.2d 617, 619 n. 4 (1st Cir.1982).

The state defendants argue that no such danger is present. They correctly point out that the complaint fails to allege any action by the state to enforce or any threat to enforce the statutes in question against any of the plaintiffs. Plaintiffs do allege that the state defendants have engaged in “concerted action” with local defendants to impose upon plaintiffs “the guidelines, policies and practices” which plaintiffs challenge. The sole factual support alleged for this conclusion is the Commissioner of Education’s issuance of guidelines for school approval. However, the guidelines themselves expressly state that they are suggested rather than mandatory; and there is no allegation that the state defendants were involved in any local defendant’s attempts to apply the guidelines to plaintiffs in approval proceedings. Plaintiffs’ complaint thus fails to allege that plaintiffs have suffered or face any realistic danger of suffering injury from the state defendants and, accordingly, the complaint warrants dismissal as to them. Plaintiffs likewise have failed to allege any real danger of injury from the Holbrook defendants. The Holbrook school superintendent’s letter of July 21, 1984 requested information “in order for the Temple Christian Academy to open” but the complaint states that the Academy did open that autumn and has continued to operate. There is no further allegation of any action by or communication from the Holbrook defendants with respect to plaintiffs. The complaint therefore warrants dismissal as to them.

According to the complaint, the East Longmeadow defendants, through their Superintendent of Schools, have threatened legal action against plaintiffs. Therefore, the complaint of those plaintiffs connected with East Longmeadow cannot be dismissed on grounds of standing or ripeness.

There is a factual dispute as to whether the Boston defendants through their advis- or of attendance threatened parents of a child attending Temple Christian Academy with prosecution. Even defendants’ version of the facts, however, does not support dismissal for lack of a case or controversy. Mr. Allen in his affidavit states that he told Reverend Turner that parents who failed to send their children to approved schools might be subject to prosecution. Given the policy of liberal construction of a complaint, the Boston defendant’s motion on standing grounds is denied.

The defendants’ arguments in favor of abstention have little force. The challenged statutes are neither ambiguous nor susceptible to any construction by the state courts that would avoid or modify the federal constitutional question presented. Abstention of the kind held proper in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) is therefore inappropriate here. Nor is this a case where the state has its own elaborate system for dealing with complex local issues, such as the oil and gas regulation found to warrant abstention in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) and its progeny. See Educational Services, Inc. v. Maryland State Board for Higher Education, 710 F.2d 170, 173 (4th Cir.1983). Finally, defendants’ argument for abstention based on the fact that two cases pending in the state courts involve (by counterclaim) the same constitutional challenges raised in this action is unavailing in light of the statement of counsel for the state defendants at oral argument that the schools who are defendants in those state actions have ceased to operate. The court has since been informed that an order dismissing these cases has become effective. Abstention is therefore unwarranted and I proceed to the merits of the motions to dismiss the complaint for failing to state a cause of action.

I. State Law Claims: Counts VII and VIII and Portions of Counts I, III and IV.

In Count VII, plaintiffs allege that the Commissioner of Education acted beyond the scope of his authority under Mass.Gen.Laws ch. 69, § 1; Count VIII alleges that the challenged approval scheme violates the Massachusetts Constitution, Amendment Article 18, § 2, by necessitating excessive entanglement between government and religion. The Supreme Court in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) made clear that the Eleventh Amendment bars federal courts from ordering state officials to conform their conduct to state law, thus, those counts would necessarily be dismissed with respect to the state defendants even if plaintiffs could establish their standing to sue those defendants. Because Count VII relates only to conduct by the Commissioner of Education, it states no cause of action with respect to the local defendants and is dismissed as to them.

There remain plaintiffs’ claims against the local defendants in Count VIII and the portions of Counts I, III and IV based on the provisions of the Massachusetts Constitution. Pennhurst left open the question whether the Eleventh Amendment bars federal courts from ordering local officials to conform their conduct to state law. Id., 104 S.Ct. at 920-21. The Court observed that Courts of Appeal had generally found such suits barred where the relief obtained would in essence run against the state. Id. at 920 n. 34. That is not so here. Moreover, the highest court of the Commonwealth has interpreted those state constitutional provisions as “cognate” with the provisions of the Federal Constitution, and actions thereunder as governed by the same criteria, Colo v. Treasurer & Receiver General, 378 Mass. 550, 392 N.E.2d 1195, 1200 (1979). No compelling reason thus exists why these claims should be barred under Pennhurst. Accordingly, the local defendants’ motions to dismiss on Eleventh Amendment grounds are denied with respect to Count VIII and the state law portion of Count I. However, they are allowed with respect to the state law portions of Counts III and IV, as they merely duplicate the claims in Count I.

11. Federal Claims.

In Count XI, plaintiffs allege that the approval scheme violates 42 U.S.C. § 1983. Plaintiffs’ characterization of that statute as an independent source of substantive rights is inaccurate. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979). Rather, § 1983 provides the remedy for the violations of plaintiffs’ civil rights alleged in the other counts of the complaint; indeed, where § 1983 provides a remedy an implied cause of action grounded on the Constitution is not available. Pauk v. Board of Trustees of City University of New York, 654 F.2d 856, 865 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982); Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981). If defendants are subject to suit under § 1983, therefore, the remaining counts of the complaint raising federal constitutional claims cannot support a cause of action directly under the Constitution; the allegations therein must instead be taken to support the Count XI allegation of a § 1983 violation. Before proceeding to the merits of those counts therefore it is necessary to consider whether defendants are subject to suit under § 1983.

All the local defendants contend that the Eleventh Amendment bars a § 1983 suit against them because they acted as arms of the state in connection with the approval scheme. The Supreme Court, addressing the question of a local school board’s Eleventh Amendment immunity from suit, stated that the result “depends, at least in part, upon the nature of the entity created by state law.” Mt. Healthy City School District v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). In that case the court found that although the local school districts were subject to guidance from the Ohio State Board of Education and received a significant amount of money from the state, these factors were outweighed by the fact that the school districts had power to issue bonds and to levy taxes, and by the state law definition of them as political subdivisions. The court concluded that the school board was therefore not entitled to assert any Eleventh Amendment immunity from suit in the federal courts. The Fifth Circuit has reached the same result where the school districts in question were “ ‘locally controlled, essentially local in character, and the funds to defray the award would not be derived primarily from the state treasury.’ ” Moore v. Tangipahoa Parish School Board, 594 F.2d 489 (5th Cir.1979), (quoting Campbell v. Gadsden County District School Board, 534 F.2d 650, 656 (5th Cir.1976)). Under Massachusetts law, school committees are generally considered parts of local governments. Mass.Gen.Laws ch. 43, §§ 31, 33; see Urban Transport, Inc. v. Mayor of Boston, 373 Mass. 693, 369 N.E.2d 1135 (1977); Eastern Massachusetts State Railway Co. v. Mayor of Fall River, 308 Mass. 232, 31 N.E.2d 543 (1941). They have general charge of all public schools, Mass.Gen. Laws ch. 71, § 37; Mass.Gen.Laws ch. 43, § 33. Funding for the school is the responsibility of local governments. Mass.Gen. Laws ch. 71, § 34.

Accordingly, under the test enunciated in Mt. Healthy, and on the present state of the record, the local defendants are not entitled to immunity from suit under the Eleventh Amendment. Therefore plaintiffs have a remedy under § 1983 against them and the allegations of those counts of the complaint which state a cause of action for violation of federal constitutional rights will be deemed subsumed under Count XI.

Count I alleges that application of the challenged approval scheme to plaintiff churches, schools, parents, students, and teachers burdens the free exercise of religion guaranteed them by the First Amendment and is unjustified by any compelling state interest. In determining whether regulation of conduct violates the free exercise clause, the court must apply a three-part test and decide (a) whether the exercise interfered with is motivated by and rooted in a legitimate and sincerely held religious belief; (b) whether and to what extent the regulation burdens the exercise; and (c) whether any such burden is justified by a sufficiently compelling state interest. Wisconsin v. Yoder, 406 U.S. 205, 214-15, 92 S.Ct. 1526, 1532-33, 32 L.Ed.2d 15 (1972). Defendants contend that the complaint does not allege facts establishing that the school approval scheme interferes with plaintiffs’ First Amendment rights, thus, it fails to allege a legally cognizable burden on religious exercise. In particular, defendants argue that the statutory scheme does not prevent the operation of the schools; it merely bars those schools from serving to fulfill the compulsory education requirements if they do not obtain approval.

It is clear, however, that “[wjhere the state conditions receipt of an important benefit upon conduct proscribed by religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.” Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981). The grant of capacity to fulfill the compulsory education requirement is an important benefit to schools, to their associated churches and teachers, and to the children attending and their parents who will otherwise be subject to truancy proceedings. Plaintiffs allege that their religious beliefs preclude them from seeking approval, the condition the state has imposed on receipt of this benefit. In light of Thomas, therefore, plaintiffs have stated a cause of action and defendants’ motion to dismiss is accordingly denied with respect to the claims contained in Count I.

In Count II, plaintiffs allege that the approval scheme violates the Establishment Clause of the First Amendment. “The mode of analysis for Establishment Clause questions is defined by the three-part test ... [that the] statute must have a secular legislative purpose, must have a principal or primary effect that neither advances nor inhibits religion, and must not foster an excessive governmental entanglement with religion.” Wolman v. Walter, 433 U.S. 229, 235-36, 97 S.Ct. 2593, 2598-99, 53 L.Ed.2d 714 (1977). The complaint claims that the approval scheme fails to satisfy the third part of this test because it results in active involvement of the state in making religious determinations. Defendants argue that no factual allegations support this conclusion. However, the terms of Mass.Gen.Laws 76, § 1 (school committee to evaluate “thoroughness and efficiency” of instruction in all studies required by law) and the guidelines which East Long-meadow sought to apply to the New Life Academy (including determinations as to adequacy of textbooks, and inquiry as to educational philosophy and evidence of adequate financial support) set forth in the complaint, exhibit the potential for excessive government entanglement. See Bangor Baptist Church v. State of Maine, 549 F.Supp. at 1222. The First Circuit has stated that “in the sensitive area of First Amendment religious freedoms, the burden is upon the state to show that implementation of a regulatory scheme will not ultimately infringe upon and entangle it in the affairs of a religion to an extent which the Constitution will not countenance.” Surinach v. Pesquera de Busquets, 604 F.2d 73, 75-76 (1st Cir.1979). That being so, plaintiffs must be held to have stated a cause of action in Count II.

Counts III, IV and IX allege that the challenged regulation infringes upon protected liberty and property interests in violation of the Due Process Clause of the Fourteenth Amendment. The parental right in question is a limited one. “[WJhile parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction, they have no constitutional right to provide their children with private school education unfettered by reasonable government regulation.” Runyon v. McCrary, 427 U.S. 160, 178, 96 S.Ct. 2586, 2598, 49 L.Ed.2d 415 (1976). A state may require, for example, that attendance at private schools, if it is to satisfy state compulsory education laws, be at institutions which provide minimum hours of instruction under the supervision of teachers of specified training, and covering certain prescribed subjects. Board of Education v. Allen, 392 U.S. 236, 245-46, 88 S.Ct. 1923, 1927-28, 20 L.Ed.2d 1060 (1968). Given the circumscribed nature of the right as established by the Supreme Court, the challenged approval scheme does not impermissibly infringe upon it.

Nor does the scheme infringe upon any protected property rights of plaintiffs. It in no way prevents them from operating the schools. State law conditions receipt of the benefit of approval upon compliance with the approval process. Plaintiffs have no property right in approval where the conditions requisite for its grant have not been met. Plaintiffs have thus failed to state a cause of action under the Due Process Clause and Counts III, IV and IX must be dismissed.

Plaintiffs allege in Counts V and VI that the standard for approval set forth in Mass.Gen.Laws ch. 76, § 1 is unconstitutionally vague and overbroad. The statute on its face does not reach a substantial amount of constitutionally protected conduct, indeed, it expressly prohibits denial of approval on account of religious teaching. Nor is the language impermissibly vague. See Bangor Baptist at 1227 (“equivalent instruction” not overly vague). Plaintiffs thus have not met the test set forth for overbreadth and vagueness challenges in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) and Counts V and VI must be dismissed.

Counts X and XII allege that the regulation chills and abridges plaintiffs’ First Amendment free speech rights and the rights of plaintiff students and teachers to assemble and associate. Beyond that conclusory statement, however, the complaint does not set forth any facts to show that the challenged approval scheme impinges in any way upon any plaintiff’s freedom to assemble, associate or express ideas. Even if some such incidental impact might be found, the scheme satisfies the test set forth in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Accordingly, the motion to dismiss these counts is allowed.

Count XI of the complaint therefore shall be deemed to incorporate Counts I and II, and so amplified states a cause of action under 42 U.S.C. § 1983 for violation of federal constitutional rights asserted in Counts I and II.

In light of the foregoing, I make the following dispositions on the motions before me.

The motions of all defendants to dismiss the complaint for failure to state a cause of action are allowed with respect to Counts III, IV, V, VI, VII, IX, X and XII.

The motion of the Massachusetts Board of Education and the Massachusetts Department of Education to dismiss the entire complaint is allowed on Eleventh Amendment grounds.

The remaining state defendants’ motion to dismiss the complaint on Eleventh Amendment grounds is allowed with respect to Count VIII and that portion of Count I based upon state law.

The motions of the state and Holbrook defendants to dismiss the entire complaint are allowed for the additional reason that as to them plaintiffs lack standing.

The East Longmeadow and Boston defendants’ motions to dismiss the complaint for failure to state a claim under state law are denied with respect to Counts I and VIII. Their motions to dismiss for failure to state a claim under federal law are denied with respect to Count XI (incorporating Counts I and II).

The Boston defendants’ motion for summary judgment is denied.

      . “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s.” (King James)

      . The Reverend Bruce Turner, pastor of Brain-tree Baptist Temple and head of its school, is not listed as a plaintiff in this action, although the complaint in some places refers to “pastors” in the plural.

      . Plaintiffs’ complaint also refers to Mass.Gen. Laws ch. 119, § 39E (supervisor of attendance may seek a determination that child who fails to attend school is "in need of services” and subject to court direction of education or living arrangements); and to Mass.Gen.Laws ch. 71, § 1 (prescribing subjects to be taught "to all pupils in all schools under public control”). There is no allegation that any action affecting plaintiffs has been or will be taken by any of the defendants in accordance with these statutes. That being so, plaintiffs lack standing to challenge these two statutes and so much of the complaint as relates to them is dismissed.

      . The section’s initial sentence provides that the Commissioner “shall have supervision of all educational work supported in whole or in part by the commonwealth.” The remainder sets forth particular powers and duties involved.

      . Plaintiffs have rendered the court’s task far more difficult and time consuming than necessary by ignoring the requirement of Fed.R. Civ.P. 8(e)(1) that a complaint’s averments be simple, concise and direct. The blunderbuss approach of their 119-paragraph, 37-page complaint "places an unjustified burden on the court and on the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." 5 Wright & Miller Federal Practice and Procedure § 1281 at 365 (1969).

      . The state defendants, the Holbrook defendants, and the East Longmeadow defendants have filed separate motions to dismiss; the Boston defendants have filed a motion to dismiss or in the alternative for summary judgment. All the local defendants have adopted the relevant arguments of the state defendants’ brief in support of their own motions to dismiss.
      Plaintiffs’ brief refers to facts not alleged in the complaint. In deciding the motions to dismiss by the state defendants, the Holbrook defendants, and the East Longmeadow defendants, I exclude from consideration all such matters outside the pleadings and accept as true the factual allegations contained in the complaint.
      The Boston defendants have supported their motion with the affidavit of the supervisor of attendance and I treat it as one for summary judgment. The facts alleged in the complaint with respect to those defendants, therefore, cannot be accepted as correct unless uncontroverted.

      . The list (reproduced in Appendix “A”) contains nine categories of factors to be considered, with columns to be checked labelled "met" "partially met" and "unmet” and a space for comments after each criterion.

      . The memorandum states that it is intended to provide guidance to school officials in carrying out their responsibility to approve private schools. The section entitled, "Standards for Approval of Private Schools” reads as follows: “Standards for Approval of Private Schools

      In order to assist private schools in its district, each school committee is encouraged to develop and promulgate, with appropriate opportunity for participation by private school officials, a written statement of policy and procedures by which the school committee approves private schools. This might contain (but not be limited to) the following:
      A. School committee’s general policy for private school approval under G.L. c. 76, § 1.
      B. Procedures for approval (process for application and review, timetable, etc.).
      C. Other agency approvals required (health, safety, building and fire inspection, etc.).
      D. Records and materials required.
      E. Policy and procedures for site visits to private schools.
      F. Criteria for measuring "thoroughness and efficiency” of private school instruction required by law, in such areas as: length of school day and school year; school objectives; physical plant and equipment; program of studies and curriculum; staff distribution and qualifications; textbooks and materials; maintenance of student records; and compliance with applicable statutes and regulations.
      These guidelines are suggested rather than mandatory; they are intended to assist each school committee in developing a private school approval process that is open and reasonable. A checklist of basic approval criteria, which the school committee may amplify or amend in any reasonable way, is attached for your convenience. You may contact the staff of the appropriate Regional Education Center for further assistance.”

      . Mr. Allen's statement that he will not enforce the challenged provisions against plaintiffs pending the outcome of this suit has no bearing upon the existence of a case or controversy here for "[i]t is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982).

      . Counts I, III and IV contain the other claims based on state law; all allege violation of § 1 of Amendment Article 18 of the Massachusetts Constitution, which prohibits passage of any law prohibiting the free exercise of religion.

      . As defendants point out, the article upon which that count is grounded by its terms prohibits use of public funds to support institutions controlled by religious organizations. See Opinion of the Justices, 374 Mass. 843, 371 N.E.2d 1349, 1357 (1978). Defendants argue that it therefore supports no claim by plaintiffs based on "excessive entanglement,” unlike the First Amendment to the Federal Constitution. They cite no authority for this proposition, and given dictum arguably opposed to it, see Colo v. Treasurer & Receiver General, 378 Mass. 550, 392 N.E.2d 1195, 1200 (1979), it is inappropriate on the submissions before me to dismiss Count VIII for failure to state a claim.

      . The East Longmeadow and Boston defendants also claim absolute immunity from § 1983 claims, asserting that their acts were done in a prosecutorial capacity. The assertion of a defense of immunity is clearly not grounds for dismissal of a § 1983 complaint. "By the plain terms of § 1983, two—and only two—allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). This language also negates defendants’ contention that Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which held local government entities to be subject to suit for damages under § 1983, required that for damages to be imposed the alleged violation of civil rights be under local rather than state law.
      Even if plaintiffs establish their standing to sue the state defendants, the Eleventh Amendment clearly bars suit against the Board of Education and Department of Education, Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); and claims for damages against the other state defendants. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). The complaint would necessarily be dismissed with respect to defendant Board of Education and Department of Education even if plaintiffs established their standing to sue those defendants.

      . Defendants make further arguments based upon case law establishing that putative burdens upon religious activity imposed by state regulation of education are justified. They may well prove to be correct, for as Judge Cyr pointed out in a case raising similar issues, "it is late in our constitutional history to mount a successful free exercise claim to exemption from all governmental regulation.” Bangor Baptist Church v. State of Maine, Department of Educational and Cultural Services, 549 F.Supp. 1208, 1218 (D.Me.1982) ["Bangor Baptist”]. However, the balancing of individual and state interests required to resolve a free exercise claim demands development of facts relating to burden and justification. Bangor Baptist held that summary judgment on the issue was therefore inappropriate; and clearly that balance cannot be determined on a motion to dismiss.

      . In Count III, plaintiff parents claim that the regulation violates their right to guide their children’s education; in Count IV plaintiff churches, schools, pastor and teachers claim that the regulation violates their rights of property and enterprise; and in Count IX all plaintiffs allege an unlawful taking of property without due process of law.

      . The heart of plaintiffs' allegation is not that the state has deprived them of a benefit but rather that the state is impermissibly conditioning grant of that benefit upon compliance with a procedure which violates their religious beliefs. This allegation supports a cause of action under the First Amendment, but does not implicate any property rights protected by the Fourteenth.

      . To the extent those counts raise claims for violation of liberty of conscience protected by the First Amendment, they are duplicative of the claims in Counts I and II.

      . Thus, plaintiffs have stated a cause of action under § 1983 against the Longmeadow and Boston defendants for violation of the rights guaranteed them by the First Amendment free exercise and establishment causes; and for violation of rights guaranteed by §§ 1 and 2 of Amendment Article 18 of the Massachusetts Constitution.


author: DUHE, District Judge.

text:
    The SUPERIOR OIL COMPANY v. TRANSCO ENERGY COMPANY, et al.
    Civ. A. No. 84-2138 L.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    Nov. 2, 1984.

      Dan A. Spencer, Houston, Tex., for plaintiff.
    Lawrence E. Donohoe, Jr., Edward C. Abell, Jr., Lafayette, La., Alfred H. Ebert, Taylor M. Hicks, Houston, Tex., for defendants.
   MEMORANDUM OPINION

DUHE, District Judge.

Plaintiff, Superior Oil Company, has moved that this Court amend its findings of fact and conclusions of law of September 20, 1984, denying Superior’s rule for a preliminary injunction requiring defendants to comply with various contracts regarding the Vermilion Block 58 Field and West Cameron Block 498 Field on the Outer Continental Shelf of Louisiana.

The Court, having considered the arguments of all counsel, the pleadings and affidavits filed, and the evidence adduced at the hearing on September 14 and 15, 1984, finds that:

1. The Court reaffirms its original finding that among the prerequisites for the issuance of a preliminary injunction pursuant to F.R.C.P. 65 is a showing of irreparable injury before trial on the merits. City of Meridian v. Algernon Blair, Inc., 721 F.2d 525 (5th Cir.1983). Other prerequisites are: (1) A substantial likelihood that plaintiff will prevail on the merits; (2) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant; and (3) that granting the preliminary injunction will not disserve the public interest. Id. at 527.

Plaintiff continues to assert that Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), and its progeny in the Fifth Circuit require the application of state law, even if inconsistent with Federal law, on the OCS. This is a misreading of Huson. Plaintiff cites the language of the Court in Huson where it was stated:

“If Congress’ goal was to provide a comprehensive and familiar body of law, it would defeat that goal to provide only certain aspects of the state personal injury remedy in Federal Court. A State time limitation upon a remedy is coordinated with the substance of the remedy and is no less applicable under the Lands Act.” 404 U.S. at 103, 92 S.Ct. at 353-354.

In its very next paragraph, however, the Court declared:

The application of Louisiana’s Art. 3536 is, of course, subject to the absence of “inconsistent” and applicable Federal law. Id. (Emphasis supplied).

The Court went on to explain that there was no inconsistent Federal law in that situation, because the Lands Act expressly preempted any Federal common law of admiralty. Therefore, the doctrine of laches could not apply on the OCS. In the facts at bar, federal standards for the issuance of preliminary injunction do exist.

Accordingly, to the extent that Louisiana law on the question of the issuance of a preliminary injunction is inconsistent with the prerequisites established in City of Meridian, supra, it is inconsistent with Federal law and thus not applicable under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq.

2. The Court reaffirms its original finding that the issuance of a preliminary injunction in Louisiana requires a showing of irreparable injury. Louisiana Code of Civil Procedure Article 3601; M. and A. Farms, Ltd. v. Town of Ville Platte, 422 So.2d 708 (La.App. 3rd Cir.1982). While it is clear that the Louisiana Supreme Court in Weingarten v. Northgate Mall, 404 So.2d 896 (La.1981), held that specific performance after trial on the merits is the preferred remedy in Louisiana, it is entirely another question whether Weingarten stands for the proposition that there need be no showing of irreparable harm before the issuance of a preliminary injunction. This Court thinks not.

3. Irreparable injury, however, may consist of the absence of an adequate remedy at law. Placid Oil Company v. U.S. Dept. of Interior, 491 F.Supp. 895 (D.C.Tex.1980); Brown v. Chote, 411 U.S. 452, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973). Plaintiff asserts that it will suffer irreparable injury because it will have no adequate remedy at law if it is forced to rescind its contracts because of its duty to mitigate damages.

The Louisiana Supreme Court established the guidelines for mitigation of damages in Unverzagt v. Young Buildings, Inc., 252 La. 1091, 215 So.2d 823 (1968). In Unverzagt, the Court stated:

Following breach, the nondefaulting party’s damages will be measured as though he had acted reasonably in not enhancing the damages caused by the breach. To the extent that the nondefaulting party has not acted reasonably and has thereby failed to avoid certain consequences which are not claimed as damages, the party who is in default may show those consequences in reduction of damages. Therefore, if a reasonably prudent person acting under the facts and circumstances in which the nondefaulting party found himself would have minimized the claimed losses by entering into other contracts either with a third party or, in some jurisdictions, with the defaulting party, this fact may be shown in reduction of damages ... Id. 215 So.2d at 826 [emphasis in the original].

Plaintiff may indeed have a duty, in the facts at bar, to mitigate its damages by either seeking new pipeline transporters, or entering into defendants’ special marketing programs. If that were the case, then plaintiff would be denied an adequate remedy at law at trial on the merits, i.e., specific performance. In such a situation plaintiff then would undoubtedly be entitled to a preliminary injunction (assuming the other prerequisites of City of Meridian were met). The threshold question, however, is whether plaintiff has met its burden of showing that its duty to mitigate extends to recission of the contracts or participation in defendants’ special marketing programs. This Court concludes plaintiff has not met its burden in this regard.

Plaintiff also asserts that it will not have an adequate remedy at law—and thus will suffer irreparable harm—for consequential damages occasioned by defendants’ breach of the contracts in question. Specifically, plaintiff contends that it will not have an adequate remedy at law at trial on the merits for: (1) lost by-products of natural gas production, specifically, crude oil and condensate; (2) a reduced rate of return on its investment and depreciation of its assets; and (3) increased operating expenses and overhead due to the extended life of the fields.

It is well-established in the Louisiana jurisprudence that an obligee can only recover for breach of a contract those damages that were foreseeable by the parties, i.e., the contract price. 2 Litvinoff, Obligations § 192 (Louisiana Civil Law Treatise, 1975); Louisiana Civil Code Article 1934(1); Galloway v. Tenneco Oil Co., 313 So.2d 317 (La.App. 4th Cir.1975). However, if an obligor breached its obligation with an intent to defraud or in bad faith, the obligor is liable for all “immediate and direct consequences of the breach”, in addition to the purchase price. La. Civil Code Article 1934 (2); Litvinoff at § 190-191; Galloway, supra.

Plaintiff has made a prima facia showing that defendants are materially breaching the contracts relative to the Vermilion Block 58 Field and the West Cameron Block 498 Field. The only question is whether such breach is in bad faith for purposes of La.Civil Code Article 1934.

In Palombo v. Broussard, 370 So.2d 216 (La.App. 3rd Cir.1979), the Court declared:

“ ‘In its simplest form, bad faith means a breach of faith and willful failure to respond to plain obligations.’ Hernandez v. Employers Mutual Liability Insurance Company, 346 F.2d 154 (5th Cir. 1965). ‘Bad Faith ... a designed breach [of the contract] ... from some motive of interest or ill will.’ ” 370 So.2d at 220.

This Court concludes defendants’ conduct does constitute bad faith, for their breach of their obligations is unquestionably willful and springs from an intent to escape an adverse economic relationship with plaintiff.

Accordingly, at trial on the merits plaintiff will have not only a claim for the purchase price, but in addition will have a claim for the “direct and immediate” consequences of defendants’ breach. The question thus becomes whether plaintiff’s asserted consequential damages are “direct and immediate” and hence recoverable at trial on the merits.

THE LOST BY-PRODUCTS: CRUDE OIL AND CONDENSATE

Plaintiff has established with relative certainty the amount of crude oil and condensate lost daily due to the decreased production of natural gas from the two fields in question (350 X $30/barrel or over $10,000 a day). These losses are a direct result from defendants’ breach, and hence are recoverable at trial on the merits. Although plaintiff might have a duty to rescind its contract to mitigate these damages by finding other pipeline purchasers, plaintiff has not met its burden of establishing that a reasonably prudent operator in its position would in fact rescind to mitigate its damages. Indeed, it appears likely it would be imprudent to give up specific performance of the contract to buy and sell gas at the contract price to recover the price of by-products.

REDUCED RATE OF RETURN/DEPRECIATION

Plaintiff asserts that as a result of defendants’ breach it will suffer a reduction in the rate of return on its investments, and that the depreciation of plaintiff’s assets associated with these contracts will have an adverse affect “on plaintiff’s after tax income and cash flow available for further investment”. Without answering the question of whether these are “direct” damages, this Court concludes plaintiff has not met its burden of establishing that indeed they will take place. No evidence has been offered.

INCREASED OPERATING EXPENSES AND OVERHEAD DUE TO EXTENDED OPERATIONS OF THE FIELDS

Plaintiff asserts that defendants’ breach has forced it to curtail production of its fields, and that as a result, the life of the fields will be extended, causing it to incur additional operating expenses and overhead, for which it has no adequate remedy at law.

It is clear that this Court is empowered to take such measures as necessary to avoid the imposition of irreparable harm to plaintiff through future economic losses for which no adequate remedy at law exists. Conoco, Inc. v. Watt, 559 F.Supp. 627 (1982); Placid Oil Company, supra. Nonetheless, it is plaintiff’s burden to establish the likelihood of such future economic losses. In the facts at bar, plaintiff has not met that burden with requisite evidence. It would be speculative and conjectural for this Court to take judicial notice of plaintiff’s claimed future economic losses, for there are other factors at work (e.g., other producers in the same fields) which make an extension of the operative life of the fields arguable. Plaintiff having failed to carry its burden of proving the likelihood of such damages, there is no need for this Court to determine whether such losses are “direct” or “remote”, and thus if an adequate remedy at law at trial on the merits exists.

4. Superior has failed to meet its burden of establishing the likelihood of its suffering irreparable harm in the absence of a preliminary injunction. The facts that the equities of the case are on plaintiff’s side, and that plaintiff is likely to prevail on the merits, are irrelevant, in the absence of a showing of irreparable harm. Accordingly, this Court is compelled to deny plaintiff’s motion for a new trial and amended findings of fact and conclusions of law. The ruling of this Court of September 20, 1984, denying plaintiff’s request for a preliminary injunction is reaffirmed.