text:
    CALIFORNIA & HAWAIIAN SUGAR COMPANY, et al., Plaintiffs, v. KANSAS CITY TERMINAL WAREHOUSE COMPANY, INC., Defendant.
    No. 81-0571-CV-W-9.
    United States District Court, W.D. Missouri, W.D.
    Jan. 11, 1985.

      John M. Edgar, Stinson, Mag & Fizzell, Kansas City, Mo., for plaintiffs.
    Paul H. Niewald, Niewald, Waldeck, Norris & Brown, Kansas City, Mo., for defendant.
   ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND DENYING DEFENDANT’S MOTION FOR A NEW TRIAL OR, IN THE ALTERNATIVE, JUDGMENT NOTWITHSTANDING THE VERDICT

BARTLETT, District Judge.

Plaintiffs’ motion for judgment notwithstanding the verdict seeks the award of prejudgment interest on the amount of damages found by the jury.

Defendant’s motion for a new trial or judgment notwithstanding the verdict argues that: 1) as a matter of law the evidence is insufficient to support plaintiffs’ claims of fraud, negligence, breach of contract and damages; 2) plaintiffs are not entitled to prejudgment interest as a matter of law because plaintiffs’ damages were neither liquidated nor readily ascertainable; 3) the Court erred in admitting evidence of prejudgment interest; 4) the Court erred in excluding evidence concerning the sanitary conditions at the C & H Refinery and Warehouse in Crockett, California; 5) the Court erred in giving Instruction No. 24, the fraud verdict director; 6) the Court would err in awarding prejudgment interest because this was submitted to the jury; 7) the Court erred in admitting evidence concerning settlement negotiations; and 8) the Court erred in submitting jury instructions on both fraud and negligence.

Standards for Determining Motions for a New Trial and Judgment Notwithstanding the Verdict

Despite the jury verdict in favor of plaintiff, judgment may be entered in favor of defendant if there is but one reasonable conclusion about the proper result. Compton v. United States, 377 F.2d 408, 411 (8th Cir.1967). A motion for judgment notwithstanding the verdict challenges the sufficiency of the evidence to support the jury’s verdict. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 252, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940). In deciding whether to grant defendant’s motion for judgment notwithstanding the verdict, the Court should consider the evidence in the light most favorable to plaintiffs, assume that all conflicts in the evidence were resolved by the jury in favor of plaintiffs, assume as proved all facts which plaintiffs’ evidence tends to prove, and give plaintiffs the benefit of all reasonable inferences. Continental Ore Co. v. Union Carbide and Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962); Farner v. Paccar, Inc., 562 F.2d 518, 522 (8th Cir.1977). The Court may not consider the credibility of the witnesses or the weight of the evidence. McKnelly v. Sperry Corp., 642 F.2d 1101, 1105 (8th Cir.1981). A motion for judgment notwithstanding the verdict should be granted only if the evidence, together with all reasonable inferences to be drawn therefrom, viewed in the light most favorable to the non-moving party, would not allow a reasonable jury to find in favor of the non-moving party. Tribble v. Westinghouse Elec. Corp., 669 F.2d 1193, 1195-96 (8th Cir.1982).

While a motion for judgment notwithstanding the verdict is addressed to the sufficiency of the evidence, a motion for a new trial invokes the discretion of the Court by asserting that the verdict was against the weight of the evidence or that for other reasons of law the trial was manifestly unjust. Montgomery Ward & Co., 311 U.S. 243 at 252, 61 S.Ct. 189 at 194. The granting of a new trial rests within the discretion of the trial court. Fireman’s Fund Insurance Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179 (8th Cir.1972). A new trial should be ordered where the verdict was against the weight of the evidence or to prevent a miscarriage of justice. Day v. Amax, Inc., 701 F.2d 1258, 1262 (8th Cir.1983). A new trial should not be granted merely because the Court feels that another result was more reasonable. Fireman’s Fund Insurance Co., 466 F.2d at 186.

There Was Substantial Evidence to Support Submission of Claims for Breach of Contract, Negligence and Fraud

Defendant asserts that:

1) Plaintiffs failed to produce evidence establishing that the sugar was delivered to defendant in good condition and that the sugar left the defendant’s warehouse in bad condition;

2) Plaintiffs failed to establish that defendant breached its duty of care and that defendant did not exercise due care after discovering roaches; and

3) Plaintiffs failed to establish that defendant had a duty to tell plaintiffs about conditions at the warehouse.

Defendant’s arguments in support of these contentions were considered and rejected during the trial. Plaintiffs introduced ample evidence from which a reasonable jury could have concluded that plaintiffs established each of the essential elements of the plaintiffs’ breach of contract, negligence, and fraud claims. Therefore, defendant’s arguments are rejected again.

Exclusion of Evidence About General Sanitation at the Refinery Was Proper

Defendant contends that it should have been permitted to introduce evidence about the sanitary conditions at the C & H Refinery and Warehouse in Crockett, California.

This contention was briefed by both parties prior to trial, was argued on several occasions during the trial and was the subject of an offer of proof by defendant. Defendant has presented nothing new and has not persuaded the Court its trial rulings were erroneous.

Fraud Verdict Director Properly Given

Defendant contends that Instruction No. 24, the fraud verdict director, improperly stated the law and was argumentative. Instruction No. 24 stated:

Your verdict must be for plaintiffs on their claim for fraud if you believe:
First, defendant, by failing to notify C & H that there were cockroaches in the area where the sugar was stored, represented to plaintiff C & H that defendant’s warehouse continued to be a suitable storage place for its sugar, intending that plaintiff C & H rely upon such representation in continuing to store sugar in defendant’s warehouse, and
Second, the representation was false, and
Third, defendant knew that the representation was false; and
Fourth, defendant knew that plaintiff C & H did not know that there were cockroaches in the area where the sugar was stored, and
Fifth, defendant knew that this information was not reasonably available to plaintiff C & H, and
Sixth, the representation was material to plaintiff C & H’s decision regarding where to store its sugar, and
Seventh, plaintiff C & H relied on the representation in continuing to store sugar at defendant’s warehouse and in shipping additional sugar to defendant’s warehouse, and
Eighth, as a direct result of such representation, the plaintiffs were damaged.

The Court refused defendant’s Instruction A which stated:

Your verdict must be for Plaintiffs on their claims for fraud if you believe:
First, Defendant, by its silence, represented to Plaintiff C- & H that Plaintiff C & H could safely store its sugar in Defendant’s warehouse, intending that Plaintiff C & H rely upon such representation in continuing to store sugar in Defendant’s warehouse, and
Second, the representation was false, and
Third, Defendant knew that it was false, and that Plaintiff C & H had no knowledge of such fact, and that such knowledge was not within the fair and reasonable reach of Plaintiff C & H, and
Fourth, the representation was material to Plaintiff C & H’s continuing to store the sugar in Defendant’s warehouse, and
Fifth, Plaintiff C & H relied on the representation in continuing to store the sugar in Defendant’s warehouse, and
Sixth, as a direct result of such representation the Plaintiff C & H was damaged.

Defendant’s motion for a new trial asserts that Instruction No. 24 was argumentative, not a clear, concise statement and improperly stated the law. Defendant does not state how Instruction No. 24 was argumentative, unclear, or misstates the law.

Defendant raised objections to Instruction No. 24 at the instruction conference. In overruling these objections, the Court stated its reasons for preferring Instruction No. 24 and rejecting Instruction A. Defendant has raised no additional argument or- authority persuading the Court that these rulings were erroneous.

Evidence of Settlement Negotiations Properly Admitted

Defendant contends that the Court erroneously admitted testimony by Clarence Bailie and Thomas Rowland regarding settlement negotiations between the parties. Defendant asserts that “[t]he only purpose of plaintiffs’ evidence on this point was to attempt to prove defendant’s acknowledgment of liability.” Suggestions in Support of Defendants’ Motion for New Trial or, in the Alternative, for Judgment Notwithstanding the Verdict, p. 19.

Evidence of offers of compromise is not admissible to prove liability. Rule 408, Federal Rules of Evidence. However, Rule 408 “does not require exclusion when the evidence is offered for another purpose, such as ... negativing [sic] a contention of undue delay.”

Here, defendant contended that plaintiffs delayed selling the sugar for animal feed until after the market price had fallen significantly. As authorized by Rule 408, the evidence regarding settlement negotiations was admissible to explain why plaintiffs delayed in disposing of the sugar.

Inconsistent Instructions

Defendant contends that the Court erred in submitting both Instruction No. 18, the negligence verdict director, and Instruction No. 24, the fraud verdict director. Defendant argues that these instructions permitted double recovery for defendant’s failure to notify plaintiffs after cockroaches were discovered in the area of the warehouse where the sugar was stored.

Instruction No. 24 has already been quoted in this Order. Instruction No. 18 provided:

Your verdict must be for plaintiffs on their claims for damages as result of defendant’s negligence if you believe:
First, either
(a) defendant failed to adequately seal cracks and crevices in the warehouse to eliminate harborage sites for cockroaches, or
(b) defendant failed to eliminate promptly the cockroach population in the warehouse once it was discovered, or
(c) defendant failed to notify C & H of the existence of cockroaches in the warehouse, or
(d) defendant failed to segregate and protect sugar products already in the warehouse once the existence of cockroaches was discovered, or
(e) defendant failed to segregate and protect incoming sugar products once the existence of cockroaches was discovered, and
Second, defendant, in any one or more of the respects submitted in paragraph First, was thereby negligent, and
Third, as a direct result of such negligence, plaintiffs sustained damage.
The term “negligent” or “negligence” as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent warehouseman would use under the same or similar circumstances.

Defendant’s argument is based on the assumption that Instruction No. 18, subparagraphs (c) and (e), and Instruction No. 24 allowed the jury to award double damages for a single injury because failure to warn and failure to segregate were included in both verdict directors.

Five possible negligent acts were submitted in the disjunctive in the first paragraph of Instruction No. 18. If the jury concluded that any one of them had been established, the jury was instructed to proceed to the second paragraph of Instruction No. 18. Therefore, no basis exists to conclude that the jury’s verdict and award of damages on the negligence count was based on subparagraphs (c) and (e); it could just as logically have been based only on either (a), (b) or (d). Even if the jury determined that defendant’s failure to warn and failure to segregate the sugar after it learned of the cockroaches were both negligent and fraudulent acts, Instruction Nos. 18 and 24 required the jury to determine how much damage was caused by either defendant’s negligence or fraud. The jury’s response to Instruction No. 32 clearly established the total amount of damages.

Your verdicts have been returned, but the verdicts you have returned are unclear. By your verdicts what is the total amount you intend C & H and CAVG to recover?

500,000.00

Total Amount to C & H and CAVG

Madolyn D. Tillman

Foreperson

Date: 6-1-84

The jury by its verdicts determined how much of the total damages was caused by defendant’s negligence and how much was caused by defendant’s fraud.

PREJUDGMENT INTEREST SHOULD BE AWARDED

Plaintiffs seek the award by the Court of prejudgment interest on the total amount of the verdict, i.e., $500,000. Defendant asserts that evidence of prejudgment interest was erroneously admitted, that the issue of prejudgment interest was submitted to the jury, that the Court has no authority to award prejudgment interest and, even if it does, prejudgment interest should not be awarded in this case.

Defendant contends that the Court erroneously permitted Fred Schwer to testify about the calculation of prejudgment interest. Fred Stammen, not Fred Schwer, testified briefly on the question of prejudgment interest. Defendant objected on the basis that prejudgment interest was inappropriate because plaintiffs’ damages were not readily ascertainable and because plaintiffs asserted tort claims, not claims based on contract. The Court overruled the objection because plaintiffs’ contract claims were a valid basis for an award of prejudgment interest and because the damages on the contract claims were readily ascertainable under Missouri law.

Pursuant to Mo.Rev.Stat. § 408.020 and decisions such as St. Joseph Light & Power Co. v. Zurich Ins. Co., 698 F.2d 1351 (8th Cir.1983) (interpreting Missouri law) and Herbert & Brooner Const. Co. v. Golden, 499 S.W.2d 541 (Mo.App.1973), prejudgment interest shall be allowed when the amount due is readily ascertainable. “[A] defendant’s denial of liability or challenge to the amount claimed on a contract will not alter the fact that the amount claimed by the plaintiff is sufficiently ascertainable to require the award of prejudgment interest.” St. Joseph Light & Power Co., 698 F.2d at 1356 (interpreting Missouri law). Here, the amount due was readily ascertainable by multiplying the number of pounds of sugar damaged by the known market value of the sugar less the salvage value.

The Issue of Prejudgment Interest Was Neither Submitted to the Jury Nor Included in the Jury Verdict

Defendant contends that an award of prejudgment interest by the Court is inappropriate because the issue was submitted to the jury, considered in its deliberations and included in its verdict.

During closing argument, plaintiff’s counsel asked the jury to award prejudgment interest. Counsel then took a pen and wrote “Interest 9% on net loss $195,-757.07” on the bottom of the chart (P.Ex. 1191) summarizing plaintiffs’ claimed damages. Counsel totaled the figures arriving at a total damage claim of $802,755.85. Defendant did not object to this part of plaintiffs’ closing argument.

The jury was instructed before the trial began that the Court would decide which rules of law applied to the case and that the jury must decide the issues by applying the Court’s instructions about the law. (Instruction No. 1.) Instruction No. 2 provided, in part, that the instructions “constitute the law of this case and each such instruction is equally binding upon you.”

For each of the four claims, the jury was instructed: “If you find in favor of plaintiffs, then you must award plaintiffs such sum as you may find from the evidence to be the difference between the fair market value of the sugar before it was damaged and its fair market value after it was damaged.” (Instructions No. 10, 15, 20, 26). Instruction No. 5 stated that “[t]he phrase ‘fair market value’ as used in these instructions means the price which the sugar would bring when offered for sale by one willing but not obliged to sell it, and when bought by one willing or desirous to purchase it but who is not compelled to do so.” No instruction was submitted to the jury authorizing it to award damages for prejudgment interest.

Shortly after retiring to begin its deliberations, the jury requested P.Ex. 1191. It was sent to the jury room without objection by defendant.

Whether prejudgment interest should be awarded and, if so, in what amount were not submitted to the jury. The measure of damages was the difference in fair market value of the sugar before and after the damage. For the jury to have included in the verdict any amount for prejudgment interest would have been contrary to the instructions.' The jury is presumed to have followed the instructions and to have ignored counsel’s argument referring to an issue not submitted to the jury. Callaway v. Lilly, 605 S.W.2d 155, 159 (Mo.App.1980).

An Award of Prejudgment Interest by the Court on Plaintiffs’ Contract Claims is Appropriate

Section 408.020 authorizes the award of prejudgment interest (9% per annum) on contract claims from the date the claim became due and payable. Two of the four claims submitted to the jury are contract claims, i.e., the breach of warehouseman’s duty and breach of contract (Verdicts A & B). A warehouseman’s duty is based on a bailor/bailee relationship. See Church v. Richfer Corp., 618 S.W.2d 29, 30 (Mo.1981) (en banc). A bailment is a contractual relationship. Ratterree v. General Motors Corp., 460 S.W.2d 309, 311 (Mo.App.1970); Glass v. Allied Van Lines, Inc., 450 S.W.2d 217, 220 (Mo.App.1970). Prejudgment interest is not recoverable on tort actions. Lober v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267, 268 (1936). Therefore, no prejudgment interest may be awarded on the negligence and fraud claims.

This Court has the authority to award prejudgment interest where such an award can be determined by mathematical computation. Home Trust Co. v. Josephson, 339 Mo. 170, 179, 95 S.W.2d 1148, 1154-55 (1936) (en banc); Hamra v. Boone County Development Co., 602 S.W.2d 721, 727 (Mo.App.1980). In fact, the Court has no discretion not to award prejudgment interest once it determines that an award of prejudgment interest is appropriate under § 408.020. Slay Warehousing Co., Inc. v. Reliance Ins. Co., 489 F.2d 214, 215 (8th Cir.1974).

Here, even though defendant challenged the amount of sugar damaged, the amount claimed by plaintiffs was sufficiently ascertainable to require the award of prejudgment interest. Herbert & Brooner Const. Co. v. Golden, 499 S.W.2d 541 (Mo.App.1973). The interest rate of nine percent per annum is set by statute. There is no dispute that the plaintiffs demanded the value of the damaged sugar on October 24, 1980. Therefore, the amount of prejudgment interest can be determined by a simple mathematical calculation. Prejudgment interest from October 24, 1980, to June 1, 1984, will be awarded in favor of plaintiffs and against defendant in the amount of $113,535.45.

Order

For the reasons stated, it is hereby ORDERED that:

1) defendant’s motion for new trial is denied;

2) defendant’s motion for judgment notwithstanding the verdict is denied;

3) plaintiffs’ motions for judgment notwithstanding the verdict and for the award of prejudgment interest are granted to the extent that prejudgment interest is hereby awarded on $350,000 in the amount of $113,535.45; and

4) in accordance with the jury verdict, judgment is hereby entered in favor of plaintiffs and against defendant in the amount of $500,000 plus $113,535.45 prejudgment interest, totaling $613,535.45.

      . Remarkably, defendant also asserts that "[b]y foreclosing all evidence of the condition of the sugar prior to delivery to defendant the Court deprived defendant of the opportunity to dispute that [the sugar was delivered in good condition to defendant’s warehouse.]” Suggestions in Support of Defendant’s Motion for New Trial or, in the Alternative, for Judgment Notwithstanding the Verdict, p. 12. No such ruling was ever made. Defendant was never prevented from introducing evidence about cockroach problems at any stage of the manufacturing or delivery process.

      . The jury returned verdicts based on plaintiffs’ claims as follows:
      Verdict Claim Amount
      A Breach of warehouse- $300,000 man's duty
      Verdict Claim Amount
      B Breach of contract $ 50,000
      C Negligence 50,000
      D Fraud 100,000

      . Defendant relies on Burgdorfer Electric Co. v. Voyles Const. Co., 432 S.W.2d 387, 391 (Mo.App. 1968), for the proposition that the trial court lacks authority to supplement a verdict by adding prejudgment interest when the question of interest has not been submitted to the jury. The same court that decided Burgdorfer subsequently changed its position in Hamra v. Boone County Development Co., 602 S.W.2d 721, 727 (Mo.App.1980).

      . The calculation for prejudgment interest is as follows:
      a) the statutory interest rate is nine percent;
      b) Verdict A + Verdict B $300,000 $50,000 = $350,000
      c) 1980 1981 1982 1983 1984 Interest Term
      10/24 to 1/1 to
      12/31/80 6/1/84
      .1890 yrs + 1 yr + 1 yr + 1 yr + .4153 yrs — 3.6043
      Interest Rate X Principal Balance X Interest Term = Prejudgment Interest ■
      9.0% per annum X $350,000 X 3.6043 = $113,535.45


source: Caselaw Access Project

author: HANSON, Senior District Judge.

license: Public Domain

text:
    COMIDAS EXQUISITOS, INC., Plaintiff, v. CARLOS McGEE’S MEXICAN CAFE, INC., Defendant.
    Civ. No. 83-600-D.
    United States District Court, S.D. Iowa, C.D.
    Jan. 11, 1985.

      H. Robert Henderson, Henderson & Sturm, Des Moines, Iowa, for plaintiff.
    Mark David Hansing, Zarley, McKee, Thomte & Voorhees, Des Moines, Iowa, for defendant.
   MEMORANDUM AND ORDER

HANSON, Senior District Judge.

Plaintiff, Comidas Exquisitos, Inc., brought this action for service mark infringement and related claims against defendant, Carlos McGee’s Mexican Cafe, Inc. Defendant has asserted a counterclaim for unfair competition. This action came on for trial to the Court on October 16, 1984. At trial, plaintiff’s Exhibits 31, 40 and 41 were received subject to defendant’s hearsay objection. The Court now rules these exhibits admissible under the business records exception to the hearsay rule. Rule 803(6), Fed.R.Evid. Defendant's Exhibit E has been used by the Court only as it shows witness Ansani’s interest in this action. The Court now enters the following Findings of Fact and Conclusions of Law in support of its judgment.

FINDINGS OF FACT

I. Plaintiff, Comidas Exquistos, Inc., is a Georgia corporation with its principal place of business in Atlanta, Georgia.

2. Since July 1979, plaintiff has continuously used the service mark CARLOS McGEE’S in connection with restaurant services. In July 1979, plaintiff opened its first “CARLOS McGEE’S BAR GRILL & BAR” in Atlanta, Georgia. Since then plaintiff has opened a second company-owned restaurant and a third under a license agreement, both under the same name and both in the Atlanta metropolitan area. [Hereinafter, the Court will use “plaintiff” to refer to both Comidas Exquisitos, Inc. and its three restaurants.]

3. On September 9, 1980, plaintiff filed application Serial No. 277,241 with the United States Patent and Trademark Office to register its service mark CARLOS McGEE’S for restaurant services. On June 1, 1982, plaintiff’s application was granted as Registration No. 1,197,034. Plaintiff is still the owner of this registration.

4. Plaintiff has done a substantial amount of advertising and promotion, much of which has been directed at travelers and some of which has reached Iowa. Plaintiff has in fact served a substantial number of travelers, including some from Iowa. Approximately 20 percent of plaintiff’s customers have been from outside the Atlanta area.

5. Defendant, formerly Carlos McGee’s Mexican Cafe, Inc., now O’Malley & McGee’s Mexican Cafe, Inc., is an Iowa corporation with its principal place of business in Ames, Iowa.

6. Defendant was originally incorporated under the name “Carlos McGee’s Mexican Cafe, Inc.” on June 19, 1980. Defendant opened a restaurant in Ames, Iowa under the name “Carlos McGee’s Mexican Cafe” in January of 1981. [Hereinafter, the Court will use “defendant” to refer to both the corporate party and its restaurant.]

7. Defendant is now in the process of changing its name. Since this action was filed, defendant has changed its sign, menus, and corporate name to “O’Mally & McGee’s.” Defendant’s liquor and food licenses are still in the name “Carlos McGee’s.”

8. Defendant has done virtually no advertising or promotion, relying instead on word of mouth. Defendant has admitted that it has served interstate travelers, including persons who had seen one or more of plaintiff’s restaurants. However, there is no evidence to suggest that defendant has ever served substantial numbers of interstate travelers, in absolute or percentage terms.

9. Defendant was aware of use of the name “Carlos McGee’s” for a restaurant in the Atlanta area before it opened its restaurant. Defendant adopted the name because it found it “catchy.” In everything other than its name, defendant’s restaurant was based on a “Dos Amigos” restaurant in Steamboat Springs, Colorado. Consistent with this, the evidence shows a number of differences between plaintiff and defendant. Both plaintiff and defendant serve Mexican food, but plaintiff is a “Tex-Mex” restaurant featuring such “Tex” items as steak and smoked ribs in addition to Mexican food. Defendant, on the other hand, is a standard Mexican restaurant with a few items on the menu “from the other side of the border.” Though both plaintiff and defendant serve liquor, defendant’s bar is subsidiary to its restaurant while plaintiff’s bar has a life of its own: defendant is a restaurant with a bar, while plaintiff is a restaurant and a bar. This difference is advertised in' plaintiff’s and defendant’s names. Plaintiff refers to itself as a “bar • grill & bar” while defendant refers to itself as a “cafe.” Further, the logos used by plaintiff and defendant are very different, both in appearance and in the image they convey. Copies of plaintiff’s and defendant’s logos are attached hereto. Finally, as illustrated by their logos, plaintiff and defendant differ in atmosphere or “personality.” Plaintiff’s personality is sophisticated, up-scale, and cosmopolitan, while defendant is simple, unpretentious, and provincial.

10. The market areas of plaintiff and defendant have always been, and still are, geographically separate. Plaintiff's market has been limited to the Atlanta, Georgia metropolitan area, and defendant’s. market has been limited to the Ames, Iowa area.

11. At no time has there been a present likelihood that plaintiff would enter defendant’s market area.

12. Plaintiff has never had a general reputation in defendant’s market area.

13. Defendant’s use of “Carlos McGee’s” has not, at any time, caused a real, present likelihood of confusion in the marketplace.

Magistrate Longstaff was right, in his order denying defendant’s motion for summary judgment, when he predicted that “plaintiff may have considerable difficulty” proving its case. If all the evidence presented at trial were presented on a motion for summary judgment, this Court believes it could grant the motion. The basic facts of this case are substantially undisputed. The parties agree about who did what when. There is a great deal of apparent dispute as to whether defendant’s use of “Carlos McGee’s” has caused a likelihood of confusion. However, when the nature of that issue is properly understood, it appears that there is no genuine issue of fact on that score either.

Defendant’s use of “Carlos McGee’s” certainly made the parties’ names confusingly similar when considered in the abstract. Further, the Court does not doubt that plaintiff’s and defendant’s use of “Carlos McGee’s” could cause confusion under some circumstances. However, to the present, defendant’s actual use of “Carlos McGee’s” has not, at any time, caused a real, present likelihood of confusion in the marketplace.

For there to be a real, present likelihood of confusion, there must be someone in a position to be confused— some point of contact between plaintiff’s and defendant’s use of “Carlos McGee’s.” Unicure, Inc. v. Nelson, 502 F.Supp. 284, 287 (W.D.N.Y.1980), (“Some overlap between the parties’ trademark usage must exist before a likelihood of confusion ... can be found.”) In the typical case, this point of contact is provided by overlap between the parties’ market areas. However, as found above, plaintiff and defendant have occupied geographically separate market areas. Plaintiff has argued that it has a national market area because it serves travelers from all over, seeks a national reputation, and hopes to expand throughout the nation. However, the relevant market area is the area within which plaintiff competes for customers with other restaurants. See Holiday Inns of America, Inc. v. B & B Corp., 409 F.2d 614, 617 (3d Cir.1969) (plaintiff would be entitled to relief if plaintiff’s and defendant’s names were “at large in the same market to compete for the same customers”); Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 364 (2d Cir.1959) (finding of small market areas for donut shops based on fact that “purchasers of baked goods, because of the perishable nature of such goods, usually make such purchases reasonably close to their homes”); Fairway Foods, Inc. v. Fairway Markets, Inc., 227 F.2d 193, 196 (9th Cir.1955) (no likelihood of confusion where “neither party sells or tries to sell to any customer who buys from the other party.)” See generally, J. McCarthy, Trademarks and Unfair Competition, § 2:12, § 23:1 at 46-48 (1984) [Hereinafter cited as McCarthy]. It is clear that plaintiff competes for customers with other restaurants only in the Atlanta metropolitan area.

In cases involving geographically separate markets, courts have found a basis for a likelihood of confusion where there is a present likelihood that plaintiff .will enter defendant’s market area and where plaintiff has a general reputation in defendant’s market area. See John R. Thompson Co. v. Holloway, 366 F.2d 108 (5th Cir.1966); Dawn Donut, 267 F.2d 358; Fotomat Corp. v. Cochran, 437 F.Supp. 1231, 1237, 1245 (D.Kan.1977); McCarthy § 26:13-15. Cf. McCarthy § 26:1-12 (pre-Lanham Act Law). As found above, neither of these circumstances have ever been present in this case.

Plaintiff did attempt to show a present likelihood that it would enter defendant’s market area by introducing evidence showing its general hopes and plans for national expansion and its actual steps toward expansion in South Carolina, Florida, the Virgin Islands, New York, Texas, Missouri, and Illinois. However, plaintiff introduced no evidence of any concrete plans for entry into defendant’s market area, as is required to establish a present likelihood of entry. See McCarthy § 26:14. Plaintiff’s general hopes and plans for national expansion are insufficient. See Holiday Inns, 409 F.2d 614; Fairway Foods, 227 F.2d 193, 198; Peter Pan Restaurants v. Peter Pan Diner, 150 F.Supp. 534 (D.R.I.1957).

As to plaintiffs reputation in defendant’s market area, plaintiff introduced evidence of its substantial advertising, promotion, and publicity, some of which has reached Iowa. Plaintiff also argues from the fact that it serves a substantial number of travelers from all over the United States, including Iowa. Plaintiff no doubt has a broader reputation than the average restaurant. However, plaintiff simply has not shown that its reputation has extended to the Ames, Iowa area. Plaintiff is not the Stork Club, or even the Crab Cooker. Cf. Lincoln Restaurant Corp. v. Wolfies Restaurant, Inc., 291 F.2d 302 (2d Cir.1961); Stork Restaurant, Inc. v. Sahati, 166 F.2d 348 (9th Cir.1948); The Crab Cooker v. Specialty Restaurants Corp., 223 U.S.P.Q. 233, 235 (C.D.Cal.1983). Plaintiff also argues from the fact that defendant knew of plaintiff’s use of “Carlos McGee’s” before it opened its restaurant. The fact that defendant knew of plaintiff is insufficient to establish that plaintiff had a general reputation in the Ames area. If it were shown that defendant adopted the name “Carlos McGee’s” with intent to trade on plaintiff’s reputation, the Court might infer that plaintiff did have a reputation in defendant’s market area. See generally, McCarthy § 23:30 at 139-49; § 23:32 at 144-45. However, the evidence shows that defendant adopted plaintiff’s name because it was “catchy”. Given this explanation and the lack of any independent evidence that plaintiff’s reputation has extended to the Ames area, the Court is unwilling to infer that defendant intended to trade on plaintiff’s reputation and from that infer that plaintiff had a reputation in defendant’s market area. See Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 263 (5th Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980); beef & brew, inc. v. BEEF & BREW, INC., 389 F.Supp. 179, 186 (D.Or.1974); McCarthy § 23:35.

Plaintiff’s best argument for a likelihood of confusion is based on confusion on the part of travelers from Ames to Atlanta. One of plaintiff’s former managers testified that on one occasion a group of customers from Iowa told him that they had eaten at “your” restaurant in Ames. This testimony is entitled to little weight. See Vitek Systems, Inc. v. Abbott Laboratories, 675 F.2d 190, 193 (8th Cir.1982). Nonetheless, the Court recognizes the possibility of confusion on the part of travelers from Ames to Atlanta, and on the part of other travelers coming into contact with both plaintiff and defendant.

The possibility of confusion on the part of people traveling or moving from one market to another has been ignored in a number of cases finding no likelihood of confusion due to the geographical separation of the parties’ markets. See Safeway Stores, Inc. v. Safeway Quality Foods, Inc., 433 F.2d 99 (7th Cir.1970); Holiday Inns, 409 F.2d 614; John R. Thompson, 366 F.2d 108; Dawn Donut, 267 F.2d 358; Fairway Foods, 227 F.2d 193; Snelling and Snelling, Inc. v. Snelling and Snelling, Inc., 331 F.Supp. 750 (D.P.R.1970); Peter Pan, 150 F.Supp. 534. On the other hand, the possibility of confusion on the part of travelers has been part of the basis for finding a likelihood of confusion in at least three cases. Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609 (7th Cir.1965); The Crab Cooker, 223 U.S.P.Q. at 236; The Warehouse Restaurant, Inc. v. The Customs House Restaurant, Inc., 217 U.S.P.Q. 411 (N.D.Cal.1982). However, in all these cases the plaintiff had a reputation in the defendant’s market area, and in the Warehouse case there was also a likelihood that the plaintiff would enter the defendant’s market area.

The Court does not doubt that, in a proper case, a likelihood of confusion could be found based solely on confusion on the part of travelers between markets. However, the mere possibility of such confusion, or actual confusion that is de minimis, is insufficient to establish a likelihood of confusion. See Amstar, 615 F.2d 252, 263; AMP, Inc. v. Foy, 540 F.2d 1181, 1185-86 (4th Cir.1976); Carter-Wallace, Inc. v. Procter & Gamble Co., 434 F.2d 794, 804 (9th Cir.1970); McCarthy § 23:1 at 45-46, § 23:2 at 52-53. The danger of confusion must be sufficiently substantial to constitute a “likelihood ” of confusion. See McGregor-Doniger, Inc. v. Drizzle, Inc., 599 F.2d 1126, 1130, 1138 (2nd Cir.1979); American Assoc. for the Advancement of Science v. Hearst Corp., 498 F.Supp. 244, 258 (D.D.C.1980); McCarthy § 23:1 at 44-46.

The argument for a likelihood of confusion based on confusion on the part of travelers is strongest in a ease like Tisch Hotels, 350 F.2d 609, where the parties were both hotels. As the Tisch court noted, “by the very nature of their business [hotels] are seeking to attract the traveling public.” 350 F.2d at 613. Plaintiff attempts to make itself look like a hotel by emphasizing that it is located in a major city; that it does substantial advertising and promotion, much of which is directed at travelers; and that it does in fact serve a substantial number of travelers. Plaintiff’s case would be stronger if the defendant were more like plaintiff in these respects. In that case defendant’s use of “Carlos McGee’s” might pose a danger of confusion among frequent travelers that would be sufficiently substantial to constitute a likelihood of confusion. Cf. The Crab Cooker, 223 U.S.P.Q. at 236. However, defendant is essentially a local restaurant in a relatively small city over 700 miles from plaintiff. It is difficult to imagine that such a restaurant could pose a danger of confusion with plaintiff sufficiently substantial to constitute a likelihood of confusion.

Plaintiff’s argument from confusion on the part of travelers would also be strengthened if defendant were more like plaintiff in other ways. However, this is not a case where the defendant has copied the “concept” or the details of the plaintiff’s restaurant. Cf. The Crab Cooker, 223 U.S.P.Q. at 236. As found above, there are a number of specific differences between plaintiff and defendant. These differences would not be controlling if plaintiff and defendant were across the street from each other or if plaintiff had a reputation in defendant’s market area. However, the differences between plaintiff and defendant are relevant here because they make it less likely that a traveler coming into contact with both would think that plaintiff and defendant are related. Cf. John R. Thompson, 366 F.2d 108, 111—12; The Crab Cooker, 223 U.S.P.Q. 233, 236; Berghoff Restaurant Co., Inc. v. Lewis W. Berghoff, Inc., 357 F.Supp. 127, 130-31 (N.D.Ill.1973) aff'd, 499 F.2d 1183 (7th Cir.1974).

Looking at all the evidence, the Court finds that, in this case, the possibility of confusion on the part of travelers is not sufficiently substantial to constitute a likelihood of confusion, even assuming that there has been some actual confusion on the part of travelers. Cf. Sun Banks of Florida, Inc. v. Sun Federal Savings and Loan Assoc., 651 F.2d 311 (5th Cir.1981); Amstar, 615 F.2d 252; Holiday Inns, 409 F.2d 614; Sweetarts v. Sunline, Inc., 436 F.2d 705 (8th Cir.1971); beef & brew, inc., 389 F.Supp. 179.

Plaintiff’s president and sole owner and its general counsel testified that potential investors in Carlos McGee’s franchises outside the Ames area backed out or demanded better terms when they found out about defendant. The Court gives little weight to this testimony because of the obvious interests of the witnesses. The only corroborating testimony from investors offered was the testimony of two men who allegedly backed out of Illinois franchises but did invest in the third Atlanta Carlos McGee’s (allegedly on better terms because of defendant). This testimony adds little weight to plaintiff’s case because of the witnesses’ interests in the third Atlanta Carlos McGee’s. However, even assuming that potential investors did back out or demand better terms because of defendant, that does not show a likelihood of confusion. As to the investors themselves, there is no evidence to suggest that they were confused by defendant’s use of “Carlos McGee’s”. On the contrary, plaintiff’s evidence shows that they were acutely aware there was no relationship between plaintiff and defendant. Nor do the alleged concerns of potential investors’ about defendant constitute evidence of a real, present likelihood of confusion on the part of others. When the two investors who testified were asked why they were concerned about defendant, they did not state that defendant’s use of “Carlos McGee’s” would cause confusion or reduce the value of the “Carlos McGee’s” name to them. Rather, they stated that they did not want to invest in a Carlos McGee’s if another restaurant using the same name could follow them into their market.

Based on all the evidence, the Court finds that defendant’s use of “Carlos McGee’s” has not, at any time, caused a real, present likelihood of confusion in the marketplace.

CONCLUSIONS OF LAW

Plaintiffs Claims

Plaintiff asserts claims under the Lanham Act for service mark infringement and false designation of origin, description, or representation, 15 U.S.C. §§ 1114, 1125; under the common law for unfair competition; and under § 548.11.2 of the Iowa Code for injury to business reputation or trade name, and service mark dilution. Plaintiff bases all its claims solely on defendant’s use of “Carlos McGee’s.” Plaintiff does not challenge defendant’s use of “O’Malley & McGee’s.”

The Court has jurisdiction over plaintiff’s claims under 28 U.S.C. § 1338 and the Court’s pendant jurisdiction.

Likelihood of confusion is an essential element of plaintiff’s Lanham Act claims and its common law unfair competition claim. See Amstar, 615 F.2d 252; Safeway Stores, Inc. v. Safeway Properties, Inc., 307 F.2d 495 (2d Cir.1962); Emerson Electric Co. v. Emerson Quiet Kool Corp., 577 F.Supp. 668 (E.D.Mo.1983); The Warehouse Restaurant, 217 U.S.P.Q. 411; Bowman Instrument Corp. v. Continental Microsystems, Inc., 497 F.Supp. 947 (S.D.N.Y.1980); 15 U.S.C. § 1114; McCarthy, § 2:3. To establish a likelihood of confusion it is not sufficient that the parties’ marks are confusingly similar in the abstract or that the marks could cause confusion under some circumstances. Rather, for there to be a likelihood of confusion, the parties’ marks, as actually used in the marketplace, must cause a real, present likelihood of confusion in the marketplace. See Astra Pharmaceutical Products, Inc. v. Beckman Instruments, Inc., 718 F.2d 1201 (1st Cir.1983); Amstar, 615 F.2d 252; Continente v. Continente, 378 F.2d 279 (9th Cir.1967); John R. Thompson, 366 F.2d 108; Dawn Donut, 267 F.2d 358; Sargent & Co. v. Welco Feed Mfg. Co., 195 F.2d 929 (8th Cir.1952); Berghoff 357 F.Supp. 127, aff'd, 499 F.2d 1183; McCarthy § 23:1 at 45-46. As found above, defendant’s use of “Carlos McGee’s” has not, at any time, caused a real, present likelihood of confusion in the marketplace. Therefore, plaintiff cannot prevail on its Lanham Act claims or its common law unfair competition claim.

Plaintiff argues that likelihood of confusion is not required to support its claim under § 548.11.2 of the Iowa Code. The Court need not decide this issue because the Lanham Act has pre-empted state trademark law as applied to interstate commerce. Sargent, 195 F.2d 929, 935-36; Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838, 844 (9th Cir.1969). Therefore, § 548.11.2 of the Iowa Code cannot enlarge plaintiff’s rights under the federal law.

Much of plaintiff’s argument to this Court has come down to a claim that the alleged adverse effect of defendant on plaintiff’s franchising efforts entitles plaintiff to relief. As discussed above, plaintiff claims that potential investors in Carlos McGee’s franchises backed out or demanded better terms when they found out about defendant. Two investors testified that they were concerned about investing in a Carlos McGee’s if another restaurant using the same name could follow them into their market. Any such concern on the part of plaintiffs potential investors is unwarranted. Once plaintiff entered a market, it could prevent anyone else from using the name “Carlos McGee’s” in that market, since there would then be a real, present likelihood of confusion. See Holiday Inns, 409 F.2d at 619; John R. Thompson, 366 F.2d at 116; Dawn Donut, 267 F.2d at 360. To the present, however, defendant’s use of “Carlos McGee’s” has not caused a real, present likelihood of confusion. Therefore, the Court cannot, at present, grant plaintiff any relief against defendant. The fact that plaintiff’s investors might be more comfortable about the future if the Court could grant present relief against defendant does not give plaintiff the right to such relief.

Even if plaintiff had shown a likelihood of confusion, the Court doubts that plaintiff would be entitled to any relief. All relief under the Lanham Act is subject to equitable principles. 15 U.S.C. §§ 1116, 1117. The equities in this case strongly favor defendant. The Court believes that defendant adopted “Carlos McGee’s” in the good faith belief that it had the right to do so. Defendant did not otherwise copy plaintiff’s restaurants. In this suit, defendant has not disputed plaintiff’s first use and registration of the service mark CARLOS McGEE’S. Nor has defendant disputed that it could not use “Carlos McGee’s” if such use caused a likelihood of confusion. However, defendant has maintained that it was within its rights in using “Carlos McGee’s” as it has. Though maintaining this position, defendant has acted in good faith to avoid this lawsuit by changing its name to “O’Malley and McGee’s.” Defendant’s name change moots plaintiff’s prayer for injunctive relief. As to damages, plaintiff has not shown that it suffered any damages attributable to any confusion that may have existed in the marketplace. The alleged damage to plaintiff’s franchising efforts is too remote from any confusion in the marketplace and too speculative to be a basis for damages, at least under the equities of this case. Finally, as to recovery of defendant’s profits, defendant has admitted that it made a profit while using plaintiff’s service mark. However, plaintiff has not shown that any of defendant’s profit was in any way attributable to its use of plaintiff’s service mark. Therefore, the Court would not grant recovery of defendant’s profits. Thus, under the equities of this case, the Court believes that plaintiff would not be entitled to any relief, even if plaintiff had shown a likelihood of confusion from defendant’s use of “Carlos McGee’s.”

Defendant argues that it should be awarded attorneys’ fees under 15 U.S.C. § 1117, which provides for attorney fee awards to the prevailing party in “exceptional” eases under federal trademark law. In the context of claims for fees by prevailing defendants, “exceptional” cases are those involving bad faith, frivolous claims, or claims brought for the purpose of economic coercion. See John R. Thompson, 366 F.2d at 116; Scott v. Mego International, Inc., 524 F.Supp. 74 (D.Minn.1981); Steak & Brew, Inc. v. Beef & Brew Restaurant, Inc., 370 F.Supp. 1030, 1038 (S.D.Ill.1974). Despite the weakness of plaintiff’s case, the Court cannot say that it involved bad faith, frivolous claims, or' claims brought for the purpose of economic coercion. Therefore, defendant will not be awarded attorney fees.

Defendant’s Counterclaim

Defendant has counterclaimed against the plaintiff for what defendant characterizes as “unfair competition.” The Court lacks subject matter jurisdiction over this claim.

Defendant asserts jurisdiction under 28 U.S.C. § 1338(b), which provides:

The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the ... trademark laws.

This provision does not cover defendant’s counterclaim. First, defendant’s counterclaim is not “joined with a substantial and related claim under the ... trademark laws” because defendant has made no claim under the trademark laws. Further, defendant’s counterclaim cannot properly be characterized as a claim of unfair competition. Defendant’s counterclaim is based solely on plaintiff’s instigation and maintenance of this action. Therefore, defendant’s counterclaim must be treated as a claim of malicious prosecution or abuse of process. See generally, Sarvold v. Dodson, 237 N.W.2d 447 (Iowa 1976); Restatement (Second) of Torts §§ 674, 682 (1977).

The Court can exercise ancillary jurisdiction over defendant’s counterclaim only if it is compulsory, 13 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3523, 106-09 (1984) [hereinafter cited as Wright & Miller], that is, only if defendant’s counterclaim “arises out of the transaction or occurrence that is the subject matter of [plaintiff’s] claims.” Rule 13(a), Fed.R. Civ.P. However, defendant’s counterclaim arises out of the prosecution of this action while the subject matter of plaintiff’s claims is defendant’s use of the name “Carlos McGee’s.” Therefore, the Court cannot exercise ancillary jurisdiction over defendant’s counterclaim. See Answering Service, Inc. v. Egan, 728 F.2d 1500 (D.C.Cir.1984); U.S. General Inc. v. City of Joliet, 598 F.2d 1050 (7th Cir.1979); Cochrane v. Iowa Beef Processors, 596 F.2d 254 (8th Cir.), cert. denied, 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed.2d 290 (1979); Harris v. Steinem, 571 F.2d 119 (2nd Cir.1978).

Absent ancillary jurisdiction, defendant’s counterclaim requires an independent jurisdictional base. The only jurisdictional base that suggests itself is diversity of citizenship. However, defendant did not plead that the amount in controversy on its counterclaim exceeds $10,000. Nor did defendant introduce any evidence to show that the amount in controversy on its counterclaim exceeds $10,000. Therefore, the Court cannot assert jurisdiction over defendant’s counterclaim. 28 U.S.C. § 1332; Rule 8(a)(1), Fed.R.Civ.P.; Haley v. Childers, 314 F.2d 610 (8th Cir.1963); 5 Wright & Miller § 1214; 14 Wright & Miller § 3702 at 372, § 3706 at 451-54.

The Court has realized that it lacks jurisdiction over defendant’s counterclaim only after hearing all of defendant's evidence on its counterclaim. Therefore, the Court thinks it appropriate to comment that, if it had jurisdiction, if it would find that defendant has not shown the malice necessary for malicious prosecution or the improper purpose necessary for abuse of process. See Sarvold, 237 N.W.2d 447.

ORDER OF JUDGMENT

IT IS ORDERED that judgment be entered for defendant on all plaintiff’s claims.

IT IS FURTHER ORDERED that defendant’s counterclaim be dismissed for lack of subject matter jurisdiction.


author: KEVIN THOMAS DUFFY, District Judge:

text:
    Gloria MENDOZA, et al., Plaintiffs, v. Barbara B. BLUM, et al., Defendants.
    No. 74 Civ. 4994 (KTD).
    United States District Court, S.D. New York.
    Jan. 14, 1985.

      Jorge L. Batista, Robert L. Becker, Puerto Rican Legal Defense & Educ. Fund, Inc., Louise Gans, Community Action for Legal Services, New York City, John C. Gray, Jr., Brooklyn Legal Services Corp. B, Brooklyn, N.Y., Norman Siegel, MFY Legal Services Inc., New York City, for plaintiffs.
    Frederick A.O. Schwarz, Jr., Corp. Counsel of the City of New York, New York City, for city defendant; Norma Kerlin, Asst. Corp. Counsel, New York City, of counsel.
    Robert Abrams, Atty. Gen., State of N.Y., New York City, for state defendant; Robert A. Forte, Asst. Atty. Gen., New York City, of counsel.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

Plaintiffs, Mendoza et al, move pursuant to the Civil Rights Attorneys’ Fees Award Act of 1976, 42 U.S.C. § 1988, and the Equal Access to Justice Act, 28 U.S.C. § 2412(b), for an order entitling plaintiffs to attorneys’ fees in the amount of $156,-375.00. Since the filing of plaintiffs’ motion, the federal government and plaintiffs have agreed, by Stipulation and Order dated November 20, 1984, to settle plaintiffs’ claim for attorneys’ fees in the amount of $11,000.00. Plaintiffs’ motion as to the State and City defendants, however, must still be decided.

This is a class action that was commenced in 1974 against Federal, State, and City defendants to prevent the alleged deprivation of certain constitutional rights to welfare recipients and applicants. In their complaint, plaintiffs, who are individuals of Hispanic origin, alleged that the failure to provide sufficient bilingual personnel and forms violates the Equal Protection and Due Process clauses of the Constitution, Title VI of the Civil Rights Act of 1964, the Social Security Act, and the regulations of the Department of Health, Education and Welfare. For the factual and procedural background of this case, see Mendoza v. Lavine, 412 F.Supp. 1105 (S.D.N.Y.1976) (denying defendants’ motion to dismiss for failure to exhaust administrative remedies and for failure to state a claim upon which relief may be granted); Mendoza v. Blum, 91 F.R.D. 91 (S.D.N.Y.1981) (dismissing action because no case or controversy existed); Mendoza v. Blum, 560 F.Supp. 284 (S.D.N.Y.1983) (granting plaintiffs’ motion for attorneys’ fees). Familiarity with the above is presumed.

In granting plaintiffs’ motion for attorneys’ fees, I stated that “[bjecause this lawsuit encouraged the federal government to comply with the statutory directives requiring enforcement of Title VI, I find that the plaintiffs prevailed in their action against the federal government.” Mendoza v. Blum, 560 F.Supp. at 288. With respect to the City and State defendants, I found that they are also liable for attorneys’ fees reasoning that “[sjhould the City and State have prevailed in the federal administrative proceedings, they still faced a lawsuit that presented a strong claim for relief.” Id.

The City of New York objects to plaintiffs’ claim for attorneys’ fees on several grounds in which the State of New York joins. The City argues first that the efforts of plaintiffs’ attorneys did not produce beneficial results and, therefore, plaintiffs are not “prevailing parties.” Any suggestion that plaintiffs are not “prevailing parties” is rejected as frivolous. In the 1983 decision, I held specifically that plaintiffs are prevailing parties.

Defendants argue that plaintiffs’ claim for attorneys’ fees should be disallowed on the ground of laches. They assert that the delay in applying for attorneys’ fees — whether the delay is four years from the settlement agreement or fifteen months from my March 1983 decision allowing such attorneys’ fees — is unreasonable. Furthermore, defendants argue that the delay was prejudicial due to the unavailability of witnesses and the fading of the memories of relevant individuals. I find no merit to defendants’ contentions. First, if plaintiffs are guilty of any delay, it would be the delay since my March 1983 decision. Any objection to the passage of an earlier period of time should have been raised in connection with the original motion for attorneys’ fees. With respect to the fifteen-month delay, I do not find it unreasonable. The documentation submitted by plaintiffs in connection with the instant motion is voluminous and encompasses a case history of about a decade.

The remaining objections raised by defendants principally concern the reasonableness of the claimed hourly rates and the amount of hours expended. Reasonable attorneys’ fees are determined by multiplying the number of reasonably expended hours by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 432, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40, 50 (1983); City of Detroit v. Grinnell Cory., 495 F.2d 448 (2d Cir.1974). Furthermore, awards of reasonable attorneys’fees under section 1988 are to be “calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Blum v. Stenson, _ U.S. _, _, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891, 899-900 (1984).

Plaintiffs have divided their attorneys’ fees claim into two periods of time — 1973 through 1977 and 1978 through the present. The hourly rate claimed for each attorney during the two periods is as follows:

1973 — 1977
John C. Gray, Jr. $125.00
Michael A. O’Connor $125.00
Richard Hiller $125.00
Joan E. Bertin $ 80.00
Paul McAloon $ 80.00
1978 — 1984
John C. Gray, Jr. $150.00
Michael A. O’Connor $150.00
Robert L. Becker $150.00
Anne Hayes $ 95.00
Idelisse Malave $ 95.00

As plaintiffs correctly note, because public interest attorneys cannot use the fees they charge generally as evidence of the market value of their services, they must utilize other comparisons. See National Association of Concerned. Veterans v. Secretary of Defense, 675 F.2d 1319, 1329 (D.C.Cir.1982) (utilization of recent fee awards “by courts or through settlement to attorneys of comparable reputation and experience performing similar work.”). After a thorough review of the affidavits of Robert L. Becker, Michael A. O’Connor and John C. Gray, Jr., as well as the resumes of the attorneys for whom attorneys’ fees are claimed, I conclude that the hourly rates are reasonable. At the time that this action was commenced, Gray, O’Connor, Hiller, and Becker had several years experience in the civil rights litigation field.

As support for the suggested hourly rates plaintiffs note that in Blum v. Stenson, hourly rates of between $95.00 and $105.00 were found reasonable for work performed between 1978 and 1980 by attorneys who at the commencement of the action had approximately one and one-half years of experience. See _ U.S. at _ n. 4, 104 S.Ct. at 1544 n. 4. 79 L.Ed.2d at 897 n. 4. In addition to various affidavits and citations to other cases in which comparable rates were utilized, plaintiffs have pointed to surveys appearing in legal periodicals. For example, plaintiffs submit the 1983 American Lawyer Guide to Leading Law Firms and the 1984 National Law Journal surveys to support their claimed rates. Furthermore, the hourly rates utilized in other cases with respect to the work performed by these particular attorneys, specifically Mr. Becker, is relevant and supportive of plaintiffs’ claim.

The City and State defendants, asserting that the hourly rates claimed by plaintiffs are excessive, point to retainer agreements between the City and large law firms as evidence of lower reasonable rates. It is apparent, however, that such firms are not charging New York City prevailing market rates. In toto, I find that plaintiffs have sustained their burden of producing specific evidence of a community rate for the work of attorneys with comparable experience and education in cases of this nature. See National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1324-27. Thus, the work performed by Gray, O’Connor, Hiller and Becker is properly compensable at rates of between $125.00 and $150.00 per hour. Further, I find that the hourly rate suggested for the work of Bertin, McAloon, Hayes, and Ma-lave is supported by specific evidence of comparable community rates.

I turn to defendants’ objection to the number of hours claimed by plaintiffs. Plaintiffs seek compensation for the following number of hours for each attorney:

1973 — 1977
John C. Gray, Jr. 153.75
Michael A. O’Connor 357.50
Richard Hiller 128.25
Joan E. Bertin 240.00
Paul McAloon 15.00
1978 — 1984
John C. Gray, Jr. 52.50
Michael A. O’Connor 65.75
Robert L. Becker 220.50
Anne Hayes 17.00
Idelisse Malave 38.00

Plaintiffs have submitted a substantial amount of documentation prepared in an effort to accurately reconstruct the time spent on this matter. Contemporaneous time records were not maintained because, at the time that the work was performed, attorneys’ fees were not recoverable. The affidavits and time sheets, with one exception, have been prepared based on diaries, documents, and case files. The number of hours attributed to the work performed by Ms. Bertin is an estimate based on her personal recollection. Upon a review of all of plaintiffs’ submissions, I conclude that the hours claimed by plaintiffs are adequately documented and reasonable and, therefore, are compensable.

Liability for the fees generated by the work performed by plaintiffs’ counsel will be apportioned according to the relative culpability of defendants and not, as defendants suggest, according to which defendant the work pertained to at the time. See Jose P. v. Ambach, 669 F.2d 865, 871 (2d Cir.1982) (the District Court Judge’s decision to “apportion fees according to relative culpability was within his discretion. ... [Capability turned on an estimate not of factual but of legal responsibility.”). Plaintiffs suggest that the City is 80 percent culpable, the State is 10 percent culpable, and the United States is 10 percent culpable. I agree with plaintiffs’ assessment. Defendants do not dispute such apportionment but instead assert, as I have already stated, that the apportionment should be made according to the defendant with respect to whom the work was performed.

In my Opinion and Order denying defendants’ motions to dismiss, I reviewed at length the operation of the public assistance programs and the relationship between the defendants. Mendoza v. Lavine, 412 F.Supp. at 1107. I will not repeat that analysis except to note that it is clear that the City defendant is the line agency with primary responsibility for administering the programs. Thus, the relief sought by plaintiffs — the printing of forms in Spanish and English and the hiring of bilingual staff — had to be performed ultimately by the City. The State and Federal agencies perform “supervisory and financial roles in connection with the programs. See N.Y.Soc.Serv.Law §§ 17(a), 20(3)(a)(e) (McKinney’s 1983); 42 U.S.C. §§ 601, 602. Consequently, I conclude that the primary responsibility for attorneys’ fees lies with the City.

Accordingly, plaintiffs’ motion for attorneys’ fees is granted. However, because plaintiffs have settled with the federal government for $11,000.00, the claimed amount of fees must be reduced to reflect the settlement. Thus, the amount of $156,-375.00 is reduced by 10 percent and plaintiffs may recover $125,100.00 from the City and $15,637.50 from the State. Plaintiffs are ordered to submit judgments within ten (10) days of the filing of this decision.

SO ORDERED.


author: ENSLEN, District Judge.

text:
    Eric VanORMAN, Plaintiff, v. Joseph SHOOK, individually and in his capacity as County Supervisor, Farmer’s Home Administration of the United States Department of Agriculture; and the United States of America, Defendants.
    No. K 84-183.
    United States District Court, W.D. Michigan, S.D.
    Jan. 15, 1985.

      David Anderson, Lansing, Mich., for plaintiff.
    Anne Vandermale Tuuk, Asst. U.S. Atty., Grand Rapids, Mich., for defendants.
   OPINION

ENSLEN, District Judge.

This lawsuit involves six common law and statutory tort claims against a federal official, the County Supervisor of the Farmers Home Administration (FmHA). Plaintiff VanOrman, who obtained a $10,-000 FmHA loan through the Rural Youth Program to raise dairy cattle, alleges that Defendant Shook improperly accelerated the loan account, in effect libeling him, causing him mental and emotional distress, interfering with the contract, abusing process, and acting in contempt. The lawsuit was removed by Shook to federal district court and is before the Court on Shook’s Motion to Dismiss or for Summary Judgment.

The facts of the case are substantially undeveloped. The sole evidentiary support for Plaintiff’s conclusory pleadings is a copy of the loan agreement. The Defendants filed an affidavit of the State Director of FmHA, Calvin C. Lutz, attesting to the fact that Shook was acting in his official capacity at all times pertinent to this lawsuit. Both parties correctly argue that this lawsuit depends on the threshold issue of official immunity. Defendant Shook argues for dismissal because he is absolutely immune under the rule of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) (federal officials acting within the scope of their employment are absolutely immune from liability for torts involving discretionary activity). Plaintiff VanOrman argues that only qualified immunity is applicable, and inasmuch as qualified immunity is largely a factual issue, it precludes summary judgment. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

The issue of executive immunity is, as the parties’ diametric arguments indicate, an issue of some subtlety. The basis of the immunity doctrine is quite clearly to provide federal officials relief from liability and permit the “defeat of insubstantial claims without resort to trial” which might otherwise vex the federal executive and tax the federal system. Harlow, supra, 457 U.S. at 813, 102 S.Ct. at 2736. Application of the immunity bar, however, depends on numerous variables, including the office of the Defendant, Eastland v. United States Serviceman’s Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975) (legislators); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (judges); Butz, supra, (prosecutors and adjudicatory officials); Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (President); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (high state officials); Harlow, supra, and Butz, supra (federal officials, generally). Characterization of the actor’s scope of employment and type of employment — discretionary or ministerial — bears heavily upon the analysis of immunity in some cases. Id. Finally, the character of the claim— common law tort, constitutional injury, statutory injury — significantly affects the immunity analysis.

Against the backdrop of doctrinal sublety, Plaintiff argues persuasively that Defendant Shook should not be immune. Plaintiff cites many of the general rules and some of the most compelling dicta to suggest that qualified immunity should be the rule in this case. In relying on Harlow and Butz, however, Plaintiff fails to take into account the significant fact that those cases dealt with constitutional and statutory violations, whereas the instant case is based on tort law. While it is clear that Harlow and Butz established that qualified immunity is the general rule in cases of constitutional and statutory violations, it is equally clear that Barr established absolute immunity as the rule in cases of common law and statutory tort. Although that rule was a “close question” at the time Barr was decided, Barr v. Mateo, 360 U.S. at 574, 79 S.Ct. at 1341, subsequent Supreme Court opinions and lower court decisions have established the rule as a firm one. An individual federal official may not be found liable for common law violations committed within the scope of employment involving discretionary activity. See, e.g., Strothman v. Gefreh, 739 F.2d 515 (C.A.10 1984); Granger v. Marek, 583 F.2d 781 (C.A.6 1978); Hall v. United States, 704 F.2d 246 (C.A.6 1983); Queen v. TVA, 689 F.2d 80 (C.A.6 1982) cert. den., 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344.

To have acted within the scope of employment means simply that the act would justifiably address a purpose of the employment. Barr v. Mateo, supra citing Gregoire v. Biddle, 177 F.2d 579 (C.A.2 1949). Here, Shook, as County Supervisor for the FmHA, was invested with the duty and power to take action to secure the FmHA’s interest. 7 C.F.R. § 1962.2(b); 7 C.F.R. § 1962.40. Although it is unclear precisely what circumstance or circumstances led to the acceleration of Plaintiff’s account, it is not disputed that the FmHA’s interest may have been implicated by the changing conditions of the security for the loan. It would appear, therefore, that Shook acted within the scope of his employment in reacting to the changing circumstances. See also, affidavit of Calvin C. Lutz, attached to Defendants’ brief.

The County Supervisor’s duties, though reasonably well established by regulation, leave, quite a bit of room for the County Supervisor to exercise his or her discretion. See, e.g., 7 C.F.R. § 1962.40. An FmHA County Supervisor has the power to act in a manner that is discretionary and not merely ministerial. Youngstrom v. Dunn, 447 F.2d 948 (C.A.8 1971).

Plaintiff argues that, regardless of the failure of the common law causes of action, his state statutory claims involving abuse of process must fall outside the absolute immunity of Shook from common law claims. Plaintiff cites Michigan’s codification of the abuse of process and malicious prosecution actions. Indeed, in Michigan, malicious prosecution is both a common law and a statutory cause of action. Drouillard v. Metropolitan Life Insurance Company, 107 Mich.App. 608, 310 N.W.2d 15 (1981). Yet the codification of common law cannot gut the immunity doctrine; and so the Court cannot accept Plaintiff’s reasoning in this regard.

Plaintiff has attempted to buttress his case by amending his Complaint in such a way as might circumvent the Barr rule of common law immunity. Plaintiff has added a constitutional cause of action in Count 7 of the Amended Complaint, citing the right to privacy and two landmark cases, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It is true that those cases were written in regard to “privacy” concepts, but the concepts as applied therein, absent some twisting and turning, would not appear to apply to this case. Griswold, a landmark case involving the use of contraceptives, dwells in that complex and questionably viable region of the law known as “substantive due process”. Katz a surveillance case, dwells in or about the Fourth Amendment. Again, absent explanation, the Court does not view the amended Count 7 as a serious pleading or as a valid exception to the Barr rule.

Plaintiff has also added a count, in the Amended Complaint, under the Federal Tort Claims Act. The Court need not refer at length to this count because, as Defendant Shook correctly notes in his responsive pleadings, the prerequisites to bringing an FTCA action against the FmHA have not apparently been satisfied. There is no proof of exhaustion with the agency, nor any attachment of the requisite form.

As the Defendants graciously points out at some length, Plaintiff has available a viable source of relief in the FTCA, and Plaintiff may still exercise that possibility. 7 C.F.R. § 1814 (1983). And, inasmuch as the subject was first broached by the Defendants, the Court notes that the instant ruling is not determinative of any essential definition of elements common to an FTCA action and the instant action. Estate of Burks v. Ross, 438 F.2d 230, 234 (C.A.6 1971).

Accordingly, Plaintiff’s amendment of the Complaint is denied, Defendants’ motion is granted, and this case is dismissed without prejudice to Plaintiff’s alternative relief.


author: FOREMAN, Chief Judge:

text:
    Richard SCOTT, Plaintiff, v. FRUEHAUF CORP. and Redco Corp., Defendants.
    Civ. No. 83-3338.
    United States District Court, S.D. Illinois.
    Jan. 16, 1985.

      Kevin Boyne, James J. Gomric, P.C., Belleville, Ill., for plaintiff.
    Carl W. Lee, Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, Ill., John C. McMullin, St. Louis, Mo., Geoffrey R. Myers, Hall, Myers & Rose, Potomac, Md., for defendants.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

Before the Court are Defendant Redco’s Motion for Summary Judgment (Document No. 41); Defendant Fruehauf Corporation’s Motion for Summary Judgment (Document No. 51) and Motion to Dismiss Counts III and IV (Document No. 33); and Plaintiff Scott’s Motion to Extend Time (Document No. 44). This action resulted from an injury sustained by the plaintiff while working on a tire rim allegedly manufactured by Redco and sold by Fruehauf. The bases for defendants’ motions for summary judgment are that the plaintiff has been unable to produce the tire rim in question and that the type of rim the plaintiff alleges hit him was never manufactured by Redco or sold by Fruehauf.

Summary judgment is appropriate only where the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56. The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). The Court must view the evidence, and the reasonable inferences to be drawn therefrom, in the light most favorable to the party opposing summary judgment. Where the moving party fails to meet its strict burden of proof, summary judgment cannot be entered even if the opposing party fails to respond to the motion. Yoker v. Pittsburg Corning Corp., 733 F.2d 1215 (7th Cir.1984).

Where the moving party has met its initial burden and the opposing party asserts the existence of a question of fact, the Seventh Circuit has identified two considerations to be used in determining whether summary judgment is proper. The Court must determine whether the non-moving party has established that there is a genuine issue as to that fact.

To create a question of fact, an adverse party responding to a properly made and supported summary judgment motion must set forth specific facts showing that there is a genuine issue for trial____ A party may not rest on mere allegations or denials of his pleadings; similarly, a bare contention that an issue of fact exists is insufficient to raise a factual issue.

Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, _ U.S. _, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Furthermore, the disputed fact must be material, that is, it must be outcome-determinative under the applicable law. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied, _ U.S. _, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

Applying these principles to the case at hand, the Court finds that there is no issue of . material fact and the defendants are entitled to judgment as a matter of law. The plaintiff indicated in his deposition that the rim he was working on when the accident occurred, and which allegedly caused the injury, was a three-piece rim assembly. (Scott’s Deposition at Page 17). The uncontroverted affidavit of James Sechrist, President of Redco, indicates that Redco has never produced a three-piece rim assembly. Further, the uncontroverted affidavit of Thomas R. MacDougall, assistant general counsel for Fruehauf, indicates that Fruehauf never sold or distributed the type of rim that the plaintiff alleges injured him. Finding these facts to be true, the Court holds that based on the theory espoused in the plaintiff’s complaint there exists no issue of material fact and that the defendants are entitled to judgment as a matter of law.

Alternatively, assuming that the rim in question was manufactured by Red-co and distributed by Fruehauf, summary judgment for the defendants would still be proper since the plaintiff has been unable to find or otherwise produce the rim in question. The day after the accident, plaintiff’s counsel of record and an investigator photographed what they believed to be the rim in question. (Seper Deposition Pages 5-6). This rim is no longer available, was unretrievably lost before this suit was filed, has never been examined by a qualified expert, and was never made available to either defendant. (Enlow Deposition Page 15, Fehrenbacher Deposition Page 19). Again, these facts are uncontroverted by the plaintiff. ■

In Shramek v. General Motors Corp., 61 Ill.App.2d 72, 216 N.E.2d 244 (1966), the court held that summary judgment for the defendants was proper where the plaintiff was unable to produce the tire in question, since without the tire the plaintiff would be unable to establish any causal relationship. The Court stated:

On such a record, a jury would have no basis to determine whether the tire was defective when it left defendants’ control and whether that defect ultimately caused plaintiff’s injuries. Under such circumstances, it is manifest that plaintiff did not raise genuine issues of fact as to these material elements of his case.

216 N.E.2d at 248.

The plaintiff herein argues that unlike the situation in Shramek where the court was persuaded by the fact that conditions other than a defect in the tire could have caused the injuries, here only a defect in the rim could have caused the injuries. The Court disagrees. Robert F. Harold, an expert in the field, indicated in his affidavit that there exist a number of other potential causes for multipiece rim separation. (Harold’s Affidavit Page 7). The plaintiff contests this statement by stating that in his deposition he indicated that he made a thorough inspection of the rim prior to working on it and that he worked on the rim in the proper manner. This the plaintiff argues refutes any of the possibilities Mr. Harold mentions and creates a material issue of fact as to causation justifying a denial of the motions for summary judgment. However, as the court in Shramek noted, the very fact that other factors could have caused the injury warranted granting of summary judgment motions since without the alleged defective product the plaintiff could never prove up his case. Similarly, without the rim, the plaintiff herein would never be able to prove the essential elements of his case.

Accordingly, the Court GRANTS Redco’s Motion for Summary Judgment (Document No. 41) and Fruehauf’s Motion for Summary Judgment (Document No. 51). Based on this, the Court DENIES as MOOT Fruehauf’s Motion to Dismiss (Document No. 33) and plaintiff’s Motion to Extend Time (Document No. 44). Further, Defendant Fruehauf’s counterclaim against Defendant Redco sounding in indemnity and contribution is DISMISSED AS MOOT. The Clerk is ORDERED to enter judgment in favor of Defendants Redco and Fruehauf and against Plaintiff Scott.

. IT IS SO ORDERED.


author: CARRIGAN, District Judge.

text:
    Evelyn R. MYRES, individually and as Personal Representative of the Estate of Earnest J. Myres, deceased, the Estate of Earnest J. Myres, and Louis L. Myres v. Donald E. RASK, Joe Black, Thomas Coogan, Chief of Police of the City and County of Denver, Federico Pena, Mayor of the City and County of Denver, and City and County of Denver.
    Civ. A. No. 83-C-226.
    United States District Court, D. Colorado.
    Jan. 21, 1985.
    Jerry L. Stevens, John Mosby, Gabrielle Martin, Denver, Colo., for plaintiffs.
    Theodore S. Halaby, Leslie L. Schluter, Denver, Colo., Louis Bruno, Bruno, Bruno & Colin, Lakewood, Colo., for defendants.
   MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

Defendants Donald Rask, et al., have filed a motion to dismiss and strike arguing that (1) the plaintiffs cannot assert civil rights claims based on the death of their son, Earnest J. Myres, and (2) Colorado’s survival statute limits the damages that the plaintiff Evelyn R. Myres, acting as the personal representative of Earnest J. Myres’ estate, can recover. The plaintiffs have responded. The parties have briefed the issues thoroughly and oral argument would not assist in resolving them. Jurisdiction is based on 28 U.S.C. § 1343 (1982).

On July 7, 1981, Earnest J. Myres, then 18 years old, was killed during a struggle with Denver police officers Donald Rask and Joe Black. Plaintiffs are Earnest’s parents. Under 42 U.S.C. § 1983, they have asserted claims based on alleged violations of their son’s constitutional rights as well as their own. Evelyn R. Myres sued as the personal representative of her son’s estate.

The motion to dismiss and strike raises two issues: (1) Do parents enjoy a constitutionally protected right to the companionship and support of their children? (2) Does Colorado’s survival statute, Colo.Rev. Stat. § 13-20-101(1) (1973), limit the recovery of Evelyn Myres acting in her representative capacity?

Defendants contend that Earnest’s parents cannot assert the constitutional rights of their deceased son. It is well established that under § 1983 a plaintiff may not assert the constitutional rights of another. White v. Talboys, 573 F.Supp. 49, 51 (D.Colo.1983); Evain v. Conlisk, 364 F.Supp. 1188 (N.D.Ill.1973). Plaintiffs cannot, therefore, assert the civil rights of their deceased son.

Courts have disagreed on the issue of whether parents have a constitutional right to the companionship and support of their children. Although decisions from this district have held that no such right exists, Tenth Circuit opinions have suggested that the constitution protects an individual’s right to the continued life of his or her family. In Rosa v. Cantrell, 705 F.2d 1208, 1222 (10th Cir.1982), where the wife of a homicide victim brought a § 1983 action, the court stated, “The cases hold that the decedent’s heirs are allowed to file a wrongful death action under § 1983 to recover for damages suffered by the heirs as a result of the death.” (citing many cases) Thus, the Tenth Circuit has recognized an independent, constitutional claim for relief in the heirs of one who dies as a result of actions performed under color of state law.

Concurring in Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981), Circuit Judge Seymour explained:

“The right to a relationship with one’s child is not created either by the constitution or by state statute. I believe it is one of those fundamental, inherent rights of every individual that predates both the federal Constitution and the state laws. Like the right to marry and have children and the right to live where one wants and pursue a livelihood by any lawful means, this right constitutes a ‘liberty’ interest. As such it is protected by the due process clause of the Constitution. See generally Annot., ‘Supreme Court’s Views as to Concept of ‘Liberty’ Under Due Process Clauses of Fifth and Fourteenth Amendments,’ 47 L.Ed.2d 975 (1977).
The Ninth Amendment acknowledged the prior existence of fundamental rights when it said: ‘The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.’ U.S. Const, amend. IX. In a long line of decisions, the Supreme Court has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental ‘liberty’ interests protected by the Constitution.”

The United States Supreme Court has consistently recognized that family rights are constitutionally protected. In Harris v. McRae, 448 U.S. 297, 312, 100 S.Ct. 2671, 2685, 65 L.Ed.2d 784 (1980) the Court described its reasoning in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973):

“The constitutional underpinning of Wade was a recognition that the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in matters of marriage and family life.”

The Supreme Court held in Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), that the Constitution protects the fundamental right to procreate. In striking down state legislation that had authorized sterilization of habitual criminals, the Court stated, “We are dealing here with legislation which involves one of the basic rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”

Similarly, in Loving v. Virginia, 388 U.S. 1. 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (1967), the Court, in holding that a Virginia statute that outlawed interracial marriage denied the Lovings’ liberty protected by the due process clause, declared: “The freedom to marry has long been recognized as one of the vital personal rights essential to the ordered pursuit of happiness by free men.”

In addition, parents have a constitutionally protected right “to direct the upbringing and education of children under their control.” Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). See also Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 1541, 32 L.Ed.2d 15 (1972); Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042 (1923). In Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), the Court explained:

“It is cardinal with us that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id. at 166, 64 S.Ct. at 442.

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1977), held that the Due Process Clause protects an unwed father’s right to retain custody of his illegitimate children. There, the court considered an Illinois statute that made illegitimate children wards of the state automatically upon the mother’s death. Recognizing the importance of the right to family association, the court struck down the statute because it failed to provide unwed fathers an opportunity to prove their competence as parents.

“The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momemtum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ ” Kovacs v. Cooper, 336 U.S. 77, 95 [69 S.Ct. 448, 458, 93 L.Ed. 513] (1949) (Frankfurter, J. concurring).
“The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 626, 67 L.Ed. 1042] (1923), ‘basic civil rights of man,’ Skinner v. Oklahoma, 316 U.S. 535, 541 [62 S.Ct. 1110, 1113, 86 L.Ed. 1655] (1942), and ‘[r]ights far more precious ... than property rights,’ May v. Anderson, 345 U.S. 528, 533 [73 S.Ct. 840, 843, 97 L.Ed. 1221] (1953).” Id. at 651, 92 S.Ct. at 1212.

In Moore v. East Cleveland, 431 U.S. 494, 499-501, 97 S.Ct. 1932, 1935-1936, 52 L.Ed.2d 531 (1977), the Supreme Court considered an East Cleveland housing ordinance limiting dwelling occupancy to members of a single family. The ordinance defined “family” so as to preclude a grandmother from living with her son and two grandsons who were first cousins. Relying on the fundamental rights of citizens to define and associate with members of their “family,” the court declared the ordinance unconstitutional.

The United States Supreme Court’s consistent recognition of a constitutionally protected right to family association has prompted many courts to hold that individuals have a constitutional right to the continued life of a family member. It would be ironic indeed to recognize, on the one hand, the constitutional rights to marry, Loving v. Virginia, supra, to procreate, Skinner v. Oklahoma, supra, to supervise the upbringing of children, Pierce v. Society of Sisters, supra, Prince v. Massachusetts, supra, to retain custody of one’s illegitimate children, Stanley v. Illinois, supra, and to live in the same residence with one’s “family,” Moore v. East Cleveland, supra, but on the other hand, to deny parents constitutional protection for the continued life of their child. State action that wrongfully kills one’s child certainly interferes with fruition and fulfillment of the fundamental right to procreate. A parent cannot benefit from his constitutionally protected rights to supervise the upbringing, retain custody, or live in the same residence with a child if state action unlawfully takes the child’s life. To constitutionally protect families from lesser intrusions into family life, yet allow the state to destroy the family relationship altogether, would drastically distort the concept of ordered liberty protected by the Due Process Clause. A culture that draws its strength from family values that long predate the constitution must persistently proclaim and protect those values. The Constitution stands for little if it does not protect each person’s fundamental liberty to marry and raise a family. That liberty means nothing if an individual cannot assert claims against state officials who, under color of state law, destroy the right to enjoy the family bond.

Defendants have moved to strike all claims in excess of the damages that would be recoverable by the personal representative of Earnest Myres’ estate under Colorado’s survival statute. Having recognized Evelyn and Louis Myres’ separate § 1983 cause of action, it follows that this motion is denied. The motion survives only insofar as it seeks to limit the damages recoverable by Evelyn Myres acting in her capacity as personal representative of the estate. As several cases have recognized, the federal policies underlying § 1983 would not be served by applying Colorado's survival statute. Jackson v. Marsh, 551 F.Supp. 1091, 1095 (D.Colo.1982) (Judge Moore); Sager v. City of Woodland Park, 543 F.Supp. 282, 292-93 (D.Colo.1982) (Judge Kane). See also Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Jones v. Hildebrant, 432 U.S. 183, 190, 97 S.Ct. 2283, 2287, 53 L.Ed.2d 209 (1977) (Justice White dissenting from certiorari dismissal).

Finally, the plaintiffs’ complaint names the estate of Earnest J. Myres as a plaintiff. Under Colo.Rev.Stat. § 13-20-101(2) (Supp.1984), the estate is not a proper party.

Accordingly,

IT IS ORDERED that the claim in the name of the estate of Earnest J. Myres is dismissed.

IT IS FURTHER ORDERED that the defendants’ motion to dismiss and strike is denied.

      . White v. Talboys, supra, (Judge Kane); Jackson v. Marsh, 551 F.Supp. 1091, 1093 (D.Colo.1982) (Judge Moore); Layton v. Carroll, No. 83-F-833 (D.Colo. Oct. 27, 1983) (Judge Finesilver).

      . Loving is better known for holding that Virginia’s statute violated the Equal Protection Clause. Clearly, however, the court also relied on the Due Process Clause and the fundamental right to marry.

      . The court also held that affording procedural protections to married parents, unwed mothers and divorced parents, before taking custody of their children, while denying such protections to unwed fathers, violated the equal protection clause. Stanley did not rest, however, as some commentators have suggested, solely on the Equal Protection Clause. Rather, it relied primarily on the Due Process Clause, adding equal protection analysis as additional support for its result.

      . Mattis v. Schnarr, 502 F.2d 588 (8th Cir.1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961); Bell v. City of Milwaukee, 498 F.Supp. 1339, 1343 (E.D.Wis.1980); Jones v. McElroy, 429 F.Supp. 848, 852 (E.D.Penn.1977); Smith v. Wickline, 396 F.Supp. 555, 560 (W.D.Okl.1975); Pollard v. United States, 384 F.Supp. 304, 306 (M.D.Ala.1974); Galindo v. Brownell, 255 F.Supp. 930 (S.D.Cal.1966); Espinoza v. O'Dell, 633 P.2d 455 (Colo.1981). These cases recognized a personal § 1983 claim to redress the injury to parties whose' family members had been killed as a result of official state action. Thus, they hold, at least implicitly, that the constitution protects an individual’s fundamental right to the companionship and support of his or her family. Because the Civil Rights Act does not provide expressly for a wrongful death remedy, several of the cases cited above recognized the § 1983 federal cause of action by incorporating state law wrongful death remedies pursuant to 42 U.S.C. § 1988 (1982). State wrongful death statutes applicable pursuant to § 1988 do not create new federal rights. Rather, the fundamental constitutional right to family association pre-exists, and § 1988 provides for incorporation of state law remedies to redress the constitutional wrong. Cases that have criticized this line of authority have blurred the distinction between a federal right cognizable under § 1983 and the availability of a state law remedy under § 1988.

      . Colo.Rev.Stat. § 13-20-101(1) (1973). This provision limits the recoverable personal injury damages to expenses and loss of earnings sustained prior to the death of the plaintiffs’ decedent.

      . Only the personal representative of an estate may bring actions on behalf of the estate. Here, Evelyn R. Myres as the representative of her son’s estate is the only party who can assert claims on behalf of his estate.