author: GONZALEZ, District Judge.

text:
    Wilhelmena WEBBER, Plaintiff, v. Thomas J. MILLS, as Superintendent of the School of Palm Beach County, Florida; George H. Bailey, Susan R. Pell, Hugh MacMillan, Jr., Robert Howell, Louis J. Essa, Samuel Lovell, Paula Nesmith, as individuals and as members of the School Board of Palm Beach County, Florida; and their successors in office, Defendants.
    No. 82-8483-CIV.
    United States District Court, S.D. Florida, N.D.
    Nov. 13, 1984.
    William Holland, Holland & Smith; Gerald W. Pletan, Wiederhold, Moses & Bulfin, West Palm Beach, Fla., for plaintiff.
    Richard L. Oftedal and Abbey G. Hairston, West Palm Beach, Fla., for defendants.
   ORDER

GONZALEZ, District Judge.

THIS CAUSE has come before the court upon the defendants School Board of Palm Beach County, Florida, and Thomas J. Mills’ motion for attorney’s fees (docket # 53). The court has considered the motion, and being otherwise duly advised, it is

ORDERED AND ADJUDGED that the defendants’ motion for attorney’s fees be and the same is hereby DENIED.

The question presented is whether defendants, as the prevailing parties, are entitled to attorney’s fees after the court dismissed plaintiff’s section 1983 action based on the doctrine of res judicata? See 595 F.Supp. 514. The court answers in the negative.

The United States Court of Appeals for the Eleventh Circuit articulated the relevant legal standard for awarding attorney’s fees in civil rights cases in E.E.O.C. v. Pet, Incorporated, Funsten Nut Division, 719 F.2d 383 (11th Cir.1983):

[Section 2000e-5(k) of Title 42] reads as follows:
“In any action or proceeding under this subchapter the Court in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.”
In Christiansburg Garment Co. v. EEOC, 434 U.S. 412 [98 S.Ct. 694, 54 L.Ed.2d 648] (1977), the United States Supreme Court interpreted that section to mean that a dual standard is to be applied in awarding attorney’s fees to a prevailing party. One standard applies to a prevailing plaintiff and another standard applies to a prevailing defendant. In determining whether attorney’s fees should be awarded to a prevailing de fendant, the inquiry prescribed by the Supreme Court requires the Court to find whether a plaintiffs claim “was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Id. [434 U.S.] at 422 [98 S.Ct. at 701].
In order for this Court to objectively apply, the foregoing standard ..., this Court feels it must view the available evidence and the applicable law in a manner most favorable to Plaintiff..... [T]his Court must view the available evidence and the applicable law as it existed at the time of the institution of the suit and as it developed as the case proceeded.

Pet Inc., 719 F.2d at 385 (footnotes and citations omitted). The Christiansburg standard applies to cases brought under 42 U.S.C. § 1983. Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980). “The availability to defendants of attorney’s fees awards in egregious circumstances serves ‘to protect defendants from burdensome litigation having no legal or factual basis.’ ” Alter v. New York Board of Elections, 586 F.Supp. 603, 605 (S.D.N.Y.1984) (quoting Christiansburg, 434 U.S. at 420, 98 S.Ct. at 699).

Several decisions of the Eleventh Circuit help define when a suit is “frivolous, unreasonable, or groundless.” For example, in Beard v. Annis, 730 F.2d 741 (11th Cir.1984), the plaintiff alleged that his reduction in wages and eventual termination of employment was racially motivated. The affidavits of fifteen present and former employees of the defendant made clear, however, that the plaintiff knew before he filed his suit that his salary cutback and ultimate discharge were due solely to cutbacks in federal money that had been the only source of funding for plaintiff’s position. Id. at 743. Plaintiff failed to rebut the statements contained in defendant’s affidavits, and thus the district court granted the employer’s motion for summary judgment and attorney’s fees.

The plaintiff in Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911 (11th Cir.1982), unlike his counterpart in Beard, learned that his suit was groundless two weeks after its commencement, yet inexplicably refused to request a voluntary dismissal. The plaintiff in Durrett knowingly persisted in suing a company for discrimination even after learning that he had neither worked there nor filed a charge against it with the EEOC. The Eleventh Circuit reversed the trial court and ruled that plaintiff had to pay the defendant’s attorney’s fees because the action was frivolous even though plaintiff was indigent and his attorney was more responsible than plaintiff for the suit.

In sum, the plaintiffs in Beard and Durrett should have either taken a voluntary dismissal or never filed the suit because there existed unrebutted evidénce invalidating plaintiffs’ claims. In contrast, there existed evidence in E.E.O.C. v. Pet Inc., Funsten Nut Division, 719 F.2d 383 (11th Cir.1983), which warranted plaintiff’s suit against defendant for maintaining race-segregated facilities and departments, and engaging in a discriminatory discharge policy. Several employees and former employees swore out affidavits supporting plaintiff’s claims. See id. at 385 n. 3, 386. The EEOC also proffered statistical evidence to buttress its claims. In summary, the suit in Pet Inc. was not frivolous at its inception because there existed an actual controversy.

Guided by the decisions in Beard, Durrett, and Pet Inc., this court concludes that plaintiff’s suit was not “frivolous, unreasonable, or groundless” when instituted. Plaintiff had been gainfully employed and then had her ‘license’ revoked, thus raising the constitutional question whether the School Board’s decision denied plaintiff her due process rights. At the administrative hearing of her case, plaintiff sought to introduce witnesses to rebut the charges against her. The only way for the plaintiff to be certain that the School Board acted properly in disciplining her was to seek the advice of the courts. If plaintiff had admitted to wrongdoing before filing her federal suit, or if she had sued the wrong parties as in Durrett, then this court would probably conclude that her suit was frivolous. But plaintiff sued because her livelihood has been threatened by defendants’ disciplinary actions. Certainly, plaintiff was entitled to test the validity of the School Board’s actions in a court of law.

It is important that a district court resist the temptation to engage in post hoc reasoning by concluding that because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.

Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700.

But the question presented by defendants’ motion for attorney’s fees goes beyond whether plaintiff’s suit was groundless at its inception, and asks whether plaintiff’s suit became frivolous once that state appellate court rejected her claims. The Eleventh Circuit has ruled that attorney’s fees for an appeal may be awarded to a prevailing defendant if at the conclusion of the trial it is apparent that plaintiff’s case was groundless. Brown v. City of Palmetto, 681 F.2d 1325, 1327 (11th Cir.1982). The Brown decision certainly suggests that attorney’s fees may be had by the defendant who successfully wins dismissal of plaintiff’s suit based on the doctrine of res judicata.

The issue here is difficult because one must avoid constructing a rule whose effect is essentially to permit a prevailing defendant to obtain attorney’s fees anytime he is able to have plaintiff’s suit dismissed on the basis of res judicata. The doctrine of res judicata operates to bar litigation of matters that, inter alia, should have been raised in the prior proceeding. Dismissal of a suit on these grounds does not necessarily mean that the second suit was groundless; rather, it suggests that judicial economy and fairness compelled dismissal of the subsequent action. Indeed, the second action might have merit, but the. claims raised therein should have been raised earlier, and the wrong for which vindication is sought in the later suit was essentially the same wrong which prompted the first action. Even if the merits of the second suit are somewhat tenuous, one must remember that civil rights cases require special care because a person’s constitutional rights hang in the balance. As the Supreme Court observed in Christians-burg,

To take the further step of assessing attorney’s fees against plaintiffs simply because they do not prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII.

434 U.S. at 422, 98 S.Ct. at 701. Thus, there exists a tension between the doctrine of res judicata and the manner of awarding attorney’s fees in civil rights cases.

The United States District Court for the Southern District of New York resolved this tension in the defendant’s favor in Alter v. New York Board of Elections, 586 F.Supp. 603 (S.D.N.Y.1984). In Aller, the plaintiffs alleged in the federal action that certain teachers unions had “systematically worked to exclude plaintiffs and other minority candidates from holding school board positions by engaging in racially motivated challenges to the legal sufficiency of their nominating petitions, and that the Board of Elections ‘had permitted plaintiffs to be excluded and their supporters disenfranchised in violation of 42 U.S.C. § 1981, 1983, and 1985....’” Id. at 605. Plaintiffs had filed a similar, unsuccessful suit in state court.

Apparently, shortly after commencement of the federal action, the district court held a hearing at which it requested plaintiffs to substantiate the charges of racial discrimination contained in their complaint. The exchange, reprinted in the court’s decision, id. at 605-06, makes clear that plaintiffs were unable to offer any factual or legal support for their claims.

The district court dismissed plaintiffs’ suit based on both the “serious deficiencies” in their complaint and the doctrine of res judicata. Explained the court:

Not only were plaintiffs unable to offer any legal support or factual foundation for the constitutional deprivations alleged, but counsel for plaintiffs was fully cognizant of the fact that his clients had unsuccessfully raised the claims asserted [in federal court] in prior state court proceedings. He either knew, or as a conscientious attorney should have known, that plaintiffs were altogether precluded from recycling those same claims in federal court.

Id. at 607 (citations omitted).

Using Alter as a litimus test, the court concludes that plaintiff’s federal suit in the instant case was not groundless simply because it was dismissed under the doctrine of res judicata. First, as explained earlier, plaintiff’s original suit does not appear to have been frivolous, at least when viewed as it existed at the time the action was instituted. Second, plaintiff’s federal suit did raise several related constitutional questions omitted from her state suit. That these federal claims were improperly omitted does not mean that they were frivolous or lack merit. Plaintiff should have raised these claims in state court because they derived from the same facts and circumstances, and because they implicated many of the same rights at issue in the federal forum. It is this confluence of interests coupled with plaintiff's failure to present them in one forum that prompted this court to dismiss plaintiff’s federal suit. This result, without more, is not a reason to require plaintiff to pay for defendant’s, attorney’s fees in the federal action.

      The court did observe that a party’s indigency, along with the twelve factors enunciated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), should be weighed in deciding whether to award attorney’s fees.


source: Caselaw Access Project

author: THOMAS F. HOGAN, District Judge.

license: Public Domain

text:
    RURAL AMERICA, INC., Plaintiff, v. Raymond G. DONOVAN, Defendant.
    Civ. A. No. 84-2376.
    United States District Court, District of Columbia.
    Nov. 13, 1984.

      James L. Feldesman, Washington, D.C., for plaintiff.
    Richard A. Stanley, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM OPINION AND ORDER

THOMAS F. HOGAN, District Judge.

The plaintiff in this action, Rural America, Inc. (“Rural America”), is a non-profit organization, incorporated under the laws of the District of Columbia, that works to advance the interests of low income people in rural areas. In October 1977 Rural America entered into an agreement with the Department of Labor’s Employment and Training Administration (“DOL/ETA”) which obligated the plaintiff to subgrant funds appropriated by Congress under the. Economic Stimulus Appropriation, Public Law No. 95-29 (May 13, 1977), 91 Stat. 122-125, to community organizations in rural areas nationwide. On August 2, 1984 plaintiff filed this action for declaratory and injunctive relief, including its motion for a preliminary injunction, challenging the defendant’s authority to assess a debt of approximately $1.45 million against plaintiff for allegedly misspent grant funds . without first affording plaintiff a hearing regarding the validity of the debt.

This Court granted defendant numerous extensions of time for its response, based on the representation that the parties were agreed in principle on settlement. Finally, on October 15, 1984 the defendant filed a motion to dismiss under Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Defendant’s motion asserts that the plaintiff has failed to state a claim, and that this Court lacks subject matter jurisdiction, due to the absence of a justiciable case or controversy. Defendant asserts that it has been and remains ready to afford plaintiff a full due process hearing on the claimed debt under the Comprehensive Employment and Training Act of 1973, 29 U.S.C. § 801, et seq. (“CETA”) and regulations promulgated under that Act. See 20 C.F.R. §§ 676.88(f) and 676.89, et seq.

After hearing oral argument on the merits of plaintiff’s complaint and defendant’s motion to dismiss, and upon reconsideration of the defendant’s motion and the nature of the relief requested in the complaint, the Court concludes that the defendant’s motion to dismiss .must be granted.

Background

As noted above, the October 1977 grant awarded to Rural America consisted of funds appropriated by Congress under “Economic Stimulus” legislation, an appropriation enacted to provide a rapid infusion of additional federal funds into the economy by enlarging already-existing federal programs. In enacting this legislation it was Congress’ intention to distribute a large portion of the funds to grantees who were already receiving DOL funds for job training programs under CETA. See 123 CONG.REC. 13091-13093 (1977). In fact, in administering the Economic Stimulus grant funds, DOL/ETA used CETA grant forms which, by their terms, referred to CETA and CETA regulations.

After receiving the Economic Stimulus grant, Rural America was audited by DOL/ETA. On September 4, 1982 DOL/ETA issued a final determination on its audit, concluding that Rural America had misspent $1,451,636 of grant funds. This notification also advised Rural America that it could appeal the disallowance to DOL’s Office of Administrative Law Judges (OALJ) for a de novo hearing. Rural America filed an appeal on October 5, 1982.

Throughout the auditing process, Rural America had reminded DOL/ETA that the funds at issue derived from the Economic Stimulus legislation rather than directly from CETA. When Rural America filed its appeal of the September 4, 1982 debt assessment with the OALJ, it remained concerned over DOL/ETA’s failure to draw a distinction between these grant programs. Rural America was particularly concerned over this matter with respect to the appeals process, in light of its perception that the OALJ’s jurisdiction arose under CETA and should consequently be strictly limited to appeals regarding CETA funds. Therefore, favoring an early resolution of this issue, Rural America itself questioned the OALJ’s jurisdiction. As an alternative to its receiving a CETA hearing, Rural America favored a consent to jurisdiction, suggesting a special grant of jurisdiction from the defendant to the OALJ, allowing the non-CETA appeal to be heard under CETA procedures and regulations.

DOL/ETA, however, fully opposed Rural America’s challenge to the OALJ’s jurisdiction. While recognizing that non-CETA funds were involved, DOL/ETA took the position that CETA appeal procedures were nevertheless fully applicable, rendering the defendant’s consent to jurisdiction, and a special grant of jurisdiction to the OALJ, unnecessary and improper. The defendant argued that the hearing could, and should, be held under CETA regulations since the legislative history of the Economic Stimulus appropriation clearly indicated that the funds were to be used to further the CETA program.

Nevertheless, on April 24, 1984 an Administrative Law Judge (AU) ruled on the jurisdictional issue, stating that the OALJ lacked jurisdiction over appeals involving non-CETA funds “where jurisdiction is not expressly conferred on .this office.” Following this ruling, on May 29, 1984, the defendant sent a demand for the debt of $1,451,636, asserting that this debt was re-established by the ALJ’s decision dismissing the appeal for lack of jurisdiction. The plaintiff then instituted this action. Plaintiff asserts that it is entitled to a hearing prior to establishment of the debt either (1) under CETA, with DOL correcting any jurisdictional deficiencies in its regulations, (2) contractually, utilizing CETA procedures, by virtue of the use of CETA grant forms in granting Economic Stimulus legislation, or (3) under the Due Process Clause, with procedures imitating a CETA hearing.

Discussion-

Despite the ALJ’s eventual ruling that the OALJ lacked jurisdiction over the plaintiff’s appeal of the debt assessment, it is nevertheless clear that the appeal was initially filed by the plaintiff under CETA regulations. Accordingly, under those regulations, the ALJ’s April 24, 1984 decision that he lacked jurisdiction became the final decision of the Secretary 30 days later in the absence of any action by the Secretary to vacate or modify that decision. 20 C.F.R. § 676.91(f) (1984). It is clear, therefore, that upon the expiration of 30 days, and with the May 26, 1984 reassessment of the debt without a hearing, a case or controversy existed between the parties. This Court finds, however, that upon the filing of the defendant’s motion to dismiss and its position announced in open court, the controversy ceased to exist..

In defendant’s motion to dismiss, the defendant Secretary of Labor asserts his position that plaintiff is entitled to a full due process hearing under CETA, 29 U.S.C. § 801, et seq., and the regulations found at 20 C.F.R. §§ 676.88(f) and 676.89, et seq. The Court finds that the position adopted by the Secretary in the motion to dismiss and the . hearing in this matter effectively vacated and reversed the April 24, 1984 decision of the ALJ,. giving the OAU jurisdiction to conduct a hearing under CETA. Therefore, since plaintiff requested a CETA hearing or a CETA-like hearing, recognizing that such a procedure would fully comport with due process, there is no remaining controversy between the parties.

The defendant’s effort to place blame on the plaintiff for raising the jurisdictional issue is misplaced given the plaintiff’s good faith concern with a genuine issue of statutory interpretation. The Court does, however, find it extremely regrettable that the plaintiff was forced to undertake the burden and expense of this action to get the agency to adopt a consistent position regarding the plaintiff’s desire for a hearing. Rather than involve this Court in unraveling the defendant’s incongruous position that the OAU had jurisdiction under CETA despite the AU’s decision, the Secretary should have simply reversed the AU’s decision on its own initiative at the administrative level.

Moreover, although not raised by the defendant, this Court questions whether it could exercise jurisdiction between these parties even in the presence of a case or controversy. Despite the AU’s ruling that he did not have jurisdiction under CETA, that decision was nevertheless a jurisdictional ruling under CETA, involving an interpretation of the relationship between that Act and the Economic Stimulus Legislation with respect to proceedings for complaints and sanctions, and was rendered as part of a CETA appeals process. Therefore, judicial review of that decision, standing as the final decision of the Secretary, may have been more properly sought in the Court of Appeals. See 29 U.S.C. § 817(a).

In any event, recognizing that the Secretary has overruled the AU’s decision by virtue of the motion to dismiss filed with this Court, the Secretary’s current position that an appeal may be had under CETA is clearly a decision regarding complaints and sanctions under CETA, thereby placing any further judicial review in the United States Courts of Appeals. See 29 U.S.C. § 817(a). Likewise, any appeal of the merits of the debt assessment after a hearing before the AU lies with the Court of Appeals. Id.

Therefore, for the reasons set forth above it is this 13th day .of November, 1984,

ORDERED that this action is hereby dismissed in light of defendant’s reversal of the April 24, 1984 decision of the Administrative Law Judge, as embodied in defendant’s motion to dismiss and the representation that plaintiff will now be accorded its hearing.

      . CETA was repealed by Pub.L. No. 97-300, Title. I, § 184(a)(1), 96 Stat. 1357 (1982). Subsequently, CETA was replaced with the Job Training Partnership Act of 1983, 29 U.S.C. § 1501, et seq., which took effect October 1, 1983.

      . In Plaintiff’s Opposition to Defendant’s Motion to Dismiss, and Plaintiff’s Motion to Schedule a hearing, the plaintiff indicated that it regarded this case as ready for a final decision on the merits under F.R.C.P. 65(a)(2), rather than simply a ruling on the preliminary injunction.

      . Although DOL/ETA originally disagreed that the funds at issue were non-CETA funds, it eventually recognized that the grant arose under the Economic Stimulus Legislation. See Complaint ¶¶ 23 & 30.

      . The Court is not concerned that this reversal of the AU’s decision came more than 30 days after the AU ruled. It is apparent from a complete reading of the regulations that the thirty-day period for reversal or modification of the OAU’s decision set forth at 20 C.F.R. § 676.91(f) (1984) was intended primarily to mark the "finality" of the decision for purposes of exhaustion of a grantee’s administrative remedies, to allow the party to seek judicial review of an adverse decision under the Administrative Procedure Act. See 20 C.F.R. § 676.92(a) (1984). On the other hand, in the event that grantee obtains a favorable decision from the OAU, the thirty day limitation bars subsequent reconsideration by the Secretary that would work to the detriment of the grantee. Neither of these situations is involved in the present case.


author: LEIGHTON, District Judge.

text:
    SWANEE BEE ACRES, INC., Plaintiff, v. FRUIT HILL, INC., Wise Farms & Storage, Inc., Greg & Wes Prillwitz, Robert Crows, James Adams, Bryan Canney, Thomas Adams, Defendants.
    No. 83 C 6223.
    United States District Court, N.D. Illinois, E.D.
    Nov. 14, 1984.

      Michael J. Femal, Michael J. Femal, Ltd., Arlington Heights, 111., for plaintiff.
    Ward S. Hamlin, Jr., Harold L. Neal, Jr., South Haven, Mich., James Rice, Latch-ford, Rice & O’Brien, Chicago, 111., for defendants.
   Memorandum

LEIGHTON, District Judge.

This is an action brought pursuant to the Perishable Agricultural Commodities Act, 7 U.S.C. § 499a et seq., to enforce a reparation order of the Secretary of Agriculture. The cause is before the court on the motion of certain defendants to dismiss as to them for lack of subject matter jurisdiction. For the following reasons, the motion is granted.

I

Plaintiff, Swanee Bee Acres, Inc., is a Wisconsin corporation with its principal place of business in Illinois. Defendants are Fruit Hill, Inc., a Michigan corporation and certain of its shareholders, directors, officers and operating manager, some of which are Illinois residents. The amended complaint is stated in two counts: Count I, which is directed against all defendants, seeks to enforce, pursuant to 7 U.S.C. § 499g(b), a reparation order issued in plaintiffs’ favor by the Secretary of Agriculture; Count II is a common law fraud action which seeks relief against the defendant shareholders, directors, officers, and the operating manager of Fruit Hill. All defendants, with the exception of Fruit Hill, move to dismiss, contending that the court lacks subject matter jurisdiction to hear plaintiff’s claims against them.

Plaintiff alleges in Count I that jurisdiction is based on 7 U.S.C. § 499g(b). This section of the Perishable Agricultural Commodities Act confers on the district court jurisdiction to hear actions to enforce reparation awards of the Secretary of Agriculture:

If any commission merchant, dealer, or broker does not pay a reparation award within the time specified in the Secretary’s order, the complainant, or any person for whose benefit such order was made, may ... file in the district court of the United States in which he resides or in which is located the principal place of business of the commission merchant, dealer, or broker ..., a petition setting forth briefly the causes for which he claims damages and the order of the Secretary in the premises.

7 U.S.C. § 499g(b). In Count II plaintiff alleges that “jurisdiction of this Court to hear [these] allegations ... is pendent to its jurisdiction to hear the claims made' under [Count I].”

II

It is clear from the unambiguous language of Section 499g(b), that the court has independent federal jurisdiction over Count I of the amended complaint. Count II, however, is a state law claim and since there is not complete diversity between the parties, the court has no independent jurisdiction to hear it. Therefore, to support this court’s jurisdiction over Count II, plaintiff relies on the doctrine of pendent jurisdiction as approved by the Supreme Court in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), a suit brought under both federal and state law by a contractor to recover damages suffered by reason of a secondary boycott imposed by a union. There existed independent federal jurisdiction as to the federal claim, but there was no independent basis of jurisdiction to support the state law claim. Nevertheless, Gibbs held that federal courts could exercise pendent jurisdiction over state law claims when the claims are between the same parties. In deciding the question of pendent jurisdiction, the Gibbs court indicated that there were two distinct issues to be considered. First, whether the claims are derived from a common nucleus of operative facts and second, even if this condition exists “pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” Id. at 726, 86 S.Ct. at 1139.

The amended complaint, as it now stands, contains a claim over which this court has independent federal jurisdiction and a state law claim against all the defendants, except Fruit Hill, over which the court lacks an independent basis for jurisdiction. Thus, it would appear that the court only need determine if the conditions as set forth in Gibbs exists for it to exercise pendent jurisdiction over Count II. This is not the case, however, because as discussed below, the only proper defendant in Count I is Fruit Hill. Therefore, retaining jurisdiction over Count II would not only require the court to exercise jurisdiction over a state law claim when it has no independent basis for jurisdiction, but it would also require the joinder of additional parties under pendent jurisdiction. There is a significant difference between a party seeking to join a state law claim with a federal claim if it is between the same parties and a party seeking to exercise pendent jurisdiction to join a state law claim with “the addition of a party which is implicated in the litigation only with respect to the pendent state claim and not with respect to any claim as to which there is an independent basis of federal jurisdiction.” Moor v. County of Alameda, 411 U.S. 693, 713, 93 S.Ct. 1785, 1797, 36 L.Ed.2d 596 (1973).

III

Count I seeks to enforce an award of the Secretary of Agriculture pursuant to the Perishable Agriculture Commodities Act, 7 U.S.C. § 499a et seq. This act was passed by Congress in 1930 for the purpose of regulating the interstate business of shipping and handling of agriculture commodities. George Steinberg & Sons v. Butz, 491 F.2d 988 (2nd Cir.1974). Essentially, the act sets up a system of licensing merchants and imposes penalties for violations of its own terms. Under Section 499b, it is unfair for a regulated person to engage in the practices proscribed in this section. Section 499g relates to complaints filed before the Secretary of Agriculture and provides for the issuance by him of reparation orders requiring violators to pay damages to the complainant. Subsection (b) of Section 499g governs suits to enforce the reparation awards of the Secretary. It provides, in pertinent part, that “if any commission merchant, dealer, or broker does not pay a reparation award” the complainant may file an action to enforce the award. In such an action “the findings and order of the Secretary shall be prima facie evidence of the facts stated.”

Section 449g(b) allows a party in whose favor a reparation award is entered to bring a petition in federal court only against the “commission merchant, dealer or broker” who was ordered to pay the award. The award of the Secretary, attached to plaintiffs amended complaint, states that “within thirty days from the date of this order, respondents Gro-Pro, Inc. [not named as a defendant in this action] and Fruit Hill, Inc., shall pay . complainant [Swanee Bee Acres], jointly and severally, as reparation, $12,172.41____” Only defendant Fruit Hill in this suit was a party to the reparation proceedings before the Secretary. This court can only enforce an award by an administrative body against the party who participated in the proceedings before that administrative body. It would be contrary to the fundamental concepts of due process for a court to enforce such an award against a party who was not served with the complaint in the proceedings before the Secretary; who was not made party to the administrative proceeding; who did not participate in the proceedings; and who was not ordered to pay under the Secretary of Agriculture’s reparation award.

Pursuant to Section 499g(b), the findings of the Secretary are prima facie evidence of the facts stated therein. The facts stated in this order pertain only to Fruit Hill, it does not order the remaining defendants to pay; nor do the findings make mention of any participation by the other named defendants. The order and findings of the Secretary would not be prima facie evidence as to these remaining defendants. Section 499g does not contemplate the joinder in a civil action to enforce a reparation award of individuals who were not made parties to the action before the Secretary. Therefore, the court concludes that the only proper defendant in Count I of plaintiff’s amended complaint is Fruit Hill, Inc. Accordingly, defendants Wise Farms & Storage, Inc., Greg Prillwitz, Wes Prillwitz, Robert Crows, James Adams, Bryan Canney, and Thomas Adams are dismissed from Count I of the Amended Complaint.

IV

Having dismissed all the defendants except Fruit Hill from Count I, the next inquiry is whether the court will exercise pendent jurisdiction over Count II. In this count, plaintiff alleges that defendants Wise Farms & Storage, Inc., Greg Prillwitz, Wes Prillwitz, Robert Crows, James Adams and Bryan Canney were either shareholders, directors or officers of Fruit Hill and that Thomas Adams was the operating manager of Fruit Hill. Plaintiff then alleges that these defendants have operated Fruit Hill in such a manner that the corporate veil should be pierced and these defendants should be held personally liable for the debts of Fruit Hill. This count contains a number of allegations concerning the activities of these defendants in running Fruit Hill which purportedly supports plaintiffs claim that they should be held personally liable for Fruit Hill’s debts.

Count II, after the dismissal of these defendants from Count I, now calls upon, the court to exercise pendent jurisdiction over not only an additional claim but also over additional parties. While some circuits have permitted the joinder of additional parties pursuant to the doctrine of pendent jurisdiction, See Moor v. County of Alameda, 411 U.S. 693, 713-14 nn. 29 and 30, 93 S.Ct. 1785, 1797-98 nn. 29 and 30, 36 L.Ed.2d 596 (1973); the Seventh Circuit, which this court is bound to follow, has held that the doctrine of pendent jurisdiction cannot be extended to allow the addition of new parties who are implicated only in the state law claim. U.S. General, Inc. v. City of Joliet, 598 F.2d 1050 (7th Cir.1979); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir.1973); Oakhill Cemetery of Hammond v. Tri-State Bank, 513 F.Supp. 885 (N.D.Ill.1981). Therefore, because Count II is a state law claim over which the court lacks independent federal jurisdiction, and because the parties to this count are not parties to the federal law claim, this court lacks jurisdiction over Count II. Accordingly, Count II must be dismissed.

Moreover, assuming arguendo, that the court had not dismissed these defendants from Count I, it would still be compelled to dismiss Count II. As noted in Gibbs, pendent jurisdiction is not a matter of right, but rather, a doctrine of discretion. United Mine Workers v. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139. A court should only exercise pendent jurisdiction when the two claims are derived from a common nucleus of operative facts. Id. at 725. A review of the allegations of both counts of the amended complaint discloses that the claim in Count II is not derived from the same facts as alleged in plaintiff’s first claim. Count I relates to the reparation order; it only alleges facts which deal with the sale of the cherries that culminated in the proceedings before the Secretary of Agriculture. Count II, on the other hand, contains broad sweeping allegations of corporate mismanagement not related at all to the allegations of Count I. For example, plaintiff alleges, among other things, that certain of the defendants have failed to conduct arm’s-length transactions with related entities, have misused corporate assets, diverted corporate funds, and made large withdrawals out the corporate bank account for personal use. Clearly, these allegations are not derived from same core of operative facts as those alleged in Count I. Therefore, even if the court had not dismissed all the parties except Fruit Hill from Count I, it would still, in its discretion, decline to exercise pendent jurisdiction over Count II. Accordingly, the motion to dismiss Count II is granted.

V

In conclusion, for the reasons stated, defendants Wise Farms & Storage, Inc., Greg Prillwitz, Wes Prillwitz, Robert Crows, James Adams, Bryan Canney, and Thomas Adams, are dismissed from this suit; and Count II of the Amended Complaint is stricken. Therefore, only. Count I, with Fruit Hill, Inc. as the sole defendant, remains pending before the court.

So ordered.


author: SHABAZ, District Judge.

text:
    John POKRATZ, Plaintiff, v. JONES DAIRY FARM and Jones Dairy Farm, Plan Administrator of the Jones Dairy Farm Union Employees’ Pension Plan, Defendants.
    No. 84-C-217-S.
    United States District Court, W.D. Wisconsin.
    Nov. 14, 1984.

      Kenneth R. Loebel, Habush, Habush & Davis, Milwaukee, Wis., for plaintiff.
    Michael H. Auen, Foley & Lardner, Madison, Wis., Richard E. Hemming, Consigny, Andrews, Hemming. & Grant, Janesville, Wis., for defendants.
   MEMORANDUM AND ORDER

SHABAZ, District Judge.

Before the Court in this action is the record of plaintiff’s application for disability benefits from the retirement and disability plan offered by his employer, Jones Dairy Farm (hereinafter, “JDF”). The plan is now administered by a committee known as the Plan Administrative Committee of the Jones Dairy Farm Union Employees’ Pension Plan (hereinafter, Committee). Plaintiff is seeking disability benefits which were denied him and also seeks compensatory and punitive damages from JDF. Jurisdiction of the claim for disability benefits is based on the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(e).

FACTS

Plaintiff John Pokratz was employed by Jones Dairy Farm from 1967 until June 6, 1983. However, his active employment ceased on June 6, 1980, at which time he was suffering from retinitis pigmentosa, a progressive eye disease, and from depression. It is undisputed that plaintiff is legally blind, and has been since at least September 1980.

Plaintiff applied for disability benefits from the plan in December 1981, although it is alleged by him that he attempted to apply some time previously. His application was submitted to the company.

During 1982, plaintiff was evaluated by Opportunities, Inc., a rehabilitation service. The evaluation report noted that he had worked at JDF for 13 years with duties of night shift clean-up work. The 11 years prior to this employment were spent as a general laborer at a sand and gravel company and as a truck driver and machine operator. Medically, the report noted that his general health was good, that he had been treated for depression and, with respect to his eyes, stated:

Has a diagnosis of retinitis pigmentosa in both eyes. This constitutes a severe visual impairment that has progressively gotten worse over the past 20 years. John indicates that his right eye is worse and that he gets headaches when he has to strain for reading, etc. Light levels appear to help with sunny-bright days being the best. Adaptive equipment does not appear to help.

Record, page 36. It was also noted that his education was limited to a high school diploma. Fairly extensive testing disclosed verbal skills at about the ninth grade level; arithmetic at about the third grade level. He handled assembly tests well, but had trouble with tests involving color differentiation and with reading diagrams. He had adequate range of motion. The report included at-work observations in an orchard and in the rehabilitation shop, where he was assigned duties such as folding library files, tape cutting, and lock assembly. The report concluded that he enjoyed working outside in the orchard, although he was afraid of being struck by branches and would not climb a ladder. He was productive in both the orchard and in the shop, but did not communicate with co-workers or superiors. In the shop it was observed that he mainly, relied on his sense of feel rather than residual sight. He refused to ask questions, which resulted in mistakes which took time to correct. Opportunities, Inc. summarized its findings as follows:

Skill wise, John has a lot going for him. His good work habits and good general health along with previous work experience give him a lot of potential for competitive employment. His size and strength are definite assets along with appropriate appearance and attendance/punctuality. His depressed attitude and unwillingness to cooperate with anybody are his major vocational liabilities. He probably would be successful in some sort of a job in which he could handle his vision problems and not have to communicate with anybody. In terms of his vision, he appears to need a fairly structured position that is well illuminated and possibly outdoors or close to natural light. John is concerned about safety and is aware of problems with him being around dangerous equipment. It seems that some sort of routine farm jobs such as a milking parlor or in a packaging — shipping/receiving department would be appropriate, especially if they required his strength and full range of motion capabilities. Individual assembly work would also be a potential for him, however, he indicated he goes crazy on piece rate work, etc.
I feel very strongly that John needs professional help and/or medication to help him with his depression and releave (sic) his frustrated behavior. He obviously needs to communicate with both his family and the community or it will be very hard to get him a job. Even if we were able to get him a job, I can’t imagine co-workers wanting to be around him with his current personality problem. His current mental health problem is obviously his major disability with his vision problem being secondary.

It is alleged by the defendants, and one-sided correspondence from JDP shows, that plaintiff'had asked that his application be put on hold sometime in early 1982. In August 1982, the application was again under consideration, and an official denial of benefits, dated December 1, 1982, was issued. An identical denial was issued December 7, 1982, after plaintiff informed the company that he had not received the first one. The denial stated as follows:

With the information you have provided to us and our own review of the facts in this case, we have determined that you are not totally and permanently disabled as defined in our pension plan.
We realize that you have been declared legally blind, but this condition in itself does not qualify you for disability coverage under our Pension Plan. The fact that you have been employed for a number of months by Poyer Orchards, have had job training opportunities, and have had other employment placement opportunities available to you indicates that your general health does not preclude you from gainful employment.

In January 1983, plaintiff submitted the report of Dr. Frederick J. Davis, of DavisDuehr Eye Associates, Madison, Wisconsin. The doctor, an M.D., noted that plaintiff was suffering from retinitis pigmentosa, that he was completely blind except for light perception in the right eye, that vision in the left eye was 20/20 but was limited to a 10% straight-ahead field of vision, that these limitations amounted to legal blindness, and concluded:

Because of your visual field loss, however, you are unable to see to walk or get around without help, particularly in unfamiliar surroundings. This visual loss would preclude any employment that requires accurate vision, movement or contact with moving machinery or moving parts.

Record, page 58. It appears that the Committee treated this submission as a reapplication. Record, page 63. A new evaluation of plaintiff was scheduled with Crawford Rehabilitation Services, Milwaukee, Wisconsin, which was performed in April 1983.

The Crawford report concluded that plaintiff was capable of performing occupations such as kitchen helper, packager, orchard worker and assembler. The conclusion also included the following statements:

Mr. Pokratz’s description of his limitations is considerably more debilitating than that indicated by the medical records which I have reviewed. It is my impression from meeting Mr. Pokratz and reviewing his material that he is quite invested in presenting himself as a disabled individual and has placed most of his effort into obtaining disability benefits.
* * * * * *
In reviewing the report of Opportunities, Inc., it appears that the vocational evaluators and vocational rehabilitation staff believed -that work adjustment training services and job placement services could be successful in returning Mr. Pokratz to competitive employment. The major obstacle to initiating such a program seems to be Mr. Pokratz’s refusal of further services. Based on my interview with Mr. Pokratz, it is my opinion that his desire to receive vocational or personal counseling has not changed.

Record, pages 80-81.. The interviewer concluded that plaintiff was capable of employment, but that the most significant obstacle to his employment was his own “lack of motivation.” The interviewer recommended an investigation as to whether there may be psychiatric bases for this problem, and plaintiff was referred to Dr. Francis Millen for a psychiatric evaluation.

Dr. Millen’s evaluation, dated July 11, 1983, noted the previous evaluations and medical history of the plaintiff and concluded:

Considering his overall general medical health and what I could learn about his work history, he should be able to return to some type of gainful employment if he were properly motivated, and would cooperate with rehabilitation programming.

Record, page 99. The lack of motivation was caused, according to the doctor, by a “probable lifelong history of adjustment difficulty and defective coping mechanisms, present since early childhood” as opposed to depression.

On August 10, 1983, plaintiff received a letter signed by William J. Shalhoub, JDF’s manager of employee relations, informing him of the denial of benefits:

The Plan Administrative Committee has determined that you are not totally and permanently disabled under the terms of the Plan [Section 201(u)]. Therefore, your appeal of the company’s earlier denial of your claim for disability pension benefits is denied.
It has been determined that you are not precluded from engaging in certain types of gainful employment. In other words, from the point of view of the medical and rehabilitative studies done recently, there is work which you could perform for remuneration if you were so motivated.

Record, page 121. A series of inquiries from plaintiffs counsel were treated as a further appeal of the denial of benefits. By letter dated December 16, 1983, signed by Willard Lenton as Committee Chairman, the appeal was denied. After noting the reports discussed above, the letter concluded:

The Committee does not consider Mr. Pokratz’s motivational and cooperativeness deficiencies to constitute a total and permanent disability within the meaning of the Plan. Accordingly, his claim for disability retirement benefits is hereby denied in its entirety.

Record, page 167.

The pension plan in effect at least through June 30, 1980, contained provisions at Section 3.08 which required that an employee be “permanently and totally disabled” before he could be entitled to a disability. The term was defined, in pertinent part, as follows:

The Employer retains sole discretion to determine whether a Member is permanently and totally disabled. All of the following conditions must be met:
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(b) The Member is determined by the Employer to be permanently and totally disabled by bodily or mental injury or disease and thereby prevented from engaging in any occupation or employment for remuneration or profit; ...

Some time prior to December 1, 1982, and perhaps as early as July 1,1980, a plan was in effect which contained the following provision pertinent to the issue before the Court:

2.01(u) “Total and Permanent Disability” means a disability which the Company determines in its sole discretion[] is the result of a bodily or mental injury or disease that has so permanently and totally disabled an Employee as to prevent him from engaging in any occupation or employment for remuneration or profit for a continuous period of six (6) consecutive months; ...

Further facts will be cited in the decision which follows.

MEMORANDUM

The standard of review in actions challenging the denial of pension benefits by a pension fund trustee is whether the action of the fund trustee was “arbitrary or capricious in light of the language of the plan.” Wardle v. Central States, 627 F.2d 820, 824 (7th Cir.1980). The question is to be answered with the information before the trustee at the time of the decision and does not require a de novo hearing. Id.

In this case, the record is complete and undisputed in most respects. Whatever disputes of fact exist are not material to the question before this Court under Wardle. Plaintiff is not offering new evidence. Rather, plaintiff is challenging the decision to deny him benefits on the basis of the record. To the extent that there is a dispute which might be called material, it lies in which of the two plans in effect during the applicable time frame is the plan subject to review here.

The Court must conclude that it makes no difference because the operative language from the two plans is identical. Differences in the language of the two plans are not material to this dispute. For the purpose of deciding whether plaintiff is entitled to disability benefits,- both plans require that he be permanently and totally disabled, meaning that he is disabled by “bodily or mental injury or disease [that prevents him] from engaging in any occupation or employment for remueration or profit.” This quoted language appears in both plans and is all that is material to this dispute.

The question therefore is whether, under the language quoted above, it was arbitrary and capricious to conclude that plaintiff was not permanently and totally disabled. The Court must conclude that the decision is not arbitrary or capricious.

The first line of inquiry is how to interpret the definition in the plan of permanently and totally disabled. Strictly and literally interpreting the words in the plan, it would appear to limit the payment of benefits to those who were absolutely incapable of doing anything for which money might be paid. Plaintiff has complained that Mr. Shalhoub, JDF’s employee relations representative, told him that plaintiff was not disabled within the meaning of the language in the plan if he were able to sell pencils on the street comer. Without deciding whether such a statement was made, it must be conceded that the statement accurately reflects the literal terms of the plan.

It must also be conceded that plaintiff is not totally helpless, and, in fact, is capable of doing a number of jobs. The reports of both Opportunities, Inc. and Crawford Rehabilitation Services explicitly state that plaintiff is capable of gainful activity of various sorts. The qualification in the Crawford report — whether plaintiffs attitude had a psychiatric basis — was resolved by Dr. Millen’s evaluation. Accordingly, if the language of the plan is given anything close to a plain meaning interpretation, it is clear that there is nothing arbitrary or capricious about the conclusion of the Committee.

Plaintiff urges a more restrictive reading of the plan language, citing Harker v. Paul Revere Life Insurance Company, 28 Wis.2d 537, 137 N.W.2d 395 (1965). In that case, the Wisconsin Supreme Court interpreted the following provision in a disability insurance policy:

The term “total disability” ... shall mean complete inability of the insured to engage in gainful occupations for which he is reasonably fitted by education, training and experience.

Id. at 398. The Court cited with approval the rule stated in 98 A.L.R. 788, 789:

The liberal rule, as shown in the earlier annotations, is that the “total disability” contemplated by an accident policy, does not mean, as its literal construction would require, a state of absolute helplessness; rather, that the disability contemplated means inability to do all the substantial and material acts necessary to the prosecution of the insured’s, or, in many instances, any, business or occupation, in a customary manner.

Id. at 400 (footnote omitted). The Court approved a jury verdict in favor of a plaintiff whose wrist had been broken and healed badly, despite evidence that he did return to work (with significantly decreased ability) as an iron worker. He later attempted selling and hospital maintenance work. He also had previously worked as a farmer and a mechanic.

Another A.L.R. annotation cited with approval (but in a different context) in Harker, at 399, appears at 1 A.L.R.2d 756. The annotation concerns loss of vision within disability insurance provisions. In a section concerning disability provisions which appear to require that a claimant be “prevented from engaging in any occupation or employment for wage or profit,” it was stated:

Although the statements of the courts that in order to come within the meaning of the disability clause the disability of the insured must go to such extent that it disables him from following any occupation are general in their wordings and do not make any exceptions, if the problem came squarely before a court, it seems highly probable that some limitation would be recognized by it in order to avoid undesirable results. This opinion is predicated upon the fact that no court insists upon a state of absolute helplessness as a condition precedent for recovery under a disability clause. And since even a small amount of mental and physical ability permits, in theory at least, the insured to follow some occupation, the two doctrines would be in conflict with each other. The obvious solution, which at the same time satisfies most (sic) the ordinary conception of occupation, lies in the adoption of a less technical and more practical definition of occupation by excluding therefrom the various ways of earning a livelihood which in popular conception do not rise to the dignity of an occupation and which are characterized by the common examples of selling shoelaces or pencils, or which exist more in the fertile imagination of opposing counsel than in the reality of economic life.

1 A.L.R.2d at 773.

Therefore, it appears that something less than a strict and literal reading of the disability provision is required.

A careful reading of the record, however, does not disclose that the Committee was denying benefits because plaintiff could sell pencils (whether or not such a statement was ever made by Mr. Shalhoub). Rather, the Committee explicitly depended upon the reports of doctors and rehabilitation experts which disclosed that the plaintiff could handle a fairly wide range of unskilled jobs. While it may be assumed that none of these jobs would be as remunerative as his previous job, nothing in Harker or any other case of which the Court is aware requires jobs of equal pay to be available in these circumstances.

Accordingly, it cannot be said that denial of benefits to plaintiff was arbitrary or capricious on this record. The motion of the defendant plan for summary judgment must be granted.

Plaintiff’s complaint contains, two claims and he has also moved to file an amended complaint which essentially restates the causes in his original complaint. It is clear that this Court cannot exercise jurisdiction over these claims if they are purely pendent state claims. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

The first claim in the original complaint alleged a breach of fiduciary duty on the part of JDF and the plan administrator (there is some dispute as to whether, at some pertinent time, JDF was the plan administrator). One of these alleged breaches was the denial of benefits in an arbitrary manner. The Court has treated this claim above. The remaining claims of breach of fiduciary duty involve alleged failures to promptly act, reasonably consider and provide full and fair review of plaintiff’s claim. These breach of duty claims are also embodied in Count II of the proposed amended complaint. The second claim in the original complaint alleged bad faith on the part of JDF in processing the claim. This has become Count III of the proposed amended complaint..

Plaintiff argues that the fiduciary breach claims are cognizable under ERISA, citing Russell v. Massachusetts Mutual Life Insurance Co., 722 F.2d 482 (9th Cir.1983), cert, granted sub nom Mass Mutual Life v. Russell, — U.S. -, 105 S.Ct. 81, 83 L.Ed.2d 29 (1984). In Russell, the Court decided that ERISA did provide an action for violation of fiduciary duties along with compensatory and punitive damages. However, it did so in the following language:

Thus a beneficiary or participant may, pursuant to section 1132(a)(2) bring a cause of action under section 1109(a) for the breach by a fiduciary of any responsibility, duty or obligation "imposed by the Act, assuming, of course, that the breach causes him some injury.

Id. at 488 (emphasis supplied). This Court finds the underlined language persuasive of the view that, unless plaintiff has a claim for unpaid benefits, he has no claim under § 1109.

Even if this were not so, the Court does not read § 1109 as expansively as the Ninth Circuit. Section 1132, the section which grants the right to bring suit, allows a beneficiary to bring suit for relief which is “appropriate” under § 1109 (§ 1132(a)(2)). Section 1109 reads:

Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary____

It is clear to this Court that this section allows for two kinds of relief. One is the recovery for the plan of such assets that were misappropriated by a trustee. The other is for such other “equitable or remedial" relief found to be necessary by a Court. The Ninth Circuit held that such relief included compensatory and punitive damages. This Court does not agree. It would appear that “other equitable or remedial” relief ought to be limited to mandamus or declaratory relief necessary to effectuate the purposes of the act.

This Court would suggest that the holding of the Ninth Circuit was necessitated by its decision that ERISA preempted state claims for bad faith and. breach of contract. It decided that Congress would hardly preempt such claims without providing equivalent federal relief. Such assumptions about Congressional intent are questionable, and the argument made in Russell would have been just as persuasive against a holding of preemption in the first place. At any rate, the Court did hold that punitive and compensatory damages were available. This Court finds nothing in the language of ERISA or binding precedents to require such a holding. And this Court declines to so hold because it is unconvinced that the term “equitable or remedial” relief can ever be read so expansively as to include compensatory or punitive damages.

Finally, plaintiff urges this Court to recognize a claim for bad faith performance of a fiduciary duty which is a state common law action as an ERISA claim. While Wisconsin has explicitly recognized such a claim regardless of the right of a claimant to benefits, the Court is not persuaded that such a claim can be subsumed into ERISA. Plaintiff makes this argument with the support of scant authority, Hayden v. Texas-U.S. Chemical Company, 557 F.Supp. 382, 385 (E.D.Tex.1983), where it was held that a worker could raise pre-ERISA state law rights as ERISA claims. As the case cited for this proposition by the Texas court, Woodfork v. Marine Cooks & Stewards Union, 642 F.2d 966 (5th Cir.1981), makes clear, this would be true only for substantive pre-existing pension rights. This authority does not require recognition of a federal cause of action under ERISA for what has been a very limited, and recent) state common law claim for insurance bad faith.

It is, therefore, clear that plaintiffs right to recover is limited to a state law claim for bad faith which is precisely the same as his claim for breach of fiduciary duties, since in Wisconsin the existence of the claim depends upon fiduciary responsibility in the defendant. See Anderson v. Continental Insurance, 85 Wis.2d 675, 271 N.W.2d 368 (1978). As this is purely a state law claim, and the Court is without any federal basis for jurisdiction given its decision regarding the review of the record mandated by Wardle, dismissal is mandated by United Mine Workers v. Gibbs, supra.

The motion of defendant Jones Dairy Farm to dismiss it as a party is, in light of the foregoing, moot.

ORDER

IT IS ORDERED that the motion of the defendants for summary judgment on plaintiff’s claim for disability benefits under ERISA is GRANTED. Judgment shall be entered with prejudice and costs.

IT IS FURTHER ORDERED that plaintiff’s remaining claims, being cognizable under state law only, are DISMISSED without prejudice or costs.

IT IS FURTHER ORDERED that plaintiff’s motion to file an amended complaint is DENIED, the new complaint raising the same issues which have received consideration herein.

      . The Court at this stage is not attempting to engage in factfinding with respect to plaintiffs claims of bad faith and delay. The noted fact is provided merely for the sake of continuity.

      . Exhibits A and B to the Lenton affidavit are the source for the text above. There is a dispute as to which plan was in effect and at what time.

      . It appears that this provision regarding the entity which would make disability determinations was amended in November, 1982, that is, before plaintiff was denied, benefits. However, the Court need not make any determination of this issue and does not do so now.

      . Lueck v. Aetna Life Ins. Co., 116 Wis.2d 559, 342 N.W.2d 699 (1984), cert. granted-sub nom Allis Chalmers v. Lueck, — U.S.-, 105 S.Ct. 80, 83 L.Ed.2d 28 (1984). Presumably, the appeal of Lueck does not involve whether a claim can be stated for bad faith absent a good claim for benefits since that would appear to be solely a matter of state law. The issue which must be the subject of the appeal is whether federal law (in this case the Labor Management Relations Act) preempts such a claim. The argument of the majority in this case is diametrically opposed to, and more convincing than, the similar discussion in Russell, supra. It would not be surprising to see these cases decided by the Supreme Court together.