author: HILLMAN, District Judge.

text:
    Ralph KITTREDGE, Plaintiff, v. PARKER HANNIFIN CORPORATION, Defendant.
    No. G81-268 CA 1.
    United States District Court, W.D. Michigan, S.D.
    April 10, 1984.

      Donnelly & Associates, P.C. by Gerald D. Wahl, Detroit, Mich., for plaintiff.
    Spieth, Bell, McCurdy & Newell Co., LPA by Bruce G. Hearey, Cleveland, Ohio and Miller, Johnson, Snell & Cummiskey by Robert Christians, Grand Rapids, Mich., for defendant.
   HILLMAN, District Judge.

The complaint in this case was filed almost three years ago. Tempting as it is to take the matter under advisement, I know more about the matter now than I ever will, and in view of the fact that I’m going to Marquette next week, the sensible solution is to render my opinion at this time.

As I indicated earlier, I have read the briefs and the material that was submitted to me over the last few days. I have also reviewed the key cases that you both cited to me, and before oral argument, arrived at a tentative conclusion on how this matter should be resolved. Nevertheless, I try very hard to listen carefully to oral argument and maintain a flexible position, and change my opinion if I’m convinced my initial judgment was wrong. In the case I have heard today, although the arguments have been effective and interesting, I have heard nothing that has changed my opinion as to how this matter ought to be resolved.

I have prepared a rough draft, which I am prepared to read, but it is in rough form, and if it’s going to be typed, I reserve the right to edit it.

Plaintiff, Ralph Kittredge, who I believe is 57 years of age, and an engineering executive formerly employed by Defendant Parker Hannifin Corporation (Parker), has filed this action pursuant to the Age Discrimination Act, 29 U.S.C. Section 621 et seq., and the Illinois Fair Employment Practices Act, charging that he had been terminated for reasons that were unrelated to his performance, without reasonable business justification, a determining factor in his termination. Not necessarily the sole factor, but a determining factor.

The complaint also charges the defendant with retaliating against the plaintiff for filing charges against Parker with the EEOC and also with the Illinois Department of Human Rights, by ensuring that the plaintiff would not become employed by another potential employer, the Indian Head Company of Belding, Michigan.

Finally, plaintiff charges defendant breached an oral contract of employment by terminating plaintiff without just cause. The matter is now before the Court on defendant’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On a motion for summary judgment, the moving party bears the burden of proving conclusively that no genuine issue of material fact exists, and that the moving party is entitled to summary judgment as a matter of law. See Smith v. Hudson, 600 F.2d 60 (6th Cir.1979); TeePak, Inc. v. St. Regis Paper Company, 491 F.2d 1193 (6th Cir.1974); Fed.R.Civ.P. 56(a).

In determining whether or not there are issues of fact requiring a trial, the inferences to be drawn from the underlying facts contained in the affidavits, depositions, pleadings and depositions, must be viewed in the light most favorable to the party opposing the motion. At this stage of the proceedings I may not resolve disputed questions of fact, and if disputed questions of fact remain, it is my obligation to deny the motion and proceed to trial. United States v. Articles of Device, 527 F.2d 1008, 1011, a 6th Circuit case.

The purpose of the Age Discrimination in Employment Act is to promote employment of older persons based on their ability rather than their age; to prohibit arbitrary age discrimination in employment and have employers and workers meet the problems arising from the impact of age in employment. The Act protects individuals who are at least 40 but less than 70 years of age. See 29 U.S.C. Section 621 et seq.

Mr. Kittredge went to work for Parker in June of 1972, and at that time he was 46 years of age. For approximately six years he was employed in the defendant’s pneumatics division at Otsego here in Michigan, and eventually he rose to the position of manager of manufacturering of that division. In October of 1978 Mr. Kittredge was offered a position in the cylinder division of Parker. He accepted that job, and he moved to Illinois to assume the position of operations manager of the cylinder division. There is some dispute over whether plaintiff was promised that he would eventually be made general manager of the cylinder division after a break-in period or whether promotion to general manager was contingent on his performance as operations manager. .In any event, he was never promoted to general manager.

After he had been there about two years, in July 1980, a Mr. Larry Zeno, who was 37 years , of age, was named general manager of the cylinder division. Approximately one month later Mr. Kittredge’s employment with Parker was terminated. At that time he was 54 years of age.

Plaintiff alleges that his age was a determining factor in his discharge. Defendant, on the other hand, claims that plaintiff’s' termination was lawful under both state and federal law. Defendant now moves for summary judgment, asserting that plaintiff has failed to and cannot adduce evidence sufficient to either establish a prima facie case of age discrimination, or to rebut defendant’s proffered legitimate reasons for discharge.

There are really three areas of dispute between the parties. The first concerns the job offered to Kittredge in October of ’78. As I mentioned before, there seems to be a dispute as to whether he was promised that job after a break-in period or whether it was going to depend upon his performance. In any event, the title which he assumed, the title which he had at his termination was operations manager.

The second area of dispute concerns plaintiff’s performance as operations manager. Plaintiff contends that his performance was more than satisfactory. Defendant disagrees and argues that his performance was poor enough not only to preclude promotion, but to justify termination.

And, finally, plaintiff argues that Parker employees somehow persuaded another employer, Indian Head Company, not to hire him. Defendant denies that charge and says, in effect, that a Parker employee actually gave the plaintiff a good recommendation.

In suits to establish that the plaintiff has been discharged from employment because of his age, as prohibited by the ADEA, it is clear that the burden is on the plaintiff to first come forward with evidence to demonstrate that there has in fact been a discriminatory discharge, in order to make a prima facie case.

In the 6th Circuit, the standard for determining the ADEA claim can be found in Ackerman v. Diamond Shamrock Corporation, 670 F.2d 66. (6th Cir.1982). In that case the Court said that “The ultimate issue is whether age was a factor in a decision of an employer to terminate an ADEA claimant and whether the age of claimant made a difference in determining whether he was to be retained or discharged.” See also Tuohy v. Ford Motor Co., 675 F.2d 842, (6th Cir.1982); Chamberlain v. Bissell Inc., 547 F.Supp. 1067 (W.D.Mich.1982).

The plaintiff has argued that the Court should apply the standard for a prima facie case set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The 6th Circuit, although not rejecting those guidelines, has expressly refused to mechanically apply the prima facie standards set forth in the McDonnell Douglas case. See Laugesen v. Anaconda Company, 510 F.2d 307, 312 (6th Cir., 1975). See also Blackwell v. Sun Electric Corporation, 696 F.2d 1176 (6th Cir.1983).

In Laugesen, plaintiff asserted that he had made out a prima facie ease under McDonnell Douglas and was entitled to an instruction charging the jury that he made a prima facie case and that the burden of proving non-discrimination shifted to the defendant.

The Court, in discussing the burden of proof under McDonnell Douglas, held that it is inappropriate to borrow and apply Title VII standards automatically. The Laugsen Court reviewed the legislative history, stating that the formalistic approach in McDonnell Douglas may not always be desirable in a case of discriminatory discharge because of age, and then had the following to say:

“The progression of age is a universal human process. In the very nature of the problem, it is apparent that in the usual case, absent any discriminatory intent, discharged employees will more often than not be replaced by those younger than they, for older employees are constantly moving out of the labor market while younger ones move in. This factor of progression and replacement is not necessarily involved in cases involving the immutable characteristics of race, sex, and national origin. Thus, while the principal thrust of the Age Act is to protect the older worker from victimization of arbitrary classification on account of age, we do not believe that Congress intended automatic presumptions to apply whenever a worker is replaced by another of a different age.”

In this circuit, then, the burden is on plaintiff to show age was a determining factor. That determination is made on a case-by-case basis. Id. It is not enough for the plaintiff to “do nothing more than state his conclusion that he was terminated because of age. To permit this single statement to constitute a prima facie case would place a burden on employers which Congress never intended.” Locke v. Commercial Union Ins. Co., 676 F.2d 205, at 206 (6th Cir.1982).

I have reviewed the material which has been submitted, to me. I have reviewed it carefully. The sole evidence of age discrimination offered by the plaintiff, other than the fact that he was dismissed and that he believes the basis for dismissal was his age, is that one other salaried employee over the age of 40 was dismissed in the same time period, and the average age of people hired by Parker at the plant plaintiff worked at was below 30. Plaintiff also points to the fact that two managers over the age of 50 had not been promoted in the last nine to twelve years.

In some instances statistical evidence has been helpful to plaintiffs in establishing their case of age discrimination. There is a discussion of that in Larson, “Employment Discrimination,” Section 102.44 (1983). And in Laugesen, the 6th Circuit specifically approved the use of statistical evidence in a private civil action for age discrimination under the ADEA. However, to support a charge of age discrimination, large statistical discrepancies are required before courts will attach any real significance to statistical evidence. Mastie v. Great Lakes Steel Corporation, 424 F.Supp. 1299, 1320 (E.D.Mich.1976). “Institutional psychological and economic restraints to employing the aged suggests that statistics might not be a reliable indicator of an employer’s compliance with the act’s proscriptions.” Id.

The statistics which plaintiff cites are insufficient to demonstrate any pattern of age discrimination. The fact that younger workers are hired and older workers leave or are not promoted does not, in and of itself, prove age discrimination. As I noted earlier, “discharged employees will more often than not be replaced by younger workers,” Laugesen, supra. I am satisfied that the statistics cited by the plaintiff do not demonstrate a pattern of discrimination sufficient to constitute a prima facie case of age discrimination.

Plaintiff suggests that other indicia of discrimination are present, and cites Reeves v. General Foods Corporation, 682 F.2d 515. (5th Cir.1982). In that case plaintiff, a salesman, was warned that if his sales performance did not improve, he would be discharged. Following that warning, Reeves received a “good plus” rating on a sales performance evaluation and a raise in pay. Sometime after that he was terminated. The jury found that General Foods had discriminated against Reeves. On appeal, the 5th Circuit found that those facts rebutted the company’s claim that Reeves had been discharged for poor performance. Plaintiff in this case argues that, like Reeves, he received satisfactory evaluations and a raise in the period prior to his termination. Reliance on Reeves in this case is misplaced. There the defendant had argued that poor performance was a reason for discharge after the plaintiff had already made a prima facie case of age discrimination. In Reeves then, the “good plus” job evaluations were not being used to establish age discrimination, but to show that plaintiff had performed his job satisfactorily. Here the job performance ratings which Mr. Kittredge points to are, at best, ambiguous. While it is true that he received an overall satisfactory rating on the evaluation, he received a less than satisfactory rating in several different areas, and many individual comments indicate dissatisfaction with the plaintiff’s performance. In many of these cases, such as Taglia v. Pabst, K 82-308; (W.D.Mich.1983), which Judge Enslen decided recently, are statements from company officials having to do with age, with getting rid of older employees, or policies of the company to bring in younger people. Inevitably, as in that Taglia case, those statements do raise a question about the motive and intent of the employer. The record of this case, viewed in the light most favorable to the plaintiff, convinces me that plaintiff has failed to satisfy the most basic requirement of an age discrimination claim.

The only evidence that I am able to find of discrimination is plaintiff’s own conclusion that age discrimination is the only possible explanation for his termination. I certainly don’t dispute his honest belief, but that isn’t sufficient to create a jury question. I am unable to find any facts that show or imply that plaintiff has been a victim of age discrimination.

Consequently, I am satisfied that defendant is entitled to a summary judgment as a matter of law as to that count of the complaint. I come to that conclusion reluctantly, in that such action takes the ease away from the jury, and a judge is reluctant to do that. However, I have just been through an age discrimination case that lasted several weeks. They are expensive. Here the moving party has a right to a judgment. See Douglas v. Anderson, 656 F.2d 528 (9th Cir.1981), where the Court said: “We agree with the 7th Circuit that one purpose of the allocation of burdens of proof and production in Title VII ADEA actions is to help district courts identify meritless suits and to stop them short of full trial.”

In view of the fact that I have concluded that plaintiff has not established a prima facie case, that concludes the matter as far as that count is concerned. But, in reviewing all the material that has been submitted to me, I am satisfied that even if plaintiff had made out a prima facie case of age discrimination, defendant would be entitled to a summary judgment on the grounds that it has articulated a legitimate non-discriminatory reason for plaintiff’s discharge. I won’t review all the evidence which has been submitted. I note in passing that that was the conclusion of the Illinois State Department of Human Rights, although there may be some question as to whether or not the findings of that investigative body are admissible. As one reviews the performance evaluations, take into consideration that he was moved from Michigan with the idea of being promoted at the age of 52, it appears incongruous that he was discharged because of his age. I suppose it could be argued that there might have been other things that the company might have, done, but that is not what this case is about. I’m satisfied the reasons that they have given are legitimate, and that the plaintiff has not established that they were excuses or pretexts.

Plaintiff also claims that the defendant influenced Mr. Duane Grossett not to make an offer to Mr. Kittredge by giving Mr. Grossett a poor reference in the winter of 1980 and ’81. The ADEA prohibits retaliatory action against an individual because he has either filed a charge with the agency or because he has filed a suit under the statute. The dissemination of adverse employment references or the refusal to give any employment reference at all may be actionable in employment discrimination when motivated by discriminatory intent. London v. Coopers & Lybrand, 644 F.2d 811 (9th Cir.1981); Pantchenko v. C.B. Dolge, 581 F.2d 1052 (10th Cir.1978).

The only evidence before the Court shows that defendant gave the Indian Head Company, plaintiff’s potential employer, a good recommendation. That is found in Mr. Grossett’s deposition on pages 9 to 12. Plaintiff has not put forth a single piece of evidence which suggests the defendant retaliated against him in preventing him from finding reemployment. And that being the case, defendant’s motion for summary judgment on the retaliation claim is also granted.

The remaining count in this case claims that defendant breached an employment contract it had with plaintiff. Plaintiff alleges that Parker offered him the position of general manager of the cylinder division with a preliminary break-in period as operations manager if he would move from Michigan to Illinois. Defendant denies making .such a promise. Instead, the defendant claims that plaintiff was offered the job of operations manager and an opportunity for promotion depending on his performance as the operations manager.

Defendant argues that, even if the contract was as Kittredge describes, there is still no cause of action, because plaintiff’s contract was for an indefinite term of employment; that is, “at will,” and that Parker was free to terminate him at any time, with or without cause.

It has been agreed that substantive law of Illinois applies to the contract issues of this case.

The plaintiff maintains that under Illinois law oral contracts for employment will be upheld where the employee is given some additional bargained-for consideration. See Martin v. Federal Life Insurance, 109 Ill.App.3rd 596, 65 Ill.Dec. 143, 440 N.E.2d 998 (1982).

In general, under Illinois law, an “at will” employment is one which has no specific duration, and such a relationship is terminable at will by either the employer or the employee with or without cause. Criscione v. Sears, Roebuck & Co., 66 Ill.App.3d 664, 23 Ill.Dec. 455, 384 N.E.2d 91 (1978); Long v. Arthur Rubloff & Co., 27 Ill.App.3d 1013, 327 N.E.2d 346 (1978).

There appear to be three exceptions to the general rule. First, a termination at will is not allowed or upheld where the termination contravenes public policy. Palmateer v. International Harvester Co., 85 Ill.2d 124, 128, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981).

Second, termination at will is not allowed where the termination is in violation of particular conditions stated by the parties. Donahue v. Rockford Showcase and Fixture Co., 85 Ill.2d 47, 230 N.E.2d 278 (1967).

Finally, under certain circumstances a clear and definite oral agreement for permanent employment may be enforced where sufficient consideration is present. Martin v. Federal Life, supra, 65 Ill.Dec. at 148, 440 N.E.2d at 1003.

Plaintiff has argued that his termination contravened the public policy exception, since it was based on his age, and that he gave sufficient consideration in the form of moving from Michigan to Illinois in exchange for the promise of employment, to fit within the third exception.

Since I have already ruled as a matter of law the plaintiff has failed to establish a case of age discrimination, the public policy argument must also fall. If there is no age discrimination, it is difficult to see how there can be a violation of public policy.

The issue of sufficiency of consideration, that is more difficult. In Martin the plaintiff was employed by the defendant insurance company, and a competing insurance company offered Martin a job, and he intended to accept that offer. In response to that information, plaintiffs employer offered him lifetime employment. Martin turned down the competing company and remained with his employer, in reliance on the offer of permanent employment. On those facts the Illinois Court of Appeals held that the plaintiffs refusal of the competing offer was sufficient consideration to establish a contract for permanent employment.

Mr. Kittredge argues by moving his family from Michigan to Illinois, he, like the plaintiff in Martin, gave sufficient consideration to establish a contract for permanent employment, or at least something more than an employment contract terminable at will.

This case is distinguishable from Martin. First of all, the facts in Martin make- it clear the parties intended to establish a lifetime employment contract; and those facts are not present here. Moreover, Kittredge received no offer from any outside companies, so his move to Illinois was occasioned by a promotion within the same company.

The Illinois courts examining the issue have held the exception the plaintiff relies on is a narrow one, and he does not fit within that exception. In Titchener v. Avery Coonley School, 39 Ill.App.3d 871, 350 N.E.2d 502, 507 (1976), a teacher who left a tenure position at one school to accept a position in another school was held to have a contract terminable at will. In Heuvelman v. Triplett Electric Instrument Company, 23 Ill.App.2d 231, 161 N.E.2d 875 (1959), the plaintiff turned down a job offer from a competing firm to stay with his employer, and the Court held that where no definite promises were made, the employment contract was terminable at will. Sufficient consideration requires something in addition to simply performing regular activities required by the employment agreement itself. See Ryan v. J.C. Penney Company, Inc., 627 F.2d 836, 837 (7th Cir.1980). Because there is not sufficient consideration to make this contract anything more than terminable at will, I find that there was no breach of contract, and the defendant’s motion for summary judgment on the breach of contract claim is also granted.


source: Caselaw Access Project

author: AUBREY E. ROBINSON, Jr., Chief Judge.

license: Public Domain

text:
    In re KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983.
    MDL No. 565.
    Misc. No. 83-0345.
    Civ. A. Nos. 83-2792 to 83-2794, 83-2940, 83-2941, 83-3007, 83-CIV-3154, 83-CIV-3177, 83-3449 to 83-3453, 83-3455 and 83-3464 to 83-3466.
    United States District Court, District of Columbia.
    April 18, 1984.
    See also, D.C., 103 F.R.D. 357; D.C., 597 F.Supp. 619.

      Juanita M. Madole, Liaison Counsel, Speiser, Krause & Madole, Washington, D.C., for plaintiff.
    George N. Tompkins, Jr., Condon & Forsyth, New York City, for defendant Korean Air Lines.
    Mark A. Dombroff, Torts Branch, Civ. Branch, Dept, of Justice, Washington, D.C., for defendant U.S.
    John J. Martin, Bigham, Englar, Jones & Houston, New York City, for defendant Litton Industries, Inc.
    Thomas J. McLaughlin, Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., for defendant The Boeing Co.
    Embassy of U.S.S.R., Washington, D.C., for defendant Soviet Socialist Republic.
   MEMORANDUM AND ORDER

AUBREY E. ROBINSON, Jr., Chief Judge.

This matter, In re Korean Air Lines Disaster of September 1, 1983, comes to this Court pursuant to the November 16, 1983 transfer order of the Judicial Panel on Multidistrict Litigation. 575 F.Supp. 342. The cases involved have been brought in judicial districts around the country as the result of the deaths of 269 passengers, including plaintiffs’ decedents, killed when Korean Air Lines Flight 007, en route to Kimpo Airport, Seoul, South Korea from Kennedy International Airport, New York, was shot down over the Sea of Japan by a Soviet military aircraft. Plaintiffs have named several defendants, among them, the United States government. The cases against the United States allege jurisdiction under the Suits in Admiralty Act, 46 U.S.C. § 741 et seq., the Death on the High Seas Act, 46 U.S.C. § 761 et seq., and the admiralty and maritime provisions of Article III, Section 2 of the Constitution of the United States.

Presently before the Court are two motions by the United States. The first motion argues for dismissal of the actions against the government for lack of jurisdiction and failure to state a claim upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The second motion urges the Court to enter summary judgment in favor of the United States as to all claims based upon the provisions of air traffic control services.

Two groups of plaintiffs, from New York and the District of Columbia, have made claims against the United States. The District of Columbia plaintiffs make three claims against the government. They contend that the government “negligently” deployed military aircraft in the vicinity of the flight path of Korean Air Lines Flight 007 (KAL 007), that the government should have utilized its alleged capabilities to warn KAL 007 and/or that the government failed to advise the flight crew of KAL 007 that it wás headed for danger. Specifically, the District of Columbia plaintiffs claim:

27. On August 31, 1983, through September 1, 1983, and all times relevant hereto, the Defendant, UNITED STATES OF AMERICA, committed each and all of the negligent acts of omission or commission:
(a) in knowingly deploying its aircraft in geographical and temporal proximity to the departure and route of flight (sic) of Flight 007, thereby causing a danger and a hazard to the passengers on board the aircraft which the defendant knew or, in the exercise of reasonable care should have known, were being created inasmuch as defendant knew or should have known that the radar return from its aircraft and Flight 007 would be similarly received on USSR radar and that Flight 007 could be mistaken by the U.S. S.R. as a military aircraft and subjected to fatal defensive measures, and/or
(b) in failing to use available procedures and equipment to track the flight path of Flight 007 against its assigned flight path, thereby failing to advise the flight crew of Flight 007 of the departure of Flight 007 from its assigned course, which it knew, or in the exercise of reasonable care, the utilization of available equipment and proper conduct should have known, was occurring at the time prior to its crash into the Sea of Japan, and/or
(c) in failing to warn the flight crew of Flight 007 or Korean Air Lines officers or agents of the deviation from the assigned flight path which defendant knew, or in the exercise of reasonable care should have known, would create a danger and a hazard to the passengers of KOREAN AIR LINES, CO., LTD., Flight 007.

For these alleged wrongs connected with this air tragedy, each District of Columbia plaintiff seeks five million dollars ($5,000,-000) from the government of the United States.

The New York plaintiffs make only one claim against the government. Their cause of action is based upon the alleged negligence of the United States in providing air traffic services to KAL 007. The New York plaintiffs’ claim is worded as follows:

17. During said flight, defendant United States provided air traffic control services, including instructions and radar, navigation, radio communication and other assistance to the flight crew of said aircraft while it was above international waters and the territory and adjacent navigable waters of the Union of Soviet Socialist Republics.
18. Said injuries, crash, death and resulting damages were caused by the negligence of defendant United States in that it instructed said flight crew of defendant Korean Air Lines’ aircraft to fly a safe course above the territory and adjacent navigable waters of Japan and international waters, but failed to warn said flight crew of the aircraft that it violated the instructions and was off course, flying toward and then over dangerous territory and adjacent navigable waters to the Soviet Union, and defendant United States was otherwise negligent while engaged .in said maritime related activity.

Initially, the government’s motion to dismiss argued that all of the claims made by the District of Columbia and New York plaintiffs present non-justiciable issues. However, in order to contest plaintiffs’ allegations, the government wished the Court to consider evidence beyond the pleadings. Since this would automatically transform the motion to dismiss into a motion for summary judgment, the government submitted its motion for partial summary judgment as to the claims concerning the provision of air traffic control services. The Court will consider the motions in the order of submission.

Motion to Dismiss

As the result of the motion for summary judgment as to the air traffic control services claims, the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) encompasses only the claims made by the District of Columbia plaintiffs which allege liability for “knowingly deploying its aircraft in geographical and temporal proximity to the departure and route” of KAL 007, and any claims which allege that the government failed to use “available” procedures, or equipment as opposed to claims alleging that the government failed to follow mandated procedures. Even assuming the plaintiffs allegations to be true, which the Court must do when considering motions under Fed.R. 12(b)(1) or 12(b)(6), plaintiffs claims regarding the deployment of military aircraft must be dismissed. The Court finds that these claims present political questions which the judicial branch should decline to review.

Before considering the non-justiciable nature of the claims based upon the deployment of military aircraft, the Court notes that the Suits in Admiralty Act specifies that actions may be maintained against the government if they could also be brought against a private person or party. In determining when a claim could be considered to be uniquely governmental, the courts initially focused upon the existence of a parallel private activity. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). However, subsequent decisions have narrowed the Feres doctrine to the “peculiar and special relationship of the soldier to his superiors,” therefore, allowing liability for activities not usually performed by private parties. United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). As a result, cases have been maintained against the government (in spite of the “uniquely governmental” nature of certain activities), for the failure to properly, maintain a lighthouse in Indian Towing Co. v. United States; 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), for negligence in fighting a forest fire in Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), and for the negligence of air traffic controllers in Eastern Air Lines v. Union Trust Co., 221 F.2d 62, cert. denied United States v. Union Trust Co., 350 U.S. 911, 76 S.Ct. 192, 100 L.Ed. 799 (1955). Plaintiffs may therefore maintain actions against the government in spite of the governmental nature of the activities here involved.

However, under the doctrine formulated in the landmark decision, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), plaintiffs may not present these claims against the government based upon the decisions of the military concerning the national security. The Supreme Court presented six (6) factors to be considered before a court may dismiss for non-justiciability on the ground of a political question’s presence. The six factors were set forth as follows:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217, 82 S.Ct. at 710. The Supreme Court in Baker v. Carr stated that one of these formulations would be sufficient for dismissal; in the cases at bar, all of these factors are present.

There is a “textually demonstrable constitutional commitment” of military matters to the coordinate branches of government. The Constitution specifically gives Congress the power to organize, arm and govern the military and provides that the President shall be the Commander-in-Chief of the armed services. Article I, Section 8 and Article II, Section 2. Moreover, decisions which affect the national security with respect to the Soviet Union involve policy considerations beyond the scope of judicial expertise. The Court may not appraise the necessity or desirability of conducting the reconnaissance activities alleged by plaintiff. Such appraisal would involve the Court in foreign policy determinations calling for non-judicial discretion. To attempt to decide such a matter without the necessary expertise and in the absence of judicially manageable standards would be to entangle the court in matters constitutionally given to the executive branch. Further, such an undertaking by the Court would certainly evince a “lack of respect due coordinate branches of government,” interfere with “political decisions already made” and engender “multifarious pronouncements by various departments on one question.” Separation of powers doctrine dictates that the Court not act as overseer of the executive branch in this matter. Whatever the facts and circumstances surrounding the executive decision to conduct reconnaissance activity over the waters adjacent to the Soviet Union, the method and manner of that decision may not be inquired into by the courts. Since such a decision involves policy considerations beyond the scope of the Court’s review, all claims regarding the deployment of military aircraft shall be dismissed.

To the extent that plaintiffs’ claims suggest that the government possesses capabilities which it could have utilized to warn KAL 007 but chose not to utilize, the claims shall be dismissed. The failure to adopt a policy to utilize available equipment and procedures for the purposes and in the manner plaintiffs suggest is a basic policy decision. Since such alleged negligence is not based upon “imperfectly executing a federal program established either by an act of Congress or a federal regulation” it is not actionable. Gercey v. United States, 540 F.2d 536, 538 (1st Cir.1976).

Motion for Summary Judgment as to all Claims Based on Duty to Warn by Virtue of the Provision of Air Traffic Control Services

The motion for partial summary judgment concerns only the claims raised by the District of Columbia and New York plaintiffs arising out of the provision of air traffic control services. Plaintiffs allege that the United States breached a duty to warn KAL 007 that it was dangerously off-course. Plaintiffs further allege the existence of operational procedures governing the monitoring and warning of civilian aircraft. As basis for their allegations, the plaintiffs point out that the United States is a member nation of the Convention on International Civil Aviation (ICAO) and therefore follows the ICAO International Standards and Recommended Practices for air traffic services. There is also the existence of the National Search and Rescue Plan (SAR). There may exist, plaintiffs argue, additional rules and regulations governing the warning or rescue of civilian aircraft.

The government defends against the plaintiffs’ allegations with the “discretionary function” exception which is implied into the Suits in Admiralty Act. The D.C. Circuit held, in Canadian Transport Co. v. United States, 663 F.2d 1081 (D.C.Cir.1980), that the “discretionary function” exception to the Federal Tort Claims Act, (FTCA), 28 U.S.C. § 2680, is necessarily, and with the same scope, implied into the Suits in Admiralty Act. In the Canadian Transport case, the Court of Appeals states:

We believe that respect for the doctrine of powers requires that in cases arising under the Suits in Admiralty Act, courts should refrain from passing judgment on the appropriateness of actions of the executive branch which meet the requirements of the discretionary function of the FTCA. Accordingly, we align ourselves with the views expressed in the Gercey case and hold that a discretionary function exemption is implicit in the Suits in Admiralty Act.

633 F.2d at 1085. Using the language of the “planning/operational” distinction found in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1963), the court further stated:

We think however that the result in this case should not turn upon whether the Coast Guard’s actions can be labelled as “planning” or “operational.” Although that distinction provides a useful guideline, a proper decision can be reached only by keeping the purposes of the discretionary function exemption in mind. The exercise of judgment which the exemption protects must be one which would otherwise involve courts in making a decision entrusted to other branches of the government. Decisions which require a government official to weigh competing policy alternatives are entitled to immunity for such decisions are the ordinary responsibility of the legislative and executive branches. In the Dalehite opinion itself, the Court stated that “[w]here there is room for policy judgment and decision, there is discretion.” 346 U.S. at 36, 73 S.Ct. at 968. (Emphasis added) In Mr. Justice Jackson’s words, “it is not a tort for government to govern____” Id. at 57, 73 S.Ct. at 978 (dissenting opinion). Conversely, if the decision involves only the implementation of policy choices already made, there is usually no reason for a court' to refrain from passing judgment on the question of whether the statutory or regulatory mandate has been complied with.

663 F.2d at 1087. Finally, the Court of Appeals noted that “[a]lthough the line dividing decisions which involve a choice between competing policy considerations and those which involve the implementation of choices already made may not always be well-defined, we believe that recognition of the purposes of the discretionary function exception requires a court to attempt to draw a line.” Id.

The task before this Court is to discover whether there was a policy choice made with respect to civilian aircraft in the position of KAL 007 and then whether or not there was negligence in the implementation of that policy. At this stage in the litigation, the Court finds that the record is insufficient for such a determination.

The Court notes that it is within the “negative discretion” of district courts to deny, but not to grant a motion for summary judgment. This rule has been stated thus: “However, even if a district judge feels that summary judgment in a given case is technically proper, sound judicial policy and the proper exercise of judicial discretion may prompt him to deny the motion and permit the case to be developed fully at trial.” Roberts v. Browning, 610 F.2d 528, 536 (8th Cir.1979). In addition to the Court’s discretion with respect to the denial of summary judgment, the fact that no discovery has been had against the United States in this case mitigates against granting the motion. The plaintiffs have properly filed Fed.R.Civ.P. 56(f) affidavits in connection with their oppositions. As they correctly assert, there is not a sufficient record on which to base the grant of a motion for summary judgment. The Court simply does not have the necessary factual basis. The Court notes that a central purpose of Rule 56(f) is to ensure that diligent plaintiffs have the opportunity to pursue avenues of discovery. In such a situation as this, where all discovery materials are in the possession of the moving party, the Court must be especially cautious before entering a remedy as severe as summary judgment.

Therefore, while the Court expresses no opinion as to the likelihood that discovery will prevent the entry of summary judgment against plaintiffs, plaintiffs will be given the opportunity to prove the existence of a triable issue of material fact. At present, however, and giving the plaintiffs “the benefit of inferences favorable to [their] cause, the record in its nebulous state simply does not establish the absence of a triable issue of fact____” Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 836 (D.C.Cir.1979). In short, where plaintiffs allege the existence of records supporting their claims, and the records are not subject to a valid claim of privilege, then plaintiffs will be given the opportunity to uncover those facts to support their allegations. An example of this rule is found in Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783 (D.C.Cir.1971), injunction denied, 404 U.S. 917, 92 S.Ct. 242, 30 L.Ed.2d 191 (1971) where the Court of Appeals stated “The grant of summary judgment prematurely terminated the discovery process and foreclosed plaintiffs’ opportunity to substantiate their allegations____ On remand, plaintiffs’ discovery — subject to the possible interposition of valid claims of privilege — should be allowed to continue.”

Since the Court here finds that summary judgment in the absence of at least some discovery would be inappropriate, the Court will exercise its “negative discretion” and deny the motion on the ground that plaintiffs have not yet had time to take discovery. The Court therefore denies the motion on. procedural ground and not on the merits; discovery against the government will be allowed to proceed, but only with respect to uncovering the existence of a legal duty to warn or advise civilian aircraft in the position of KAL 007 on August 31, 1983 and September 1, 1983.


text:
    In re KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983.
    MDL No. 565.
    Misc. No. 83-0345.
    Civ. A. Nos. 83-2792 to 83-2794, 84-1707 to 84-1710.
    United States District Court, District of Columbia.
    June 26, 1984.
    See also, D.C., 597 F.Supp. 613.
    Juanita M. Madole, Liaison Counsel, Speiser, Krause & Madole, Washington, D.C., for plaintiff.
    George N. Tompkins, Jr., Condon & Forsyth, New York City, for defendant Korean Air Lines.
    Mark A. Dombroff, Torts Branch, Civil Branch, Dept, of Justice, Washington, D.C., for defendant U.S.
    John J. Martin, Bigham, Englar, Jones & Houston, New York City, for defendant Litton Industries, Inc.
    Thomas J. McLaughlin, Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., for defendant The Boeing Co.
    Embassy of U.S.S.R., Washington, D.C., for defendant Soviet Socialist Republic.
   MEMORANDUM ORDER

AUBREY E. ROBINSON, Jr., Chief Judge.

Upon consideration of the Motion to Dismiss by Jeppesen Sanderson, Inc., pursuant to Fed.R.Civ.P. 12(b)(6), the Plaintiffs’ Opposition, the Defendant’s Reply thereto and the entire record herein, the Court notes the following:

(1) Jeppesen Sanderson, Inc. (Jeppesen) is the maker of maps, charts and navigational aids used by commercial airlines. The company provided the enroute charts used by Korean Air Lines Flight 007 (KAL 007) on its way from John F. Kennedy International Airport in New York to Kimpo Airport in Seoul, South Korea. For reasons as yet undetermined, KAL 007 strayed off its assigned international route of Flight, R 20, which it was required to follow after departure from Anchorage, Alaska, and was shot down by Soviet military aircraft over the Sea of Japan.

(2) Jeppesen has been named as a defendant in seven actions arising from this air tragedy, known as the Korean Air Lines Disaster of September 1, 1983. In their complaints, the seven Plaintiffs allege negligence, breach of implied and express warranties and strict liability against this defendant. It is the Plaintiffs’ contention that the Jeppesen charts did not contain a. warning explicitly noting the possible consequences of straying over Soviet territory and that the absence of an explicit-warning was negligence, resulting in an “unreasonably dangerous” product being released into the stream of commerce. Plaintiffs further contend that the area where KAL 007 was shot down should have been designated as a “Danger” or “Warning” aréa on the portion of the Jeppesen chart listing “Airspace Restricted Areas.”

(3) Plaintiffs have based their argument that Jeppesen had a duty to print an additional and more explicit warning on the fact that an explicit warning is printed on maps issued by the Defense Mapping Agency for use by Department of Defense (DOD) aircraft. The DOD warning reads: “Aircraft infringing upon non-freeflying territory may be fired upon without warning.” The warning printed on the Jeppesen navigational charts reads:. “NAVIGATIONAL WARNING — Pilots flying Northern Route between U.S. & Japan avoid approaching or overflying territory under Soviet control, specifically the Kuril Islands.” The argument is not that no warning to avoid Soviet airspace was given but that the Jeppesen wording was somehow inadequate.

(4) Jeppesen moves for dismissal of the allegations against it on the grounds that the air disaster was the result of a “superseding cause” attributable only to a violation of international law committed by the Soviet Union, that the company violated no duty to 'warn and that, therefore, no proximate cause can attach to Jeppesen. Plaintiffs oppose the motion, arguing that Jeppesen should have foreseen that the failure to label its navigational charts with a warning which explicitly noted the possibility of Soviet military attack could contribute to that very result.

(5) The Court declines to find that the Defendant had a duty to warn civilian aircraft of the danger of being fired upon because the Defense Department warns its aircraft of that danger. The rules which apply to civilian and military aircraft are different. For example, the Rules of the Air, promulgated by the Convention on International Civil Aviation of 1944 (ICAO) and contained in annexes thereto, are expressly made applicable only to civilian, and not military, aircraft. Article 3 of the ICAO provides: “(a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft, (b) Aircraft used.in military, customs and police services shall be deemed to be state aircraft.” There is no reason to require that Jeppesen phrase its warning to civilian aircraft in the same words used to warn military aircraft.

(6) Since there must be a causal connection between the Defendant’s alleged omission and the harm to Plaintiffs’ decedents, the Plaintiffs must be able to show a connection between the wording of the warning and the intrusion into Soviet airspace. However, Plaintiffs here cannot claim that the Jeppesen chart caused the flight crew to do or fail to do anything which lead KAL 007 off its assigned course. Plaintiffs do not allege that the enroute chart was misleading or inaccurate in setting the flightpath for KAL 007. They do not allege that the chart incorrectly depicted the land masses or bodies of water over which KAL 007 flew. See, e.g., Times Mirror Co. v. Sisk, 122 Ariz. 174, 593 P.2d 924 (1978) (Jeppesen chart failed to account for presence of a mountain into which airplane crashed). Therefore, even accepting the allegations of inadequate warning as true, which the Court must do in assessing the propriety of dismissal, the Plaintiffs have failed to state a cognizable claim against Jeppesen.

(7) Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957) long ago established the standard for evaluating Rule 12(b)(6) motions:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim • which would entitled him to relief.

Mindful of this standard, the Court finds that Plaintiffs cannot, under any set of circumstances, demonstrate a causal link between what happened to KAL 007 and the claims that the Jeppesen warning was inadequately worded. There being no “but for” cause attributable to Jeppesen, the issue of “superseding cause” need not be reached.

Therefore, for the foregoing reasons, it is by the Court this 26th day of June, 1984,

ORDERED, that Defendant’s Motion to Dismiss is GRANTED; and it is

FURTHER ORDERED, that all claims against Jeppesen Sanderson, Inc. be and hereby are DISMISSED with prejudice, each party to bear its own costs.


text:
    In re KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983. Application of the WASHINGTON POST COMPANY.
    MDL No. 565.
    Misc. Nos. 83-0345, 84-0170.
    United States District Court, District of Columbia.
    Oct. 26, 1984.
    See also D.C., 575 F.Supp. 342.
    Juanita M. Madole, Liaison Counsel, Speiser, Krause & Madole, Washington, D.C., for plaintiff.
    George N. Tompkins, Jr., Condon & Forsyth, New York City, for Korean Air Lines.
    Patrick J. Carome, Boisfeuillet Jones, Carol D. Melamed, Washington, D.C., for The Washington Post Co.
    Mark A. Dombroff, Torts Branch, Civil Branch, Dept, of Justice, Washington, D.C., for United States of America.
    John J. Martin, Bingham, Englar, Jones & Houston, New York City, for Litton Industries', Inc.

      Thomas J. McLaughlin, Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., for The Boeing Co.
   MEMORANDUM AND ORDER

AUBREY E. ROBINSON, Jr., Chief Judge.

Presented for the Court’s consideration is the Application of the Washington Post Company for an Order Vacating the December 22, 1983 Order Preventing the Divulgence of Information or Documents, the Opposition, Responses and Reply thereto and the arguments presented on said Application at a hearing held October 16, 1984. In its Application, the Washington Post Company (Post) has moved to challenge the validity of an order issued by this Court which prevents the parties from divulging any information or documents obtained in the discovery proceedings connected with the above-captioned multi-district litigation.

The challenged Order, entered December 22, 1983, provides

no party to these proceedings, directly or through counsel shall hereafter divulge any information or documents obtained in the course of these multidistrict litigation proceedings to any person not a party hereto, their counsel, consultants and experts retained in connection with this litigation.
IT IS FURTHER ORDERED, that no party to these proceedings, directly or through counsel, shall discuss with the news media any information or documents obtained in the course of these multi-district proceedings, or any opinions with respect thereto, until a conclusion of a trial on the issue of liability of all parties defendant or until further Order of this Court.

The Post has applied to the Court on the ground that the order is a “prior restraint” on First Amendment freedoms and cannot pass muster under the rigorous standard for such restrictions. In support of this position the Post relies heavily on CBS, Inc. v. Young, 522 F.2d 234 (6th Cir.1975). Defendant Korean Air Lines Company, Ltd. (KAL) moved swiftly and vigorously to oppose the Application. Noting first that the alleged constitutional infirmity of the Order has been brought to the Court’s attention by a non-party to the proceedings, Defendant argues that the December 22, 1983 Order is not a “prior restraint” but is instead a Fed.R.Civ.P. 26(c) protective order. The Defendant relies upon Seattle Times Co. v. Rhinehart, — U.S.—, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), to support its position.

Although the request for the December 22, 1983 Order was made by KAL at a pre-trial conference held in open court on December 9, 1983, the request came after discussion and upon the consent of all parties. All parties were represented at the hearing; none objected. When the Order was presented to the Court almost two weeks later, without objection, the stipulated consent of all parties signalled agreement on the need for and scope of the Order. It appeared to the Court at that time that the parties were not interested in exploiting the notoriety of the case but in conducting their private litigation without fanfare or undue publicity. Therefore, in accordance with the uniform wish of all concerned, the suggested order was entered pursuant to the Court’s authority to control the discovery process and with the intent that it apply only to discovery information.

The intent and authority of the Court has not changed. The Post submits, that, as written, the December 22, 1983 Order represents such a broad restraint on the parties and the press that it will “cut off the full and timely flow of information to the public.” While the Court does not- adopt the Post’s interpretation of its December 22, 1983 Order, the Order will be modified to the extent necessary to more clearly express the Court’s intent that only discovery information may not be released.

The modifications will be in keeping with the policy behind the liberal discovery rules. The Court has every intention of creating a climate of free exchange with respect to the ongoing pretrial discovery in these proceedings. The Court notes that Plaintiffs’ Steering Committee changed its position with respect to the December 22, 1983 Order following the Application by the Washington Post Company. As a party to the proceedings, the PSC is in a position to challenge the validity of the Court’s Order. However, litigants dp not have “an unrestrained right to disseminate information that has been obtained through pretrial discovery.” Seattle Times Co. v. Rhinehart, — U.S.-, -, 104 S.Ct. 2199, 2207, 81 L.Ed.2d 17 (1984). Because information discovered at the pretrial stage is not considered within the public domain, “restraints, placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” 104 S.Ct. at 2208. The Supreme Court also found it significant to note that “an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny.” Id. It is for this reason that, “continued court control over the discovered information does not raise the same spectre of government censorship that such control might suggest in other situations.” Id. In this- case, the Court will exercise its duty and discretion to oversee and limit the discovery process.

The Order entered December 22, 1983 shall remain in effect with the following modifications. The parties and their counsel are prohibited from disclosing discovered information or opinions derived from discovery: Only information and documents obtained or produced in the discovery process may not be divulged. The Post and press remains unencumbered by the Order.

Should any party wish to divulge discovered information, that party is directed to notify the Court. Upon such notification, the question of continued nondisclosure with respect to particular information will be considered. Further, the parties shall have thirty (30) days from the date of this Order in which to present to the Court any information or documents already discovered which any party seeks to divulge.


author: ALEXANDER HARVEY, II, District Judge.

text:
    James P. CHAPMAN and Elsie B. Chapman, Plaintiffs, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Defendant.
    Civ. No. H-82-2286.
    United States District Court, D. Maryland.
    April 24, 1984.

      N. Barton Benson, Jr. and Howard J. Needle, Towson, Md., for plaintiffs.
    David F. Albright, G. Randall Whittenberger and Semmes, Bowen & Semmes, Baltimore, Md., for defendant.
   MEMORANDUM AND ORDER

ALEXANDER HARVEY, II, District Judge.

Before the Court in this civil action are defendant’s motion for summary judgment and defendant’s motion to strike the affidavits of plaintiffs James and Elsie Chapman, which have been filed in support of plaintiffs’ opposition to the pending motion for summary judgment. Extensive memoranda in support of and in opposition to these motions have been filed and reviewed by the Court. In a sixteen-page Memorandum and Order dated July 19, 1983, this Court, in ruling on earlier motions filed by the parties, discussed the issues presented in this case at some length. More recently, at a conference held in chambers on March 6, 1984, counsel for the parties presented arguments in support of and in opposition to defendant’s pending motion for summary judgment.

Under all the circumstances, this Court concludes that no formal hearing is necessary for a decision on the pending motions. See Local Rule 6. For the reasons to be stated herein, defendant’s motion to strike plaintiffs’ affidavits will be denied, and defendant’s motion for summary judgment will be granted.

In this suit seeking damages under federal securities law, plaintiffs, a husband and wife, claim that they have suffered losses as a result of various securities transactions executed on their behalf by their stockbroker, defendant Merrill Lynch, Pierce, Fenner & Smith (hereinafter “Merrill Lynch”). In their five-count complaint, plaintiffs sought damages under (1) the Securities Exchange Act of 1934 (hereinafter “the Act”) and the rules promulgated thereunder (Counts I and IV); (2) the rules of the New York Stock Exchange (Count II); (3) the rules of Fair Practice of the National Association of Securities Dealers (Count III); and (4) a theory of negligence asserted under the common law of Maryland (Count V). In its Memorandum and Order of July 19, 1983, this Court dismissed Counts II, III and V, and that part of Count IV which sought recovery under Section 15(c)(1) of the Act and Rule 15c2-5 promulgated thereunder by the Securities and Exchange Commission. As a result, the only claims remaining for adjudication in this case are those based on alleged violations of Rule 10(b) of the Act, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 340.10b-5. These claims are asserted in Counts I and IV of the complaint.

I

Defendant’s Motion to Strike Plaintiffs’ Affidavits .

In support of their opposition to defendant’s motion for summary judgment, each plaintiff has filed herein an affidavit containing various factual assertions. Defendant thereafter filed a motion to strike these affidavits on two grounds, namely (1) that the affiants failed to assert personal knowledge of the matters set forth in the affidavits, and (2) that the affiants are not competent to testify as to certain matters set forth in the affidavits.

On March 6, 1984, plaintiffs filed amended affidavits stating that the factual allegations set forth are based on the personal knowledge of the affiants. At the status conference held that same day, the Court directed counsel for defendant to file a response to the amended affidavits within one week. On March 7, 1984, deféndant filed an opposition to the use of the amended affidavits, and plaintiffs responded in a memorandum filed on March 13, 1984.

Both affidavits include brief descriptions of the manner in which customer grievances are handled at International Business Machines Corporation (hereinafter “IBM”) which is the employer of both plaintiffs. Defendant contends that the affidavits fail to lay an adequate foundation for the testimony presented and that this Court should therefore strike them. There is no merit to this contention. The affidavits state that during the time period relevant here, plaintiff James P. Chapman was an Advisory Marketing Representative for IBM and plaintiff Elsie B. Chapman served as a Marketing Manager and Administrative Assistant to the President of the General Systems Division of IBM. As noted, the affiants stated under oath that they have personal knowledge of the matters set forth in their affidavits. This Court is satisfied that as relatively high level employees of IBM, each plaintiff is competent to testify concerning the procedures utilized by IBM to resolve customer grievances. Accordingly, defendants motion to strike plaintiffs’ affidavits will be denied. In ruling on defendant’s motion for summary judgment, the Court will therefore consider as a part of the record plaintiffs’ amended affidavits.

II

Defendant’s Motion for Summary Judgment

Defendant previously filed herein a motion to dismiss or for summary judgment wherein defendant argued, inter alia, that plaintiffs’ claims under both Section 10(b) of the Act and Rule 10b-5 are time-barred. In its Memorandum and Order of July 19, 1983, the Court reviewed the meager facts available at that stage of these proceedings and noted that certain documents relied upon by defendant might well be construed as supporting defendant’s position that it was entitled to summary judgment. The Court further observed that under all the circumstances of the case, “the claims asserted by plaintiffs may at a later stage of these proceedings be shown to have been time-barred.” (p. 11). However, since there had been no formal discovery undertaken at the time of the earlier rulings, the Court directed the parties to develop the facts by way of discovery and permitted defendant to again raise its limitations defense by way of a motion for summary judgment based upon the expanded record. Accordingly, defendant’s motion for summary judgment based on the statute of limitations was denied without prejudice.

Extensive discovery has now been undertaken by the parties. Interrogatories have been filed and answered, documents have been produced and depositions have been taken. Relying on the pleadings and discovery in the case, defendant has renewed its motion for summary judgment, contending that the remaining claims in this suit are barred- by limitations. For the reasons to be stated, this Court would agree.

As this Court noted in its previous Memorandum and Order, summary judgment is not appropriate where there are disputed issues of material fact. See Phoenix Savings & Loan, Inc. v. Aetna Casualty Company, 381 F.2d 245 (4th Cir.1967). On the other hand, Rule 56(c), F.R.Civ.P., makes it quite clear that summary judgment should be rendered “forthwith” if the pleadings, discovery and affidavits filed in a case show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. One of the purposes of Rule 56 is to require a plaintiff, in advance of trial and after a motion for summary judgment has been filed by the defendant and supported, to come forward with some minimal facts to show that a defendant may be liable under the claims alleged. See Rule 56(e). In the absence of such a minimal showing, a defendant should not be required to undergo the considerable expense of preparing for and participating in a trial. Applying these principles to this case, this Court finds and concludes that defendant here is entitled to judgment on plaintiffs’ remaining claims as a matter of law because these claims were not timely brought.

The Fourth Circuit has ruled that the one year statute of limitations in Maryland’s blue sky law, Md. Corps. & Ass’ns Code Ann. § 11—703(f) (1983 Cum.Supp.), is applicable to actions brought under Section 10(b) of the Act and Rule 10b-5. O’Hara v. Kovens, 625 F.2d 15, 18 (4th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); Fox v. Kane-Miller Corporation, 542 F.2d 915, 918 (4th Cir.1976). The Maryland statute provides that suit must be brought “within one year after the discovery of the untrue statement or omission, or after the discovery should have been made by the exercise of reasonable diligence.” As the Fourth Circuit observed in Fox, supra, the same rule has been adopted by federal courts in cases involving claims under the Act. See, e.g., Sleeper v. Kidder Peabody & Company, Inc., 480 F.Supp. 1264, 1266 (D.Mass.1979), aff'd, 627 F.2d 1088 (1980); Dandorph v. Fahnestock & Company, 462 F.Supp. 961 (D.Conn.1979); Kennedy v. Josephthal & Company, Inc., et al., Fed.Sec.L.Rep. (CCH) ¶ 99,187 (D.Mass.1983). Inasmuch as plaintiffs here filed suit in this Court on August 6, 1982, the question presented is whether they knew or should have known of the alleged improprieties prior to August 6, 1981.

The undisputed facts material to the limitations issue are as follows. Plaintiffs opened a securities trading account with defendant on or about November 16, 1979. The securities transactions which form the basis for plaintiffs’ claims occurred between November, 1979 and December, 1980. Plaintiffs were informed of all transactions by mail, generally from five to fifteen days after the trade date. Plaintiffs also received from defendant monthly account statements.

In a three-page letter dated March 3, 1981, plaintiff James P. Chapman advised Alan Kenzie, the manager of defendant’s Baltimore office, that plaintiffs had sustained losses which they felt were the result of improper handling of their account by Frank Shulman, their account executive. The letter set forth plaintiffs’ investment objectives and explained in detail how these objectives had not been attained. The letter reviewed various transactions involving bonds, securities and the option market which had been executed on plaintiffs’ behalf by Shulman. Additionally, Kenzie was advised in the letter that plaintiffs had discussed the investments made in the option market with another broker who, according to plaintiffs, was appalled at the transactions which had taken place. In answering defendant’s interrogatories, plaintiff Elsie Chapman has identified this broker as Joe Howell, an account executive employed by Legg Mason Wood Walker, Inc. in Towson, Maryland. Finally, plaintiffs requested a meeting with Kenzie to discuss their situation and also indicated that they no longer wanted Shulman to handle their account.

Kenzie responded to Chapman’s letter by way of a letter dated March 5, 1981. Further correspondence was sent to plaintiffs by defendant’s Administrative Manager on or about March 31, 1981. On a date prior to May 7, 1981, plaintiffs met with their attorney, N. Barton Benson, Esq., to discuss the facts pertaining to their dispute with Merrill Lynch. Plaintiffs also corresponded with Benson both on May 7 and June 26, 1981.

On May 26, 1981, Barry Neiburger, the Administrative Manager of defendant’s Baltimore office, received a letter from attorney Benson dated May 22, 1981. That letter stated that plaintiffs had retained Benson to seek recovery for losses allegedly sustained in connection with their account. Benson’s letter further requested a list of the principal transactions which had occurred, including the total dollar amount involved and the mark-up on the transactions.

These facts clearly show that plaintiffs had knowledge of defendant’s allegedly illegal acts before August 6, 1981. The transactions in question commenced in No-, vember of 1979, some 30 months before suit was filed. Plaintiffs were notified in writing of each transaction after it took place, and they received from defendant monthly account statements. The information set forth in these notices and statements obviously led to the dissatisfaction expressed in the letter which plaintiff James Chapman wrote to Alan Kenzie on March 3, 1981, some 17 months before suit was filed. As noted, this letter reviewed in detail the Chapmans’ complaints concerning the manner in which Shulman had handled their securities account.

The most significant fact of all in the record here is that plaintiffs engaged counsel at least fifteen months before suit was filed in this Court. In a letter dated May 22, 1981, plaintiffs’ attorney, N. Barton Benson, Esq., advised the Administrative Manager of defendant’s Baltimore office that he had been retained to seek recovery for losses which they had allegedly sustained in their account. This letter was sent some fourteen months before this suit was filed. While the letter from Benson requested from defendant certain information with respect to plaintiffs’ account, Benson was quite obviously aware of plaintiffs’ belief that they were entitled to a recovery from defendant because of losses in their account. This knowledge was, of course, based on. information which had previously been provided by plaintiffs. On September 3, 1981, Benson filed suit against Merrill Lynch on behalf of the plaintiffs in the Circuit Court for Baltimore City, alleging excessive and unauthorized trading. Yet he waited for another 1172 months before filing suit in this Court. Under all of these circumstances, this Court finds and concludes that plaintiffs knew of the improprieties they have alleged here well before August 6, 1981.

Plaintiffs contend that there are material factual issues which preclude resolution of the issue of limitations in this case by way of summary judgment. First, plaintiffs argue that the March 3, 1981 letter from James Chapman to Kenzie was no more than a consumer complaint. It is further asserted, as stated by plaintiffs in their amended affidavits, that during their conversation with Joe Howell, he never suggested to them that violations of federal securities laws may have occurred. Plaintiffs also stated that Benson was retained to seek an administrative solution to the dispute and that based on their experience as IBM employees, they had concluded that their grievances could be resolved administratively. Plaintiffs point out in their affidavits that customer grievances at IBM are regularly handled administratively and rarely result in litigation. • Finally, plaintiffs contend that they were not sophisticated investors, and in their affidavits they assert that the positions held by them at IBM have not required or involved a sophisticated knowledge of the stock, market.

These facts, if accepted as true, are simply not material to the essential issues presented by defendant’s renewed motion for summary judgment. Whether or not plaintiffs could be considered sophisticated investors (and there is substantial evidence in the record to indicate that they were), they had engaged an attorney to press their claims several months before the critical date of August 6, 1981. Attorney Benson is counsel of record for plaintiffs in this case. He was charged with knowledge of the law, including the period of limitations applicable to federal claims of the sort asserted here. Benson had every right to seek an administrative resolution of the dispute. However, he was charged with knowledge that the applicable statute of limitations would not be tolled while he sought to resolve the dispute administratively. Thus, even if plaintiffs did not know or appreciate the significance under federal law of the statements or omissions of defendant, it is clear that their attorney did. Such knowledge must be imputed to plaintiffs so that their claims are time-barred whatever the degree of their investment sophistication.

In support of its conclusions herein, this Court would rely on Dandorph v. Fahnestock & Company, supra. In that case, the plaintiff charged defendant stockbroker, inter alia, with a violation of Section 10(b) of the Act and Rule 10b-5. This federal claim was dismissed by the Court on the ground that it had not been brought within the two-year limitations period applicable in Connecticut. Specifically, the Court in Dandorph found that plaintiff knew or reasonably should have known of defendant’s wrongful acts at least by the date on which plaintiff’s former counsel had written a letter to defendant setting forth plaintiff’s complaints against the defendant. Plaintiff argued that her claims were not barred by limitations because her attorney had not advised her that she had a possible federal claim against the stockbroker. The Court rejected this argument, holding that the knowledge of plaintiff's attorney was imputed to her and that she therefore knew or should have known of the alleged illegalities. 462 F.Supp. at 964.

The essential facts are the same here as in Dandorph. Attorney Benson, as evidenced by his May 22, 1981 letter to the Administrative Manager of defendant’s Baltimore office, knew that plaintiff had sustained losses because of defendant’s acts or omissions in handling plaintiff’s account. This knowledge must be imputed to plaintiffs themselves. Even if they were previously unaware of the alleged fraudulent acts, they are deemed to have known of them by May 22,1981. Accordingly, the remaining claims of plaintiffs, asserted in Counts I and IV are time-barred.

Plaintiffs have argued that Dandorph is inapplicable to this case because the attorney’s letter there set forth plaintiff’s complaints against the defendant while Benson’s letter here did not. Plaintiffs contend that Benson’s letter was' merely a request for information necessary to determine the existence of a cause of action. Since Benson did not receive a response to his letter until August 26, 1981, plaintiffs argue that their claims asserted under Section 10(b) of the Act and Rule 10b-5 were timely filed.

There is no merit to this argument. Benson’s letter of May 22, 1981 stated that he had been retained by plaintiff to seek recovery for losses sustained by them. The basic underlying facts in plaintiffs’ possession were certainly known to Benson by that date or he presumably would not have written the letter. Benson was merely attempting to secure more specific information which obviously could have been obtained by way of discovery after suit was filed. Benson knew or should have known on May 22,1981 that his clients had a claim against Merrill Lynch. The fact that he was seeking more details before filing suit would not result in the tolling of the period of limitations. Since Benson’s knowledge of defendant’s alleged improprieties must be imputed to plaintiffs, suit was not filed within the one-year period required by the applicable statute of limitations. Summary judgment will accordingly be entered in favor of the defendant. Plaintiffs will be required to seek recovery for their losses in the suit they have filed in the Circuit Court for Baltimore City.

Accordingly, it is this 24th day of April, 1984, by the United States District Court for the District of Maryland,

ORDERED:

1. That defendant’s motion for'summary judgment be and the same is hereby granted; and
2. That judgment be and the same is hereby entered in favor of the defendant, with costs.


author: ROBERT H. HALL, District Judge.

text:
    GEORGIA FARM BUILDINGS, INC., Plaintiff, v. Vivian L. WILLARD, Individually and as the personal representative of the Estate of Claude Howard Willard, Deceased and John L. Green, Defendants.
    Civ. A. No. C83-697A.
    United States District Court, N.D. Georgia, Atlanta Division.
    May 4, 1984.
    Herbert’S. Waldman, Atlanta, Ga., for plaintiff.
    John L. Green, Atlanta, Ga., for defendants.
   ORDER

ROBERT H. HALL, District Judge.

Plaintiff brings this action alleging an unconstitutional deprivation of its rights to due process and equal protection of the law as- a result of defendants’ “wrongful garnishment.” Although plaintiff characterizes this action as one arising under 42 U.S.C. § 1983 (Complaint, ¶ 3), the complaint also alleges a violation of plaintiff’s rights under the Constitution of Georgia (Complaint, ¶ 25). Presently before the court are plaintiff’s and defendants’ cross-motions for summary judgment. Jurisdiction is pursuant to 28 U.S.C. §§ 1331 and 1343(3) and the doctrine of pendent jurisdiction.

FACTS

Centra] to the present suit is the garnishment action taken by defendants, Vivian L. and Claude Howard Willard and John L. Green, subsequent to the entry of a default judgment and money judgment against plaintiff, Georgia Farm Buildings, Inc. (“Georgia Farm”), in the case of Willard v. Ga. Farm Buildings, Inc., No. C-67290 (Fulton County Super.Ct. Dec. 1, 1980). That case was a tort suit by the Willards against Georgia Farm and four others. The judgment was entered against Georgia Farm only; the action against the other defendants remained pending and, in fact, apparently remains pending today. Georgia Farm’s motions to set aside the default judgment were denied. Willard v. Ga. Farm Buildings, Inc., No. C-67290 (Fulton County Super.Ct. July 24, 1981; Jan. 18, 1982).

The Willards, represented by their attorney, John L. Green, initiated the garnishment action in question in the State Court of Fulton County in October of 1981, and it was soon thereafter traversed by Georgia Farm. The traverse was denied, Willard v. Ga. Farm Buildings, Inc., No. 810160 (Fulton County State Ct. Nov. 29, 1982), and the court required Georgia Farm to post a $131,000.00 bond. The Willards failed in their attempt to have this garnishment dissolution bond condemned but Georgia Farm was required to post an additional bond of $43,000.00. Willard v. Ga. Farm Buildings, Inc., No. 810160 (Fulton County State Ct. Jan. 4, 1983).

Georgia Farm moved the State Court to vacate the garnishment on the ground that the judgment upon which the garnishment was based was not final and the Willards had not complied with the statutory requirements for pre-judgment garnishment. This motion was denied, the court finding that the default judgment was a final judgment.

The Willards again moved to condemn the garnishment bonds and this time the State Court granted the motion. Willard v. Ga. Farm Buildings, No. 810160 (Fulton County State Ct. Apr. 22, 1983). Georgia Farm appealed this decision to the Georgia Court of Appeals which ultimately reversed the State Court. Ga. Farm Buildings, Inc. v. Willard, No. 66974 (Ga.Ct.App. Jan. 3, 1984). The appellate court held that the judgment upon which the garnishment was based was not a final judgment because the record did not indicate that the trial court had made the determination that there was no just reason for delay as required by Ga. Off’l Code Ann. § 9-11-54(b). Id. Finding that the Willards had not followed the proper procedure for pre-judgment garnishment, the court vacated the garnishment and reversed the condemnation of the garnishment bonds. Id.

Before the Court of Appeals reached its decision, the Superior Court ruled that the default judgment had not been adjudicated final and, expressly finding no just reason for delay, declared the judgment final on June 20, 1983. Willard v. Ga. Farm Buildings, Inc., No. C-67290 (Fulton County Super.Ct. June 20, 1983).

Georgia Farm filed the present suit on April 11,1983, while the motion to condemn was pending and before either the Court of Appeals or the Superior Court had ruled that the default judgment was not final. It alleges that defendants’ use of post-judgment garnishment procedures where there had been no final judgment deprived it of its constitutional rights to due process and equal protection as guaranteed by the Constitutions of the United States and Georgia. Georgia Farm seeks injunctive as well as monetary relief.

DISCUSSION

Before reaching the substantive issues raised by the cross-motions for summary judgment, the court first notes that it declines to rule that plaintiffs Request for Admissions is deemed admitted because of defendants’ submission of their response one day late; the court also declines to enter summary judgment for plaintiff or to refuse to enter summary judgment for defendants based on the technical deficiencies of both defendants’ response to plaintiff’s motion and defendants’ own motion.

A. Federal Constitutional Claims

It is now clear that at the time the garnishment action was initiated by defendants, the judgment upon which the garnishment was based was not a final judgment. Ga. Farm Buildings, Inc. v. Willard, No. 66974 (Ga.Ct.App. Jan. 3, 1984). It is also clear that defendants used post-judgment, rather than pre-judgment, garnishment procedures apparently in violation of Georgia law. Id. The question for the court is whether there is any genuine dispute that defendants’ garnishment action did or did not unconstitutionally deprive plaintiff of its property without due process or equal protection under color of state law. 42 U.S.C. § 1983.

1. Equal Protection

Although neither plaintiff nor the defendants address plaintiff’s equal protection claim in their briefs, the court construes the cross-motions for summary judgment to reach plaintiff’s entire action and, accordingly, considers this claim as well.

To establish a violation of the Equal Protection Clause, a plaintiff must demonstrate that he is a member of a class which has been subjected to discrimination based on impermissible criteria. In the instant case, plaintiff has not even alleged membership in such a class. For this reason, the court GRANTS summary judgment for defendants on plaintiff’s equal protection claim.

2. Due Process

In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court enumerated four prerequisites to asserting a “due process” claim:

(1) The conduct complained of must have been committed by a person acting under color of State law;
(2) There must be a constitutionally protected property or liberty interest in issue;
(3) There must have been a deprivation of this protected interest; and
(4) The deprivation of the protected interest must have been without ‘due process of law’.

Id. at 535-37, 101 S.Ct. at 1912-14. Even assuming arguendo that the first three conditions are present in this case, the court finds that the fourth requirement proves fatal to plaintiff’s due process claim.

The court begins its analysis by determining the procedural process which was due plaintiff. This determination turns on whether the property seizure at issue is deemed pre- or post-judgment, as . the Supreme Court has ruled that different procedural safeguards are constitutionally required for each.

Implicit in plaintiffs claim that defendants’ use of post-judgment garnishment procedures was unconstitutional where no final judgment had been entered is the premise that any action taken prior to the formal entry of a final judgment, even action subsequent to the entry of a default and money judgment, is pre-judgment for due process purposes. Plaintiff does not cite any authority for this proposition and the court has been unable to find any.

Applying principles enunciated by the Supreme Court, this court concludes that plaintiff’s argument is without merit. Where a defendant has defaulted and a money judgment has been obtained against it, there has been a “judgment” on the merits and the use of Georgia’s post-judgment garnishment procedures to enforce the judgment provides that defendant with the process to which it is due under the Constitution. A default and attending money judgment resembles a “final” judgment (i.e., a judgment which has been expressly adjudicated final) in substance if not form. The defendant has had its day in court and none of the concerns surrounding pre-judgment garnishments are present. See North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Also see Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) (pre-judgment sequestration); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (pre-judgment replevin).

Since defendants’ garnishment action was post-judgment for due process purposes, and because it appears that defendants complied with the statutory requirements for post-judgment garnishments, plaintiff was not deprived of property without due process.

The court recognizes that the use of post-judgment garnishment procedures to enforce a tort judgment not declared “final” eliminates the availability of a stay or release of the garnishment pending appeal, Ga.Off’l Code Ann. § 18-4-65, because the judgment is not appealable under Georgia law. Ga.Off’l Code Ann. § 5-6-34. Although this may seem unfair, the court notes that such use of the garnishment laws is improper under Georgia law (as indicated by the Georgia Court of Appeals) and that, therefore, an adequate tort remedy for abuse of process exists to cure this apparent unfairness. The Due Process Clause does not address all inequities.

The court also recognizes that a defendant-debtor subjected to an improper use of the garnishment laws, such as plaintiff here, must incur costs to challenge the improper garnishment and that this, too, presents an apparent unfairness. However, this unfairness does not rise to the level of a unconstitutional deprivation of due process; the defendant-debtor can recover these costs in a suit for abuse of process.

The court GRANTS summary judgment for defendants on plaintiff’s due process claim.

B.. State Constitutional Claims

, In light of the court’s disposition of plaintiff’s federal law claims, the court declines to exercise jurisdiction over the state law claims and DISMISSES them without prejudice. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).

CONCLUSION

In sum, regarding plaintiffs federal constitutional claims, the court GRANTS defendants’ motion for summary judgment and DENIES plaintiff’s motion for partial summary judgment; the court DISMISSES the state constitutional claims without prejudice. The Clerk is DIRECTED to enter judgment for defendant and against plaintiff on the federal claims.

      . Georgia Farm also filed a complaint in equity seeking to set aside the default judgment. This action was dismissed by the trial court for failure to state a cause of action and on res judicata grounds. (Case number and date of this decision are not disclosed in the record.) The Georgia Court of Appeals affirmed the dismissal. Ga. Farm Buildings v. Willard, 165 Ga.App. 325, 299 S.E.2d 181 (1983).

      . The Georgia Court of Appeals reports that the State Court granted a stay "to allow [Georgia Farm] an opportunity to attack the validity of the original default judgment in the appropriate forum.” Ga. Farm Buildings, Inc. v. Willard, No. 66974 (Ga.Ct.App. Jan 3, 1984). The Clerk of the State Court of Fulton County states that no such stay appears on the docket sheet. This discrepancy is not important to the disposition of the motions before the court.

      . Georgia Farm states the amount of this bond as $142,790.00, but the Georgia Court of Appeals reports the amount as $131,000.00 Ga. Farm Buildings, Inc. v. Willard, No. 66974 (Ga.Ct.App. Jan. 3, 1984). This discrepancy is not important to the disposition of the motions before the court.

      . The date of this Order is not disclosed in the record. This information was obtained from the decision of the Georgia Court of Appeals dated January 3, 1984, discussed infra (Civil Action No. 66974).

      . See Ga.Off’l Code Ann. §§ 18-4-40 and 18-4-60. Post-judgment garnishment procedures are available only where "a money judgment shall have been obtained."

      . The Supreme Court case of Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), raises doubt as to the existence of action under color of state law in this case; in that case the court held that private misuse of a state statute not prompted by a state rule or a state decision is not action under color of state law. Id. at 940-41, 102 S.Ct. at 2755-56. However, the court does not have before it the decisions of the State Court in which the garnishment action was initiated and,' therefore, cannot say at this point that defendants’ misuse of the garnishment statute can or cannot be attributed to a state decision. Because the court is able to dispose of the motions for summary judgment on other grounds, it is unnecessary to determine whether the action under color of state law requirement is satisfied.

      . Plaintiff does not contend that it was denied substantive due process, only that it was denied procedural due process.

      . As for the argument that a default judgment is not "final” because it might be set aside later, Ga.Off’l Code Ann. § 9—11—55(b), the court notes that even a judgment which has been adjudicated "final" can be set aside, Ga.Off’l Code Ann. § 9—11—60(b), and yet it is still considered "final" for pre-judgment garnishment purposes.

      . Plaintiff does not suggest that Georgia’s post-garnishment procedures are unconstitutional. See Antico v. Antico, 241 Ga. 294, 244 S.E.2d 820 (1978).

      . The court does not reach the respondeat superior issue presented by this case.


author: URBOM, Chief Judge.

text:
    Charles L. MILLER, Petitioner, v. Charles J. BLACK, Warden, Nebraska State Penitentiary, Respondent.
    No. CV83-L-244.
    United States District Court, D. Nebraska.
    June 14, 1984.
    Charles L. Miller, pro se.
    Mark Starr, Asst. Atty. Gen., Lincoln, Neb., for respondent Charles J. Black.
   MEMORANDUM

URBOM, Chief Judge.

The magistrate’s report of January 3, 1984, recommended dismissal of this habeas corpus action. The petitioner filed, a timely objection, pursuant to 28 U.S.C. § 636(b)(1).

I have read the court file, the cases cited by the petitioner, and the bill of exceptions, which contains the trial transcript, and I believe that the magistrate’s recommendation is correct. At trial, the prosecution introduced evidence that a man was seen breaking into a rectory, that the doors to the rectory were always locked, and that a fingerprint of the petitioner was discovered in the rectory on an item which had been moved during the robbery. The petitioner testified that several days before the robbery he had entered the rectory through an unlocked door to ask if he could mow the grass, that he had touched the object upon which his fingerprint was found, and that he then left the rectory without seeing anyone.

As the magistrate said, when a petitioner claims that he was convicted upon insufficient evidence, I must determine whether, after viewing the evidence presented at trial in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Rhodes v. Foster, 682 F.2d 711, 713 (C.A.8th Cir.1982). The cases cited by the petitioner, Borum v. United States, 380 F.2d 595, 596 (C.A.D.C.Cir.1967); United States v. Roustio, 455 F.2d 366, 370 (C.A.7th Cir.1972); United States v. Scarpellino, 431 F.2d 475, 478 (C.A.8th Cir.1970); and State v. Pena, 208 Neb. 250, 254, 302 N.W.2d 735 (1981), stand for the proposition that when the prosecution relies on fingerprint evidence, it must show that the object upon which the fingerprint was found was not .generally accessible to the defendant. This is necessary to show that the defendant did not touch the object innocently before the day of the robbery.

The petitioner’s argument is that since he testified he had entered the rectory, and had left his fingerprint before the robbery occurred, the prosecution needed to present evidence other than the fingerprint to show he committed the crime. This is not true. The jury heard the prosecution’s witnesses say that the rectory’s doors were always locked and they heard the petitioner testify that one door had not been locked. Under Jackson, I must view the evidence in the light most favorable to the prosecution, which means that I must assume that the jury believed the prosecution’s witnesses and not the defendant. The information which the prosecution’s witnesses presented, and which the jury believed, was precisely the information required by the cases cited in the petitioner’s objection.

Since it is clear that the petitioner’s request for habeas corpus is utterly lacking in merit, appointing an attorney for him is not necessary. I shall adopt the magistrate’s report and recommendation and dismiss the petition.


author: WANGELIN, District Judge.

text:
    Randall J. McBRIDE, Plaintiff, v. Hurschel D. ALEXANDER, Defendant.
    No. S83-0314C.
    United States District Court, E.D. Missouri, Southeastern Division.
    June 25, 1984.
    Motion to Set Aside Judgment Denied Sept. 18, 1984.
    James D. Sickal, Tyce S. Smith, Sr., Waynesville, Mo., J. Max Price, John D. Beger, Salem, Mo., for plaintiff.

      John Ashcroft, Mo. Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for defendant.
   MEMORANDUM AND ORDER

WANGELIN, District Judge.

This matter is before the Court upon defendant’s motion for summary judgment. Plaintiff has not opposed or otherwise responded to defendant’s motion. Plaintiff did move to delay ruling on the motion until after defendant’s deposition had been taken, stating that the deposition would be taken prior to April 15, 1984. In view of the present date and plaintiff’s ample opportunity to depose the defendant, that motion to delay ruling will be denied as moot.

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. He alleges that defendant, an investigator for the Missouri State Fire Marshall, arrested him on or about January 19, 1983 and that said arrest was “illegal, beyond the scope of the defendant’s authority and without probable cause.” Plaintiff seeks actual and punitive damages, plus attorney’s fees and costs.

Defendant’s affidavit sets forth the facts in more detail. When plaintiff’s motel in Eminence, Missouri was heavily damaged by fire, defendant was assigned by his supervisor to investigate the cause of the conflagration. After conducting an extensive investigation of the scene, the parties involved and the facts surrounding the fire, defendant concluded that there was probable cause that the fire had been intentionally started by plaintiff, in collusion with one or more other persons. He therefore placed plaintiff under arrest, and plaintiff was taken into custody and charged with conspiracy to commit arson. The charges were subsequently dismissed after a preliminary hearing.

Defendant’s affidavit sets forth a detailed factual basis for his conclusion that the fire was the result of arson, and that plaintiff had the motive and opportunity to commit the offense. Since plaintiff has in no way attempted to contradict any of the statements in defendant’s affidavit, they are to be taken as true. On the basis of these facts, the Court can conclude that defendant did have probable cause to place plaintiff under arrest.. Further, the Court concludes on the basis of the undisputed record that defendant had legal authority to place plaintiff under arrest pursuant to Mo.Rev.Stat. § 320.230.2 (1978), and that the manner in which he conducted the arrest was not in violation of plaintiff’s constitutional rights.

As a general rule, summary judgment rulings are discouraged in cases involving alleged violations of constitutional or civil rights. See generally 10A Wright, Miller and Kane, Federal Practice and Procedure § 2732.2 (1983). Nevertheless, summary judgment is appropriate in such cases where the record clearly establishes the absence of material fact issues with regard to the alleged violations. See, e.g., Tarpley v. Greene, 684 F.2d 1 (D.C.Cir.1982) (summary judgment affirmed where plaintiff failed to contradict police officer’s affidavit regarding circumstances of arrest); Moats v. Village of Schaumburg, 562 F.Supp. 624 (N.D.Ill.1983) (summary judgment granted on issue of probable cause where undisputed facts established good faith on the part of arresting police officer); Donaldson v. Hovanec, 473 F.Supp. 602 (E.D.Pa.1979) (summary judgment granted where plaintiff failed to refute arresting police officer’s assertions of good faith, lack of malice and knowledge of arresting authority). It is difficult for this Court to conceive of a case more appropriate for summary judgment than the present case, where plaintiff does not attempt to contradict conclusive evidence filed by defendant.

In view of the foregoing considerations, the Court concludes that there is no genuine issue as to any material fact, and that defendant is clearly entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e).

Accordingly,

IT IS HEREBY ORDERED that defendant’s motion for summary judgment be and is GRANTED; and

IT IS FURTHER ORDERED that plaintiff’s motion to delay ruling be and is DENIED as moot.