author: BURCIAGA, District Judge.

text:
    Lillie BENALLY and Grant Benally, on Behalf of Norman Benally, an adult, Plaintiffs, v. HUNDRED ARROWS PRESS, INC., Mediatex Communication Corporation, Art Magazine Publishers, Inc., Communication Specialists, Inc., and Amon Carter Museum of Western Art, Defendants.
    Civ. No. 84-0313-JB.
    United States District Court, D. New Mexico.
    July 26, 1985.

      .Stephen T. Lecuyer, Shiprock, N.M., for plaintiffs.
    Rodey Law Firm, Albuquerque, N.M., Graves Law Firm, Austin, Tex., Cantey Law Firm, Ft. Worth, Tex., Keleher & McLeod, Albuquerque, N.M., Law Offices of Jerry Saegert, Austin, Tex., Modrall Law Firm, Albuquerque, N.M., for defendants.
   MEMORANDUM OPINION

BURCIAGA, District Judge.

THIS MATTER comes before the Court on a Motion to Dismiss for lack of personal jurisdiction filed by Defendant The Amon Carter Museum of Western Art. The Defendants Hundred Arrows Press, Inc.; Mediatex Communication Corp.; Art Magazine Publishers, Inc.; and Communication Specialists, Inc., also moved the Court for dismissal, or, in the alternative, for summary judgment. The Court, having reviewed the memoranda and supporting materials submitted by the parties, and being otherwise fully advised in the premises, finds that the motions should be granted in part and denied in part.

Plaintiffs, Lillie Benally and her son Norman Benally, are both members of the Navajo Tribe of Indians and long-time residents of the State of New Mexico. In 1932, the photographer Laura Gilpin received permission from Mrs. Benally to take a still photograph of her and her young son Norman in the confines of their home on the reservation. The photograph showed Mrs. Benally in her native dress, holding the infant son in her arms. Prior to Laura Gilpin’s death in 1979, the black and white print had been published on a postcard and in five books and been exhibited approximately thirty times, all without the consent of the plaintiffs. The plaintiffs were unaware of these events because of their secluded life on the Navajo Reservation.

Upon Ms. Gilpin’s death, her photograph collection was devised to the Amon Carter Museum of Western Art in Texas. The Museum has a procedure that when a mail order for a print of one of its publications is received, a form is mailed back which requests information about how the print is going to be used. Based on this information the Museum will either grant or refuse the request. There is also a copying and handling fee charged by the Museum for each reprint ordered.

In either 1980 or 1981, three of the four nonresident defendant-publishers: Hundred Arrows Press; Mediatex Communications; and Art Magazine, followed the above procedure and received, at their offices in Texas, a copy of the Benally print, along with copies of the other photos they had ordered. All three publishers used the photograph in question to accompany an article about either Ms. Gilpin’s work or the Museum itself. The fourth publisher, Communication Specialists, Inc. [CSI], used the Benally photograph without the permission of. the Museum. None of the defendant-publishers attempted to attain consent from either of the plaintiffs prior to publishing the photograph.

In August of 1981, Sophie Benally, the daughter-in-law of Grant and Lillie Benally, learned of the publication of the Benally photograph in Four Winds magazine (Hundred Arrows Press, Inc.) from a physician in Shiprock, New Mexico. She informed the Benallys of the publication of the photo. The plaintiffs became upset upon hearing the news because of the traditional Navajo belief that the publication of a photograph can have bad effects on the people who are the subjects of the photo.

In March of 1984, plaintiffs filed a Complaint charging Hundred Arrows Press, CSI, Mediatex Communications, Art Magazine and the Amon Carter Museum with unlawful public disclosure of private facts. The Complaint also charged Hundred Arrows Press, CSI and the Amon Carter Museum with misappropriation of likeness. The four defendant-publishers moved to dismiss the actions against them, or, in the alternative, moved for summary judgment. The Amon Carter Museum made a special appearance before this Court and moved to dismiss the charges against it for lack of personal jurisdiction. The Court will decide the jurisdictional issue first because “a lack of jurisdiction means an entire lack of power to hear or determine the case and .the absence of authority over the subject matter or the parties.” Grace v. Oil Conservation Commission of New Mexico, 87 N.M. 205, 208, 531 P.2d 939, 942 (1975).

As a general rule, federal courts sitting in diversity cases have personal jurisdiction to the extent permitted by the law of the forum. Yarbrough v. Elmer Bunker & Associates, 669 F.2d 614, 616 (10th Cir.1982). The court’s jurisdiction is further subject to the limitations of the due process clause. Id. A federal district court can therefore only dismiss an action for lack of personal jurisdiction when the plaintiff’s pleadings fail to establish prima facie that the jurisdictional requirements of both the statutory law and the constitutional standard have been met. Milligan v. Anderson, 522 F.2d 1202, 1207 (10th Cir.1975).

The two-fold inquiry begins with an examination of the relevant state statute. Plaintiffs seek personal jurisdiction under the New Mexico Long-Arm Statute, § 38-1-16 NMSA 1978. In Winward v. Holly Creek Mills, Inc., 83 N.M. 469, 471, 493 P.2d 954, 956 (1972), the New Mexico Supreme Court interpreted the state statute as establishing a two-part test for asserting jurisdiction over a nonresident: “First, the defendant must have done one of the acts enumerated in the statute; and second, the plaintiff’s cause of action must arise from defendant’s doing the act.”

Of the acts enumerated in the statute only two have been argued to apply in this case. Section 38-l-16(A)(l) provides that a nonresident may be subject to the jurisdiction of the courts of New Mexico if his actions amount to “the transaction of any business within the state.” The New Mexico Supreme Court has defined the doing or transacting of business in the following terms: “doing a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose with the intention of thereby initiating a series of such acts.” Telephonic, Inc. v. Rosenblum, 88 N.M. 532, 534, 543 P.2d 825, 827 (1975).

Plaintiffs’ pleadings establish that the Museum engaged in the following jurisdictional activities. The Gilpin will, which devised to the Museum the legal rights to the photograph, was probated in New Mexico. The Museum maintained continuous activity in New Mexico while arranging for the transfer of possession of the Gilpin photographs. The photograph in question, while distributed by the Museum in Texas, was later circulated in New Mexico by the defendant-publishers. The Museum has a practice of acquiring art objects from, and disseminating art objects and facsimilies, books and publications into New Mexico.

Plaintiffs concede that the above listed activities were not performed by the Museum for pecuniary gain. They assert, however, that the phrase “otherwise aceomplishing an object” encompasses the Museum’s forum-state transactions.

The question of whether the phrase • “transacting business” includes noncommercial activity has not been addressed by the New Mexico courts. Although the question is squarely before this Court it need not be resolved because the Court concludes that the second requirement of the two-part “nonresident jurisdiction” test has not been met.

Plaintiffs have failed to establish a close relationship between the jurisdictional activities related to their “transaction of business” claim and their cause of action. Winward v. Holly Creek Mills, Inc., supra; see Koplin v. Thomas, Haab & Botts, 73 Ill.App.2d 242, 219 N.E.2d 646 (1966); Morton v. Environmental Land Systems, Ltd., 55 Ill.App.3d 369, 370 N.E.2d 1106 (1977). The dates of the Museum’s activities in the forum state and the date of the plaintiffs’ awareness of the publications are too remote in time to satisfy the statutory requirement. The cause of action allegedly arose at the point in time, in either 1980 or 1981, that the Museum distributed the photograph in question to the defendant-publishers, but the majority of the Museum’s jurisdictional activities occurred before or during the year 1979.

The plaintiffs allege that jurisdiction can be based, in the alternative, on another of the enumerated acts in the New Mexico Long-Arm Statute. Section 38-1-16(A)(3) provides that any nonresident committing a tortious act within the state becomes subject to the jurisdiction of the courts of New Mexico. Relying on the principles expressed in Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957), and Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), the New Mexico Court of Appeals held in Roberts v. Piper Aircraft Corp., that a “tortious act” has been committed within the State of New Mexico when “negligent acts occur outside New Mexico which cause injury within New Mexico.” 100 N.M. 363, 366, 670 P.2d 974, 977 (Ct.App.1983). The “effects” basis of jurisdiction is therefore satisfied when the “last event constituting an element of the tort takes place” in New Mexico. Robert C. Casad, Jurisdiction in Civil Actions 4-52 (1983).

Although the Roberts court linked the phrase “tortious act” to defendant negligence, the New Mexico Supreme Court has held that the same jurisdictional analysis is applicable in intentional tort cases. Blount v. T.D. Publishing Corp., 77 N.M. 384, 390, 423 P.2d 421, 425 (1967).

Plaintiffs’ Complaint charges the Museum with misappropriation of likeness and public disclosure, two forms of invasion of the right of privacy. The pleadings allege that the Museum distributed the photograph in question to the defendant-publishers in order for the Museum to further its institutional purposes and to provide it with additional advertising. The plaintiffs also claim that the publications caused them to suffer great mental anguish, shame, humiliation and fear. And finally, the plaintiffs assert that the subject matter of the photograph concerned the private life of the plaintiffs, publication of which was highly offensive to them.

Since plaintiffs need only establish a prima facie case of jurisdiction, the facts alleged in the pleadings, if made in good faith, could arguably satisfy the two requirements of the statute. Eckles v. Sharman, 548 F.2d 905, 908 (10th Cir.1977). Again, however, as with the “transaction of business” provision, it is not necessary to determine if plaintiffs’ pleadings sufficiently alleged the facts needed to establish the technical violations of either of the invasions. Instead, where state courts have interpreted the “tortious act” and “transaction of business” provisions “to extend [a state’s] personal jurisdiction as far as is constitutionally permissible under the due process clause,” Jones v. 3M Co., 107 F.R.D. 202, -(D.N.M.1984), “the usual two-step analysis collapses into a single search of the outer limits of what due process permits.” Forsythe v. Overmyer, 576 F.2d 779, 782 (9th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978); Swindle v. G.M.A.C., 101 N.M. 126, 679 P.2d 268 (N.M.App.1984); accord Insurance Co. of North America v. Marina Salina Cruz, 649 F.2d 1266, 1269 (9th Cir.1981). The Court is persuaded that to extend personal jurisdiction over the Museum would be to go beyond the outer limits of due process.

“The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ ” Burger King Corp. v. Rudzewicz, — U.S. -, 105 S.Ct. 2174, 85 L.Ed.2d 528, 53 U.S.L.W. 4541, 4544 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945)). “In judging minimum contacts, a court properly focuses on ‘the relationship among the defendant, the forum, and the litigation.’ ” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683 (1977)). “The relationship between the defendant and the forum must be such that it is ‘reasonable ... to require the corporation to defend the particular suit which is brought there.’ ” World-Wide Volkswagon v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 317, 66 S.Ct. 154, 159, 90 L.Ed.2d 95 (1945)). “The ‘minimum contacts’ test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.” Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978) (quoting Hansen v. Denckla, 357 U.S. 235, 246, 78 S.Ct. 1228, 1235, 2 L.Ed.2d 1283 (1958)).

Applying these principles to the case at hand, plaintiffs assert that the facts alleged satisfy the “minimum contacts” requirement. The Court disagrees. The photograph in question was taken in 1932. Laura Gilpin’s will was probated in 1979. Prior to August, 1981, the last loan of art work(s) by the defendant to a museum in New Mexico was in 1979. The Museum has only made ten such loans in the past twenty-four years and all have been on a not-for-profit basis. Of the two books published by the Museum in conjunction with the University of New Mexico Press, one has been out of print since 1974 and the other was not published until two years after the plaintiffs’ cause of action arose. Neither book includes the photograph in question. Although the Museum bookstore fills orders sent by New Mexico residents, such sales have only amounted to approximately .0173 percent of the bookstore’s annual sales for each of the years between 1977 and 1984. Furthermore, the Museum’s book purchases from New Mexico residents have been infrequent in the past five years, and their acquisitions of New Mexico artists’ photographs and prints have primarily been a result of solicitation by New Mexico resident dealers and brokers. All purchases were consummated in Texas and all were for exhibition or educational purposes and not for profit. The Museum has never published or exhibited the photograph in question in New Mexico, nor has it ever provided any New Mexico resident with the photograph for exhibition in this state.

As noted, the jurisdictional inquiry focuses on “the relationship among the defendant, the forum and the litigation.” Shaffer v. Heitner, 433 U.S. at 204, 97 S.Ct. at 2580. Plaintiffs contend that the “effects” theory correctly represents the Museum’s relationship to the forum, and with the above listed contacts, that the theory is, in this case, consistent with due process.

The plaintiffs rely heavily on the Supreme Court case of Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804, 52 U.S.L.W. 4349 (1984), to support their proposition. In Calder the Court approved of the “effects” test as a valid basis for an assertion of' jurisdiction, but only under limited circumstances. The defendants’ actions, in that case, were expressly aimed at the forum, they knew that their actions “would have a potentially devastating impact upon the respondent” and they knew “that the brunt of [the] injury would be felt by respondent in the State in which she [lived] and [worked].” 52 U.S.L.W. at 4351. The “focus” of the defendants’ activities was clearly the plaintiff. Furthermore, the defendants were the “primary participants in an alleged wrongdoing intentionally directed at a California resident____” Id.

Calder can be distinguished from the case at bar, in that the defendant Museum can, at most, be charged with mere untargeted tortious conduct. The Museum’s act in distributing the photograph was not expressly aimed at New Mexico because it knew that the defendant-magazines had multistate circulations. The Museum did not know its action would have a “potentially devastating impact” upon the plaintiffs because it knew that the photograph in question had been published and exhibited numerous times in the past and that it was only one among a group of photos distributed to each of the publishers. Finally, the Museum was not a primary participant in the publication of the photograph, but simply a supplier of information. Without more, “it cannot be said that defendant engaged in any purposeful activity related to the forum that would make the exercise of jurisdiction fair, just or reasonable____” Rush v. Savchuck, 444 U.S. 320, 328, 100 S.Ct. 571, 577, 62 L.Ed.2d 516 (1980) (emphasis in original).

Consistent with the above reasoning is this Court’s decision in Jones v. 3M, supra. In that case, two of the three nonresident defendants were involved in the research, development and testing of radioactive Iodine-125 [1-125] seeds, used in the treatment of cancer. The same defendants also published articles and disseminated information about the seeds. The third defendant manufactured and distributed the 1-125 seeds in reliance on this research. This Court refused to extend personal jurisdiction over the first two defendants, even though the resident-plaintiffs suffered injuries proximately caused by the use of the seeds in New Mexico. The Court expressly rejected the “effects” theory because it found it contrary to “traditional notions of fair play and substantial justice,” Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940), to hale the defendants “into court in any jurisdiction where their research was used and relied upon,” without having done some additional act to purposefully avail themselves of the laws of the forum. Jones v. 3M, supra at-. “The publication of information that fortuitously finds its way into this forum is not such an act.” Id.

Like Jones, the mere supplying of information, which is then published and distributed into the forum by another, cannot constitute an act of purposeful availment of forum laws. “An assertion of personal jurisdiction based on the dissemination of information into the forum would have far-reaching results.” Id. The adoption of such a policy could cause other similarly situated defendants to be haled into court in any jurisdiction where their information was used, irrespective of whether they had sufficient contacts with the forum state to expect such a development. The limits of due process do not extend that far.

The remaining four defendants have not challenged the Court’s jurisdiction; however, Hundred Arrows Press, CSI and Art Magazine have raised statute of limitation defenses. Since all parties have submitted materials outside the pleadings on this and other issues, the Court has decided to exercise the discretion given it by Fed.R.Civ.P. 12(b)(6) and treat the Motions to Dismiss as Motions for Summary Judgment. A Motion for Summary Judgment is proper only when “there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The movant bears the burden of proving entitlement to summary judgment beyond a reasonable doubt. Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33, 36 (10th Cir.1975). It is then the Court’s duty to view the record in the light most favorable to the party opposing the motion and if differing ultimate inferences can be drawn from the facts and evidentiary material, summary judgment should be denied. Exnicious v. United States, 563 F.2d 418, 424 (10th Cir.1977).

The law of the forum State governs on matters of procedure, Restatement (Second) of Conflict of Laws § 122 (1971), and since statutes of limitations are considered procedural in New Mexico, Sierra Life Insurance Co. v. First National Life Insurance Co., 85 N.M. 409, 512 P.2d 1245 (1973), New Mexico law will apply. The issue raised by the statute of limitations defense is whether the tort of invasion of privacy should be characterized as one cause of action or four for purposes of determining the applicable statute of limitations.

The tort of invasion of privacy has been described as “not one tort, but a complex of four ... which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff ‘to be let alone.’ ” Prosser, Torts § 117 (4th ed. 1971). The four “subtorts” consist of: (1) the right to be free from unreasonable intrusion upon one’s seclusion; (2) the right to prohibit the appropriation of one’s name or likeness; (3) the right to be free from unreasonable publicity about one’s private life; and (4) the right to prohibit publicity that unreasonably places one in a false light before the public. Restatement (Second) of Torts § 652A (1977).

Although there is no decision by the New Mexico courts in which the Restatement (Second) definition of the tort of invasion of privacy is specifically adopted, there are pre-Restatement (Second) decisions that cite to Prosser’s four-part definition of the tort. In the first of these cases, Bitsie v. Walston, 85 N.M. 655, 515 P.2d 656 (Ct.App.1973), the New Mexico Court of Appeals, while recognizing two of Prosser’s four divisions of the tort, chose to follow the comprehensive definition given invasion of privacy in the then current Restatement of Torts § 867 (1939), since “the factual aspects of [the] tort [had] not as yet been delineated in New Mexico decisions.” Id. at 657, 515 P.2d 656. Two years after Bitsie, in McNutt v. New Mexico State Tribune Co., 88 N.M. 162, 538 P.2d 804 (Ct.App.1975), the New Mexico Court of Appeals was again faced with the tort of invasion of privacy, and this time recognized all four of Prosser’s theories of liability.

Contrary to Prosser and the Restatement (Second) of Torts, defendant Hundred Arrows Press argues that this Court must find the holding in Bitsie controlling as to the character given the tort of invasion of privacy in New Mexico for purposes of determining the applicable statute of limitations. Since the Restatement (Second) characterization of the tort has not been an issue before the courts of New Mexico, and this is a diversity case, this Court must attempt to predict what the state courts would hold if squarely faced with the issue. City of Aurora, Colorado v. Bechtel Corp., 599 F.2d 382 (10th Cir.1979). “In so doing, we may consider all resources, including decisions of New Mexico, other states, federal decisions, and the general weight and trend of authority.” Hartford v. Gibbons & Reed Co., 617 F.2d 567 (10th Cir.1980).

The adoption and expansion of Prosser’s work in the new sections of the Restatement, including attributing specific elements to each cause of action, was a result of the development of the tort in the courts into this “complex of four distinct wrongs.” Restatement (Second) of Torts § 652A comment b. In the years when Chapter 28A (§§ 652A-I) was in its tentative draft form many state and federal courts cited to its four-part definition with approval, including the United States Supreme Court. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 493, 95 S.Ct. 1029, 1045, 43 L.Ed.2d 328 (1975); Cantrell v. Forest City Publishing Co., 484 F.2d 150, 155 (6th Cir.1973), rev’d on other grounds, 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974); McNally v. Pulitzer Publishing Co., 532 F.2d 69, 78 (8th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131 (1976); Galella v. Onassis, 353 F.Supp. 196, 229 (S.D.N.Y.1972); Neff v. Time, Inc., 406 F.Supp. 858, 861 (W.D.Pa.1976); Johnson v. Harcourt, Brace, Jovanovich, Inc., 43 Cal.App.3d 880, 118 Cal.Rptr. 370, 375 (1974); Midwest Glass Co. v. Stanford Develoyment Co., 34 Ill.App.3d 130, 339 N.E.2d 274, 277 (1975); Rinsley v. Frydman, 221 Kan. 297, 559 P.2d 334, 339 (1977); Hollander v. Lubow, 277 Md. 47, 351 A.2d 421, 424-25, cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976); Deaton v. Delta Democrat Publishing Co., 326 So.2d 471, 473 (Miss.1976); Nader v. General Motors Corp., 25 N.Y.2d 560, 307 N.Y.S.2d 647, 657, 255 N.E.2d 765 (1970). Since Chapter 28A’s permanent adoption, additional jurisdictions have cited to it with approval, including the Tenth Circuit. Gilbert v. Medical Economics Co., 665 F.2d 305, 310 (10th Cir.1981); Birnbaum v. United States, 588 F.2d 319, 323 (2d Cir.1978); Zerilli v. Evening News Association, 628 F.2d 217, 221 (D.C.Cir.1980); Gonzalez v. Leonard, 497 F.Supp. 1058, 1068 (D.Conn.1980); Dresbach v. Doubleday & Co., Inc., 518 F.Supp. 1285, 1287 (D.D.C.1981); Michigan United Conservation Clubs v. CBS News, 485 F.Supp. 893, 903 (W.D.Mich.1980), aff'd, 665 F.2d 110 (6th Cir.1981); Martin v. Municipal Publications, 510 F.Supp. 255, 259 (E.D.Pa.1981); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840, 844 (E.D.Va.), cert. denied, 444 U.S. 1076, 100 S.Ct. 1024, 62 L.Ed.2d 759 (1980); CBM of Central Arkansas v. Bemel, 274 Ark. 223, 338, 623 S.W.2d 518 (1981); Forsher v. Bugliosi, 26 Cal.3d 792, 163 Cal.Rptr. 628, 608 P.2d 716, 725 (1980); Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289, 291 (Iowa 1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980); McCall v. Courier-Journal & Louisville Times, 623 S.W.2d 882, 887 (Ky.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 849 (1982); Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388 (La.1979); Fry v. Ionia Sentinel-Standard, 101 Mich.App. 725, 300 N.W.2d 687, 689 (1980); Brown v. Mullarkey, 632 S.W.2d 507, 509 (Mo.App.1982); Sustin v. Fee, 69 Ohio St.2d 143, 431 N.E.2d 992, 993 (1982); McCormack v. Oklahoma Publishing Co., 613 P.2d 737, 739 (Okla.1980); Kalian v. People Acting Through Com. Effort, 122 R.I. 429, 408 A.2d 608, 609 (1979); Montgomery Ward v. Shope, 286 N.W.2d 806, 808 (S.D.1979); Mark v. Seattle Times, 96 Wash.2d 473, 635 P.2d 1081, 1094 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed.2d 1339 (1982).

The above facts have persuaded this Court that, if faced with the same facts and issues, the Supreme Court of New Mexico would interpret its laws as establishing four causes of action under the tort of invasion of privacy, each with its own statute of limitations. Such a conclusion, however, does not end this Court’s “Erie-guessing.” Since the New Mexico courts have not yet decided the nature of the tort, it follows that they also have not yet decided the nature of each of the four causes of action for purposes of applying statutes of limitations. Again, this Court must look to the decisions of other states and the weight and trend of authority in order to predict how the New Mexico courts would treat the various “subtorts” for statute of limitations purposes. Plaintiffs are claiming violations of only two of the four “subtorts,” misappropriation of likeness and unlawful public disclosure.

The tort of misappropriation of likeness occurs when someone “appropriates to his own use or benefit the name or likeness of another.” Restatement (Second) of Torts § 652C. Comment (a) to § 652C states that “[t]he interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity [and therefore] the right created by it is in the nature of a property right.” Many state and federal jurisdictions agree with the Restatement on this point. Uhlaender v. Hendricksen, 316 F.Supp. 1277 (D.Minn.1970); Memphis Development Foundation v. Factors, Etc., 441 F.Supp. 1323 (W.D.Tenn.1977), aff'd, 578 F.2d 1381 (1978); Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (3d Cir.), cert. denied, 351 U.S. 926, 76 S.Ct. 783, 100 L.Ed. 1456 (1956); Haelan v. Topps Chewing Gum, 202 F.2d 866 (2d Cir.1953); Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 235 A.2d 62 (1967); Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir.1974). Cf. Cepeda v. Swift & Co., 415 F.2d 1205 (8th Cir.1969) (dictum); O’Brien v. Pabst Sales Co., 124 F.2d 167 (5th Cir.1941) (dissent); Sharman v. C. Schmidt & Sons, Inc., 216 F.Supp. 401 (E.D.Pa.1963) (dictum).

In each of the cited cases the court concluded that any attribute of a person’s identity could have commercial value. “Property,” as defined by Black’s Law Dictionary 1095 (5th ed. 1979), is a term “said to extend to every species of valuable right and interest.” It would therefore appear that, given the opportunity to decide the issue, the New Mexico Supreme Court would classify a name or likeness as a property interest for purposes of determining the applicable statute of limitations.

As a property claim, the misappropriation cause of action is governed by § 37-1-4 of the New Mexico Statutes Annotated 1978. While that section provides for a four year statute of limitations, § 37-1-6 further states that “actions for injuries to, or conversion of property [do not accrue] until the ... injury or conversion complained of ... [has] been discovered by the party aggrieved.” Since plaintiffs did not know of the publications until August of 1981, they had until August of 1985 in which to bring this suit. Plaintiffs’ Complaint was filed in March of 1984; therefore the statute of limitations is not a bar to the misappropriation claims.

In order for an appropriation to be tortious, the defendant must be seeking to benefit from the use of the plaintiff’s name or likeness. The value of the plaintiff’s likeness is not appropriated:

[W]hen it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because ... his appearance is brought before the public, since [it is not] in any way a private matter and [is] open to public observation. ... The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness.

Restatement (Second) of Torts § 652C comment d (citations omitted). Thus, a distinction must be made between an incidental use of a name or photograph and a deliberate use of the same to exploit its value for advertising or trade purposes.

In Jenkins v. Dell Publishing Co., 251 F.2d 447, 459 (3d Cir.), cert. denied, 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365 (1958), the court defined commercial uses as “those in which an individual’s picture or story has been associated with something else in commercial advertising.” As an example of such a use, the court cited Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68 (1905). In Pavesich the defendant had published in the newspaper an unauthorized photograph of the plaintiff depicted as soliciting business for the defendant insurance company. A fabricated and false quotation accompanied the photograph. The court allowed a claim for misappropriation, holding that “[t]he advertisement, by soliciting sales, was of direct pecuniary benefit to the defendant.” Nelson v. Times, 373 A.2d 1221 at 1224 (Me.1977).

A Maine court distinguished Pavesich from the case before it in which a newspaper had published, in connection with a book review, an unauthorized photograph of a young Indian boy in a pastoral setting. Nelson v. Times, 373 A.2d 1221 (Me.1977). The Maine court dismissed the misappropriation claim, holding that “the only similarity between the holding [in Pavesich ] and the instant case is the unauthorized use of the photograph.” 373 A.2d at 1224.

Another instructive case is Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 490 N.E.2d 847 (1980), in which a magazine ran a story entitled “After the Sexual Revolution.” The plaintiff was shown along with several other people, in an unauthorized photograph used to illustrate the article. There was no mention nor identification of the plaintiff in the article. The court there held that:

Here the photograph was published in connection with what is apparently a sociological commentary, and not as a means of soliciting sales or in association with an advertisement of any kind. The article or story involved, whether it be viewed as an effort to inform or entertain the readership, is a legitimate, noncommercial use. The fact that the defendant is engaged in the business of publishing the Atlantic Monthly magazine for profit does not by itself transform the incidental publication of the plaintiffs picture into an appropriation for advertising or trade purposes.

400 N.E.2d at 851.

In this case, both Hundred Arrows Press and CSI have been charged with misappropriation of likeness. Hundred Arrows Press denies the misappropriation claim and states in its responsive pleading as an undisputed fact that its use of the Benally photograph was for illustrative and not commercial purposes. Hundred Arrows Press alleges that it published the photograph in connection with an article on the work of the photographer Laura Gilpin. The defendant also briefed a condensed statement of the law of misappropriation as outlined above to support the position that its use of the Benally photograph was incidental.

The New Mexico Supreme Court stated in Goodman v. Brock, 83 N.M. 789, 792, 498 P.2d 676, 679 (1972):

Unquestionably the burden was on defendants to show an absence of a genuine issue of fact, or that they were entitled as a matter of law for some other reason to a summary judgment in their favor. [Citations omitted] However, once defendants had made a prima facie showing that they were entitled to summary judgment, the burden was on plaintiff to show that there was a genuine factual issue and that defendants were not entitled as a matter of law to summary judgment. [Citations omitted]

This Court’s own review of the Hundred Arrows Press publication has convinced it that the defendant has met its burden and made a prima facie showing that there is no genuine issue of fact as regards its use of the Benally photograph. Since plaintiffs have failed to sufficiently carry their burden on this matter, the defendant’s Motion for Summary Judgment on the issue of misappropriation is granted.

Defendant CSI failed to brief the issue of misappropriation of likeness, incorrectly concluding that this Court would find Bitsie controlling on the matter and treat the several allegations of the plaintiffs as one cause of action. CSI did not state as an undisputed fact that its use of the photograph was for noncommercial purposes, but merely denied such in its answer. This Court therefore concludes that CSI has not made a prima facie showing that it is entitled to summary judgment. Since the Court is bound to view the record in the light most favorable to the party opposing the motion, the Court denies CSI’s Motion for Summary Judgment on the issue of misappropriation of likeness.

Plaintiffs have charged all four remaining defendants with unlawful public disclosure of private facts. Only Hundred Arrows Press, CSI and Art Magazine have raised statute of limitations defenses. The nature of this cause of action for purposes of a statute of limitations defense must be decided on the weight and trend of authority since this Court is again without guidance from the New Mexico courts.

The tort of unlawful public disclosure of a private fact of another subjects the publisher to liability only “if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Restatement (Second) of Torts § 652D. “One to whose private life publicity is given, under § 652D, may recover for the harm resulting to his reputation from the publicity____ The plaintiff may also recover damages for emotional distress or personal humiliation____” Id., § 652H comments (a) & (b). Plaintiffs allege that the publication of the photograph caused them to suffer the above stated injuries. New Mexico’s Limitation-of-Actions Statute, § 37-1-8 NMSA 1978, states that “[ajctions must be brought ... for an injury to the person or reputation of any person, within three years.” Unless the injury is the result of medical malpractice, the statute begins to run from the time of the injury and not the time of the negligent act or discovery. New Mexico Electric Services Co. v. Montanez, 89 N.M. 278, 551 P.2d 634 (1976).

In the case of an alleged unlawful publication, “the gravamen of the claimed injury is the publication of information.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 489, 95 S.Ct. 1029, 1043, 43 L.Ed.2d 328 (1974) (emphasis added); see Poteet v. Roswell Daily Record, Inc., 92 N.M. 170, 584 P.2d 1310 (Ct.App.1978); McNutt v. New Mexico State Tribune Co., supra. Plaintiffs must therefore have brought their claims within three years of the publication dates of each of the magazine volumes containing the photograph in question in order for the claims not to be barred by the statute of limitations. Both Hundred Arrows Press and CSI published the photograph in Autumn of 1980, while both Mediatex and Art Magazine published it in their April, 1981, editions. Since plaintiffs did not file their Complaint until March, 1984, the statute of limitations has run on their unlawful public disclosure claims against Hundred Arrows Press and CSI. Plaintiffs still have a cognizable cause of action for unlawful public disclosure, however, against Mediatex and Art Magazine.

In order for the Court to find defendants liable for unlawful public disclosure, a threshold determination must be made as to whether or not an exposure of private facts occurred. In Nelson v. Times, supra, the court found the publication of an unauthorized photograph of a young Indian boy insufficient to constitute an exposure of private facts. The court stated:

Merely exposing a person to undesired publicity is insufficient per se to constitute a tort even though the exposure was unauthorized____ Certainly it could not be argued that a person’s normal facial appearance is of private concern only---- In short, the publication disclosed nothing about the private life of this infant plaintiff that was unknown to anyone who might see him.

373 A.2d at 1225.

In a Louisiana case, the plaintiffs brought suit against the defendant newspaper for unauthorized publication of a photograph of their home, captioned with a true, but unflattering statement about the poor physical condition of the home. The photograph was taken from a public street and neither the street address nor the plaintiffs’ names appeared in the newspaper. As in Nelson, the court declined to find the defendant liable for invasion of privacy for merely giving further publicity to what the plaintiff had left open to the public eye. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388 (La.1979).

The Court is aware that in Nelson and Jaubert the plaintiffs did not consent to the photographs of themselves or their property, taken from a public vantage point, while in the present case, the plaintiffs consented to the photograph, taken in their home; however, it finds the case cannot be distinguished on these facts. When the plaintiffs consented to pose for the photograph it became irrelevant whether they were in a public or private place. Furthermore, the photograph does not expose any more to the public eye than would be exposed to one who encountered plaintiffs in public.

Plaintiffs make the additional argument that the court in McNutt v. New Mexico State Tribune Co., supra, held that only information placed on a public record is “public.” Plaintiffs have misinterpreted the court’s reasoning. The court specifically limits its discussion of the law of invasion of privacy to information contained on public records because the plaintiffs brought suit for publication of their names and addresses. The court quoted from Prosser in support of its holding that an individual’s name and address are public facts by virtue of their being published in public records. Dean Prosser’s reasoning was subsequently included in § 652D comment (b) of the Restatement (Second) of Torts. Section 652D comment (b) goes on to say that, “[sjimilarly, there is no liability for giving further publicity to what the plaintiff himself leaves open to the public eye. Thus he normally cannot complain when his photograph is taken while he is walking down the public street and is published in the defendant's newspaper.” The McNutt holding therefore was fact-specific and not intended to be a general statement of the law of unlawful public disclosure.

From the foregoing the Court concludes that there has not been an exposure of private facts. “The right of privacy may not be extended to prohibit any publication of matter which may be of public or general interest, but rather the ‘general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man’s life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn.’ ” Gill v. Hearst Publishing Co., 40 Cal.2d 224, 253 P.2d 441, 443 (1953) (emphasis in original).

Even assuming, arguendo, that the matter published was private, the publication does not rise to the level of being highly offensive. In the case of Blount v. T.D. Publishing Corp., 77 N.M. 384, 388, 423 P.2d 421, 424 (1966), the New Mexico Supreme Court stated that “the right of privacy is to be applied to the individual of ordinary sensibilities, not the super-sensitive.” The New Mexico Court of Appeals applied this standard in Bitsie v. Walston, supra, where a photograph was taken of a young Navajo child with the consent of the father. A sketch from the photograph was subsequently made, which in turn was reproduced onto note cards without the plaintiffs’ consent and sold to help finance a pre-school for children with cerebral palsy.. A local newspaper ran an article on the card sale, stating the purpose of the sale and publishing a photograph of the design identifying both the child and the artist. The plaintiffs brought suit alleging that because the article linked the healthy child to the disease of cerebral palsy, the child would have bad luck later in life, according to Navajo tradition. The court ruled that no invasion of privacy had occurred as a matter of law “because there is no evidence that, as a matter of fact, the newspaper story offended persons of ordinary sensibilities. ... We cannot equate an offense to persons holding a traditional belief with an offense to persons of ordinary sensibilities because: (1) the tort relates to the customs of New Mexico at this time and does not extend to ‘traditional’ beliefs.” 85 N.M. at 658-59, 515 P.2d at 662.

Plaintiffs in this case are claiming that the publication is offensive based on the traditional Navajo belief that “the publication of photographs can have bad effects on the people who are in the published photographs.” Declaration of Lillie Benally at 2. Plaintiffs’ pleadings are silent on the effect of the publication on the sensibilities of those who do not hold traditional Navajo beliefs. Applying the reasoning of Blount and Bitsie to the facts, the Court therefore concludes that plaintiffs have failed to establish that a person of ordinary sensibilities would be offended by the publication of the Benally photograph.

Section 652D of the Restatement (Second) of Torts requires that the matter publicized be both highly offensive to a reasonable person and not of legitimate public concern, in order for there to be an unlawful publication of private facts. The Court’s conclusion that the publication was not highly offensive eliminates the need to rule on the newsworthiness issue.

Since, as a matter of law, there was no publication of private facts, summary judgment is granted. An Order will be entered in accordance with this opinion.

      . In Kathrein v. Parkview Meadows, Inc., 23 State Bar of N.M. News & Views 869, 870 (N.M.App. Aug. 23, 1984), the New Mexico Court of Appeals held that "[i]n order to satisfy both statutory and constitutional requirements where jurisdiction is being asserted over a nonresident on the basis of transaction of business, three basic factors must coincide: (1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice.” This definition is narrower than the one adopted by the New Mexico Supreme Court in Telephonic, Inc.-, therefore, while this Court takes note of the Court of Appeals’ definition, it declines to use it.

      . Case law from the few courts that have decided the issue is divided: North American Video Corp. v. Leon, 480 F.Supp. 213 (D.Mass.1979) (state long-arm statute, "transaction of business” provision, does not require that a nonresident defendant engage in commercial activity within the state); San Juan Hotel Corp. v. Lefkowitz, 277 F.Supp. 28 (D.P.R.1967) (nonresident who accepts credit within the state, whether or not it was accepted in connection with commercial matters, carries out business transactions within the state); Woodring v. Hall, 200 Kan. 597, 438 P.2d 135 (1968) (if legislature had intended the “transaction of business” phrase to be interpreted in anything but its broadest legal sense, it would have categorized "business” into commercial and personal); Lewis v. Curry College, 89 Wash.2d 565, 573 P.2d 1312 (1978) (nonprofit institution oí learning that supplies catalogues and material describing courses to those outside the state, does not, without more, thereby submit itself to the jurisdiction of those states).

      . The New Mexico Long-Arm Statute was adopted from the Illinois statute. While that does not make the Illinois courts’ interpretations of their statute binding on New Mexico courts, it does make their interpretations persuasive. Blount v. T.D. Publishing Corp., 77 N.M. 384, 423 P.2d 421 (1966).

      . The facts stated above were taken from both the pleadings and the evidentiary material before the Court. "[A]s there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court.” Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir.1965) (citing Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939)).

      . While denying that it published the photograph to further its commercial purposes, Defendant’s Answer at 4, CSI admits for jurisdictional purposes that it published the photograph for the purpose of soliciting business from purchasers of Four Winds magazine. Defendant’s Answer at 2.

      . The Court is satisfied that there was no exposure of private facts, therefore, it is not necessary to address the waiver and estoppel defenses raised by defendants.

      . Plaintiffs allege that there is an additional element of the tort of unlawful public disclosure to be considered when evaluating the offensiveness of the publication, that is, whether the defendants should have known that the photograph would offend persons of ordinary sensibilities. Plaintiffs cite to Bitsie as the source of this additional element and argue that "Hundred Arrows knew or should have known of Native American and Navajo attitudes toward photography, and that the publication of the Gilpin photograph would be offensive to plaintiffs." Plaintiffs’ Memorandum in Response to Motion to Dismiss and/or Summary Judgment of Defendants Hundred Arrows Press, Inc., Mediatex Communication Corp., and Communications Specialist, Inc. at 15. As has been stated previously, the court in Bitsie was relying on § 867 of the Restatement of Torts in analyzing the claim of invasion of privacy. The Restatement (Second) of Torts is silent on the issue of the subjective knowledge of the defendant as it relates to unlawful public disclosure. Since this Court has determined that the New Mexico courts would apply the definition of the tort of invasion of privacy as delineated by the Restatement (Second) of Torts, the issue of whether the defendants should have known that the photograph would offend the plaintiffs is irrelevant.


source: Caselaw Access Project

author: SWEET, District Judge.

license: Public Domain

text:
    In the Matter of Michelle THOMAS, Contempt Proceedings Under Title 28, U.S.C., § 1826(a).
    No. M 11-188(RWS).
    United States District Court, S.D. New York.
    July 26, 1985.
   SWEET, District Judge.

Civil contemnor Michelle Thomas (“Thomas”) has requested this court to release her from confinement despite her failure to purge herself of her contempt. An evidentiary hearing was held on July 22, 1985. For the reasons discussed below and in the companion case, In the Matter of Dr. Jean Ford, 615 F.Supp. 259 (S.D.N.Y.1985), Thomas' motion will be granted.

Thomas is one of a group of civil contemnors seeking release which includes Dr. Jean Ford, and familiarity with my opinion issued today granting Dr. Ford his release will be assumed. Thomas was held in contempt on January 21, 1985 for refusing to testify before the same grand jury as Dr. Ford. Since January 21, 1985 she has been confined in the Metropolitan Correction Center. She now seeks release on the same grounds as Dr. Ford, namely, that the work of the grand jury has concluded and that her avowal to remain silent despite further incarceration mandates her release under the Second Circuit’s holdings in Simkin v. United States, 715 F.2d 34 (2d Cir.1983), and Sanchez v. United States, 725 F.2d 29 (2d Cir.1984).

Thomas’ argument as to the lack of need for her testimony fails for the reasons set forth in the Ford opinion. She has not convinced me that her testimony is no longer necessary or useful to the government, nor does the grand jury’s recent inactivity support her position given that its ineffectiveness is caused by the refusal of Thomas and others to cooperate.

As to her second argument, as stated in Ford, the Second Circuit’s holdings in Simkin and Sanchez require that I make an individualized judgment as to the likelihood that she will abandon her refusal to testify. Thomas, a thirty year old black female, is a fourth year medical student at Rutgers University who would have received her medical degree on May 22, 1985 if she had not failed to complete her studies because of her incarceration. At the evidentiary hearing, she testified to her activities as a “political activist” over the last fifteen years, including her involvement with various civil rights organizations in addition to the Sunrise Collective, the same organization to which Dr. Ford belongs. She testified as to her long-standing belief in the grand jury’s role as a method of political persecution and repeatedly stated that she would never, under any conditions, testify before a grand jury. She also stated that in her view testifying would mean betraying not only her cause but also her “compatriots” including the seven other self-styled grand jury resisters. Thomas’ sister, Donna Messiah,- and her attorney, Linda Roots, both testified that in their view Thomas would never be willing to testify because of the depth of her convictions and her commitment to others within her “movement.”

On the basis of this testimony and the affidavit submitted by Thomas, I am convinced that there is no reasonable possibility that future incarceration will have the effect of convincing her to abandon her refusal to testify. As in the case of Dr. Ford, I believe that the support of an organized group of individuals makes it unlikely that Thomas would be willing to risk the collective disapproval that would follow a decision to testify. Despite the reservations set forth in the Ford opinion, I must release Thomas from confinement, given my belief that further incarceration would be solely punitive rather than coercive.

IT IS SO ORDERED.


author: HUGH GIBSON, District Judge.

text:
    Edmundo S. PASCUA v. ASTROCIELO NEPTUNEA ARMANDORA, S.A. and El Greco.
    Civ. A. No. G-84-339.
    United States District Court, S.D. Texas, Galveston Division.
    July 29, 1985.

      Paul R. Miller, Friedman & Chaffin, Houston, Tex., for plaintiff.
    James R. Watkins, Royston, Rayzor, Vickery & Williams, Galveston, Tex., for defendant.
   MEMORANDUM AND ORDER

HUGH GIBSON, District Judge.

Before the Court is plaintiff’s motion for reconsideration of this Court’s order granting defendant United States’ motion to dismiss. Plaintiff did not respond to the defendant’s motion by its submission date. After this Court granted the said motion on February 26, 1985, plaintiff then moved for reconsideration on March 28, 1985.

1. Plaintiff’s complaint states that plaintiff is a resident of the Philippines, that he was a Jones Act seaman injured within the course and scope of his employment with the vessel AEGEAN SUN, and that “these injuries were sustained aboard a vessel operated by defendant, the U.S. Coast Guard, a service in the Department of Transportation of the United States ...” (See Complaint, p. 2). To date, plaintiff’s complaint has not been amended and is still serving as the base pleading for plaintiff’s action.

The Court finds that plaintiff’s current pleading brings his case squarely under the Public Vessels Act. The Public Vessels Act (PVA) allows a libel in person-am in admiralty to be brought against the United States for damages caused by a public vessel of the United States. A Coast Guard vessel is a public vessel within the meaning of the Act. Helgesen v. United States, 275 F.Supp. 789 (S.D.N.Y.1966). The PVA bars suits by nationals of a foreign government unless it appears to the satisfaction of the Court that such government allows United States nationals to sue in its Court. See 46 U.S.C. § 785. The plaintiff has not pleaded, nor proved to this Court’s satisfaction, that such reciprocity exists.

2. Reciprocity, however, is not required under the Suits in Admiralty Act (SIAA). United Continental Tuna Corp. v. United States, 499 F.2d 774 (9th Cir.1974), rev’d on other grounds, 425 U.S. 164, 96 S.Ct. 1319, 47 L.Ed.2d 653. Plaintiff’s motion for reconsideration alleges that the SIAA should apply to his case. This Act provides that a libel in personam may be brought against the United States in cases where, had a private person or private vessel been involved, a proceeding in admiralty could have been maintained. 46 U.S.C. § 742. While the PVA specifically requires the involvement of a public vessel, the SIAA reaches all admiralty claims against the United States whether or not government cargoes or vessels are involved. Kelly v. United States, 531 F.2d 1144, 1149 (2d Cir.1976).

Plaintiff alleges that the Coast Guard was negligent in its rescue operations (see plaintiffs brief in support of his motion), that it “directed plaintiff to jump during rough seas from the deck of his stranded vessel to the deck of the Coast Guard vessel”, and that he was “injured upon making contact with a public vessel at the direction of the U.S. Coast Guard.” (See plaintiffs response to defendant United States’ opposition.)

The Court declines to treat plaintiff’s motion for reconsideration as a substitute for an amended pleading. Further, assuming that plaintiff's allegations in his motion for reconsideration are true, the Court declines to draw the artificial distinction between damage caused by a public vessel and damage caused by the negligence of those who operate the public vessel. Rescue and salvage operations by the Coast Guard fall under the Public Vessels Act. See United States v. Lawter, 219 F.2d 559 (5th Cir.1955); Johnson v. United States, 378 F.2d 732 (9th Cir.1967); Dreher v. United States, 375 F.Supp. 1061 (N.D.Cal.1972); Tisdelle v. United States, 1963 A.M.C. 2662 (S.D.Florida 1962). A plaintiff may not evade the reciprocity requirement of the Public Vessels Act by bringing action under the Suit in Admiralty Act. United States v. United Continental Tuna Corp., 425 U.S. 164, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976). When a party lacks elements of jurisdiction under the PVA, he may not “bootstrap” himself into recovery by invoking provisions of the SIAA. Blanco v. United States, 464 F.Supp. 927, 931-932 (S.D.N.Y.1979).

Accordingly, it is ORDERED, ADJUDGED and DECREED that plaintiff’s motion for reconsideration be, and is hereby, DENIED.


author: BALDOCK, District Judge.

text:
    James STEPHENSON, a/k/a James Stevenson, and Samuel Preece, Plaintiffs, v. Pete ESQUIVEL, individually, and in his official capacity, Helen Rios, Alex Mendoza, Henry Diaz, individually, and in his official capacity; the Board of County Commissioners of Dona Ana County, in its official capacity, and Dona Ana County, Defendants.
    No. CIV 85-0421 BB.
    United States District Court, D. New Mexico.
    July 30, 1985.

      Miller, Stratvert, Torgerson & Brandt, P.A., Walter R. Parr, Las Cruces, N.M., for plaintiffs.
    Campbell, Reeves & Chavez, P.A., B. James Reeves, Las Cruces, N.M., for defendants Pete Esquivel, Henry Diaz, Dona Ana County Board of County Comm, and Dona Ana County.
    Weinbrenner, Richards, Paulowsky & Sandenaw, P.A., Thomas A. Sandenaw, Jr., Las Cruces, N.M., for defendants Helen Rios and Alex Mendoza.
   MEMORANDUM OPINION

BALDOCK, District Judge.

THIS MATTER comes on for consideration of the Motion to Dismiss, filed May 21, 1985, by defendants Rios and Mendoza. The court, having considered the memoranda submitted by the parties, the relevant law, and otherwise being advised fully in the premises, finds that the motion is well taken in part and should be granted in part.

A complaint is dismissed for failure to state a claim upon which relief can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976); Chavez v. City of Santa Fe Housing Authority, 606 F.2d 282 (10th Cir.1979). All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true. Mitchell v. King, 537 F.2d 385 (10th Cir.1976). All reasonable inferences must be considered in favor of the plaintiff, Id., and the pleadings must be construed liberally. Gas-a-car, Inc. v. American Petrofina, Inc., 484 F.2d 1102 (10th Cir.1973).

Defendants’ motion is directed specifically to each of the four counts in the complaint. Each count will be analyzed separately.

I. Count I

Defendants Rios and Mendoza contend that the allegations in Count I fail to state a claim against them under 42 U.S.C. § 1983 because the allegations of conspiracy are conclusory, lack a factual basis, and do not satisfy the § 1983 requirement of action under color of state law. The “facts” recited in Count I may be summarized as follows. Plaintiffs were tenants in a rental dwelling in Las Cruces, New Mexico, which was owned by the defendant Mendoza and managed by defendant Rios. A controversy developed between the tenants and the landlords as to rights of possession of the residence. On or about January 15, 1985, defendant Esquivel, a deputy sheriff with the Dona Ana County Sheriffs Department, and defendant Rios appeared at the rental dwelling. Defendant Esquivel advised plaintiffs that they were criminally trespassing and that they were to vacate the premises immediately and without their belongings. The plaintiffs were not given notice of eviction or an opportunity to be heard prior to the deprivation of their property. Defendant Esquivel arrested plaintiffs, without a warrant, and transported them to the Dona Ana County Jail, where they were charged with criminal offenses and incarcerated. All charges were dismissed subsequently.

In order to state a claim under 42 U.S.C. § 1983, the plaintiffs must show two essential elements: (1) that the defendants acted under color of state law, and (2) that the defendants caused them to be deprived of a right secured by the constitution and laws of the United States. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Action taken by private individuals may be “under color of state law” where there is “significant” state involvement in the action. Id. at 931, 102 S.Ct. at 2750. One of the tests or factors to determine when state action is “significant” is the joint action test. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 164, 98 S.Ct. 1729, 1737, 56 L.Ed.2d 185 (1978); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). One way the “joint action” test is satisfied is if a “conspiracy” is shown. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970) (quoting Price, 383 U.S. at 794, 86 S.Ct. at 1157). See also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980). In Adickes and Price, the Court explained that this last test is met where “[pjrivate persons, jointly engaged with the state officials in the prohibited action, are acting ‘under color’ of law for purposes of [42 U.S.C. § 1983]____ It is enough that [the private party] is a willful participant in joint activity with the State or its agents.” Adickes, 398 U.S. at 152, 90 S.Ct. at 1606; Price, 383 U.S. at 794, 86 S.Ct. at 1157. .

Because of the active involvement of deputy sheriff Esquivel, state action is shown. The inquiry, therefore, focuses on whether the private individuals, defendants Rios and Mendoza, willfully participated in a joint activity with deputy sheriff Esquivel, thereby assuming the character of state action. The only fact alleged in Count I concerning defendant Mendoza is that he owned the rental dwelling. The facts in Count I pertaining to defendant Rios is that she managed the rental dwelling and appeared at the dwelling with deputy sheriff Esquivel.

It is well established that bare conclusory allegations of “conspiracy” or “concerted action” will not suffice to withstand a motion to dismiss. Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983) (per curiam); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977); Harley v. Oliver, 539 F.2d 1143, 1146 (8th Cir.1976); Tarkowski v. Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir.1980); Weiss v. Willow Tree Civic Ass’n, 467 F.Supp. 803, 811 (S.D.N.Y.1979). The factual basis supporting the existence of a conspiracy must be pled in some detail in civil rights actions. Harley, 539 F.2d at 1145. No facts have been alleged to show that defendants Mendoza and Rios agreed with deputy sheriff Esquivel or “acted in concert” with him. Cruz v. Donnelly, 727 F.2d 79 (3d Cir.1984). The allegation of a conspiracy is wholly conclusionary and does not state a claim upon which relief can be granted.

The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 808, 102 S.Ct. 2727, 2733, 73 L.Ed.2d 396 (1982) emphasized its “expectation that insubstantial lawsuits need not proceed to trial. Unless the complaint states a compensable claim for relief ..., it should not survive a motion to dismiss.” (quoting Butz v. Economou, 438 U.S. 478, 507-08, 98 S.Ct. 2894, 2911-12, 57 L.Ed.2d 895 (1978)). Defendants Rios and Mendoza will be dismissed from Count I. If the plaintiffs have facts which specifically show a course of conduct or circumstantial evidence which would indicate willful participation in a joint activity by these defendants, they may amend Count I of their complaint within ten days of the date of this order to reflect those facts.

II. Count II

I am unable to find any allegations that defendants Rios and Mendoza participated with the Dona Ana County Sheriffs Department in creating any department policies. Count II pertains solely to Henry Diaz, Sheriff of Dona Ana County, for his alleged failure to develop investigative policies and his alleged failure to adequately train and supervise his staff. Because Count II related only to Sheriff Diaz and not to defendants Rios and Mendoza, defendants’ motion to dismiss Count II is denied.

III. Count III

Although Count III is not a model of clarity, it may be surmised that plaintiffs are suing Dona Ana County and Dona Ana County Commissioners for maintaining a custom or policy of not investigating criminal complaints before initiating arrests. Defendants Rios and Mendoza are not named in Count III and the allegations in this count are not applicable to them. Because Count III relates solely to Dona Ana County and Dona Ana County Commissioners and not to defendants Rios and Mendoza, defendants’ motion to dismiss Count III is denied.

IV. Count IV

In Count IV plaintiffs allege that Rios and Mendoza executed criminal complaints against the plaintiffs with the intention of intimidating them, thereby “abusing process.” Defendants argue that these allegations fail to state a claim under either New Mexico law or 42 U.S.C. § 1983. The court notes that the defendants failed to address these contentions in their Brief in Opposition to Motion to Dismiss. Nevertheless, it is clear that private citizens do not become state actors just because they were complainants and witnesses and the police made an arrest. Benavidez v. Gunnell, 722 F.2d at 618; Taylor v. Nichols, 558 F.2d 561, 564 (10th Cir.1977); Sami v. United States, 617 F.2d 755, 774 (D.C.Cir.1979); McKinney v. George, 726 F.2d 1183, 1190 (7th Cir.1984).

Having dismissed all of the federal claims against Rios and Mendoza, the next question is whether the court has jurisdiction to hear the state law claim of abuse of process. I must determine whether the doctrine of pendent jurisdiction extends to these defendants when there is no independent federal jurisdiction over them.

Federal courts are courts of limited jurisdiction. It is well established that federal courts have jurisdiction only when a case is within the judicial power of the United States, as defined by the Constitution, and Congress has exercised its authority in a jurisdictional grant. Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). This limitation stems from a federalism concern with maintaining the proper balance between federal and state powers, and a separation of powers concern with preventing usurpation by the federal courts of powers granted to Congress.

Justification for the doctrine of pendent jurisdiction lies in the consideration of judicial economy, • convenience and fairness to the litigants. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). As the Supreme Court recognized in Gibbs, federal courts have constitutional power to exercise pendent jurisdiction when the state and federal claims derive from a common nucleus of operative fact, such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding, and when the federal claim has sufficient substance to confer subject matter jurisdiction on the court. Id. at 725, 86 S.Ct. at 1138. Thus, jurisdiction does not attach unless the claim for which jurisdiction is asserted meets the requirement of substantiality. Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1382-83 (10th Cir.1978).

Whether a claim is “substantial” is a jurisdictional question. In The Fair v. Kohler Die and Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913), Justice Holmes analyzed the concept of jurisdiction:

Jurisdiction is authority to decide the case either way. Unsuccessful as well as successful suits may be brought upon the act, and a decision that a patent is bad, whether on the facts or the law, is as binding as one that it is good. See Fauntleroy v. Lum, 210 U.S. 230, 235 [28 S.Ct. 641, 642, 52 L.Ed. 1039 (1908) ]. No doubt if it should appear that the plaintiff was not really relying upon the patent law for his alleged rights, or if the claim of right were frivolous, the case might be dismissed. In the former instance the suit would not really and substantially involve a controversy within the jurisdiction of the court, Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U.S. 282, 287, 288 [22 S.Ct. 681, 682, 683, 46 L.Ed. 910 (1902)], and in the latter the jurisdiction would not be denied, except possibly in form. Deming v. Carlisle Packing Co., 226 U.S. 102, 109 [33 S.Ct. 80, 83, 57 L.Ed. 140 (1912)]. But if the plaintiff really makes a substantial claim under an act of Congress there is jurisdiction whether the claim ultimately be held good or bad.

Justice Black, in Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776-77, 90 L.Ed. 939 (1946) further clarified the distinction between dismissal for lack of jurisdiction and dismissal for failure to state a claim:

Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. Swafford v. Templeton, 185 U.S. 487, 493, 494 [22 S.Ct. 783, 785, 786, 46 L.Ed. 1005 (1902) ]; Binderup v. Pathe Exchange, 263 U.S. 291, 305-08 [44 S.Ct. 96, 98-99, 68 L.Ed. 308 (1923)]. The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where süch a claim is wholly insubstantial and frivolous. (Footnote omitted.)

It is important, therefore, not to confuse the question of whether jurisdiction exists with the question of whether the complaint states a cause of action. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 694, 95 L.Ed. 912 (1951). See generally Jr. C. of C., Rochester, Inc. v. U.S. Jaycees, Tulsa, Okla., 495 F.2d 883, 886 (10th Cir.1974). A court may have jurisdiction even though a cause of action is meritless. Payne v. Government of the District of Columbia, 559 F.2d 809, 816 (D.C.Cir.1977).

It is a well established principle that lack of jurisdiction can be raised at any time. See, e.g., American Fire and Cas. Co. v. Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 541-42, 95 L.Ed. 702 (1951). The determination of whether a federal claim is substantial, however, should be measured at the outset of the litigation and on the pleadings rather than by developments at trial. Rosado v. Wyman, 397 U.S. 397, 404, 90 S.Ct. 1207, 1213, 25 L.Ed.2d 442 (1970); Mid-West Underground Storage, Inc. v. Porter, 717 F.2d 493, 500 (10th Cir.1983). A claim is insubstantial for jurisdictional purposes only if “ ‘its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’ ” Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577 (1974) , (quoting Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910)). Because federal court’s jurisdiction over state law claims is derivative of its jurisdiction over the federal claim, if the federal claim is insubstantial, the court lacks jurisdiction to adjudicate the pendent claim.

The Court in Gibbs admonished that, although the court has the constitutional authority to adjudicate the pendent claims, “if the federal claims are dismissed before trial even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” 383 U.S. at 726, 86 S.Ct. at 1139. The Court was .careful to note that the power need not be exercised in every case and that pendent jurisdiction is “a doctrine of discretion, not of plaintiff’s rights.” Id. A court’s discretion, however, is not unfettered. It may not be left to the court’s “inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975) (quoting United States v. Burr, 25 F.Cas. 30, 35 (C.C.Va.1807) (Marshall, C.J.)). In general, absent exceptional circumstances, a federal court should refrain from exercising pendent jurisdiction over state law claims when the federal claims have been disposed of by either dismissal under Fed.R.Civ.P. 12(b)(6), Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1180 (2d Cir.1974) or on summary judgment under Fed.R.Civ.P. 56. Central Nat. Bank v. Rainbolt, 720 F.2d 1183, 1187 (10th Cir.1983); McMann v. Northern Pueblos Enterprises, 594 F.2d 784, 786 (10th Cir.1979), Nolan v. Meyer, 520 F.2d 1276, 1280 (2d Cir.1975); Baurer v. Planning Group, Inc., 669 F.2d 770, 774 n. 16 (D.C.Cir.1981). A federal court justifiably may retain jurisdiction of the pendent state law claims if' substantial time and energy have been expended on the case prior to disposition of the federal claims, Rosado v. Wyman, 397 U.S. at 404, 90 S.Ct. at 1213; Mendoza v. K-Mart, Inc., 587 F.2d 1052, 1057 (10th Cir.1978); Transok Pipeline Co. v. Darks, 565 F.2d 1150, 1155 (10th Cir.1977); Transcontinental Leasing v. Michigan Nat. Bank of Detroit, 738 F.2d 163, 166 (6th Cir.1984); Aydin Corp. v. Loral Corp., 718 F.2d 897, 903-04 (9th Cir.1983); or if the state law claims would be time-barred in state court. Quality Foods v. Latin Am. Agribusiness Devel., 711 F.2d 989, 999 (11th Cir.1983); Pharo v. Smith, 625 F.2d 1226, 1227 (5th Cir.1980); O’Brien v. Continental Illinois Nat. Bank, 593 F.2d 54, 65 (7th Cir.1979).

The Supreme Court in Aldinger v. Howard, 427 U.S. 1, 2-3, 96 S.Ct. 2413, 2414-15, 49 L.Ed.2d 276 (1976) examined the issue of whether a federal court has pendent jurisdiction “over a party as to whom no independent basis of federal jurisdiction exists.” The Court ruled that in a 42 U.S.C. § 1983 civil rights action, a county, which was not then considered a “person” under the statute, could not be included as a pendent party in order to assert a state law claim, even though the claim arose from the same facts that gave rise to the § 1983 action. Integral to the Court’s reasoning was the observation that the proposed pendent party was excluded by the statute which formed the basis of the federal claim. 427 U.S. at 16, 96 S.Ct. at 2421. “Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Article III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.” Id. at 18, 96 S.Ct. at 2422. The Court noted, however, that the exercise of pendent jurisdiction may not offend Article III when the statutory grant of subject matter jurisdiction does not explicitly or implicitly negate it. Id; accord, Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978) (no pendent party jurisdiction under diversity statute for nondiverse parties).

There is dictum in Aldinger suggesting that a court may properly consider whether the statute grants exclusive federal jurisdiction in deciding whether jurisdiction is proper. 427 U.S. at 18, 96 S.Ct. at 2422. Some courts, including the Tenth Circuit, have allowed pendent jurisdiction in cases where the statute confers exclusive jurisdiction over the federal claim, reasoning that only in federal court may all of the claims be tried together. See, e.g., Stewart v. United States, 716 F.2d 755, 757-59 (10th Cir.1982); Transok Pipeline Co. v. Darks, 565 F.2d at 1154; North Dakota v. Merchants Nat’l Bank and Trust Co., 634 F.2d 368, 374 (8th Cir.1980); Ortiz v. United States, 595 F.2d 65, 72 (1st Cir.1979); Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023, 1024 (5th Cir.1978) ; Pearce v. United States, 450 F.Supp. 613, 618 (D.Kan.1978).

The Tenth Circuit applied Aldinger and Owen strictly against the exercise of jurisdiction in National Ins. Underwriters v. Piper Aircraft, 595 F.2d 546 (10th Cir.1979) . Jurisdiction was denied in that diversity case because the claims against the proposed pendent parties did not satisfy the $10,000 jurisdictional prerequisite of 28 U.S.C. § 1332(a). “Since Congress in 28 U.S.C. § 1332(a) negated jurisdiction as to parties against whom plaintiff had a claim insufficient in amount, this court must hold that the district court did not have the power to exercise pendent party jurisdiction over defendants Aetna or Mr. Phelps.” 595 F.2d at 551. The Third Circuit has incorporated the Aldinger analysis in its test for determining when a court may exercise pendent jurisdiction. See Ambromovage v. United Mine Workers of America, 726 F.2d 972, 989-90 (3rd Cir.1984).

The principles established in Gibbs and Aldinger indicate that a federal court may decide non-federal claims when the following factors are satisfied:

(1) the federal and non-federal claims arise from a common nucleus of operative fact;
(2) the federal claims have “substance;”
(3) the claims would ordinarily be expected to be tried in one judicial proceeding; and
(4) Congress has not expressly or by implication negated the exercise of jurisdiction over the non-federal claims.

Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138; Aldinger, 427 U.S. at 18, 96 S.Ct. at 2422; Owen, 437 U.S. at 373, 98 S.Ct. at 2402.

Applying these principles to the present case, I determine that the court lacks jurisdiction to hear the pendent claim. Although the federal claims and state law claim arise from a common nucleus of operative fact, the federal claims lack substance and Congress, by implication, has negated the exercise of jurisdiction over the state law claim.

The federal claims in Count I are insubstantial as they relate to Eios and Mendoza because it is well established that 42 U.S.C. § 1983 requires action under color of law. An examination of Count I quickly reveals that this essential element is lacking. It is also readily apparent that the federal claim contained in Count IV is foreclosed by prior decisions and, therefore, is also insubstantial.

It may be deduced from § 1983 that Congress has negated the exercise of jurisdiction over plaintiffs’ state law claim. The statutory language of § 1983 limits its application only to defendants acting under “color of law.” Thus, under § 1983, Congress intended the federal courts to exercise jurisdiction only when the defendants have acted under color of law. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982). The inference is clear: Congress intended to negate the exercise of jurisdiction over all parties who have not acted under color of law. Expressio unius est exclusio alterius.

Another factor which would permit the exercise of pendent jurisdiction is not present here. Absent a grant of exclusive federal jurisdiction, which is not found in § 1983, a plaintiff with both a federal and a state claim can find a forum in state court for the resolution of the entire controversy. State courts are likewise charged with enforcing the United States Constitution. Hagans v. Lavine, 415 U.S. 528, 559, 94 S.Ct. 1372, 1390, 39 L.Ed.2d 577 (1974). Thus, “the efficiency plaintiff seeks so avidly is available without question in the state courts.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. at 376, 98 S.Ct. at 2404 (quoting Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 894 (4th Cir.1972)).

“The limits upon federal jurisdiction, whether imposed by the constitution or by Congress, must be neither disregarded nor evaded.” Owen Equipment & Erection Co., 437 U.S. at 374, 98 S.Ct. at 2403. Because of the constraints of 42 U.S.C. § 1983, the state law claims against Rios and Mendoza cannot rest on the doctrine of pendent jurisdiction. This conclusion is cdnsistent with the Ninth Circuit’s holding in Windward Partners v. Ariyoshi, 693 F.2d 928 (9th Cir.1982) where pendent jurisdiction was found to be lacking after the § 1983 conspiracy allegation against private individuals was dismissed by the district court.

The court is aware that plaintiffs may be able to assert facts sufficient to maintain their conspiracy claim in Count I. If plaintiffs are able to allege facts to support independent federal jurisdiction over Rios and Mendoza, I will reconsider the dismissal of the pendent state claim.

An order will be entered consistent with this opinion.

      . The Court in Owen appears to have dictated such an analysis. The Court stated:
      The Aldinger and Zahn [International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973) ] cases thus make clear that a finding that federal and nonfederal claims arise from a "common nucleus of operative fact," the test of Gibbs, does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the federal ones. Beyond this constitutional minimum, there must be an examination of the posture in which the nonfederal claim is asserted and of the specific statute that confers jurisdiction over the federal claim, in order to determine whether “Congress in [that statute] has ... expressly or by implication negated" the exercise of jurisdiction over the particular nonfederal claim. Aldinger v. Howard, supra [427 U.S.] at 18 [96 S.Ct. at 2422], 437 U.S. at 373, 98 S.Ct. at 2402.


author: SKINNER, District Judge.

text:
    PURETEST ICE CREAM, INC., et al., Plaintiffs, v. KRAFT, INC., Defendant.
    Civ. A. No. 84-1624-S.
    United States District Court, D. Massachusetts.
    July 30, 1985.

      Norman B. Smith, Smith, Patterson, Follín, Curtis, James & Harkavy, B. Ervin Brown 2d, Badgett, Calaway, Phillips, Davis, Stephens, Peed & Brown, Greensboro, N.C., for plaintiffs.
    Peter G. Hermes, Peabody & Arnold, Boston, Mass., Joseph B. Haynes and L. Joseph Loveland, King & Spaulding, Atlanta, Ga., for defendant.
   MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO STRIKE JURY DEMAND

SKINNER, District Judge.

The Massachusetts Consumer Protection Act, M.G.L. c. 93A, affords a “businessman’s remedy” to persons engaged in trade or commerce who suffer loss “as a result of the use or employment by another person who engages in trade or commerce of an unfair method of competition or an unfair or deceptive act or practice____” Id. § 11[TT 1]. The plaintiffs, past and present distributors of Kraft’s products, included in this action a count under c. 93A for “unfair and deceptive trade practices” by Kraft, and have demanded a jury trial on this claim. Kraft now moves to strike the jury demand, contending that Nei v. Burley, 388 Mass. 307, 446 N.E.2d 674 (1983), precludes a jury trial on any claim under c. 93A.

The Massachusetts Supreme Judicial Court in Nei v. Burley held that neither c. 93A itself nor the state constitution secures the right to a state court trial by jury of c. 93A claims. 446 N.E.2d at 679. This holding does not foreclose the question of manner of trial in the federal court for two reasons. First, the Erie doctrine does not apply, even though a c. 93A claim arises under state law. The Seventh Amendment to the Constitution, which preserves the right to a jury trial “[i]n suits at common law”, demands an independent inquiry into the character, legal or equitable, of the state law claim. As the Supreme Court has declared, “the substantive dimension of the claim asserted finds its source in state law, but the characterization of that state-created claim as legal or equitable for the purposes of whether a jury trial is indicated must be made by recourse to federal law”. Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 610, 9 L.Ed.2d 691 (1963). Second, the court in Nei v. Burley did not consider the matter in light of the Seventh Amendment, which applies only to trials in federal court. Pearson v. Yewdall, 5 Otto 289, 95 U.S. 294, 296, 24 L.Ed. 436 (1877).

The question of a right to a jury trial on a c. 93A claim in federal court arises squarely in this case for the first time since Nei v. Burley. In Computer Systems Eng., Inc. v. Qantel Corp., 571 F.Supp. 1365 (D.Mass.1983), aff'd 740 F.2d 59 (1st Cir.1984), the plaintiff withdrew its demand for jury trial of its c. 93A claim. 571 F.Supp. at 1372. The First Circuit Court of Appeals assumed in Capp Homes v. Duarte, 617 F.2d 900, 902-03 n. 2 (1980) that the terms of c. 93A implied a right to jury trial, hut that assumption must be questioned after Nei v. Burley.

In Nei v. Burley, the Supreme Judicial Court considered the c. 93A right of action for “unfair or deceptive acts or practices” sui generis in character, having at most an analogous or historical connection to common law causes tried to juries, since c. 93A does not demand proof of many of the elements of those traditional actions. Id. at 678. Further, the standard of the statute was “sufficiently open-ended to embrace causes of action for which there are no common law analogues”. Id. The court also considered the remedy equitable in nature. For these reasons the court decided that the statute did not provide and the state constitution did not require a right to jury trial.

The Supreme Court of the United States has taken a different tack. The Seventh Amendment, the Court has declared, “requires a trial by jury in actions unheard of at common law, provided that the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than an action in equity or admiralty”. Pernell v. Southall Realty, 416 U.S. 363, 375, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974). In the Supreme Court’s jurisprudence, a merely historical or analogous connection to claims triable to a jury will suffice, as opposed to the analysis employed by the Massachusetts court in Nei v. Burley. For instance, in Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), the Court held that a federal statute creating a private cause of action for violation of the fair housing provisions of the Civil Rights Act of 1968 entailed a right to jury trial because the statute defined a new legal duty and authorized courts to compensate plaintiffs for wrongful breach of that duty. Therefore the action sounded basically in tort. 415 U.S. at 195, 94 S.Ct. at 1008. Further, the action was analogous to a number of ancient and modern actions recognized at common law. Most importantly, the Court said, the relief requested — actual and punitive damages— was the traditional form of relief afforded in courts of law. Id. at 196, 94 S.Ct. at 1009. In addition the Court has held that full implementation of the Seventh Amendment right requires isolation and jury trial of factual issues relating to a legal claim joined with an equitable one. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479, 82 S.Ct. 894, 900, 8 L.Ed.2d 44 (1962).

These precedents dictate a rather complicated analysis of the statute’s unquestionably hybrid standard, “unfair or deceptive acts or practices”. M.G.L. c. 93A, §§ 2, 11. The “unfairness” of given acts or practices presents a question of fact traditionally left to the court for decision rather than to a jury. The Massachusetts Supreme Judicial Court has defined “unfair” acts or practices as those that offend public policy, are immoral, unethical, oppressive or unscrupulous, or cause substantial injury to consumers, competitors or other businessmen. PMP Assoc. v. Globe Newspaper Co., 366 Mass. 593, 321 N.E.2d 915, 917 (1975), quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244, 92 S.Ct. 898, 905, 31 L.Ed.2d 170 (1972). The Massachusetts court also has resorted to the equitable doctrine of unconscionability under U.C.C. § 2-302 to give “unfairness” under e. 93A further meaning. Zapatha v. Dairy Mart, 381 Mass. 284, 408 N.E.2d 1370 (1980); Commonwealth v. DeCotis, 366 Mass. 234, 316 N.E.2d 748 (1974). Such claims require individualized balancing of equities, “a major factor in determining unfairness”, Mechanics Nat’l Bank v. Killeen, 377 Mass. 100, 110, 384 N.E.2d 1231 (1979), and traditionally a function for the court.

“Deceptive” conduct under the statute has a distinctly different meaning as conduct that “could reasonably be found to have caused a person to act differently from the way he otherwise would have acted”. Lowell Gas Co. v. Attorney General, 377 Mass. 37, 51, 385 N.E.2d 240 (1979). When the conduct having this result is an intentional or reckless misrepresentation, the c. 93A claim closely resembles the common law action of deceit as known in Massachusetts courts. See, e.g., Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 579, 40 N.E. 1039 (1895). The factual issues presented by such claims traditionally have been triable to a jury. However, causes founded on misrepresentation were also cognizable in the equity courts which said that “the nature of the ‘fraud’ made it peculiarly a matter for their interference”. Prosser, Law of Torts, § 105 p. 687 (3d ed. 1971). The important difference between cases founded on misrepresentation lodged in the common law courts rather than the equity courts was the nature of the remedy sought. Id; 3 W. Blackstone, Commentaries *438.

This review suggests that though the “unfairness” of the defendant Kraft’s conduct is an equitable issue, its “deceptiveness” is a “legal” issue by history and analogy. Consideration must be given to the nature of the remedy sought as well. Section 11 of e. 93A authorizes actual and punitive damages for “any loss of money or property, real or personal, and such equitable relief, including an injunction, as the court deems to be necessary and proper”. The plaintiffs ask for actual and punitive damages, which, as the form of relief customarily awarded in pre-merger courts of law, would strongly support finding a right to jury trial, if it were the only mode of relief they seek. They also request an order permanently enjoining Kraft from further engaging in conduct that violates c. 93A. They assert that they seek damages “primarily”, but have not retracted the demand for an injunction. In absence of that, they cannot meet the test for recognition of a right to trial by jury of the “deceptiveness” claim, that the action “involve[] rights and remedies of the sort traditionally enforced in an action at law, rather than an action in equity or admiralty”. Pernell v. Southall Realty, 416 U.S. at 375, 94 S.Ct. at 1729 (emphasis added).

This conclusion does not affect the plaintiffs’ right to jury trial of their antitrust claims, to which they are undoubtedly entitled. Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 29, 36 S.Ct. 233, 234, 60 L.Ed. 505 (1916). To the extent “legal” claims under c. 93A parallel antitrust claims for damages, they will be tried to a jury. Cf. Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 609, 73 S.Ct. 872, 880, 97 L.Ed. 1277 (1953) (collecting cases). The factfinding required to determine the “unfairness” and “deceptiveness” under c. 93A of practices ascribed to Kraft that do not amount to antitrust violations and any claims to equitable relief under c. 93A must be accomplished by the court, not by the jury. Factual issues common to the antitrust and c. 93A claims must be tried by jury. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479, 82 S.Ct. 894, 900, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11, 79 S.Ct. 948, 956-57, 3 L.Ed.2d 988 (1959).

Accordingly, the defendant Kraft’s motion to strike the plaintiffs’ demand for a jury trial on c. 93A claims is ALLOWED to the extent stated above.

      . The practice under the Federal Trade Commission Act, 15 U.S.C. §§ 41-58, which c. 93A wholly incorporates, Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768 (1975), sheds no light, since factfinding under the federal act is solely the province of the Federal Trade Commission, an aspect of the federal act that c. 93A does not duplicate.