author: ALLEN, Chief Judge.

text:
    Gloria H. CONLEY, Plaintiff, v. KENTUCKY FRIED CHICKEN CORP.; David Klosterman; Stan Pearman; Dennis Royer; and George Karvorkian, Defendants.
    Civ. A. No. C 82-0034 L(A).
    United States District Court, W.D. Kentucky, Louisville Division.
    Feb. 28, 1985.

      Isaac Lorean Conley, Jr., Edwin C. Lester, Louisville, Ky., for plaintiff.
    Richard S. Cleary, Louisville, Ky., for defendants.
   FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION

ALLEN, Chief Judge.

This action is submitted to the Court for decision following a three-week trial and the filing of briefs. The original complaint alleged five counts of discriminatory treatment based on 42 U.S.C. § 2000e, et seq. After the Court dismissed Counts 1 through 4, the plaintiff amended her complaint, realleging Counts 1, 3, 4, and 5 as Counts I, II, III, and IV. The first counts are in Arabic numerals and the last are in Roman numerals. Finally, a second amended complaint alleging discrimination under 42 U.S.C. § 1981 as to Counts II, III and IV, and as to 42 U.S.C. § 2000e under Count IV, and also asserting claims under the Equal Pay Act and KRS Chapter 344 were allowed to be filed.

At the outset it should be noted that by far the most important claim in the action is the claim made that plaintiff, a black female, was terminated on March 24, 1981 because of her race. A great deal of testimony was taken on this issue, and it is the only issue which requires extensive fact-finding and analysis. It should also be observed that plaintiffs Equal Pay Act claim was dismissed at the trial since the evidence reveals no instance where the defendant company paid people who were equally qualified as plaintiff larger salaries.

The testimony reveals that some employees who held the same rank as plaintiff did receive $16,100 a year, whereas plaintiff received $15,000; but all of these employees had additional tenure and experience or a degree, which entitled them to be paid more than plaintiff and others like plaintiff.

Plaintiff was employed by the defendant in 1975 at a salary of $8,000 per year. As of 1980, plaintiff had received two promotions and was receiving $12,700 per year during the first part of that year. On July 1, 1980, she received her third promotion into a supervisory position and her salary was raised to $15,000 per year. It is interesting to note that Stan Pearman, Director of Functional Accounting, suggested to plaintiff while she was a Grade 12 junior accountant that she might apply for one of the new positions. Also, plaintiff was recommended for that promotion from Grade 12 to Grade 14 by Dave Klosterman, Controller of the defendant company. It is also noteworthy that Judy Muncy, a white female, applied for the same position which Conley sought. Also of great significance is the fact that after plaintiff was discharged, her position was taken by another black female.

Although plaintiff had filed several claims of discrimination against the defendant company prior to her final promotion, each of those claims was denied by the appropriate state or federal agency as being based on no cause, with the exception of one she filed about the failure to receive maternity leave benefits, which the defendant later paid to her.

Plaintiffs personal problems basically arose in August and September of 1980. Plaintiff had as her section leaders two whites, Julie Happel and Judy Muncy. She also supervised eleven accounts payable clerks, eight of whom were white and three of whom were black. Plaintiff testified that Happel called her a “nigger” and used many other derogatory terms based on her race, and that she discussed these problems with Royer. Royer denied this. As late as October 1980, four employees under plaintiffs supervision, three of whom were black, requested Royer to set up a meeting with them, with Pearman and himself in order to discuss problems they were having with plaintiffs allegedly “dictatorial way of ‘supervising’ them.” See Tr. Vol. II, pp 159-76.

In September 1980, an incident occurred concerning the payment of a bill on behalf of Colonel Sanders. The plaintiff complained stating that she was not allowed to reprimand the uncooperative and insubordinate section leaders, Muncy and Happel. When Royer was advised of the incident by plaintiff, he asked that she not reprimand Muncy and Happel; and he subsequently verbally reprimanded them both and advised them to cooperate more fully with plaintiff.

Following this incident, Jesse Coleman, a black who was Director of Employee Services for defendant, met with Royer, Pear-man, plaintiff and Happel and talked about the apparent inability of plaintiff and Happel to work together. Plaintiff told Coleman that she would resort to physical force if necessary to run Happel off.

Finally, on November 5, 1980, a meeting was held between Coleman, Pearman, Klosterman, John Quirk, Vice President of Human Resources, and Michael McGraw, General Counsel for defendant. Coleman and the others present believed that Happel and plaintiff would not be able to work together, and they were both ordered to be transferred from the accounts payable department effective November 6, 1980. Plaintiff was transferred to a project-oriented position as a Senior Accountant, Special Projects, which was a non-supervisory position, but she retained her Grade 14 pay level.

During the three-day vacation which plaintiff took before taking her new position, her husband filed an action in Jefferson Circuit Court in her behalf claiming unlawful employment discrimination in violation of Kentucky Civil Rights Act, KRS 844.010, et seq. The state court entered its judgment denying plaintiff’s request for a temporary injunction, finding there had been no unlawful employment discrimination.

Plaintiff reported on November 14, 1980 to George Kavorkian. Kavorkian had been a supervisor of plaintiff’s between the period January 1979 and June 1980. Plaintiff was told by Kavorkian and Klosterman that she would be responsible primarily for the new Capital Monitoring Reports and would share responsibility with Dave Johnson for the Fixed Assets Cycle Inventory Program.

Plaintiff then began a pattern of irregular attendance which continued throughout the rest of her employment. She missed 10 days of work in November, 7 days of work in December, 1980, and 3 days of work in January, 19 days of work in February, and 11 days of work in March, 1981. These absences caused considerable pressure to be exerted on Kavorkian, who had deadlines to meet but who rescheduled the deadlines as to both Dave Johnson and plaintiff. Plaintiff was allowed until January 31, 1981 to complete the report for the Oklahoma District Stores, the Chicago District Stores by February 15, 1981 and the Cincinnati District Stores by July 20, 1981. Plaintiff did not finish either the Chicago or Cincinnati reports and the Oklahoma work had to be redone by Dave Johnson.

By February 1981, Kavorkian had become so concerned about plaintiffs absences and the progress of the work to which plaintiff had been assigned that he wrote her several letters reflecting his concerns and frustration and requested medical substantiation of her absences. On March 17, 1981, plaintiff returned to work. That day Kavorkian met with her and discussed her responsibilities and provided her with a revised memorandum reflecting new schedule dates for the reports. Kavorkian and Dave Johnson reviewed with plaintiff 125 errors that she had made on the Cycle Inventory report and pointed out to her a store she had missed during the inventory check.

In addition, plaintiff had made errors on the Capital Monitoring Report which included failing to make adjustments for price variances in computing profit and loss statements. Price variance is an important factor. See defendant’s Exhibit 30, Vol. VI, pp. 61-87, 141-143, 158-160. Also, her yearly profit averages for the stores were substantially inaccurate.

During the week after plaintiff’s return to work, she continued to make the same mistakes that had been made on previous reports. See Vol. VI, pp. 114, 118, 120, 122. Kavorkian then determined that plaintiff should be terminated, but before doing so, met with Coleman, who concurred. The termination took place on March 24, 1981.

Plaintiff, in order to establish her charge of racial or sexual discrimination, must, under the principles enumerated in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), show that she belongs to a protected minority, that she was qualified for the job in which she was employed, that despite her qualifications she was discharged, and that other similarly situated employees not in the protected minority were not discharged for similar behavior. In the case at bar, plaintiff has failed to meet qualifications two and four of the prima facie qualifications. While she had been a competent employee prior to her transfer in 1980 under Kavorkian’s supervision, she did not demonstrate her accounting qualifications after that transfer. In addition, she put no proof on to demonstrate that employees who committed similar errors were not discharged. She did produce testimony of one Nancy Kruer to the effect that Ms. Kruer was allowed to return to work after three months absence following hospitalization in Our Lady of Peace for emotional and mental problems.

The evidence as to Ms. Kruer did reflect that her work while she was absent was apparently done by other employees. The evidence in the case at bar reflects that while other employees did not do plaintiff’s work for her in her absence, the cause for her discharge was not her absence per se but her accounting errors, coming as they did immediately after she had been allowed to return to work and after her prior errors had been discussed with her. It is also important to observe that when plaintiff was replaced, she was replaced by a black woman, certainly a circumstance which negates to some extent any charge of racial or sexual discrimination.

While we do not believe that plaintiff met the prima facie standards of McDonnell Douglas Corp. v. Green, supra, even if we are erroneous in that respect, we are of the opinion that defendant clearly articulated a legitimate reason for her discharge, and that plaintiff did not introduce any substantial evidence to show that the articulated reasons were a pretext. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Plaintiff also complains that defendant retaliated against her in discharging her and in removing her from her supervisory position. 42 U.S.C. § 2000e, et seq., prohibits employers from retaliating against employees because of their filing of administrative or other complaints concerning discrimination. The evidence reflects that plaintiff, on January 28,1977, filed her first discrimination charge with the Kentucky Commission of Human Rights (KCHR). Four years after that retaliation charge, she had received three promotions and was earning a salary 75% more at that time than the salary she was earning at the time of the first charge.

While it is true that plaintiff did file a lawsuit on November 10, 1980 complaining of discrimination in her lateral transfer, she did not produce substantial evidence which would indicate that her discharge was connected with the lawsuit or with any of the prior claims that she had filed of discrimination. Under the statute, plaintiff must show that there was a causal connection between the protected activity, such as filing a discrimination charge or a lawsuit, and the adverse employment action. See Burrus v. United Telephone Company of Kansas, Inc., 683 F.2d 339 (10th Cir.1982). See also, the learned discussion by District Judge Porter, Southern District of Ohio, in the case of Sutton v. National Distillers Products Co., 445 F.Supp. 1319 (1978).

Plaintiff’s claims under 42 U.S.C. § 1981 based on sex discrimination must be dismissed out-of-hand since the statute applies only to racial discrimination. As to the racial discrimination aspects of Counts II and III, plaintiff’s evidence falls far short of showing intentional discrimination against her with reference to the employment actions which were taken prior to her termination. None of these employment actions has any racial aspects at all except for the Happel and Muncy incidents, which the Court has previously discussed, and which resulted in a decision made by management which was non-racial in its effect of transferring both the white employees and the plaintiff on a lateral basis from the same department.

We have this day entered our judgment dismissing the complaint of the plaintiff.


source: Caselaw Access Project

author: DUNCAN, District Judge.

license: Public Domain

text:
    Paul A. TYUS, Plaintiff, v. OHIO DEPARTMENT OF YOUTH SERVICES, James E. Rogers, William Demidovich, Richard Celeste, Larry McCartney and Brenda Shoemaker, Defendants.
    No. C-2-84-1534.
    United States District Court, S.D. Ohio, E.D.
    March 4, 1985.

      Jeffrey M. Silverstein, Dayton, Ohio, for plaintiff.
    Jeffrey J. Jurca, Deborah Piperni, Asst. Attys. Gen., Columbus, Ohio, for defendants.
   MEMORANDUM AND ORDER

DUNCAN, District Judge.

This is an action for damages and injunctive relief brought by plaintiff Paul Tyus, a former employee of the Ohio Department of Youth Services (“ODYS”). Defendants in this case, Governor Richard Celeste, his assistants Larry McCartney and Brenda Shoemaker, ODYS, ODYS Director James Rogers, and ODYS Personnel Administrator William Demidovich, are being sued in both their individual and official capacities. Plaintiff alleges that because he suffers from epilepsy, he was terminated from his employment at ODYS in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehabilitation Act”), his Fourteenth Amendment rights of due process and equal protection as guaranteed by the United States Constitution, and his federal civil rights. The complaint further charges that defendants’ discriminatory discharge of plaintiff renders them liable under state law for the tort of intentional infliction of emotional distress. Jurisdiction of this Court is invoked under 28 U.S.C. § 1331, 29 U.S.C. § 794, 42 U.S.C. §§ 1983, 1985, 1986 and 1988, and pendant jurisdiction. Plaintiff requests an order finding that defendants have discriminated against him on the basis of his handicap, and awarding him reinstatement and back pay, compensatory and punitive damages, and attorney’s fees.

Currently before the Court is a motion by defendants Celeste, McCartney and Shoemaker to dismiss the complaint for failure to state a claim upon which relief can be granted, and a motion by defendants ODYS Rogers and Demidovich to dismiss for failure to state a claim and for lack of subject matter jurisdiction. Plaintiff has filed a memorandum contra both motions to dismiss.

I. Immunity

It is well established that, in the absence of consent, a suit brought in federal court in which a state or one of its departments or agencies is named as the defendant is proscribed by the Eleventh Amendment to the United States Constitution, and that this jurisdictional bar applies regardless of the nature of the relief sought. Pennhurst State School v. Halderman, 465 U.S. 89, -, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). As an instrumentality of the State of Ohio, therefore, defendant ODYS is immune from suit in this Court, absent consent, and its motion to dismiss is hereby GRANTED.

The Eleventh Amendment also bars suits in federal court against state officials when the state is the real, substantial party in interest. Id.; Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). The general rule is that relief sought nominally against an officer is in fact against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the state from acting, or compel it to act. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). It is clear that plaintiffs requests for back pay and reinstatement are requests for relief against the state itself; only plaintiffs request for damages from the individual defendants in their individual capacities would fall outside the scope of the general rule barring suits when the state is the real party in interest.

There is, however, a narrow but important exception to a state’s Eleventh Amendment sovereign immunity. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court held that the Eleventh Amendment did not bar a suit alleging that state officials had acted contrary to the United States Constitution. The Young exception to sovereign immunity has been narrowly construed. It is limited to allegations that state officials violated federal rather than state law. Pennhurst, 104 S.Ct. at 900; Lee v. Western Reserve, 747 F.2d 1062, 1066 (6th Cir.1984). It is also limited to the award of prospective injunctive relief. Retroactive relief and damages are barred under the Eleventh Amendment. Pennhurst, 104 S.Ct. at 907-911; Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974). The Supreme Court, however, has upheld prospective injunctive relief even where it had a great impact on state treasuries. Edelman, 415 U.S. at 668, 94 S.Ct. at 1358; Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Lee, 747 F.2d at 1066. Therefore, in the case at bar, the Court believes that the Eleventh Amendment, under the Young doctrine, does not bar plaintiff from bringing suit in federal court in order to obtain prospective injunctive relief, such as reinstatement, from alleged federal constitutional and statutory violations by state officials. In summary, defendants’ defense of Eleventh Amendment immunity is not applicable to plaintiff’s constitutional, federal statutory and state claims against defendants, in their individual capacities, for damages; nor is it applicable to plaintiff’s constitutional and federal statutory claims against defendants in their official capacities for prospective injunctive relief. The remaining defendants’ motion to dismiss plaintiff’s claim for back pay is hereby GRANTED.

Defendants claim that they are shielded from suit in this case by the doctrine of “qualified immunity.” The Supreme Court has stated that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

Based on the present record, the Court cannot conclude that, as a matter of law, defendants’ conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

II. Exhaustion of Remedies

Citing Smith v. U.S. Postal Service, 742 F.2d 257 (6th Cir.1984), defendants contend that plaintiff must exhaust his administrative remedies prior to bringing suit in federal court for allegations of employment discrimination under the Rehabilitation Act, and that plaintiff has not done so. Plaintiff rebuts that he has, in fact, exhausted his administrative remedies and requests the Court’s leave to amend his complaint to so state. Plaintiff’s request to amend his complaint is GRANTED. The amended complaint shall be filed within twenty (20) days of the date of this order. Defendants’ motion to dismiss for plaintiff’s failure to exhaust his administrative remedies is DENIED without prejudice to resurrection of the motion after plaintiff has amended his complaint.

III. W U.S.C. § 1983

In Count II of his complaint plaintiff claims, presumably pursuant to 42 U.S.C. § 1983, that defendants have violated his rights of due process and equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution.

Defendants contend that plaintiff’s allegations of employment discrimination due to handicap do not state a claim for relief under 42 U.S.C. § 1983 because Congress created a private right of action for handicap discrimination cases under § 504 of the Rehabilitation Act. 29 U.S.C. § 794.

29 U.S.C. § 794 provides in pertinent part:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service ...

29 U.S.C. § 794a(a)(1) and (2) establish an express private right of action for the intended beneficiaries of § 794. Smith, 742 F.2d 257 (6th Cir.1984).

Directing the Court’s attention to Middlesex County Sewage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 19-21, 101 S.Ct. 2615, 2625-6, 69 L.Ed.2d 435 (1981) and Miener v. Special School Dist. of St. Louis County, 580 F.Supp. 562, 568 (E.D.Mo.1984), defendants state that the existence of an adequate federal statutory remedy for handicap discrimination demonstrates an intent by Congress to preclude such a remedy under 42 U.S.C. § 1983.

Title 42 U.S.C. § 1983 states in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that the term “laws,” as used in § 1983, includes federal statutes. Therefore, Thiboutot sanctioned the use of § 1983 to bring an action in federal court for violations of federal statutes under col- or of state law. The Court, however, has recognized two exceptions to the application of § 1983 to statutory violations: (1) when Congress forecloses a § 1983 remedy in the underlying act, and (2) when the statute at issue does not create “rights, privileges, or immunities” within the meaning of § 1983. Middlesex, 453 U.S. at 19, 101 S.Ct. at 2625; Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 27-30, 101 S.Ct. 1531, 1544-45, 67 L.Ed.2d 694 (1981). With regard to the former, the Court held in Middlesex:

When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983 ... [W]hen a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing the suit under § 1983.

Middlesex, 453 U.S. at 20, 101 S.Ct. at 2626.

Count I of plaintiff’s complaint states that defendants violated § 504 of the Rehabilitation Act; Count II alleges that defendants violated plaintiff’s constitutional rights of equal protection and due process; and Count III alleges a conspiracy to deprive plaintiff of his civil rights. Plaintiff’s claim for relief under 42 U.S.C. § 1983, therefore, has two potential components. First, § 1983 might be available to remedy violations of plaintiffs substantive Rehabilitation Act rights. Second, § 1983 might be available to remedy a violation of plaintiff’s constitutional rights.

The decision in Middlesex addressed the issue of whether or not a claimed violation of a federal statutory right was cognizable under § 1983 where sufficient remedial devices were already present in the federal statute. There was no mention of alleged violations of constitutional rights accompanying the alleged statutory violations. Brewer v. City of Bristol, 577 F.Supp. 519, 529 (E.D.Tenn.1983).

However, in Smith v. Robinson, — U.S. -, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Supreme Court extended Middlesex to cover constitutional claims. The United States Court of Appeals for the First Circuit had found that the Education of the Handicapped Act (“EHA”) contained a comprehensive and far-reaching remedial scheme, and concluded that, under the Middlesex test, intentional omissions from that scheme, such as a provision for the award of attorneys’ fees, should not be supplanted by the remedial apparatus of § 1983. In the view of the Court of Appeals, the fact that the § 1983 claims alleged therein were based on independent constitutional violations rather than violations of the EHA was immaterial. The Court of Appeals added that it did not intend to indicate that the EHA in any way limited the scope of á handicapped child’s constitutional rights. The Court noted that the constitutional claims alleged in the proceeding before it were factually identical to the EHA claims and that claims not covered by the EHA would still be cognizable under § 1983. Smith v. Cumberland School Committee, 703 F.2d 4, 8-9 (1st Cir.1983).

The United States Supreme Court granted certiorari and affirmed the Court of Appeals. Smith, 104 S.Ct. at 3457, stating

We have little difficulty concluding that Congress intended the EHA to be the exclusive avenue through which a plaintiff may assert an equal protection claim to a publicly financed special education.

Id. at 3468. The Court agreed that the EHA was sufficiently comprehensive to indicate that Congress intended handicapped children with constitutional claims to a free appropriate public education to pursue those claims through the “carefully tailored administrative and judicial mechanism set out in the statute.”

We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for a substantial equal protection claim ... Nevertheless, § 1983 is a statutory remedy and Congress retains the authority to repeal it or to replace it with an alternative remedy.

Id. at 3470.

The issue, therefore, currently before this Court is whether the Rehabilitation Act provides remedial devices that are sufficiently comprehensive to demonstrate a congressional intent to preclude suits under 42 U.S.C. § 1983, on either statutory or constitutional grounds, based upon claims that could be brought under the provisions of the Rehabilitation Act. The Court believes that it does. Section 504 of the Rehabilitation Act contains a simple and broad prohibition of discrimination on the basis of handicap. Smith, 104 S.Ct. at 3471. It is clear that plaintiff’s allegations fall directly within the intended scope of that section. As noted above, it is also clear that there is a private right of action for violations of § 504. Smith, 742 F.2d 257 (6th Cir.1984). Plaintiff’s claims under 42 U.S.C. § 1983 are based upon the same alleged injury as is plaintiff’s Rehabilitation Act claim. It does not appear that plaintiff’s 42 U.S.C. § 1983 claim adds anything to plaintiff’s substantive rights under 29 U.S.C. § 794 in this case, other than the possibility of circumventing Rehabilitation Act administrative procedures and going directly to court. While the exhaustion of administrative remedies is required under § 504 of the Rehabilitation Act, Smith, 742 F.2d 257 (6th Cir.1984), exhaustion of administrative remedies is not required under 42 U.S.C. § 1983. Patsy v. Board of Re gents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). In light of the broad remedial scope of 29 U.S.C. § 794, its clear applicability to the alleged injury in this case, and to the extent 42 U.S.C. § 1983 otherwise would allow a plaintiff to circumvent the Rehabilitation Act’s exhaustion of administrative remedies requirement, the Court believes that Congress did not intend to permit 42 U.S.C. § 1983 claims based upon alleged injuries remediable under 29 U.S.C. § 794. Accordingly, defendants’ motion to dismiss that portion of plaintiff’s complaint requesting relief pursuant to 42 U.S.C. § 1983 is hereby GRANTED.

IV

Count III of the complaint avers that defendants Rogers, Demidovich, McCartney and Shoemaker conspired to terminate plaintiff because of his epilepsy, in violation of his civil rights. Paragraph four of the complaint, which is incorporated by reference into Count III, states that defendant Celeste was aware of and permitted the alleged discriminatory acts against plaintiff. Apparently Count III is intended to assert a claim under 42 U.S.C. §§ 1985 and 1986.

In Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971), the Supreme Court stated that § 1985(3), which prohibits conspiracies for the purpose of depriving an individual of “equal protection of the laws,” was meant to reach a conspiracy that was based on a racial, or perhaps otherwise class-based, invidiously discriminatory animus. Citing United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), defendants argue that 42 U.S.C. § 1985(3) was not intended to reach any class-based animus other than racial bias or, at the most, discrimination against a “suspect class.” The Court in Scott, however, expressly withheld judgment on the issue of whether 42 U.S.C. § 1985 was intended to reach any class based animus other than racial animus, and even declined to find that § 1985 does not reach conspiracies aimed at a class or organization on account of its political views or activities. The Court noted that there is some legislative history to support the view that § 1985(3) has a broader reach:

Senator Edmunds’s statement on the floor of the Senate is the clearest expression of this view. He said that if a conspiracy were formed against a man “because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter, ... then this section could reach it.” Cong.Globe, 42d Cong., 1st Sess. 567. The provision that is now § 1985(3), however, originated in the House. The narrowing amendment, which changed § 1985(3) to its present form, was proposed, debated, and adopted there, and the Senate made only technical changes to the bill. Senator Edmunds’s views, since he managed the bill on the floor of the Senate, are not without weight.

Id. at-, 103 S.Ct. at 3358-60.

The courts are split on the issue of whether handicapped persons are entitled to protection under § 1985(3). Compare Wilhelm v. Continental Title Co., 720 F.2d 1173, 1174-77 (10th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1601, 80 L.Ed.2d 131 and Cain v. Archdiocese of Kansas City, Kansas, 508 F.Supp. 1021, 1026-27 (D.Kan.1981), with People by Abrams v. 11 Cornwell Co., 695 F.2d 34, 42-43 (2d Cir.1982).

The Court reads 42 U.S.C. § 1985(3) more broadly than do defendants. As noted above, § 1985(3) makes no references to race, but rather prohibits conspiracies to deprive any person of the equal protection of the laws. The Supreme Court in Scott noted that “[t]he predominate purpose of § 1985(3) was to combat the prevalent animus against Negroes and their supporters.” However, the same is true of the Thirteenth and Fourteenth Amendments to the United States Constitution. As stated by the United States Supreme Court in the Slaughter-House Cases, 16 Wall. (83 U.S.) 36, 21 L.Ed. 394 (1873):

[0]n the most casual examination of the language of [the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution], no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would, even have been suggested; we mean the freedom of the slave race ... It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that [the Thirteenth and Fourteenth Amendments were] addressed to the grievances of that race, and designed to remedy them as the fifteenth.
We do not say that no one else but the negro can share in this protection ... Undoubtedly while negro slaving alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter.

Id. at 71-72.

The first section of the [Fourteenth Amendment], to which our attention is more specifically invited, opens with a definition of citizenship ... [I]t overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt.

Id. at 72-73.

‘Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.’
In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.

Id. at 81.

Despite the fact that the Thirteenth and Fourteenth Amendments were passed originally to secure the rights of a specific group, and that a particular group may have been the original beneficiary of the Amendments, it is now beyond doubt that they are applicable to all citizens. See Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 669, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966); Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed.2d 2043 (1947). The Equal Protection Clause of the Fourteenth Amendment, which, like 42 U.S.C. § 1985(3), attacks the deprivation of “any person” of the equal protection of the laws, has been invoked to prohibit prejudicially disparate treatment on the basis of sex, alienage, handicap, poverty, corporate status and a wide range of other nonracial characteristics.

Recognizing § 1985(3)’s coverage of conspiracies motivated by nonracial class animus is consistent with the approach of the Supreme Court “to other Reconstruction civil rights statutes in [recent] years ... to ‘accord [them] a sweep as broad as their language.’ ” Griffin v. Breckenridge, 403 U.S. at 97, 91 S.Ct. at 1795. The language of § 1985(3) gives no indication that racial discrimination is a requisite element of a cause of action thereunder. To engraft such a limitation would bring the statute into anomalous contrast with comparable Reconstruction civil rights legislation, under which a wide variety of nonracial classes have won relief from discriminatory treatment.

In the Court’s view, handicapped individuals constitute a class especially meriting protection under § 1985(3). As a class, they have traditionally been victimized by disabling laws, and even more so by the physical and attitudinal barriers that have pervaded our society. They share an immutable characteristic which has carried a stigma of inferiority; and they have not had the political power in the past to significantly better their situation. The severity of the discrimination which they have endured is evidenced by Congress’ passage of § 504 of the Rehabilitation Act.

The Court finds that the handicapped are a class protected by § 1985(3). Defendants’ motion to dismiss plaintiff’s claim under that section and consequently under § 1986 is therefore DENIED.

It is so ORDERED.

      . The Court does not hold that the remedy provided by 29 U.S.C. § 794a(a)(2) reveals an intent by Congress to preempt claims of conspiracy pursuant to 42 U.S.C. § 1985. The Court believes that, in the case at bar, the latter provides a cause of action which is broader in scope than that of the former.

      . In Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973), the United States Court of Appeals for the Sixth Circuit held that a claim of discrimination against supporters of a particular political candidate could be brought under § 1985(3).


author: TOM S. LEE, District Judge.

text:
    BEAR CREEK WATER ASSOCIATION, INC., Plaintiff, v. CITY OF CANTON, et al., Defendants.
    Civ. A. No. J84-0752(L).
    United States District Court, S.D. Mississippi, Jackson Division.
    March 8, 1985.

      James H. Herring, Herring & Self, Canton, Miss., L.A. Smith, III, Asst. U.S. Atty., Jackson, Miss., for HUD, Roland and U.S.
    John H. Holloman, III, Watkins Ludlam & Stennis, Jackson, Miss., for Levi Strauss.
    C.R. Montgomery, Montgomery, SmithVaniz MeGraw & Ellington, Canton, Miss., for City of Canton, Runnels, Nichols, Wallace, Williams, Kraft, Harrell and Mosby, N. American Plasties, Indus. Development, Weems and Esco.
    Gary S. Stringer, James S. Pounds, Jackson, Miss., for Miss. Tax Com’n and A.C. Lambert.
    C. Delbert Hosemann, Jr., Magruder, Montgomery, Brocato & Hosemann, Jackson, Miss., for DeBeukelaer.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This action is before the court on the motion of certain defendants to dismiss and the motion of the plaintiff for a preliminary injunction. After considering the memoranda with attachments submitted by the parties and hearing argument, this court is of the opinion that both motions should be denied.

The plaintiff, Bear Creek Water Association, Inc., a private utility company and non-profit corporation created pursuant to the laws of the State of Mississippi, was granted a certificate of public convenience and necessity by the Mississippi Public Service Commission on June 28, 1971. The certificate vested plaintiff with, inter alia, the exclusive right to provide water service in a defined area in Madison County, Mississippi. In 1980, the City of Canton (City), one of the defendants in this action, applied to the United States Department of Housing and Urban Development for a grant to construct facilities providing water to businesses in an industrial park being developed by the City. In the application, the City stated that no entity was certificated to provide water services in the area and that the City had authority to do so. Defendant John M. Wallace, President of Industrial Development Authority of Madison County, Mississippi, stated by affidavit that the existence of plaintiffs certificate was not revealed by a search of the public records of the county. Wallace admitted that the plaintiff’s water line was located during construction of the City’s facilities. The application was granted and after completion of the project, the City began to provide water to Lévi-Strauss & Co., one of the defendants and an occupant of the City’s industrial park.

On June 24, 1980, representatives of the plaintiff and defendants met and discussed the problems they were encountering. The City asserts that the plaintiff agreed to transfer its certificate to the City at a future date and plaintiff disputes this contention.

Plaintiff initiated this suit on October 24, 1984, seeking a determination that the defendants have deprived the plaintiff of its property without due process of law and have denied it equal protection of the law; an accounting of all facilities installed in the plaintiff’s certificated area and the amount of payments paid, received or placed in escrow therefor; compensatory and punitive damages; a permanent injunction prohibiting the City from providing water service to plaintiff’s exclusive service area; and transfer of the City’s right, title and interest in the facilities constructed under the federal grant. On January 22, 1985, the defendants petitioned the Mississippi Public Service Commission to cancel the plaintiff’s certificate and grant a certificate to those defendants.

In their motion to dismiss, defendants urge this court to “abstain from exercising its subject-matter jurisdiction over plaintiff’s cause of action and to dismiss said cause of action without prejudice.” The doctrine of abstention is a limiteá exception to the “duty of a District Court to adjudicate a controversy properly before it.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). According to the defendants, the instant case is similar to the one before the Court in Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), wherein the plaintiff sought federal court review of a drilling permit issued by the Texas Railroad Commission. The case “clearly involve[d] basic problems of Texas policy,” 319 U.S. at 332, 63 S.Ct. at 1106, and interference by federal courts “would have had an impermissibly disruptive effect on state policy for the management of those [oil] fields” Colorado River, 424 U.S. at 815, 96 S.Ct. at 1245.

The plaintiff’s complaint in this case clearly pertains to the regulation of public utilities, an important state issue. It cannot be said, however, that this court would “impair impermissively” the implementation of state policy by exercising its jurisdiction. See Colorado River, 424 U.S. at 816, 96 S.Ct. at 1245. Bear Creek seeks relief in this court which is not available in proceedings before the Mississippi Public Service Commission. Furthermore, at this juncture, it does not appear that a resolution by this court will interfere with the ability of the Mississippi Public Service Commission to discharge its statutory duties. For these reasons, it is the court’s opinion that the defendants’ motion to dismiss should be denied.

The defendants argue that this court is barred from granting the plaintiff’s motion for a preliminary injunction because of the Anti-Injunction Act, 28 .S.C. § 2283, which provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or when necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” The statute was designed to prevent unnecessary friction ensuing from a struggle for control between state and federal court systems. See Oklahoma Packing Company v. Oklahoma Gas & Electric Company, 309 U.S. 4, 9, 60 S.Ct. 215, 218, 84 L.Ed. 447 (1940). The Act “is an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions.” Atlantic Coastline Railroad Company v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970). Because the Act concerns the sensitive balance of a dual court system, it is to be strictly construed. Atlantic Coast, 398 U.S. at 286, 90 S.Ct. at 1743. See also Vendo Company v. Lektro-vend Corporation, 433 U.S. 623, 630-31, 97 S.Ct. 2881, 2887-88, 53 L.Ed.2d 1009 (1977); Mitchum v. Foster, 407 U.S. 225, 229, 92 S.Ct. 2151, 2155, 32 L.Ed.2d 705 (1972); Amalgamated Clothing Workers v. Richmond Brothers, 348 U.S. 511, 516, 75 S.Ct. 452, 455, 99 L.Ed. 600 (1955); Piambino v. Bailey, 610 F.2d 1306, 1331 (5th Cir.) cert. denied, 449 U.S. 1011, 101 S.Ct. 568, 66 L.Ed.2d 469 (1980); Carter v. Ogden Corporation, 524 F.2d 74, 76 (5th Cir. 1975); International Association of Machinists and Aerospace Workers v. Nix, 512 F.2d 125, 129 (5th Cir.1975).

In Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972), the United States Supreme Court held that 42 U.S.C. § 1983 is within the “expressly authorized” exception of the Anti-Injunction Act. The Court examined the legislative history of § 1983 and found it “clear ... that the act was intended to enforce the provisions of the Fourteenth Amendment ‘against state action, ... whether that action be executive, legislative or judicial’ ” Mitchum, 407 U.S. at 240, 92 S.Ct. at 2161, quoting Ex Parte Reginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1880) (emphasis supplied by Mitchum Court). To that end, Congress authorized the enjoining of state court proceedings by a federal court in a “suit in equity” brought pursuant to 42 U.S.C. § 1983. See Mitchum, 407 U.S. at 242, 92 S.Ct. at 2162. In its second amended complaint, plaintiff has arguably stated a cause of action arising under 42 U.S.C. § 1983. Accordingly, the Anti-Injunction Act is not a bar to this court’s power to issue the requested injunction.

The criteria for the issuance of a preliminary injunction are well settled in the Fifth Circuit. The moving party must demonstrate:

1. A substantial likelihood that the movant will prevail on the merits;

2. A substantial threat that the movant will suffer irreparable injury if the injunction is not granted;

3. That the threatened injury to the movant outweighs the threatened harm the injunction may do to the nonmoving party; and

4. That granting the preliminary injunction will not disserve the public interest. Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir.1979). A preliminary injunction is extraordinary relief and should only be granted upon a clear showing by the plaintiff. Id. at 576. “The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.” Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954-55, 3 L.Ed.2d 988 (1959); Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974); Canal Authority, 489 F.2d at 576; Tate v. American Tugs, Inc., 634 F.2d 869, 870 (5th Cir. 1981).

The plaintiff asserts that permitting the Mississippi Public Service Commission to proceed will deny it just compensation and cause irreparable injury. The plaintiff charges that the Mississippi Public Service Commission is only empowered by statute to grant or cancel certificates of public convenience and necessity. If the Commission determines that the plaintiff is not adequately serving its certificated area, it, therefore, can only cancel the certificate and cannot provide that the plaintiff receive compensation for the taking of a property right. The Mississippi Supreme Court has determined that a certificate of public convenience and necessity is a property right and has also formulated the procedure by which that right is valued. See Bear Creek Water Association, Inc. v. City of Madison, 416 So.2d 399 (Miss.1982). If Bear Creek’s certificate is cancelled in the Commission proceedings, it can receive compensation in a court action for damages resulting from the alleged invasion of the certificated area. See Capital Electric Power Association v. City of Canton, 274 So.2d 665, 670 (Miss.1973); City of Jackson v. Creston Hills, Inc., 252 Miss. 564, 172 So.2d 215, 220 (1965). Therefore, plaintiff’s argument that continuation of the Commission proceedings will deny it just compensation and cause irreparable injury is without merit.

The plaintiff further argues that this court will be unable to grant the relief requested in this action if the Commission cancels plaintiff’s certificate. The Commission will consider if the plaintiff is adequately serving its certificated area to determine whether to cancel the certificate. According to the plaintiff, any inadequacies in its service will be remedied by the money damages or equitable relief of transferring the defendant’s facilities to the plaintiff requested in this suit. To permit the Public Service Commission to rule prior to action by this court will allegedly cause irreparable injury to the plaintiff.

The Public Service Commission is authorized and required by statute to act in the public interest. See Miss.Code Ann. § 77-3-2 (Supp.1984). The Commission must consider the public interest in its substantive actions as well as in the timing of those acts. This court, following the principles of equity, comity and federalism, hesitates to interfere in proceedings before the Public Service Commission. The Commission is acting pursuant to a statutory scheme which is not challenged here and which apparently does not foreclose the availability of just compensation following a taking. In addition, the members of the Public Service Commission and its staff presumably have the expertise and experience necessary to make a decision that is in the best interest of the general public. Accordingly, the plaintiff has not shown that it will suffer irreparable injury that outweighs any harm the issuance of the preliminary injunction will cause the defendants. Additionally, the plaintiff has not established that granting its motion will further the public interest. Because the plaintiff has failed to satisfy the “indispensable prerequisite to issuance of a preliminary injunction,” irreparable injury, consideration of the other elements of the Canal Authority test is not necessary. See Tate v. American Tugs, 634 F.2d 869, 870 (5th Cir.1981). 489 F.2d at 578.

It is, therefore, ordered that the plaintiff’s motion for preliminary injunction is denied. It is further ordered that the motion to dismiss of defendants, City of Canton, Mississippi, its Mayor and Board of Aldermen, the Industrial Development Authority of Madison County, Mississippi and John M. Wallace is denied.

      . Also named as defendants in the second amended complaint were: Levi Strauss & Co.; The United States Department of Housing and Urban Development; James S. Roland, in his capacity as Director of the Mississippi Office of The United States Housing and Urban Development; North American Plastics, Inc.; Mississippi State Tax Commission; A.C. Lambert in his capacity as Chairman of the Mississippi State Tax Commission; De Beukelaer, Inc.; The Industrial Development Authority of Madison County, Mississippi; John M. Wallace in his capacity as President of the Industrial Development Authority of Madison County, Mississippi; and the following officers and agents of the City of Canton, in their official capacities only: Sidney Runnels, Mayor; George Nichols; Jewel Williams; Gus Kraft; H.T. Harreld; Bill M. Mosby; Charles Weems and Fred Esco, Aider-men.
      The United States, through the Farmers Home Administration, has moved to intervene in this action but the court has not ruled on the motion.
      Unless otherwise noted, any reference to “defendants" in this opinion is limited to the defendants involved in the motion to dismiss and the motion for preliminary injunction, to-wit, the City of Canton, Mississippi, its Mayor and Board of Aldermen, the Industrial Development Authority of Madison County, Mississippi and John M. Wallace.

      . The defendants also provide water service to other occupants of the park.

      . In their rebuttal brief, defendants assert that they do not intend to waive their rights to challenge this court’s jurisdiction at a later time.

      . This court does not determine whether the action pending before the Mississippi Public Service Commission is a proceeding in a state court since the Anti-Injunction Act is clearly inapplicable on other grounds.

      . In Mitchum, 407 U.S. at 243, 92 S.Ct. at 2162, the United States Supreme Court stated that principles of equity, comity and federalism, as set out in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), may prohibit issuance of an injunction even when the Anti-Injunction Act is not applicable. In Younger, the Court held that, absent certain circumstances, principles of equity, comity and federalism required denial of a motion to enjoin a state criminal proceeding in a federal action challenging the constitutionality of a state criminal law. Younger's progeny has made clear that the doctrine espoused in that case applies to some or all state civil proceedings. See, e.g., Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05, 95 S.Ct. 1200, 1208-09, 43 L.Ed.2d 482 (1975). Application of the Younger doctrine requires that the court dismiss the entire federal suit since all claims can be presented to the state court. In this case, it is clear that all of the claims raised and relief requested before this court cannot be heard by the Mississippi Public Service Commission. Accordingly, Younger itself is not applicable. See Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 435, 102 S.Ct. 2515, 2523, 73 L.Ed.2d 116 (1982).

      . Accordingly, plaintiff has an adequate remedy at law whereby it can be compensated if its certificate is cancelled. The availability of an adequate remedy at law indicates that the alleged harm is not irreparable. See Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 953, 39 L.Ed.2d 166 (1974).

      . The plaintiff apparently anticipates that the Mississippi Public Service Commission will not rule in its favor. However, by affidavit, Anne J. King, Manager of Bear Creek, states: “Bear Creek Water Association, was and is ready, willing, able and authorized in accordance with its responsibilities, to provide water works services for the subject industrial park."

      . Neither party has briefed the question of whether this court is empowered to transfer property belonging to the defendants and subject to a security interest of approximately 1.5 million dollars to the plaintiff.

      . The proceeding before the Mississippi Public Service Commission will be a hearing with appellate review before the state courts of Mississippi. See Miss.Code Ann. § 77-3-21 (1972) and Miss.Code Ann. 77-3-67 through -71 (Supp. 1984). See Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 437, 102 S.Ct. 2515, 2524, 73 L.Ed.2d 116 (1982) (federal court should abstain from interfering in pending state bar disciplinary proceedings).


author: JOINER, District Judge.

text:
    Richard MOHAMMED, d/b/a Richard Mohammed Construction Co., Plaintiff, v. UNION CARBIDE CORPORATION, C & H Piping, Inc., a Michigan corporation, Gandol, Inc., a Michigan corporation, James Gandol, an Individual, John A. Cummings, an Individual, Terry L. Cholette, an individual and Kenneth R. Hendrix, an Individual, Defendants.
    Civ. A. No. 83CV-6375-AA.
    United States District Court, E.D. Michigan, S.D.
    March 14, 1985.

      Jack C. Chilingirian, St. Clair Shores, Mich., for plaintiff.
    David G. Chardavoyne, James A. Smith, Karen L. Piper, Bodman, Longley & Dahling, Detroit, Mich., John A. Lygizos, Lygizos & Janhevich, Dearborn, Mich., Gerald J. Young, Young & Gorny, Birmingham, Mich., Gene J. Esshaki, Mary P. Nelson, Abbott, Nicholson, Quilter, Esshaki & Youngblood, P.C., C. Nicholas Revelos, Detroit, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

This ease is before the court on the motion of defendant Union Carbide for summary judgment, and on the motion of defendant Gandol, Inc., and James Gandol for sanctions pursuant to Fed.R.Civ.P. 11. For the reasons stated herein, both motions are granted.

FACTS

This case arises out of the expiration of a contract between plaintiff, a provider of excavation and concrete pouring services, and defendant Union Carbide, the purchaser of plaintiffs services. The original complaint was brought in 14 counts against Union Carbide, John Cummings, Union Carbide’s plant manager for the Ecorse facility at which plaintiff performed construction services for Union Carbide; C & H Piping, Inc. and its principals; Terry Cholette and Kenneth Hendrix; and Gandol, Inc. and its principal, James Gandol.

The parties to Union Carbide’s motion for summary judgment appear to agree to the following facts:

Union Carbide operates a facility in Ecorse, Michigan, which separates air into its constituent gases and sells those gases. The facility’s major purchaser is Great Lakes Steel, which has a plant that surrounds the Ecorse facility. By agreement between Union Carbide and Great Lakes Steel, the latter supplies personnel to operate the facility and to perform maintenance and construction work on it. Union Carbide cannot use its own operators or select its own outside construction and maintenance contractors unless Great Lakes Steel declines to supply personnel for a particular job.

Plaintiff first worked at the Ecorse facility as subcontractor for C & H Piping, Inc. In April of 1980, plaintiff entered into a one-year time-and-materials contract to provide such excavation and cement work as Union Carbide might request of him, at rates specified in the agreement.

This “time-span” order between plaintiff and Union Carbide was extended for an additional year in April of 1981, and was later extended to August 31, 1982. The time-span order then expired by its terms. At that time, both plaintiff and defendant Gandol had been performing time-span work at the Ecorse facility. Union Carbide has provided evidence by way of deposition testimony that certain Union Carbide officials decided that two such time-span excavation and cement contractors were unnecessary, and that Gandol would be retained because it hired union employees, whereas plaintiff was not a union shop.

Union Carbide contends that the decision to allow plaintiffs time-span order to expire was made by Cummings and Randy Kramer, a Union Carbide purchasing agent stationed in Cleveland. Two other Union Carbide employees also took part in the decision, but Union Carbide steadfastly maintains, and has provided evidence to establish that the decision was made entirely by Union Carbide personnel, without any input or influence by persons outside of the company.

Plaintiff just as steadfastly maintains that other entities, such as Great Lakes Steel and the United Steelworkers of America Local 1299 Union, whom he has recently added as defendants in this case, as well as Gandol and C & H, put pressure on Union Carbide to terminate plaintiffs time-span contract, thereby permitting Gandol to completely replace him. Despite two lengthy extensions of the discovery period by this court, however, plaintiff has failed to apprise the court of any evidence of such a conspiracy between Union Carbide and any of the parties to the original complaint, or either of the parties recently named in the amended complaint.

Union Carbide concedes that the decision to allow plaintiffs time-span contract to expire, and to retain Gandol as the sole time-span contractor, was motivated in large part on Gandol’s union status, and plaintiffs lack of union affiliation. It contends that it sought to avoid labor friction at the Ecorse plant that might arise from the presence of non-union laborers working at the same site with union laborers. Such labor friction would cause problems for Union Carbide’s customer, Great Lakes Steel, which conducts business with labor organizations such as Local 1299. Despite its concerns about the possibility of such labor friction, Union Carbide continued to employ plaintiff at the Ecorse facility on a “fixed price” basis, whereby plaintiff was asked to quote a price to complete a particular job, rather than seeking payment on an hourly basis.

Plaintiff agrees that his contract was terminated because his company was not a union shop, and further contends that the decision to terminate his contract was affected by an agreement between the various defendants. Plaintiff further points to the apparent contradiction in Union Carbide’s decision to terminate his time-span order because of its desire to prevent a mixed, union/non-union labor force at the Ecorse facility, while nonetheless permitting plaintiff and his non-union employees to remain at the facility on a fixed price basis.

Procedural History

Because the procedural history of this action is relevant to the disposition of the motions before the court, it will be recounted here in short summary. The original complaint was filed on October 7, 1983. Subsequently, the depositions of plaintiff, and defendants Cummings and James Gandol were taken. Gandol, Inc. and James Gandol moved for summary judgment on March 9, 1984, arguing that plaintiff had failed to identify the existence of any evidence at his own deposition that would support any of his allegations against those defendants. Plaintiff responded by asserting that he needed additional time to complete discovery in this case, which included deposing various Union Carbide employees, and that summary judgment on the antitrust claims was inappropriate at that stage in the proceedings.

The motion was heard on April 17. The court granted plaintiff’s request for an additional 90 days from the date of the hearing in which to conduct discovery. It also granted Gandol’s motion in part, however, dismissing the libel and slander claims, ordering consolidation of Counts V and VI (tortious interference with contractual relations), and striking Count X (unfair competition under state law) unless plaintiff amended the complaint to designate the particular statute under which the claim was brought. The court denied the motion with respect to the remaining counts without prejudice to Gandol’s rights to renew the motion upon completion of discovery.

On June 14, a month prior to the date when the extended discovery period was scheduled to expire, plaintiff moved for yet another 90 days in which to complete discovery, urging that certain defendants had been remiss in providing him with requested documents, and that certain depositions had not been completed. In an order dated June 25, the court granted the motion to extend the discovery period, and specifically stated that Gandol could renew its motion for summary judgment after September 17.

On July 3, the court entered an order, pursuant to a stipulation by the parties, to dismiss plaintiff’s slander and libel claims against C & H Piping, without prejudice.

On October 22, 1984, Gandol, Inc. and James Gandol did renew their motion for summary judgment, again asserting that, notwithstanding the extensive discovery taken in the case at that time, plaintiff had still failed to adduce any evidence that either of the moving defendants had engaged in conduct that would support a claim under any of the theories of liability enumerated in the original complaint. Plaintiff filed a contemporaneous motion to amend the complaint, seeking to add Great Lakes Steel as a party defendant and certain unnamed labor organizations. In response to Gandol’s motion for summary judgment, plaintiff submitted a single document, a procurement plan summary sheet prepared by employees of Union Carbide. The plan evinced a desire on the part of its authors to prevent plaintiff from obtaining “fixed-price” awards, because he had been obtaining exorbitant profits as a result of charging Union Carbide union-scale prices, but failing to pay union-scale wages to his employees.

Plaintiff also contended in his response that a Union Carbide employee had testified at deposition that he believed that James Gandol had attempted to bribe him in order to obtain an exclusive time-span order from Union Carbide.

The court concluded that plaintiff had failed to demonstrate the existence of a genuine question of fact concerning any of the material issues of the remaining counts in the original complaint asserted against the Gandol defendants and granted the motion for summary judgment. The court also granted plaintiff’s motion to add additional parties to the complaint, but specifically prohibited him from naming Gandol, Inc. or James Gandol in the amended complaint.

Union Carbide has now moved for summary judgment against all of the claims asserted against it in the first amended complaint. Gandol, Inc. and James Gandol have moved for the imposition of sanctions against plaintiff under Fed.R.Civ.P. 11.

DISCUSSION

Union Carbide’s Motion For Summary Judgment

Union Carbide’s motion for summary judgment is directed at plaintiff’s first amended complaint, which was filed after the court dismissed certain counts of the original complaint as against defendant Gandol, Inc. and James Gandol. The amended complaint is brought in six counts, and Union Carbide seeks summary judgment on all counts.

Count I — Violation of Section 1 of the Sherman Act

Count I of the first amended complaint asserts that the defendants engaged in a contract, combination or conspiracy in restraint of trade, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.

Union Carbide correctly argues that unilateral conduct on the part of a defendant is not actionable under § 1, Davis-Watkins Co. v. Service Merchandise, 686 F.2d 1190 (6th Cir.1982) cert. denied sub nom — U.S.-, 104 S.Ct. 1718, 80 L.Ed.2d 190 (1984). Union Carbide asserts, and the court agrees, that the uncontradicted deposition testimony taken to date in this matter, which has been voluminous, clearly indicates that Union Carbide officials alone were responsible for the decision to allow plaintiffs time-span contract to terminate. Plaintiff contends that the testimony of the Union Carbide employees is self-interested and inherently incredible, and that he should be permitted to go to trial to challenge the credibility of these persons, arguing that evidence of a conspiracy is largely in the hands of the alleged conspirators. The court might be inclined to permit plaintiff to proceed to trial on his antitrust claims against Union Carbide if he had produced some evidence of the alleged conspiracy. He has not done so. Consequently, the court will apply the traditional standards of Fed.R.Civ.P. 56, and concludes that Union Carbide is entitled to judgment as a matter of law. See Smith v. Northern Michigan Hospitals, Inc., 703 F.2d 942, 948 (6th Cir.1983).

Count II — Violation of Section 2 of the Sherman Act

Plaintiff alleges in Count II of the first amended complaint that, “as a result of the actions and conspiracy and attempted monopoly by Gandol and the combination of said defendants, the Plaintiff has been eliminated as a competitor in the relevant market.” This count does not clearly set forth an allegation of monopolization or attempted monopolization against Union Carbide under Section 2 of the Sherman Act, 15 U.S.C. § 2. To the extent that plaintiff has asserted such a claim against Union Carbide, it must fail. Union Carbide is not a competitor of plaintiff in the relevant product market, the provision of excavation and cement pouring services. Plaintiff is therefore without standing to assert a § 2 claim against Union Carbide, Smith v. Northern Michigan Hospitals, Inc., supra, 703 F.2d at 954-55.

Count III — Violation of Michigan Antitrust Laws

To the extent that plaintiff asserts a claim against Union Carbide for a contract, combination, and conspiracy in restraint of law under Michigan statute, M.C.L.A. § 445.701 et seq., that claim is infirm for the same reason that his claim under § 1 of the Sherman Act must fail. See Michigan Association of Psychotherapy Clinics v. Blue Cross-Blue Shield, 118 Mich.App. 505, 518, 325 N.W.2d 471 (1982) (evidence of concerted action necessary to support a claim under § 445.701).

Count IV

Union Carbide correctly argues that there is no private civil action for conspiracy under the common law of Michigan. Rather, an allegation of conspiracy must be coupled with a substantive theory of liability in order to sustain a cause of action. See Earp v. City of Detroit, 16 Mich.App. 271, 275, 167 N.W.2d 841 (1969). Consequently, plaintiffs allegations that Union Carbide’s conduct amounted to common-law conspiracy does not set forth an independent cause of action, and summary judgment must be granted with respect to this count.

Count V — Fraud

Union Carbide maintains that plaintiff’s fraud claim, by his own deposition testimony, is predicated upon a statement made to him by Cummings that the low bidder on the maintenance job would receive the time-span contract. As a general proposition, a promise to do something in the future can not serve as the factual predicate in a cause of action for fraud. Rather, a claim of fraud must be grounded upon a statement concerning a past or present fact or event that the speaker knows to be false at the time of the statement, or which statement is made with reckless disregard for its lack of accuracy. See Hi-Way Motor Co. v. International Harvester, 398 Mich. 330, 336, 247 N.W.2d 813 (1976). This general rule is tempered by the exception that a person who makes a promise in “bad faith”, without any intention of performing it at the time that the promise is made, may subject himself to liability for fraud. See Atlas Concrete Pipe v. Roger J. Au & Son, 467 F.Supp. 830, 838 (E.D.Mich.1979), rev’d on other grounds, 668 F.2d 905 (6th Cir.1982).

In his response to the motion for summary judgment, plaintiff addresses the court to a request for quotation, dated May 10, 1983, by which Union Carbide invited plaintiff to bid on a contract for “Miscellaneous Maintenance Work” at the Ecorse facility, which contract was to run from June of 1983 through May of 1984. Plaintiff contends that this invitation was fraudulent, because, as the procurement plan summary sheet prepared in January of 1983 indicates, Union Carbide had already determined to terminate plaintiffs time-span contract. Thus, plaintiff argues, Union Carbide promised to entertain his bid, but had no intention of doing so.

Union Carbide responds that Mr. P.J. McKenna, who sent the invitation to bid to plaintiff, has testified that, at the time he sent the invitation, he had every intention to award the contract to the lowest bidder. Further, the procurement plan summary that was drafted by various Union Carbide employees in January, which addressed certain problems created by plaintiffs non-union status, did not foreclose the award of future construction contracts to plaintiff. The court concludes therefore that plaintiff has failed to demonstrate the existence of genuine dispute of fact concerning McKenna’s bad faith in soliciting the bid. Thus, the bad faith exception to the general rule that a breach of a promise does not constitute fraud does not apply. Consequently, Union Carbide is entitled to summary judgment on Count V.

Count VI — Breach of Contract

Plaintiff alleges in Count VI that Union Carbide had a published and unpublished policy to renew the contracts of suppliers who provided satisfactory services, and that Union Carbide violated this policy by cancelling plaintiff’s time-span contract. As Union Carbide has demonstrated, plaintiff’s final time-span contract expired by its terms on August 31, 1982. Union Carbide denies that it had any such policy of automatic renewal of expired contracts, and plaintiff has failed to apprise the court of any evidence whatsoever of such a policy, published or unpublished. Further, even assuming the existence of such a policy, plaintiff has failed to articulate how the policy would create enforceable contractual rights on behalf of plaintiff, or in the alternative, how he relied to his detriment on such a policy. For the foregoing reasons, Union Carbide is entitled to summary judgment on Count VI of plaintiff’s first amended complaint.

The Alleged Conspiracy Involving Great Lakes Steel and Defendants Local 1299

Although the foregoing ruling effectively disposes of all remaining claims against Union Carbide on the merits, the court would like to take this opportunity to address an additional issue raised by plaintiff in his response to this motion. Plaintiff contends that, at the conclusion of his extensive discovery efforts in this case, he now believes that Union Carbide has conspired with Great Lakes Steel, Local 1299, and perhaps others to eliminate him as a provider of excavation and cement services at the Ecorse plant, and that such conduct constitutes a group boycott, in violation of Section 1 of the Sherman Act. The court has already determined that plaintiff has failed to provide the court with sufficient evidence of such a conspiracy to withstand the motion for summary judgment. Even if plaintiff had been able to prove the existence of such a conspiracy, however, such conduct would arguably be protected under the federal labor laws.

Plaintiff relies on the case of Connell Construction Co. v. Plumbers & Steamfitters Local Union 100, 421 U.S. 616, 95 S.Ct. 1880, 44 L.Ed.2d 418 (1975) for the proposition that a labor organization forfeits its statutory and non-statutory immunity from antitrust liability when it engages in certain concerted action with non-labor organizations. The Connell Court held that a labor union might be liable for antitrust violations when it placed direct pressure on a general contractor to prevent the latter from entering into sub-contracting agreements with non-union employers. The Connell Court found that such direct pressure, in the form of picketing at the general contractor’s work sites, would not be protected by the union’s traditional sources of immunity from antitrust law when the union had no intention of organizing the target of its picketing activities, and when the union was not seeking to ensure an all-union labor force at a single work site, 421 U.S. at 630-33, 95 S.Ct. at 1839-40.

The Connell opinion clearly distinguishes the situation where a labor organization in the construction industry brings secondary pressure to bear on an employer when its purpose is to obtain an all-union labor force at a particular job site. Indeed, Congress created such an exception to the general prohibition against secondary activity in favor of labor organizations in the construction industry in 29 U.S.C. § 158(e), § 8(e) of the National Labor Relations Act. The Connell Court found this exception to be inapplicable on the facts of that case. In this case, on the other hand, both plaintiff and Union Carbide agree that plaintiff’s time-span order was not renewed because Union Carbide sought to avoid labor friction at the Ecorse facility, a situation that § 8(e) was designed to address. Consequently, Connell is clearly distinguishable from the instant case, as is the subsequent case of Muko, Inc. v. Southwestern Pennsylvania Building and Construction Trades Council, 609 F.2d 1368 (3rd Cir.1979) (en banc), which relied on Connell.

Thus, even assuming that plaintiff is able to establish that Local 1299 had conspired with Union Carbide and Great Lakes Steel to preclude plaintiff from working at the Ecorse facility, such conduct by the union would clearly constitute protected activity for the purposes of § 8(e), thereby immunizing the union from liability under the federal antitrust statutes. Although the cases to which the court’s attention have been directed do not address the issue, this court presumes that if the union’s activity is protected, liability can not be imposed upon an employer or the supplier of the employer such as Union Carbide under the antitrust laws for concerted action that seeks to establish an all-union job site. If the contrary were true, a frustrated nonunion sub-contractor such as plaintiff could undermine the statutory protection afforded to secondary activity by § 8(e) by proceeding against the employer or secondary supplier, as plaintiff has done in this case.

For the foregoing reasons, plaintiff’s conspiracy theory, even if grounded in reality, does not appear to be actionable against either Union Carbide, Great Lakes Steel, or Local 1299. The court addresses this issue merely because it has been raised and extensively briefed by the parties. This opinion should not be read as an adjudication of the claims against Local 1299 or Great Lakes Steel, however. To reiterate, the court has predicated its holding that Union Carbide is entitled to summary judgment with respect to the claims of conspiracy or combination in restraint of trade, as set forth in Count I, on the grounds that plaintiff has failed to demonstrate the existence of sufficient evidence of concerted activity.

Gandol’s Motion For Sanctions Pursuant to Rule 11

Gandol has moved for an award of the costs and attorneys fees that it has incurred in the defense of this matter, pürsuant to Fed.R.Civ.P. 11, arguing that plaintiff failed to conduct a reasonable inquiry into the allegations that he interposed against Gandol prior to filing the complaint.

1983 Amendment of Rule 11 and the Duty to Make Reasonable Inquiry

Rule 11 of the Federal Rules of Civil Procedure, which prohibits the filing of pleadings, motions and other papers “for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,” was amended in 1983, effective August 1. The amended rule was therefore applicable to the original complaint that was filed in this case on October 7 of that year. The Notes of the Advisory Committee for the 1983 amendments to the Rules state that Rule 11 has been strengthened to provide greater protection against the filing of frivolous claims. Indeed the explanatory notes invite judges to make more frequent use of the amended Rule than has previously been the case.

Prior to the recent amendment of Rule 11, the courts had consistently construed the prohibition against frivolous practice to implicate conduct that amounted to bad faith. See Nemeroffv. Abelson, 620 F.2d 339, 350 (2d Cir.1980). Such a standard is by its very nature highly subjective, prompting an inquiry into the motives and intentions of the attorney or client who have been accused of improper use of legal process. Indeed, plaintiffs attorney in this case has defended against this motion with an argument that the court can not make a reliable determination about such mental phenomenon simply by examining in ex post facto fashion the pleadings that he filed in this case. The court agrees that a determination of an attorney’s subjective bad faith is a dubious endeavor in many cases, and believes that the use of the bad faith standard frustrates the effective enforcement of Rule 11.

One of the important additions to the amended rule is the requirement that an attorney make “reasonable inquiry” into the operative facts and relevant law before signing his name to a pleading, motion or other party, which signature constitutes his certificate that the paper is “well grounded in fact and is warranted by existing law or a good faith argument for the extension of existing law.” Unlike the subjective good faith of an attorney, “reasonable inquiry” is an empirically verifiable fact or event, inasmuch as the court can examine the efforts undertaken by the attorney to investigate her claim prior to filing suit. The focus of such an inquiry is upon events that can be observed and verified to some extent: what the attorney learned from his client, what efforts he undertook to corroborate the client’s account, and so on. Any determination of what constitutes a “reasonable inquiry” depends largely on the particular facts and circumstances of a given claim. The court recognizes that there are many ways by which an attorney can reasonably apprise himself of the legitimacy of a claim prior to pursuing it in court, but the “reasonable inquiry” standard at the very least requires some kind of investigation, some affirmative conduct on the part of the attorney. By focusing upon the investigative efforts undertaken by the attorney, rather than seeking to scrutinize the unfathomable processes of his mind, the court is better able to apply the strictures of Rule 11 objectively and fairly.

Although courts that have applied Rule 11 since its amendment have on occasion continued to rely on the “bad faith” standard, see Tedeschi v. Smith Barney, Harris Upham & Co., Inc., 579 F.Supp. 657, 663 (S.D.N.Y.1984), others have adverted to the requirement of reasonable inquiry in concluding that the conduct of an attorney should be reprimanded, see Wold v. Minerals Engineering Co., 575 F.Supp. 166, 167 (D.Colo.1983); Van Berkel v. Fox Farm and Road Machinery, 581 F.Supp. 1248, 1250 (D.Minn.1984).

In the instant case, Gandol focuses in particular upon plaintiff’s allegations of libel and slander, contained in Counts III and IV of the original complaint, which were dismissed in Gandol’s original motion for summary judgment. Gandol asserts in this motion that plaintiff conceded at his deposition that he had no evidence that Gandol had uttered a slanderous statement or published a libelous account concerning him. In his response to Gandol’s first motion for summary judgment, plaintiff failed to offer any evidence to support the allegations of defamation. Gandol again complains of plaintiff’s conduct with respect to the defamation claims in the instant motion, and plaintiff has again failed to come forward with any evidence to support those charges. More important, Gandol asserts that plaintiff’s attorney failed to make any inquiry whatsoever concerning any of the claims contained in his original complaint asserted against Gandol. Plaintiff’s attorney offers no evidence of such inquiry, but argues that he pursued these claims in good faith, and that his institution of this action was justified by his duty to zealously represent his client.

Notwithstanding counsel’s duty to zealously represent his client, an attorney is also obligated to refrain from raising claims without first conducting reasonable inquiry into the underlying facts and law on which those claims are predicated. Counsel has a duty to his client, and he has a duty to the fair administration of justice as well. See Van Berkel, supra 581 F.Supp. at 1251. Although there may be instances in which the attorney will perceive a conflict between the interests of his client and the interest of the fair administration of justice, there is in fact no such conflict. An attorney is obligated to dissuade his client from pursuing specious claims, and thereby avoid possible sanctions by the court, as well as unnecessary costs of litigating a worthless claim. Although reasonable attorneys may differ about whether a particular claim is deserving of litigation, the obligation to counsel the client against bringing meritless claims, and to conduct reasonable inquiry before instituting suit, are clear and unambiguous in all cases.

In this case, plaintiff’s attorney has failed to demonstrate to the satisfaction of this court that he discharged his duty of reasonable inquiry prior to filing his allegations of slander and defamation. Although he argues that it would be futile to conduct a full-scale inquiry into an alleged conspiracy to restrain trade prior to filing suit, when the attorney is without the investigative tools provided by the rules of discovery, and the evidence is entirely within the control of adverse parties, such is not the case with charges of defamation, which by definition are notorious, public acts. Plaintiffs failure to conduct any investigation whatsoever into these claims is apparent from the present record, and this failure requires the court to impose sanctions under Rule 11. Rule 11 expressly provides for the imposition of sanctions against both the offending party and his attorney. The court will impose joint and several liability on plaintiff and his attorney for any amounts ultimately awarded to Gandol as sanctions under Rule 11.

The most prevalent form of sanction imposed by the courts under Rule 11, and one specifically permitted by the rule, is an award of attorney’s fees and costs. Gandol has requested full reimbursement for its costs and attorney’s fees incurred in the defense of this matter above those expenses for which it received insurance coverage. Gandol asserts that it has expended $26,000 for attorneys fees, and paid $3,253.70 for deposition transcripts in defending against this action. It further asserts that it has received $7,500 in insurance proceeds to defray part of these costs, leaving it with unreimbursed expenses of $21,753.70. Gandol seeks an award of this entire amount as a sanction of plaintiff’s violation of Rule 11.

Plaintiff correctly objects to this request on the grounds that Gandol has failed to submit a detailed affidavit or other summary of how these expenses were incurred. In particular, Gandol has not apprised the court of the nature of the fee agreement between itself and its attorneys. On the assumption that Gandol’s attorneys are working on an hourly basis, the court finds that Gandol should have submitted an itemized statement of the number of hours spent by its attorneys, a description of the particular services conducted during that time, and the hourly rate that the attorneys charged for those services. Without such an accounting, the court is unable to make an objective determination on the amount of money to which Gandol is entitled.

Further, as Judge Weinfeld stated in Tedeschi, the prevailing party in a Rule 11 motion is not necessarily entitled to full reimbursement of its entire litigation expenses:

The assessment of fees against a non-prevailing litigant must be fair and reasonable based upon the particular circumstances of the case, including the financial resources and ability of the parties against whom the award is made and the financial status of the prevailing party. In sum, the equities of the situation are to be considered to assure that although the purpose of discouraging bad faith, vexatious suits is enforced, a losing party is not subjected to financial ruin.

579 F.Supp. at 664 (footnote omitted).

In this case, the court concludes that, although the failure of plaintiff’s counsel to conduct a reasonable inquiry into the merits of the defamation claim justifies an imposition of sanctions under Rule 11, the difficulty of investigating the conspiracy and monopolization claims prior to the initiation of the lawsuit lessens the extent of investigative efforts that an attorney must undertake to satisfy the “reasonable inquiry” standard. Gandol has not demonstrated that plaintiff’s attorney failed to make reasonable inquiry, under the circumstances, with respect to his antitrust claims prior to initiating this lawsuit. Consequently, the court concludes that Gandol is entitled to recovery of those expenses incurred only until and including the hearing on its first motion for summary judgment, at which the defamation claims were dismissed by the court.

Gandol is therefore ordered to submit to this court an itemized statement of its expenses, including costs and attorney’s fees, incurred in this matter until and including April 17, 1984. The statement should be submitted within 20 days of the date of this order, or Gandol will be deemed to have waived its right to recovery under this order. Plaintiff will then have 20 days in which to file any objections he may have to this statement, although he is advised to focus his objections upon the calculations in the statement, such as the hourly rate charged by Gandol’s attorneys, or the amount of time expended in handling a particular matter, rather than contesting the propriety of awarding sanctions at all. The court reiterates its strong preference that these matters be handled by stipulation of the parties if possible.

SO ORDERED.

      . The original complaint contained the following counts: (1) Contract, conspiracy and restraint of trade, in violation of § 1 of the Sherman Act, 15 U.S.C. § 1; (2) Monopolization, in violation of § 2 of the Sherman Act, 15 U.S.C. § 2; (3) Slander and disparagement; (4) Libel and disparagement; (5) Tortious interference with contractual relations; (6) Interference with actual and potential contracts; (7) Violation of Michigan antitrust law, M.C.L.A. § 445.701 et seq.; (8) Common law conspiracy violations; (9) Fraud, misrepresentation and deceit; (10) Michigan statutory unfair competition; (11) Exemplary or punitive damages; (12) Breach of contract; (13) Bid rigging; and (14) Accounting.

      . The amended complaint contains the following counts: (1) Contract, conspiracy and restraint of trade, in violation of 15 U.S.C. § 1; (2) Monopolization, in violation of 15 U.S.C. § 2; (3) Violation of Michigan antitrust laws; (4) Common law conspiracy; (5) Fraud; and (6) Breach of contract.

      . Amended Rule 11 provides as follows:
      Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper, that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon' its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

      . Experience shows that in practice Rule 11 has not been effective in deterring abuses. There has been considerable confusion as to (1) the circumstances that should trigger striking a pleading or motion or taking disciplinary action, (2) the standard of conduct expected of an attorney who signs pleadings and motions, and (3) the range of available and appropriate sanctions ____
      The amended rule attempts to deal with the problem by building upon and expanding equitable doctrine permitting the court to award expenses, including attorney’s fees, to a litigant whose opponent acts in bad faith in instituting or conducting litigation.
      Notes of the Advisory Committee to Amended Rule 11 (citations omitted).


author: WANGELIN, District Judge.

text:
    FLOWERS TRANSPORTATION, INC., A Corporation, Plaintiff, v. David FOX, an Individual, Defendant.
    No. S84-169C(D).
    United States District Court, E.D. Missouri, Southeastern Division.
    March 14, 1985.
    Michael D. O’Keefe, Dan H. Ball, Frank F. Sallee, Thompson & Mitchell, St. Louis, Mo., for plaintiff.
    Jack Y. Hoskins, Cape Girardeau, Mo., William W. Schooley, Granite City, III, for defendant.
   MEMORANDUM AND ORDER

WANGELIN, District Judge.

This matter is before the Court upon defendant’s motion to dismiss. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1333.

Plaintiff brings this action for a declaratory judgment pursuant to 28 U.S.C. § 2201. The facts alleged are these: Defendant entered plaintiff’s employ in 1983. On August 4, 1983, while serving as a deckhand aboard a towboat, defendant fell while working with rigging. The fall resulted in injury to defendant’s lower back.

Defendant consulted with three physicians, all of whom diagnosed low back strain. In September, 1983, one of the physicians determined that defendant had reached maximum medical cure and released him to work with no further restrictions.

Plaintiff had paid for defendant’s daily maintenance while he was injured. Plaintiff also paid for defendant’s medical cure under the doctrine, of maintenance and cure.

In December, 1983, defendant was treated by another physician who concluded that he had reached maximum medical cure and was not permanently disabled. Defendant reportedly had at least three non-related job falls after August 4, 1983. These falls allegedly were caused by dizzy spells and periods of unconsciousness. All of them reportedly caused new or additional injury to defendant’s lower back.

Plaintiff terminated defendant’s maintenance and cure following his medical evaluation in December of 1983. In April, 1984, defendant began seeing a St. Louis orthopoedic surgeon who diagnosed two herniated discs in defendant’s lumbar spine and performed a chemonucleolysis operation on defendant. Plaintiff allegedly was not contacted before or after surgery and was not made aware of defendant’s continued medical treatment. Plaintiff avers that defendant has demanded that it pay the medical bills related to his treatment and operation since April of 1984 and that his daily maintenance payments be restored. Consequently, plaintiff prays this Court to enter judgment declaring the rights of the parties and stating that it has fully satisfied its maintenance and cure obligations and that defendant reached his maximum medical cure before December, 1983 so that plaintiff has no responsibility for treatment since that time.

Defendant has brought a motion to dismiss on several grounds. This Court need only address one issue to resolve this dispute.

In September of 1983, defendant filed suit against plaintiff in the Circuit Court of Madison County, Illinois seeking damages under the Jones Act, 46 U.S.C. § 688. The complaint alleges that plaintiff herein was negligent and requests damages for defendant’s pain and suffering, medical costs, lost earnings, and permanent disability. In his motion to dismiss, defendant alleges that substantially the same claims, based on substantially the same occurrences are currently being litigated. Consequently, defendant concludes that plaintiff’s instant action for a declaratory judgment with respect to maintenance, and cure is a mere defensive suit of no real value.

It is beyond dispute that a seaman may have separate and independent causes of action under both the Jones Act and under general maritime law for maintenance and cure. Pacific S.S. Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 77, 73 L.Ed. 220 (1928); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525 (9th Cir.1962). Maintenance and cure arise implicitly from the contractual relationship between the seaman and his employer and is designed to ensure the recovery of these individuals who are disabled while in the service of a ship. Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir.1979). Maintenance is a per diem allowance, paid so long as the seaman is not in a hospital and has not reached the point of “maximum cure.” Cure includes the payment of the seaman’s medical expenses until the point of “maximum cure.” Id. “Maximum cure” is achieved when further medical treatment will result in no betterment of the seaman’s condition. Id., citing Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949).

In Pelotto v. L & N Towing Co., supra, the court held that an award under the Jones Act does not bar a later action for maintenance and cure brought by the seaman. 604 F.2d at 401. However, that court focused on a subsequent claim for maintenance and cure, not a claim concurrent with a pending Jones Act suit.

... Since the defendants were satisfying all of Pelotto’s maintenance and cure claims as of the date of his initial trial, Pelotto’s only possible maintenance and cure claims at that time would have been either: (i) an action for definitely ascertainable future maintenance and cure— an action which defendants do not claim was possible; or (ii) an action asking for a declaration that payments be made until Pelotto reached maximum cure — an action of very doubtful utility to Pelotto. # sit He # * *
Hence, even had Pelotto claimed maintenance and cure in his initial suit, there would still be no bar to recovery of maintenance and cure in this, the “subsequent” action. Since an actual claim would not bar this action, neither can Pelotto’s previous failure to make a claim bar this action.
Similarly, collateral estoppel is no bar to Pelotto’s suit. Not only may the obligation to furnish maintenance and cure continue after a Jones Act or unseaworthiness verdict, but the issues involved, despite some overlap, are always somewhat different. The difference in the nature of the issues involved has long been recognized as permitting the maintenance and cure actions to be separately filed.

Thus, Pelotto is not dispositive of the issue presented in the instant cause.

Instead, this Court is persuaded more by the observation in Gypsum Carrier, Inc. v. Hendelman, 307 F.2d 525 (9th Cir.1962).

It has been stated that all of the elements of maintenance and cure may be recovered as special damages in a negligence action. Both the seaman’s wages and the cash value of his living allowance are recoverable in a negligence action as lost earnings, and the costs of cure are recoverable as medical expenses. And unlike the recovery for maintenance and cure, recovery for these items in a negligence action is not confined to immediate and definitely ascertainable needs, nor, ultimately, to the period of maximum cure. Since complete “recovery can be had in the damages action, * * * it becomes a merely theoretical speculation whether the same recovery could also be had under a maintenance and cure count.”

See also Fitzgerald v. United States Lines Co., 374 U.S. 16, 18-19, 83 S.Ct. 1646, 1649, 10 L.Ed.2d 720 (1963).

The cause pending in Illinois involves the same issues and damages which, at the current time, are the same as in the instant cause. Thus, on the basis of judicial economy alone, the Court must dismiss plaintiff’s complaint.

Accordingly,

IT IS HEREBY ORDERED that defendant’s motion to dismiss be and is GRANTED; and

IT IS FURTHER ORDERED that plaintiff’s complaint be and is DISMISSED.