author: BARBOUR, District Judge.

text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, Plaintiff, v. DALGARNO TRANSPORTATION, INC., Defendant.
    Civ. A. No. J85-0459(B).
    United States District Court, S.D. Mississippi, Jackson Division.
    Oct. 9, 1985.

      Joe H. Daniel, Daniel, Coker, Horton & Bell, Jackson, Miss., for plaintiff.
    Peter W. Cleveland, Columbus, Miss., for defendant.
   MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

This matter is before the Court on Defendant’s Motion to Dismiss on the grounds of improper venue, or in the alternative, for change of venue pursuant to the provisions of 28 U.S.C. Section 1404(a) or 28 U.S.C. Section 1406(a).

Plaintiff, Hartford Accident & Indemnity Company (“Hartford”) is a Connecticut corporation qualified to do and doing business in Mississippi. Dalgarno Transportation, Inc. (“Dalgarno”) is a Wyoming corporation with its principal place of business in Aberdeen, Mississippi. Hartford is suing Dalgarno for sums allegedly due pursuant to the retrospective premium adjustment provisions of various policies of insurance. Jurisdiction is based upon diversity. Mississippi has two United States District Courts, one for the Northern District and the other for the Southern District. The certificate of authority issued by the State of Mississippi to Dalgarno authorizes Dalgarno to transact business throughout the entire state, but Dalgarno has limited its operations in Mississippi to the business which it conducts in the Northern District of the state. Dalgarno does not do business in the Southern District of Mississippi and has never done business in this District. The question which is thus before this Court is whether venue is proper in the Southern District pursuant to 28 U.S.C. § 1391(c) solely by reason of the fact that Dalgarno is licensed to transact business in the entire state.

28 U.S.C. § 1391(c) states as follows:

A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.

There is substantial disagreement among the authorities concerning the construction of Section 1391(c) in circumstances analogous to those herein. See 15 Wright & Miller & Cooper, Federal Practice and Procedure, § 3811, p. 63-64 (1976) and cases cited therein.

While this precise issue does not appear to have been addressed in this Circuit, this Court is persuaded that the decision in Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir.1977) is controlling. In Davis, the court construed the provision of Section 1391(c) allowing suit to be brought against a corporation “in any judicial district in which it is incorporated” to allow suit in any judicial district of a multi-district state, regardless of whether the defendant was actually doing business in the district where suit was brought. In reaching this conclusion, the court noted that the defendant’s emphasis on the fact that it engaged in no business in the district where suit was brought was misplaced, since the statute makes any one of the three activities, incorporation, licensing or doing business, a sufficient basis for venue. Id. at 323. To engraft a “doing business” requirement on the incorporation and/or licensing provisions of Section 1391(c) would, in essence, write these provisions out of the statute, thereby making “doing business” the sole basis for venue over a corporate defendant.

This Court therefore concludes that venue is proper in every district of a state in which a defendant corporation is licensed to do business, irrespective of whether it is actually doing business in every district. Since the Defendant in this case is licensed to do business in the entire state of Mississippi, venue is proper in this district pursuant to the terms of 28 U.S.C. Section 1391(c). Defendant’s Motion to Dismiss on the basis of improper venue is, therefore, denied.

Defendant has also moved, in the alternative, for transfer of this action to the Northern District of Mississippi. The criteria which must be met for transferring this action are found in 28 U.S.C. § 1404(a):

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

The initial requirement that venue must be proper in the transfer forum is met in the instant case, since Dalgarno is both licensed to do business and doing business in the Northern District of Mississippi.

The Defendant, when it is the moving party, also has the burden of establishing why there should be a change of forum, see Southeastern Equipment Company v. Union Camp Corp., 498 F.Supp. 164, 165 (S.D.Ga.1980), and Dalgarno has failed to meet this burden. In support of its Motion to Transfer, Dalgarno has stated in conclusory terms that it should not be put to the hardship of having to litigate in this forum. The only factual matter alleged in support of its motion is that all of the general corporate records governing the business of Dalgarno are maintained in its offices in Aberdeen, Mississippi. While the location of books and records is a factor to be considered in determining proper forum, general allegations that transfer is needed because of such books and records are not enough. See 15 Wright & Miller & Cooper, supra at § 3853, p. 277-78. Defendant has therefore failed to make any showing which would enable this Court to conclude that it should disregard the Plaintiff’s choice of forum. In the absence of such showing, the Motion for Transfer must be denied.


source: Caselaw Access Project

author: ROBERT D. POTTER, Chief Judge.

license: Public Domain

text:
    GENERAL UNITED COMPANY, d/b/a Honda of Gastonia, Plaintiff, v. AMERICAN HONDA MOTOR CO., INC., Defendant.
    No. C-C-84-544-P.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Oct. 10, 1985.

      James L. Roberts, Charlotte, N.C., for plaintiff.
    A. Ward McKeithen, Robinson, Bradshaw & Hinson, Charlotte, N.C., for defendant.
   ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER was heard before the undersigned on September 9, 1985 at Charlotte, North Carolina upon the Defendant’s Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Plaintiff was represented by James L. Roberts, Attorney at Law. The Defendant was represented by A. Ward McKeithen, Attorney at Law.

After carefully considering the evidence presented, the legal memoranda, and the arguments of counsel, the Court enters the following findings of fact and conclusions of law:

FINDINGS OF FACT

(1) The Defendant, American Honda Motor Company, Inc., is a California corporation which handles the distribution of Honda products in the United States.

(2) The Plaintiff, General United Company, d/b/a Honda of Gastonia, is a corporation organized and existing under the laws of the State of North Carolina. The Plaintiff was for several years a Honda motorcycle dealership in Gastonia, North Carolina pursuant to a series of standard Dealership Agreements with the Defendant.

(3) The latest Dealership Agreement entered into by the parties was dated February 1, 1980 and was in effect during the events at issue in this action. That Agreement provides:

If Dealer is in default of payment for parts and accessories, then Dealer hereby gives Seller the right to withhold delivery of motorcycles or motorcycle parts and accessories until payment of such default is made.

Article VII, § 4.

(4) As of June 1,1981, the Plaintiff had a parts account delinquency of $11,787.13. The Plaintiff had had a long history before that date of continuing delinquencies in its parts account payments to the Defendant and remained in default after June 1, 1981 until it went completely out of business on January 7, 1982.

(5) In June 1981, the Defendant advised the Plaintiff that it would not continue to sell or deliver motorcycles to the Plaintiff unless and until the Plaintiff paid its parts account delinquency. Thereafter the Plaintiff did not pay or remedy the delinquency, and the Defendant followed through on its warning that it would not sell or deliver motorcycles to the Plaintiff.

(6) Even if the Plaintiff had paid off its parts account delinquency, as of the end of August 1981 the Plaintiff did not have any line of credit with which to purchase new Honda motorcycles as required by the Motorcycle Sales Agreement.

(7) In January 1982, the Plaintiff ceased doing business, and its inventory and assets were sold at a public foreclosure sale by the Small Business Administration. The Plaintiff had lost approximately thirty-eight thousand dollars ($38,000.00) after tax for the previous three fiscal years ending June 30, 1979, June 30, 1980, and June 30, 1981, and continued to lose money until its business closed in January 1982.

(8) During the summer and fall of 1981, the Defendant continued to sell motorcycles to at least one dealer in the Charlotte area that was several thousand dollars delinquent in the payment of its parts account, provided that the dealer pay cash for the motorcycles.

(9) The Plaintiff claims that the Defendant’s refusal to sell it motorcycles because of its delinquency in its parts account while allowing other delinquent dealers to buy motorcycles was “in violation of the Clayton Act, and in violation of other Anti-Trust Statutes____” Amended Complaint, 117. It also alleges that the Defendant’s discriminatory refusal to sell to it violated N.C.Gen.Stat. § 75-1.1.

(10) The Defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56 as to all of the Plaintiff’s claims.

CONCLUSIONS OF LAW

(1) This Court has jurisdiction of the subject matter pursuant to 28 U.S.C. § 1332.

(2) The Plaintiff has made a vague claim for some unspecified federal antitrust violation; other than its general mention of the Clayton Act, the Plaintiff does not allege in its Complaint which federal antitrust law or section thereof has been violated. After reviewing the various federal antitrust statutes in conjunction with the present record as a whole in the light most favorable to the Plaintiff, the Court concludes that none of the statutes addresses the situation at issue.

(3) Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, proscribes combinations, conspiracies, and contracts in restraint of trade. It does not deny a distributor the right to deal, or refuse to deal, with any customer, as long as it does so independently. Monsanto Co. v. Spray-Rite Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). Therefore, the essence of a Section 1 claim is concerted action. Terry’s Floor Fashions, Inc. v. Burlington Industries, Inc., 763 F.2d 604, 610 (4th Cir.1985).

Neither the Complaint nor the evidence presented to the Court in opposition to the Defendant’s motion for summary judgment presents even a suggestion that the Defendant combined with any other distributors or dealers in its refusal to sell motorcycles to the Plaintiff. Since there exists no genuine issue of material fact concerning the independence of the action taken by the Defendant, summary judgment is appropriate as to any claim under Section 1 of the Sherman Act.

(4) Summary judgment is also appropriate as to any claim the Plaintiff may pursue under Section 2 of the Sherman Act, 15 U.S.C. § 2. Section 2 prohibits monopoly or attempt to monopolize. No evidence of either is present in this case.

(5) Section 2 of the Clayton Act, which is commonly known as the RobinsonPatman Act, 15 U.S.C. § 13, prohibits price discrimination. To establish a violation of the Robinson-Patman Act, a plaintiff must show that the seller made at least two actual sales to two different purchasers at different prices. Black Gold, Ltd. v. Rockwool Industries, Inc., 729 F.2d 676, 682-83 (10th Cir.), cert. denied, — U.S. -, 105 S.Ct. 178, 83 L.Ed.2d 113 (1984); L & L Oil Co. v. Murphy Oil Corp., 674 F.2d 1113, 1120 (5th Cir.1982). “When a seller refuses to sell to one buyer, the requisite price discrimination between two buyers is lacking.” Black Gold Ltd., 729 F.2d at 683.

Even if the Defendant’s requirement that the Plaintiff pay the delinquency in its parts account were construed as an unfavorable capital condition on the purchase of motorcycles that other delinquent dealers did not have to meet, the record does not support a claim of price discrimination. The Plaintiff’s Complaint is based solely on the Defendant’s refusal to sell to the Plaintiff while continuing to sell to other delinquent dealers and is therefore outside the scope of the Robinson-Patman Act.

(6) Sections 3, 7, and 8 of the Clayton Act, 15 U.S.C. §§ 14, 18, and 19, prohibit tying and exclusive dealing contracts, certain mergers and acquisitions, and interlocking directorates, respectively. There is obviously no genuine issue as to any material fact concerning any possible claim under these sections, as none of the enumerated activities are present in this case. Therefore, summary judgment is appropriate as to claims under the Clayton Act.

(7) The Plaintiffs final claim is that the Defendant’s refusal to sell motorcycles to the Plaintiff while agreeing to sell to other delinquent dealers was an unfair trade practice in violation of N.C.Gen.Stat. § 75-1.1. That statute provides:

(a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.

Id. Under N.C.Gen.Stat. § 75-16, a person injured by a practice declared unfair under § 75-1.1 is entitled to treble damages.

(8) Whether a practice is unfair within the meaning of § 75-1.1 is a question of law for the Court to decide. Hardy v. Toler, 288 N.C. 303, 309, 218 S.E.2d 342, 346 (1975). The North Carolina Supreme Court has described unfair conduct under the statute as that which “offends established public policy ... [or] is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 263, 266 S.E.2d 610, 621 (1980) (citing Spiegel Inc. v. Federal Trade Commission, 540 F.2d 287 (7th Cir.1976)). The North Carolina Court of Appeals has stated that it is “conduct ‘which a court of equity would consider unfair.’ ” Harrington Manufacturing Co., Inc. v. Powell Manufacturing Co., Inc., 38 N.C.App. 393, 400, 248 S.E.2d 739, 744 (1978) (quoting Carolina Aniline & Extract Co. v. Ray, 221 N.C. 269, 273, 20 S.E.2d 59, 61 (1942)). As noted by the Fourth Circuit, the North Carolina legislature must have intended that substantial aggravating circumstances be present before any practice is deemed unfair under § 75-1.1, since it provided that any damages suffered by the victim are to be trebled. United Roasters, Inc. v. Colgate-Palmolive Co., 649 F.2d 985, 991 (4th Cir.), cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590 (1981).

(9) This Court noted above that the United States Supreme Court has recognized the right of a seller freely to exercise its independent discretion as to parties with whom it will deal. Monsanto Co. v. Spray-Rite Corp., supra; Federal Trade Commission v. Raymond Bros.-Clark Co., 263 U.S. 565, 573, 44 S.Ct. 162, 164, 68 L.Ed. 448 (1924) (wholesaler’s threat to cease doing business with plaintiff unless plaintiff stopped supplying another wholesaler held not to violate Federal Trade Commission Act). The Defendant’s decision not to sell to the Plaintiff while continuing to sell to other delinquent dealers did not, therefore, offend any established public policy.

(10) The Court also does not believe that the Defendant’s actions were unethical, oppressive, unscrupulous, or substantially injurious to consumers. The Defendant simply was exercising its business judgment as a creditor and a seller as to how and when it should invoke its contractual rights with each of its dealers, depending on the particular circumstances and dealer.

When a business relationship involves the extension of credit,

[i]t is obvious that differences in the borrower’s financial strength, business experience, and many other factors bring about differences in the terms of credit, security required, guarantees, and other devices used by creditors____

Craig v. Sun Oil Co., 515 F.2d 221, 224 (10th Cir.1975) (holding that discrimination in credit terms did not violate RobinsonPatman Act). The Plaintiff’s own dismal financial situation no doubt brought about the difference in the “device” used by the Defendant to force payment of the parts account debt (i.e., refusal to sell until the delinquency was cured). The Plaintiff’s business had been losing money for three years and it had had a long history of delinquency in its parts account, finally to-tailing over ten thousand dollars at the time the Defendant invoked its right to withhold delivery of motorcycles under the contract. Indeed, Morton Herald, the Defendant’s sales representative for all North Carolina Honda motorcycle dealerships, stated in his affidavit that no other dealership had a parts account delinquency or history of delinquency as serious as that of the Plaintiff as of May 1981.

(11) The Court concludes that, even if the Defendant did discriminate in its treatment of delinquent dealers, the Defendant’s exercise of reasonable discretion in its business relationships does not constitute an unfair trade practice under N.C.Gen. Stat. § 75-1.1. The record reveals no “substantial aggravating circumstances” in the situation at issue that would justify the punishment of treble damages. Accordingly, summary judgment is appropriate as to the Plaintiff’s § 75-1.1 claim.

(12) Any finding of fact which is determined also to be a conclusion of law is so deemed and any conclusion of law which is determined also to be a finding of fact is so deemed.

IT IS, THEREFORE, ORDERED that the Defendant’s motion for summary judgment as to all of the Plaintiff’s claims is GRANTED.


author: BRIEANT, District Judge.

text:
    BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiffs, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., and Consolidated Rail Corporation, Defendants.
    No. 84 Civ. 7104-CLB.
    United States District Court, S.D. New York.
    Oct. 10, 1985.
    Harold A. Ross, Ross & Kraushaar Co., L.P.A., Cleveland, Ohio, Sidney Fox, Shapiro, Shiff, Beilly, Rosenberg & Fox, New York City, for plaintiffs.
    David S. Fortney, Morgan, Lewis & Bockius, New York City, for Consolidated Rail Corp.
    Irwin I. Kimmelman, Atty. Gen. of New Jersey by Barbara Murphy-Warrington, Deputy Atty. Gen., Trenton, N.J., for New Jersey Transit Rail Operations, Inc.
   MEMORANDUM AND ORDER

BRIEANT, District Judge.

Familiarity of the reader is assumed with respect to this Court’s prior opinion herein, issued May 14, 1985 and reported at 608 F.Supp. 1216 (S.D.N.Y.1985). The Court there held that the Eleventh Amendment to the United States Constitution was not a bar to a Railway Labor Act suit in federal court against a state-owned rail carrier, which was found to be the alter ego of the state for Eleventh Amendment purposes.

Thereafter, on June 28, 1985, the Supreme Court of the United States decided Atascadero State Hospital v. Scanlon, — U.S. -, 105 S.Ct. 3142, 87 L.Ed.2d 171, discussed below. Thereupon, the Attorney General of the State of New Jersey renewed the prior motion to dismiss by New Jersey Transit Rail Operations, Inc. (“NJTRO”) in light of Atascadero.

In its prior opinion this Court relied essentially on Parden v. Terminal Railway, 377 U.S. 194, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), which had been distinguished but not disapproved in the Supreme Court’s subsequent decision in Employees v. Missouri Public Health and Welfare Dept., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). This Court also relied upon the failure of the Supreme Court to comment upon the Eleventh Amendment issue which was so obviously present in United Transportation Union v. Long Island R. Co., 455 U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982), when that Court decided that the Tenth Amendment does not render a state-owned railroad engaged in interstate commerce immune from the provisions of the Railway Labor Act. In our prior opinion we noted that the Long Island appeal was taken from a ruling by a lower federal court, and the Supreme Court remanded the case to a federal court of appeals. This would have been so much useless exercise if the Supreme Court perceived that there was a want of subject matter jurisdiction because of the Eleventh Amendment.

The decision in Atascadero, issued with four Justices dissenting, suggests that the case at bar presents a closer issue. In Atascadero the Supreme Court held that the Eleventh Amendment barred an action for damages and injunctive relief against a state hospital for violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. In so holding the Court went on to say that:

“the Rehabilitation Act does not evince an unmistakable congressional purpose, pursuant to § 5 of the Fourteenth Amendment, to subject unconsenting States to the jurisdiction of the federal courts.” — U.S. at -, 105 S.Ct. at 3150.

New Jersey Transit would have this Court construe Atascadero broadly to bar from federal court all private actions against states engaged in federally regulated commercial activities, unless Congress had expressly abrogated the States’ protective immunity for those activities by some clear statement in the statute. This Court, however, declines to extend Atascadero beyond the Fourteenth Amendment issue to which it was addressed.

The statute under analysis here, the Railway Labor Act, was enacted by Congress in exercise of its plenary powers under the Commerce Clause. Atascadero, in contrast, concerned a statute enacted in furtherance of equal protection, as authorized by the Fourteenth Amendment. In applying its clear statement rule to the Rehabilitation Act, the majority opinion in Atascadero did not mention the Commerce Clause or question the special treatment historically accorded the railroad business in Eleventh Amendment contexts. See Employees v. Missouri Public Health and Welfare Dept., 411 U.S. at 284, 93 S.Ct. at 1617. The majority’s only reference to Parden, Atascadero, — U.S. at -, n. 31, 105 S.Ct. at 3167, n. 31, touches another issue. Not even the dissent considered Parden to be threatened by the Atascadero holding, citing Parden only by analogy when discussing the genesis of the clear statement rule. Atascadero, — U.S. at -, n. 7, 105 S.Ct. at 3154, n. 7 (Brennan, J., dissenting).

Under the broad language of the Supreme Court majority in Atascadero, if we are prepared to assume that the same analysis-would apply to legislation by Congress in exercise of its commerce power, and if we are prepared to assume that Parden has been overruled, although neither issue was ever mentioned by the majority nor in any of the dissenting opinions, we would have to find that the Eleventh Amendment bars this suit. Indeed it would bar the many cases arising under the Safety Appliance Act and the Federal Employers Liability Act concerning personal injuries suffered by railroad employees on state-owned railroads, including NJTRO, a regular defendant in such cases in our district, as is Metro North Commuter Railroad, its New York counterpart. The same is true of diversity cases for injuries to passengers and property on state-owned railroads.

This Court is not prepared to make that quantum leap based on no more than a literal reading of Atascadero. The Atascadero dissenters, in their reference to Parden, quoted above, did not perceive the majority as having overruled that case. It would denigrate unduly the scholarship and thoughtfulness on the part of the distinguished justices of our highest court if we were to assume that having cited to Par-den in one instance and seeing the reference to the same case, preceded by “Cf”, in the dissenting opinion, they were unaware of their prior cases involving state-owned railroads. It is equally inappropriate in my view, to assume that the many years of federal jurisprudence arising under the Railway Labor Act and the Federal Employers Liability Act concerning state-owned railroads, had been suddenly consigned to the dust bin of history without even saying “goodbye”, as NJTRO would now have us find.

This Court regards Atascadero as limited to its own facts, and probably inapplicable to cases arising under federal legislation based on the commerce power affecting public and private business entities equally. Although they had ample opportunity to do so, the distinguished justices in the majority overruled neither Parden, nor any of the authority relied on in our prior opinion. A fair reading of Atascadero suggests only that the dissenters are right but that the majority is determined to stem the litigation explosion in the federal courts as it related to traditional state functions of which interstate railroading is not one.

The Court adheres to its prior opinion. The renewed motion to dismiss the complaint is denied.

A status and scheduling conference will be held before this Court on November 25, 1985 at 9:00 A.M. at the United States Courthouse, 101 East Post Road, White Plains, New York.

So Ordered.


author: KANE, District Judge.

text:
    Sr. Barbara REITER, Plaintiff, v. CENTER CONSOLIDATED SCHOOL DISTRICT NO. 26-JT., Defendant.
    Civ. A. No. 85-K-975.
    United States District Court, D. Colorado.
    Oct. 11, 1985.

      Brian A. Jeffrey, Evergreen, Colo., for plaintiff.
    William J. McCarren, Peter M. Eggleston, Cogswell & Wehrle, Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is a civil rights action under Title VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. §§ 1983 and 1985. Plaintiff, Sister Barbara Reiter, alleges that defendant, Center Consolidated School District, refused to renew her employment contract because of her gender, religion, participation in another Title VII complaint, and association with the Hispanic community. Defendant has filed an answer denying liability and setting forth five defenses. In a minute order, I stated that the defenses raised jurisdictional questions, and defenses 1, 3, 4, and 5 would be treated as motions to dismiss. The school district has filed a memorandum stating that it is pursuing only two of the defenses at this time: (1) lack of subject matter jurisdiction under Title VII over plaintiff’s claim of discrimination based on her association with the Hispanic community, and (2) plaintiff’s claim under 42 U.S.C. § 1985 fails to state a claim upon which relief can be granted. For the reasons that follow, I decline to dismiss plaintiff’s claim of employment discrimination based on her association with the Hispanic community. Plaintiff’s §§ 1983 and 1985 claims, however, are dismissed.

I

Title VII of the Civil Rights Act of 1964 prohibits discriminatory employment practices based on an individual’s race, col- or, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). The Act also prohibits discriminatory employment practices based on an individual’s participation in another Title VII investigation, proceeding, or hearing. Id. § 2000e-3.

Plaintiff alleges discrimination in employment based on her “close association with the Spanish citizens of the district.” Before I can entertain this claim, I must determine whether Title VII prohibits discriminatory employment practices based on an individual’s association with people of a particular national origin.

I have not found any Tenth Circuit decisions that discuss whether Title VII prohibits discriminatory employment practices based on an individual’s association with people of a particular race or national origin. Most courts in other jurisdictions that have considered the issue hold that Title VII prohibits discriminatory employment practices based on an individual’s association with people of a different race. See Whitney v. Greater New York Corp. of Seventh-Day Adventists, 401 F.Supp. 1363 (S.D.N.Y.1975); Gresham v. Waffle House Inc., 586 F.Supp. 1442 (N.D.Ga.1984); Clark v. Louisa County School Board, 472 F.Supp. 321 (E.D.Va.1979); Holiday v. Belle’s Restaurant, 409 F.Supp. 904 (W.D.Pa.1976). The underlying rationale in these cases is that the plaintiff was discriminated against on the basis of his race because his race was different from the race of the people he associated with. For example, in Whitney, the court held that a white plaintiff who alleged that he was discriminated against because of his association with his Negro friends stated a cause of action under Title VII. Other examples include cases where courts hold that discriminatory employment practices based on an individual’s interracial marriage are prohibited under Title VII. See Gresham, 586 F.Supp. 1442; Clark, 472 F.Supp. 321; Holiday, 409 F.Supp. 904.

In at least two decisions, the EEOC has found that reasonable cause existed to believe that an employer violated Title VII by discharging an employee because of his or her association with people of a different race. EEOC decision 71-1902, 3 Fair Empl. Prac.Cas. 1244 (1971); EEOC Decision 71-909, 3 Fair Empl.Prac.Cas. 269 (1970). These decisions indicate that the EEOC interprets Title VII as prohibiting discriminatory employment practices based on an individual’s association with people of a particular race or national origin. I am required to give great deference to the EEOC’s interpretations of Title VII. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415 (1972); Griggs v. Duke Power Co., 401 U.S. 424, 433, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). In light of these judicial and administrative decisions, I hold that discriminatory employment practices based on an individual’s association with people of a particular race or national origin are prohibited under Title VII.

II

Defendant contends that I lack subject matter jurisdiction over this claim because plaintiff did not allege national origin discrimination in her Charge of Discrimination filed with the EEOC and the EEOC did not investigate or conciliate plaintiff’s charge of national origin discrimination.

Title VII establishes a detailed procedure to be followed by a person who feels that he has been the victim of an unlawful employment practice. See 42 U.S.C. § 2000e-5. A charge of discrimination must first be filed with the Colorado Civil Rights Commission (CCRC). Id. § 2000e-5(c). After a certain period of time, a charge must then be filed with the Equal Employment Opportunity Commission (EEOC). Id. § 2000e-5(e). The EEOC must investigate the charge and determine whether reasonable cause exists to believe that the charge is true. Id. § 2000e-5(b). In determining whether reasonable cause exists, the EEOC must accord substantial weight to final findings and orders made by state or local authorities. Id. If the EEOC determines that reasonable cause exists to believe that the charge is true, the EEOC must try to eliminate the alleged unlawful employment practice by conference, conciliation, and persuasion. Id.

When determining the proper scope of a Title VII complaint, a court must balance two competing values. On the one hand, the purpose of the detailed procedure is “to provide an opportunity for nonjudicial and nonadversary resolution of claims”. Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 372-73, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979). On the other hand, the purpose of Title VII is to safeguard rights of persons “untutored in the technicalities of the law and who may not ... be able to fully articulate their grievances or be aware of the full panopoly of discriminatory practices against them....” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970).

In attempting to reach an accommodation between these two values, courts have offered various formulations to test the adequacy of the EEOC charge. Some courts have used a “like or related test,” others have looked to the scope of a reasonable EEOC investigation based on the charge, and some have suggested that the two tests are the same. See Hubbard v. Rubbermaid, Inc., 436 F.Supp. 1184, 1188 (D.Md.1977) and cases cited therein. Regardless of what formulation is employed, “the most important considerations are whether the defendant had sufficient notice from the administrative charge of the alleged kinds and areas of discrimination and whether the administrative agencies and employers involved had an opportunity to work on a conciliation agreement for voluntary compliance in the challenged areas.” Metcalf v. Omaha Steel Castings Co., 507 F.Supp. 679, 685 (D.Neb.1981) (citing Jiron v. Sperry Rand Corp. (Sperry-Univac), 423 F.Supp. 155, 159 (D.Utah 1975)); National Organization for Women v. Sperry Rand Corp., 457 F.Supp. 1338, 1343 (D.Conn.1978).

For example, in Latino v. Rainbo Bakers, Inc., 358 F.Supp. 870 (D.Colo.1973), the plaintiff did not allege sexual discrimination in her charge to the EEOC. Judge Arraj held that he had subject matter jurisdiction over the claim, because the EEOC had investigated sex discrimination, and had an opportunity to secure voluntary compliance. In addition, the defendant was notified of the alleged violation and could have voluntarily corrected it before the EEOC notified the plaintiff of her right to sue in court. On the other hand, in Fix v. Swinerton & Walberg Co., 320 F.Supp. 58 (D.Colo.1970), Judge Chilson declined to entertain a claim of religious discrimination because a charge of religious discrimination had never been presented to the EEOC, and the Commission had not considered or passed upon the issue.

In this case, the CCRC found that plaintiffs charge “should be amended to include the allegation that the refusal to rehire was based on her perceived association with the Hispanic community group, La Frontera, ...” Therefore, the CCRC’s finding notified the EEOC of possible discrimination based on plaintiff’s association with the Hispanic community. Consequently, the EEOC was permitted to seek voluntary compliance through conciliation. In addition, CCRC’s finding notified defendant of what it was allegedly doing wrong. Therefore, defendant could have voluntarily corrected the alleged wrong-doing before the EEOC notified plaintiff of her right to sue in court. Accordingly, I hold that I have subject matter jurisdiction under Title VII over plaintiff’s claim that she was discriminated against because of her association with the Hispanic community.

III

Defendant contends that plaintiffs § 1985 claim should be dismissed for failure to state a claim upon which relief can be granted because she has not alleged that two or more parties conspired against her. I need not address this issue, however, because plaintiff’s §§ 1983 and 1985 claims are dismissed sua sponte. These claims are dismissed because Title VII provides the exclusive remedy for defendant’s alleged discriminatory acts.

In Novotny, 442 U.S. 366, 99 S.Ct. 2345, the Supreme Court held that “deprivation of a right created by Title VII cannot be the basis for a cause of action under 42 U.S.C. § 1985(3).” Id. at 378, 99 S.Ct. at 2352. The Court reasoned that such a § 1985(3) action would avoid the comprehensive procedural and remedial purposes of Title VII. Id. at 375-76, 99 S.Ct. at 2350-51. Following a similar analysis, I held that a § 1983 claim cannot be based on deprivation of a right created by Title VII. Tafoya v. Adams, 612 F.Supp. 1097, 1102 (D.Colo.1985). I noted, however, that a plaintiff “may assert violations of other statutes, such as ... § 1983, along with a Title VII claim in the same judicial proceeding as long as the other claims are independent and not based on violations of rights set forth in Title VII.” Id. at 1102-03; see also Day v. Wayne County Board of Auditors, 749 F.2d 1199, 1204 (6th Cir.1984); Rivera v. City of Wichita Falls, 665 F.2d 531, 534 n. 4 (5th Cir.1982). Thus, I must determine whether plaintiff’s §§ 1983 and 1985 claims are independent and not based on violations of rights set forth in Title VII.

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to. be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

In Novotny, 442 U.S. 366, 99 S.Ct. 2345, the plaintiff alleged that he was terminated because of his support for female employees. The Supreme Court held that the allegation did not involve two independent rights. In Tafoya, 612 F.Supp. 1097, the plaintiff alleged that he was terminated in retaliation for filing a previous discrimination charge and for other discriminatory reasons. I held that the plaintiff’s § 1983 claim was not independent of his Title VII claim.

In this case, plaintiff alleges employment discrimination based on her gender, religion, participation in another Title VII complaint, and association with the Hispanic community. Such discriminatory practices are prohibited under Title VII. 42 U.S.C. §§ 2000e-2, 2000e-3; see part I supra. Plaintiff also alleges that she has been deprived of freedom of speech, academic freedom and freedom of association in violation of §§ 1983 and 1985. These claims, however, are based on defendant’s allegedly discriminatory acts which are prohibited under Title VII. Thus, plaintiff’s §§ 1983 and 1985 claims are not independent of her Title VII claim. Title VII, therefore, constitutes the exclusive remedy in this case. Accordingly, plaintiff’s §§ 1983 and 1985 claims are dismissed.

IT IS THEREFORE ORDERED THAT:

1. Defendant’s motion to dismiss plaintiff’s claim of discrimination based on her association with the Hispanic community for lack of subject matter jurisdiction under Title VII is DENIED.

2. Plaintiff’s §§ 1983 and 1985 claims are dismissed.

      . I note that in Ripp v. Dobbs Houses, Inc., 366 F.Supp. 205 (N.D.Ala.1973), the court held that a white plaintiff who alleged that he was discriminated against because of his social attitudes toward blacks and his association with them did not state a cause of action under Title VII. The court reasoned that the plaintiff did not explicitly allege that he was discriminated against because of his race. I disagree with this decision. A person who believes he has been the victim of discriminatory employment practices should not have to plead a charge of discrimination with such particularity. See Fed.R.Civ.Pro. 8(a); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Sanchez, 431 F.2d 455 (5th Cir.1970). Since the Act involves “a lay-initiated proceeding,” Jenkins v. United Gas Corp., 400 F.2d 28, 30 n. 3 (5th Cir.1968), "it would be out of keeping with the Act to import common-law pleading niceties to [the charge of discrimination] or in turn to hog-tie the subsequent lawsuit to any such concepts." Id.

        . Defendant argues that the EEOC did not conciliate this claim, and, therefore, it should be, dismissed. An actual attempt at conciliation, however, is not a jurisdictional prerequisite to a private suit. Johnson v. Seaboard Air Line Railroad Co., 405 F.2d 645, 652 (4th Cir.1968); Hubbard, 436 F.Supp. at 1189; Belcher v. Bassett Furniture Industries, Inc., 376 F.Supp. 593, 597 (W.D.Va.1974).

      . 42 U.S.C. § 1983 provides^
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . 42 U.S.C. § 1985(3) provides in relevant part:

      . A distinguishable case is Owens v. Rush, 654 F.2d 1370, (10th Cir.1981). There, the plaintiff claimed that the defendants unlawfully conspired against him and discharged him from his position in retaliation for helping his wife file an EEOC complaint. The Tenth Circuit held that the case was different from Novotny, because the plaintiff alleged deprivation of rights secured to him by the Constitution, in addition to deprivation of rights created by Title VII, whereas the plaintiff in Novotny attempted to assert only a Title VII claim through § 1985(3). Id. at 1380. Another factor that may have influenced the Tenth Circuit’s decision is that the plaintiff had no substantive right conferred on him by Title VII because of a statutory exception. See id. at 1370.


author: LOVELL, District Judge.

text:
    Thomas J. HARD, Plaintiff, v. BURLINGTON NORTHERN RAILROAD, Defendant.
    No. CV 84-26-BU-CCL.
    United States District Court, D. Montana, Butte Division.
    Oct. 11, 1985.

      W.M. Hennessey, Hennessey Law Office, Butte, Mont., for plaintiff.
    Charles C. Dearden, Burlington Northern Ry. Co., Law Dept., Billings, Mont., for defendant.
   OPINION AND ORDER

LOVELL, District Judge.

Plaintiff instituted this action under the Federal Employer’s Liability Act, 45 U.S.C. § 51, et seq., seeking damages for injuries allegedly resulting from a work-related accident. Trial was held and a special verdict returned by the jury, finding the negligence of both parties to be 50% and plaintiff’s damages to be $10,000.00. Accordingly, the damages were reduced by 50% and judgment was entered on August 14, 1985, in favor of plaintiff in the amount of $5,000.00 plus interest and costs of suit.

Pursuant to Rule 59, Fed.R.Civ.P., plaintiff filed a timely motion for new trial on the issue of damages, or in the alternative on all issues, alleging three grounds in support thereof.

1. INADEQUATE DAMAGES

Plaintiff’s first ground for a new trial is that the jury’s award of $10,000.00 is grossly inadequate to compensate plaintiff for his injuries; he estimates the minimum amount of actual damages to be upwards of $190,000.

The source and extent of plaintiff’s injuries were vigorously contested at trial. The theory of plaintiff’s case was that he sustained injury to his arm, shoulder, neck and back when he slipped and fell on a ramp where the non-skid surface was worn and deficient. Defendant alleged as affirmative defenses that plaintiffs injuries were the result of his own negligence, and that any injuries he sustained were caused by an unrelated accident. Evidence was introduced purporting to show that plaintiff fell from a swing and his back injury resulted from this separate incident.

A motion for new trial is directed to the sound discretion of the trial court and will not be granted “merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 186 (8th Cir.1972), cert. den. 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973); 6A Moore’s Fed.Prac. ¶ 59.05[5] at 59-47.

Before a court will set aside an award of damages as inadequate, the inadequacy must be patent and severe, such that leaving the verdict undisturbed would result in a miscarriage of justice. Lang v. Birch Shipping Co., 523 F.Supp. 1112 (S.D.N.Y.1981); Estes v. Southern Pac. Transp. Co., 598 F.2d 1195, 1200 (10th Cir.1979). There was substantial credible evidence from which the jury could conclude that plaintiff’s injuries were not as disabling as he claimed, and that some of his injuries were the result of the unrelated accident. Assuming that defendant’s version of the nature and extent of plaintiff’s injuries was substantially accepted by the jury, the verdict comes well within the rule that the award be full and fair compensation for the damages suffered from the accident.

Merely because the verdict may have been less than anticipated or hoped for by plaintiff is no more reason to set aside the verdict and grant a new trial than a verdict that may be substantially higher than expected by a defendant. Under our system of jury trials, litigants inevitably run the risk that the jury’s determination of the amount of damages may vary substantially from [their] reasonable expectations.

Hamm v. Consolidated Rail Corp., 582 F.Supp. 906, 910 (E.D.Pa.1983).

2. VERDICT AGAINST WEIGHT OF EVIDENCE

As his second ground for a new trial, plaintiff claims that the jury’s verdict is clearly against the overwhelming medical evidence presented.

Even if there is evidence sufficient to support the verdict, the trial court should set it aside if it is contrary to the clear weight of the evidence. Peacock v. Board of Regents, 597 F.2d 163 (9th Cir.1979), app. after remand, 694 F.2d 644; Traver v. Meshriy, 627 F.2d 934 (9th Cir.1980). However, where the record reasonably supports the jury’s verdict, and where it does not appear that the jury has reached a seriously erroneous result, a new trial is not warranted. Handgards, Inc., v. Ethicon, Inc., 552 F.Supp. 820 (N.D.Cal.1982); Frank v. Bloom, 634 F.2d 1245 (10th Cir.1980).

I find the evidence sufficient to support the verdict and reject plaintiff’s contention that it is against the weight of the evidence. It is within the province of the jury to weigh conflicting evidence and to evaluate witness credibility. Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225 (D.C.Cir.1984). Short of taking over the function of the jury, I cannot find in this case that the evidence weighs so clearly in plaintiff’s favor as to mandate a new trial. There was conflicting evidence presented to the jury, and the court will not second-guess its determination in the absence of clear error.

3. JURY MISCONDUCT

The third and final ground upon which plaintiff bases his motion is that the jury’s decision was prejudiced by the improper disclosure of information by one of the jurors. In support of this contention, plaintiff has submitted affidavits from three jurors which purport to establish that one of their members had been an employee of the defendant and disclosed to the jury his knowledge of the manner in which defendant handles employees’ accident claims. Plaintiff contends that the juror “improperly influenced” the jury with representations of fact which were not in evidence. Plaintiff further contends that the juror’s failure to disclose his former employment relationship with defendant during voir dire examination constitutes misconduct for which a new trial must be granted.

The first question raised is whether the juror failed to give truthful answers to the Court’s voir dire questions and, if so, what is the effect of such failure.

I have reviewed the voir dire questions and answers. It cannot be said that the juror willfully failed to disclose he had been employed by Defendant. Having heard the answers of the other jurors to the Court’s questions, the juror probably surmised that he could provide an impartial judgment in the case and thus there was no need for him to answer differently. In any event, any shortcoming in the voir dire process was the result of the Court’s failure to clarify the questions, rather than the juror’s failure to provide an answer. There was no error.

Regardless of the juror’s answers, his silence does not mandate the granting of a new trial. The Supreme Court of the United States has set forth a two-part test before a new trial may be granted: “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, -, 104 S.Ct. 845, 850, 78 L.Ed.2d 663, 671 (1984). The Supreme Court has held the McDonough test to be an exception to the rule that “once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury’s collective judgment.” United States v. Powell, 469 U.S. —, —, 105 S.Ct. 471, 478, 83 L.Ed.2d 461, 470 (1984). I find this case to be within the rule rather than the exception. Plaintiff has not made a sufficient showing by proper means of proof that the juror failed to honestly answer a material question on voir dire. Thus, the second element of the McDonough test need not be considered.

There are two remaining questions. First, do the affidavits contain facts about which a juror may properly testify regarding the deliberation process? Second, are the affidavits properly before the Court? At the outset, I find that the subject matter of the affidavits is within the scope of the rule prohibiting inquiry into matters “inhering” in the jury process. Such matters include statements by a juror as to facts within his private knowledge, influence of a juror upon another juror, and consideration of improper or immaterial matter. See, 6A Moore’s Fed.Prac. 59.08[4] at 59-138; Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892); United States v. Blackston, 547 F.Supp. 1200 (S.D.Ga.1982); Rule 606(b), Fed.R.Evid. This testimony is inadmissible.

Plaintiff’s claim of juror misconduct may be disposed of entirely on the final question; the juror’s affidavits are not properly before the Court and may not be considered in determination of the motion. Post-verdict interrogation of jurors is allowed by federal courts in only the most limited circumstances, and is never favored. A principal purpose of this rule is “[t]he prevention of fishing expeditions in search of information with which to impeach jury verdicts.” United States v. Davila, 704 F.2d 749, 754 (5th Cir.1983).

The Court of Appeals for the Ninth Circuit strongly disfavors post-verdict juror interviews. In Smith v. Cupp, 457 F.2d 1098 (9th Cir.1972), the petitioner claimed constitutional prejudice by the trial court’s refusal to allow interrogation of jurors for the purpose of discovering possible, but unspecified, jury misconduct. The court held:

The contention lacks merit. In the federal court system, it has recently been stated that neither a trial court nor an appellate court has the authority to inquire into the jury’s decisional processes, even when information pertaining to the deliberations is volunteered by one of the jurors. [Citation omitted]. Moreover, this court has held, in a federal case, that it is improper and unethical for lawyers to interview jurors to discover what was the course of deliberation of a trial jury. Northern Pacific Railway Co. v. Mely, 219 F.2d 199, 202 (9th Cir.1954).

Smith v. Cupp, supra, at 1100. Other circuits follow the same rule. For example, in United States v. Gutman, 725 F.2d 417 (7th Cir.1984), the defendant submitted post-trial affidavits from jurors who said they had heard media reports regarding the trial, including a report that the defendant’s co-defendant had pleaded guilty. Rejecting defendant’s motion for mistrial, the court cautioned that the practice of obtaining affidavits from jurors to impeach their verdict “is inherently intimidating,... and if it ever becomes widespread will make it even more difficult than it already is to get competent people to serve on juries.” Id., at 422. The court held that the district judge was not required to consider the affidavits in determination of the defendant’s motion.

The Court of Appeals for the First Circuit chastised a United States Attorney who contacted a juror from the. first trial (which ended in a mistrial) prior to commencement of the second trial.

Permitting the unbridled interviewing of jurors could easily lead to their harassment, to the exploitation of their thought processes, and to diminished confidence in jury verdicts, as well as to unbalanced trial results depending unduly on the relative resources of the parties. [Citations omitted.] Such outcomes, or even the appearance of the same, we are not willing to tolerate. Thus, future incidents like the one described above will not be countenanced.

United States v. Kepreos, 759 F.2d 961, 967 (1st Cir.1985). See also, United States v. Davila, supra, 704 F.2d at 754; United States v. Armstrong, 654 F.2d 1328, 1333, n. 2 (9th Cir.1981).

In short, the conduct of Plaintiff’s counsel in taking it upon himself to interrogate the jurors in the hope of uncovering some unknown impropriety in their deliberations was inappropriate. Plaintiff did not seek leave to engage in this activity, and has made no showing that it was anything other than a fishing expedition. Accordingly, the affidavits of members of the jury are not properly before the Court, are inadmissible, and will receive no consideration.

As a final matter, Defendant has submitted objections to Plaintiffs proposed Bill of Costs. The Clerk has determined the costs to which Plaintiff is entitled and the amount taxed has been entered. This question is moot.

In light of the foregoing, I find no error for which a new trial should be granted.

THEREFORE Plaintiffs motion for new trial is DENIED.

       THE COURT: Has anybody ever been employed by Burlington Northern Railroad?
      A JUROR: I have just briefly. My grandfather was employed by them, and I worked for them for about three days.
      THE COURT: You worked for three days.
      A JUROR: Yeah.
      THE COURT: How long was your grandfather employed by the railroad?
      A JUROR: Twenty-three or four years. I don’t know. He's on a pension from Burlington Northern.
      THE COURT: What was his position with the railroad?
      A JUROR: He was a switchman.
      THE COURT: Is there anything at all in your background or your relationship with Burlington Northern that would prevent you from being a fair and impartial juror?
      A JUROR: No, not that I can think of, no.
      THE COURT: You think you could give both parties a fair trial.
      A JUROR: Yeah, I think so.
      THE COURT: When you left Burlington Northern, was it under a situation where there was any animosity on your part or did you leave voluntarily?
      A JUROR: No, sir. I just worked on the cleanup crew cleaning up after a wreck.
      THE COURT: Temporarily.
      A JUROR: Right.
      THE COURT: And so in your employment with the railroad, there was nothing that would cause any hard feelings between you and the railroad.
      A JUROR: No, sir.
      THE COURT: You feel that you could provide the same kind of impartial judgment of the facts in this case that you would like to have somebody provide in trying your case if you had one.
      A JUROR: I think so.
      THE COURT: Is there anyone else who has had any kind of a relationship át all with the parties, the railroad, any of the attorneys or do any of you know any of the witnesses, prospective witnesses who have been named?
      ******
      (At this point the juror against whom the allegations are directed was called and addressed by the Court)
      THE COURT: Sir, let me ask you kind of a general question to begin with and that is you’ve been present here in the courtroom. You’ve heard the questions that have been asked. You’ve noted the responses or lack of responses from the other jurors. I’m going to ask, would your answers or non-answers to those questions have been the same as the other members here who did not respond?
      JUROR: They would, sir.
      THE COURT: Thank you.


author: NANGLE, Chief Judge.

text:
    ST. LOUIS NEWSPAPER GUILD, LOCAL 47, the Newspaper Guild, AFL-CIO, CLC; Janet K. Amann, et al., Plaintiffs, v. PULITZER PUBLISHING COMPANY, d/b/a St. Louis Post-Dispatch, Defendant.
    No. 85-711C(1).
    United States District Court, E.D. Missouri, E.D.
    Oct. 11, 1985.
    Winn I. Newman, John Silard, Christine L. Owens, James A. Hendriksen, Washington, D.C., and Morris J. Levin, St. Louis, Mo., for plaintiffs.
    Michael P. Casey and Curtis C. Calloway, St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on defendant’s cumulative and alternative motions to dismiss, for summary judgment, and to require plaintiffs to plead in separate counts. Under Rule 12(b) of the Federal Rules of Civil Procedure, when matters outside the pleadings are considered, the motion to dismiss must be treated as a motion for summary judgment under Rule 56. Court v. Hall County, Nebraska, 725 F.2d 1170 (8th Cir.1984). In the case at bar, defendant has submitted affidavits in support of its cumulative and alternative motion. The affidavits relate to the duties of certain employees and were filed for the purpose of demonstrating that the jobs at issue in this action are not substantially similar. For the reasons discussed infra, this Court will exclude these affidavits in consideration of defendant’s motion. Accordingly, the defendant’s cumulative and alternative motion will be treated solely as a motioii to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b).

In passing on a motion to dismiss, a court is required to view the facts alleged in the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss will not be granted merely because the complaint does not state every element necessary for recovery with precision. 5 Wright & Miller, Federal Practice and Procedure: Civil § 1216 at 120 (1969). A complaint is sufficient if it “eontain[s] allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Id. at 122-23. A complaint should not be dismissed unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-102.

In the case at bar, defendant employs an advertising sales force, divided into four classifications, whose primary function is to sell advertising space in defendant’s newspaper, the St. Louis Post Dispatch. Plaintiffs are female members of the St. Louis Newspaper Guild, employed by defendant as Classified Telephone Sales Representatives, Advertising Telephone Sales Representatives and Voluntary Classified Advisors. These three classifications are commonly referred to as the inside sales force. The fourth classification, the Outside Advertising Sales Representatives, comprises the outside sales force. In their complaint, plaintiffs allege a violation of Title VII, inter alia, that defendant intentionally established and maintained the inside sales force as primarily female positions through the practice of assigning, and subsequently confining, females to those classifications. In addition, plaintiffs allege that the outside sales force has been intentionally established and maintained as a predominantly male classification. Finally, plaintiffs allege that each inside classification is substantially equal in skill, effort and responsibility to the work of the outside sales force and that defendant discriminates against the female classifications on the basis of wages, job opportunities and other terms and conditions of employment. Members of the Classified Telephone Sale Representatives filed a complaint with the Equal Employment Opportunity Commission on December 11, 1981. A right to sue letter was issued on December 21,1984. A second complaint was filed by the Executive Secretary of the St. Louis Newspaper Guild on behalf of the inside advertising sales department. A right to sue letter was issued on May 10, 1985.

Title VII of the Civil Rights Act of 1964, 42 U.S.C.- § 2000e et seq. makes it an unlawful employment practice “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals ... sex....”42 U.S.C. § 2000e-2(a). Congress, in enacting Title VII, sought to eliminate “artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). In County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), the Supreme Court held that a Title VII cause of action exists where female plaintiffs can demonstrate intentional sex based wage discrimination dispite the fact that plaintiffs do not perform tasks similar to that of male employees. In viewing the complaint in a light most favorable to the plaintiff, it is clear to this Court that a motion to dismiss is not proper. The complaint states that females are restricted to the inside sales positions and are not permitted to be advanced to, or considered for, the outside sales positions. The complaint also states that defendants assign personnel to the inside sales positions solely on the basis of their sex. Finally, the complaint states that defendant has intentionally discriminated against the plaintiffs on the basis of sex, with respect to wages and other terms and conditions of employment. The federal policy underlying Title VII is that individuals are entitled to equal opportunities in employment without discrimination because of race, color, religion, sex, or national origin. Christenson v. State of Iowa, 563 F.2d 353 (8th Cir.1977). Plaintiffs, in their complaint, allege that they have been denied equal opportunities in employment. In passing on a motion to dismiss, this Court must view the facts in the light most favorable to the plaintiff. Based on the allegations in plaintiffs’ complaint, this Court cannot say beyond doubt that there is no set of facts under which plaintiffs can demonstrate intentional discrimination under Title VII. Accordingly, dismissal of plaintiffs’ complaint would be improper.

The Ninth Circuit’s recent opinion in State of Washington v. AFSCME, 770 F.2d 1401 (9th Cir.1985), is consistent with this Court’s analysis. In that case, plaintiffs alleged sex-based wage discrimination under Title VII because employees in job classifications occupied primarily by women were paid less than employees in job classifications primarily occupied by men. The plaintiffs stated that the jobs were of equal value to the employer but were admittedly dissimilar in other respects. The Court recognized that Title VII’s prohibition against sex discrimination extends to situations beyond those contemplated by the Equal Pay Act. The Ninth Circuit reversed the District Court’s finding of a Title VII violation however, on the basis that the plaintiffs’ evidence of intentional discrimination failed to demonstrate the necessary discriminatory intent.

Defendant in this action asserts that plaintiffs’ complaint is solely one alleging a theory of comparable worth. Defendant, in support of its motion to dismiss, or for summary judgment submitted several affidavits which state that the inside and outside sales positions are dissimilar. These affidavits go to the comparable worth issue and not to the issue of intentional discrimination. Therefore, they were not considered by this Court in passing on defendant’s motion. While this Court agrees with defendant that it is possible to read portions of plaintiffs’ complaint as a comparable worth claim, for the reasons stated supra, this Court finds that plaintiffs have sufficiently alleged a violation of Title VII for intentional sex based wage discrimination to survive a motion to dismiss. Moreover, plaintiffs, in their memorandum in opposition to defendant’s motion, state that their claim is not based on a comparable worth theory. Accordingly, while the issue of the validity of a comparable worth claim under Title VII has not yet been decided in this Circuit, the present posture of this case does not require this Court to do so.


author: BUA, District Judge.

text:
    UARCO INCORPORATED, a Delaware corporation, Plaintiff, v. The VIGUERIE COMPANY, a Virginia corporation, Defendant.
    No. 85 C 6540.
    United States District Court, N.D. Illinois, E.D.
    Oct. 11, 1985.

      William A. Montgomery, Marci A. Eisenstein and Andrew A. Kling, Schiff, Hardin & Waite, Chicago, 111., for plaintiff.
    Burton A. Schwalb, Charles B. Wayne, Schwalb, Donnenfeld, Bray & Silbert, Washington, D.C., and Bruce H. Schoumacher, McDermott, Will & Emery, Chicago, 111., for defendant.
   MEMORANDUM ORDER

BUA, District Judge.

Before the Court is defendant’s motion to dismiss plaintiff’s complaint for compensatory damages. Plaintiff’s cause of action arises out of a breach of contract. Jurisdiction is based on 28 U.S.C. § 1332. For the reasons stated herein, the Court denies defendant’s motion to dismiss.

FACTS

The following facts are alleged in plaintiff’s complaint for breach of contract and supporting affidavits. For purposes of this order they are considered to be true.

Plaintiff Uarco, an Illinois resident, manufactures and mails printed paper. Defendant Viguerie, a non-Illinois resident, contracted with Uarco to print and mail solicitation letters seeking political contributions. During the course of the contract’s performance, Viguerie made at least four trips to Illinois to review the performance of Uarco’s work. Moreover, Viguerie toured Uarco’s Illinois plant and attended an Uarco sales presentation. In addition, Viguerie met with Uarco in Illinois to negotiate extending Viguerie’s line of credit.

DISCUSSION

Viguerie moves to dismiss Uarco’s claim for lack of personal jurisdiction. Viguerie argues that Uarco’s breach of contract action fails to satisfy Illinois’ long-arm statutory requirements. Three reasons are provided. First, Viguerie asserts that its actions in Illinois were insufficient to confer personal jurisdiction on this Court because its acts were conducted solely as an agent for a nonparty corporation. Second, Viguerie maintains that this Court does not have jurisdiction over a nonresident purchaser who buys from a resident seller. Finally, Viguerie suggests that the Court lacks jurisdiction because a more convenient state court could also exercise jurisdiction.

It is established in this circuit that federal district courts in Illinois have personal jurisdiction over defendants in diversity cases only when Illinois courts could also properly exercise jurisdiction. Deluxe Ice Cream Company v. R.C.H. Tool Corp., 726 F.2d 1209 (7th Cir.1984). In Illinois, a nonresident corporation is amenable to suit if it performs one of the acts enumerated in Illinois’ long-arm statute, including the “transaction of any business” within Illinois. Ill.Ann.Stat. ch. 110, § 2-209 (Smith-Hurd 1985). Although transacting business in Illinois establishes jurisdiction pursuant to the Illinois statute, due process requirements must also be satisfied. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Viguerie first contends that this Court lacks personal jurisdiction over a nonresident agent who conducted business in Illinois for the sole benefit of its principal. Viguerie bases his argument on the premise that it was acting exclusively as an agent for a nonparty corporation. Uarco’s complaint and supporting affidavits prove this premise is false. Since any factual conflicts must be resolved in favor of the nonmoving party, the Court believes Viguerie was not an agent but rather a distinct buyer acting on its own behalf. Neiman v. Rudolf Wolff & Co., 619 F.2d 1189, 1190 (7th Cir.1980). Consequently, Viguerie’s discussion concerning the lack of jurisdiction over an agent is irrelevant and therefore meritless.

Viguerie’s second contention is that Illinois’ long-arm statute is inapplicable because Viguerie did not transact business within Illinois. Viguerie maintains that its acts as a nonresident purchaser buying from a resident seller does not confer personal jurisdiction on this Court. This distinction between a defendant who sells to Illinois residents and who buys from Illinois residents is important, but not determinative as Viguerie suggests. The Court’s finding of personal jurisdiction does not rest exclusively on the defendant’s contractual status as seller. Whether a defendant is a seller or buyer is only one of several factors to analyze when determining whether a defendant had transacted business within Illinois.

This Court holds that Viguerie had transacted business within Illinois. Viguerie submitted purchase orders to Uarco. During the course of the contract’s performance, Viguerie made four trips to Illinois to review Uarco’s work. In addition, Viguerie toured Uarco’s Illinois plant. Finally, Viguerie met with Uarco in Illinois to negotiate extending Viguerie’s line of credit with Uarco. All of these factors establish a meaningful contact with Illinois.

This Court’s application of Illinois’ long-arm statute comports with due process requirements. Viguerie had certain minimum contacts with Illinois such that the maintenance of Uarco’s suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). In light of Viguerie’s actions within Illinois, it is fair and reasonable to subject Viguerie to suit in Illinois.

Viguerie’s third assertion suggests that this Court lacks personal jurisdiction because a more convenient state court could also exercise jurisdiction. This argument fails for two reasons. First, convenience is not a factor to consider in a motion to dismiss for lack of personal jurisdiction. Second, a finding of personal jurisdiction in federal court is not affected by the fact that a state court also has jurisdiction. In fact, the very nature of every federal diversity suit implies that both the state and federal courts could properly exercise personal jurisdiction.

CONCLUSION

Viguerie’s business transactions within Illinois conferred personal jurisdiction on this Court. Accordingly, defendant’s motion to dismiss is denied.

IT IS SO ORDERED.


author: LASKER, District Judge.

text:
    Randolph JENKINS, Plaintiff, v. Jacqueline McMICKENS, et al., Defendants.
    No. 80 Civ. 2994 (MEL).
    United States District Court, S.D. New York.
    Oct. 15, 1985.

      Alden T. Lewis, New York City, for plaintiff.
    Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, for defendants; Evelyn Jonas, Asst. Corp. Counsel, of counsel.
   LASKER, District Judge.

The defendants move to dismiss paragraph four of plaintiff’s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that it fails to state a claim upon which relief may be granted.

Paragraph four of Jenkins’ amended complaint alleges that on March 7, 1980, his cell was searched and certain documents pertaining to his then-pending trial were confiscated and not returned, and that he was deprived of his property without due process of law.

Relying on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), defendants contend that the paragraph fails to state a claim upon which relief may be granted because plaintiff does not allege the lack of a post-deprivation remedy. They further maintain that in this case, plaintiff cannot in good faith allege an inadequate state remedy since New York law provides a remedy that is sufficient to satisfy due process.

Plaintiff responds that the question of the adequacy of the post-deprivation hearing arises only if a pre-deprivation hearing is not required. He asserts that such a hearing was required in this case, but was not held, and that defendants offered no justification for the lack of pre-deprivation hearing. Jenkins further argues that the loss of his papers was more than a mere deprivation of property since it also violated his First Amendment right of access to the courts. Finally, Jenkins argues that even if he has failed to allege facts which are sufficient to state a federal due process claim, he has asserted a legally sufficient state tort claim over which the court has pendent jurisdiction.

Defendants reply that the court should not exercise pendent jurisdiction because the claim at issue is only superficially related to the remaining claims of alleged use of excessive force and of improper conditions of confinement. They contend that in any event the exercise of pendent jurisdiction would be futile because plaintiff’s failure to comply with the notice of claim requirement specified in Section 50-k of the General Municipal Law for bringing civil actions against employees of the City of New York precludes plaintiff from pursuing the state claim. N.Y.GEN.MUN.LAW § 50-k (McKinney 1979).

¡)s * sfc ¡}s # s}:

Under Parratt v. Taylor, supra, when state employees, through negligence or unauthorized failure to follow proper procedures, deprive a person of property, the fundamental requirement of due process is met if the state affords the opportunity to be heard in a meaningful manner and at a meaningful time. Moreover, a meaningful remedy need not occur prior to the deprivation to be sufficient.

In Parratt, a prisoner was deprived of his property through the unauthorized failure of prison employees to follow the procedure for the handling of receipt of mail packages. The Court found the allegation of property deprivation insufficient to establish a Fourteenth Amendment due process violation because the deprivation occurred not as the result of an established state procedure, but rather as the result of the unauthorized failure to follow the proper procedure. Of greater relevance to the instant case, Parratt also held that notwithstanding that the state tort claims procedure may not have provided all the relief possibly available under 42 U.S.C. § 1983, the state procedure, which provided a remedy to a person who suffered a tortious loss at the hands of the state and could fully compensate the prisoner for the property loss, was sufficient to satisfy due process. Moreover, the fact that the plaintiff did not avail himself of the procedure did not affect the adequacy of the state remedy. Accord Giglio v. Dunn, 732 F.2d 1133 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 328, 83 L.Ed.2d 265 (1984).

In this case, as in Parratt, the civil remedy of a tort action against the prison officials and the City of New York was available to compensate Jenkins for the alleged loss which resulted from the unauthorized failure of the prison officials to properly safeguard and transfer Jenkins’ property. Accordingly, under the case law, plaintiff has failed to state a due process violation for deprivation of property.

Jenkins argues that the loss of papers amounted to not merely a deprivation of property but a violation of his First Amendment right of access to the courts. In support of this contention, Jenkins simply cites Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), and Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), which address the First Amendment rights of prisoners, although in contexts dissimilar to the one at hand. Pell v. Procunier involved a constitutional challenge to the California Department of Correction regulation, § 414.071, which provided that “the press and other media interviews with specific individual inmates will not be permitted.” Pell acknowledged that a prison inmate retains those First Amendment rights that are not inconsistent with his status as prisoner or with the legitimate penological objectives of the corrections system, but held that, since the regulation restricted only the manner of communication between inmates and the public, and alternative channels remained, the regulation did not abridge the prisoner’s First Amendment rights. In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the affirmative obligation of the states to assure all prisoners meaningful access to the courts was at issue. Bounds held that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. Based upon the rationale of Pell and Bounds, the Court of Appeals for the Second Circuit has suggested that removing documents relating to pending litigation from a prisoner’s cell may form the basis of a claim of interference with access to the courts. Bayron v. Trudeau, 702 F.2d 43 (2d Cir.1983).

Here, Jenkins has specified for the first time in his memorandum submitted in opposition to defendant’s motion to dismiss that he is claiming a First Amendment violation. Paragraph four of the amended complaint states merely that “certain documents pertaining to plaintiff’s then-pending trial were confiscated and not returned.” Although the arguments contained in Jenkins’ brief suggest he is claiming a violation of his right to access to the courts, or to privacy in his legal papers, the sparse allegations in the amended complaint do not indicate the nature of plaintiff’s claim or provide an adequate factual basis to support it. Accordingly, plaintiff will be permitted to amend his pleading if he can, in good faith, allege facts sufficient to support a violation of his right to access to the courts.

Finally, that Jenkins could have brought an action against the City of New York and its employees does not suffice to invoke this court’s jurisdiction. General Municipal Law Sections 50-k(6) and 50-e(1)(a) provide that every action against the City or an employee requires a notice of claim to be made within ninety days after the claim arises. Arguably, the existence of the remaining constitutional claims under 42 U.S.C. § 1983 could provide this court with pendent jurisdiction over a valid state claim. However, plaintiff apparently concedes noncompliance with the notice requirement. Notice has not been filed with the Comptroller even though the alleged claim arose on March 7, 1980. Pendent jurisdiction is inapplicable in this situation since a notice of claim cannot comply with the General Municipal Law requirement due to the lapse of time.

Defendant’s motion to dismiss Jenkins’ claimed violation of a deprivation of property without due process is granted. Moreover, to the extent that plaintiff has attempted to claim a violation of his right of access to the courts the defendant’s motion to dismiss paragraph four will be granted unless within 30 days plaintiff amends his complaint in accordance with the ruling above. The defendants should submit an appropriate order of dismissal on November 15, 1985 if the plaintiff has not filed an amended complaint by that date.

It is so ordered.


text:
    John KUHNS, Plaintiff, v. CITY OF COMMERCE CITY, Commerce City, Colorado, a public body corporate; Chief Neal Wikstrom and City Manager John Bramble, as officials of the City of Commerce City, Colorado; and Neal Wikstrom and John Bramble, individually, Defendants.
    Civ. A. No. 84-K-1317.
    United States District Court, D. Colorado.
    Oct. 15, 1985.

      Gary L. Polidori, Polidori, Rasmussen, Gerome & Jacobson, Lakewood, Colo., Joseph E. Scuro, Jr., Nicholas and Barrera, Inc., San Antonio, Tex., for plaintiff.
    Richard D. Greengard, Robert D. Simon, Greengard and Senter, Denver, Colo., for defendants.
   ORDER AWARDING ATTORNEY FEES

KANE, District Judge.

Plaintiff Kuhns was terminated from his employment as a Commerce City police officer and brought suit alleging that the procedures followed in that termination violated the Due Process clause of the Fourteenth Amendment. On April 22, 1985, I granted partial summary judgment for plaintiff Kuhns.

I refer the reader to my April 22, 1985 order for a discussion of the case. See Kuhns v. City of Commerce City, Colorado, No. 84-K-1317, — F.Supp. - (D.Colo. April 22, 1985). For purposes of this order, it is important to note that my finding in favor of plaintiff was very limited. I found that “with the exception of plaintiffs claim that his discharge hearing was untimely, he was afforded the full panoply of rights assured by the Fourteenth Amendment.” Id., at -. The majority of plaintiff’s contentions regarding lack of due process were soundly rejected.

Plaintiff now requests, pursuant to 42 U.S.C. § 1988, an award of $33,300.00 in attorney fees for approximately 222 hours of attorneys’ time. Defendants oppose that award on several grounds, and request an award of $14,696.27, or, in the alternative, an award of $3,663.43. Each side maintains that it was the prevailing party in this lawsuit.

I.

The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, allows this court to award reasonable attorney fees to a prevailing party, other than the United States, in civil rights litigation. Plaintiffs “may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). Fees can be awarded to a plaintiff who is only partially successful, especially “where a party has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all issues.” S.Rep. No. 94-1011, 94th Cong., 2nd Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912. See also Supre v. Ricketts, 596 F.Supp. 1532 (D.Colo.1984). Once the plaintiff has been determined to have obtained some of the benefits sought in bringing the litigation, the plaintiff should be construed to be the prevailing party as long as the underlying constitutional claim is substantial. Battle v. Anderson, 614 F.2d 251, 258 (10th Cir.1980).

Prevailing defendants may also be awarded attorney fees upon a showing that plaintiff’s claim was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978); Anderson v. Glismann, 577 F.Supp. 1506 (D.Colo.1984). In Prochaska v. Marcoux, 632 F.2d 848 (10th Cir.1980), cert. denied 451 U.S. 984, 101 S.Ct. 2316, 68 L.Ed.2d 841 (1981), Judge Barrett awarded attorney fees to a defendant who was sued by a boat owner for alleged violation of the owner’s civil rights, finding that plaintiff’s claim was clearly frivolous in view of the evidence.

The Supreme Court has cautioned, however, against imposing attorney fees on plaintiffs without strong reasons:

To take the further step of assessing attorney’s fees against plaintiffs simply because they do not finally 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. Hence, a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney’s fees incurred by the defense.

Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978). In general, a judge must think twice before awarding fees to a prevailing defendant. As the Supreme Court summarized in Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980):

Prevailing plaintiffs in civil rights cases win fee awards unless “special circumstances would render such an award unjust,” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 [, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263] (1968) (per curiam), but a prevailing defendant may be awarded counsel fees only' when the plaintiff’s underlying claim is “frivolous unreasonable, or groundless.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 [, 98 S.Ct. 694, 700, 54 L.Ed.2d 648] (1978).

100 S.Ct. at 2462.

II.

I must bear in mind that a plaintiff need only succeed on one significant issue which achieves some of the benefit sought in order to be considered a prevailing party. Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939. “This is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is ‘reasonable.’ ” Id.

After examining all of plaintiff’s contentions, I found only one minute procedural due process violation, and no substantive due process violations. Most of plaintiff’s claims were thoughtless and unsupported by any evidence in the record. Plaintiff has not succeeded on any significant issue which compels me to find that plaintiff is a prevailing party in the sense intended by Congress and the Supreme Court in Hensley v. Eckerhart. He has not crossed the threshold and, therefore, his request for attorney fees is denied.

Hensley v. Eckerhart does not compel a judge, upon finding that plaintiff’s civil rights were violated, to award attorney fees. The Eighth Circuit, relying on Hensley, has denied fees in exactly the same manner as I do today in Fast v. School District of City of Ladue, 712 F.2d 379 (8th Cir.1983). In that case, the plaintiff, a tenured schoolteacher, was terminated and brought suit alleging that her civil rights had been violated. The court ordered the defendants to give her a hearing and a description of the way the district’s decision to terminate her was reached, but denied attorney fees because she had not succeeded on any significant issue.

III.

Because the vast majority of plaintiff’s claims alleging violation of due process are without any merit, my decision that plaintiff has not achieved success on any significant issue should dispose of the analysis of the reasonableness of fees. I feel compelled, however, to explain that even if plaintiff had reached the threshold, he would not receive an award of attorney fees in this case.

The Supreme Court has emphasized that the district court has discretion in determining the amount of the fee award, Hensley v. Eckerhart, 461 U.S. at 437, 103 S.Ct. at 1941, but has cautioned that “the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee.” Id. at 435, 103 S.Ct. at 1940. “The result is what matters.” Id. As the Supreme Court explained in Hensley v. Eckerhart, even where a plaintiff’s claims were “interrelated, nonfrivolous, and raised in good faith,” the fees requested may be excessive. 461 U.S. at 436, 103 S.Ct. at 1941. “[T]he most critical factor is the degree of success obtained.” Id.

There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the “results obtained.” This factor is particularly crucial where a plaintiff is deemed prevailing on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?

Id. at 434, 103 S.Ct. at 1940.

In this case, the level of success is so minimal, and the hours expended so excessive, that there is no basis for any fee award. Even if I were to calculate the amount of hours I think would have been necessary to prosecute successfully plaintiff’s one meritorious contention, any fee award which I would make would be negated by defendants fee award for their needless work after the settlement offer of April, 1984. I do not believe it is either necessary or appropriate to compound the absurd investment of time and energy already expended in this case.

If I were to award attorney fees without significantly reducing them, I should be reversed by the Tenth Circuit. In Nephew v. City of Aurora, 766 F.2d 1464 (10th Cir.1985), the district court found that plaintiffs were the prevailing party in a case in which they won only nominal damages. The district court then awarded fees. The Tenth Circuit held that the district court had abused its discretion by not discounting the fee award in light of that fact that the damages awarded to prevailing plaintiffs were minimal. It ordered that the attorney fee award be reduced to take into account the degree of success achieved by the plaintiffs. The Tenth Circuit expounded at length on the policy reasons for its decision:

We believe that this approach furthers the twin purposes of § 1988 of providing meaningful access to the judicial process to private individuals with civil rights grievances and of forcing attorneys to critically evaluate the prospects of success of their claim. We recognize that this holding will likely compel attorneys to prognosticate with some degree of accuracy their prospects of success in terms of dollars and cents. Even so, we believe it to be a necessary burden in an attempt to ensure that attorneys pursue only meritorious civil rights claims.
By this holding we do not imply that an award of nominal damages necessarily means that a corresponding fee award must also be nominal. However, where, as here, a plaintiff seeks substantial damages but wins only nominal damages, the award must be reduced to account for the plaintiffs’ very limited success.

Id. at 1466-67.

I would clearly be remiss if I were not to reduce drastically plaintiff’s request for attorney fees to an amount which I consider appropriate in light of the very limited success in this case. Under Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983), I must determine the number of hours reasonably spent by counsel for the party seeking the fees, and set a rate of compensation for the hours reasonably expended, using a rate which lawyers of comparable skill and experience practicing in this area would charge for their time. Plaintiffs extravagent request for fees would have to be reduced for myriad reasons.

First, borrowing from the law regarding attorney fees in administrative proceedings, plaintiff cannot recover for work performed by local counsel in giving advice and helping plaintiff obtain a post-termination hearing. As the Supreme Court explained in Webb v. Board of Education of Dyer County, Tennessee, — U.S. -, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985), 42 U.S.C. § 1983 does not require resort to state administrative remedies before commencing a civil suit, and 42 U.S.C. § 1988 does not authorize fees for the state administrative process because that was not part of the proceedings to enforce § 1983. The attorney’s assistance at this stage of the proceedings was not part of plaintiff’s § 1983 lawsuit. I would immediately cut out the 48 hours of work performed by plaintiff’s attorney before November, 1983, thus reducing plaintiff’s request from 222 hours to 174 hours.

Second, I would cut out the 27 hours spent after April 30, 1985, the date on which defendants made a $2,000 settlement offer to plaintiff. That figure was not only the amount finally stipulated to on the day of trial, but was also the highest possible award plaintiff could have received had he prevailed in trial. Pursuing his claims after that point was clearly frivolous, and I would reduce plaintiff’s request to 147 hours.

Third, although I decline to examine each entry, plaintiff’s attorney’s time appears to be excessive even if all the claims being pursued were valid, and many entries were not specific enough. The Tenth Circuit has made it clear that “records must reveal ... all hours for which compensation is requested and how those hours were allotted to specific tasks — for example, how many, hours were spent researching, how many interviewing the client, how many drafting the complaint, and so on.” Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir.1983). Mr. Scuro’s entry dated 6-25-84 reads “Travel to Denver/from Denver/meeting with client/local counsel — 19 hours.” The Tenth Circuit has held that “there is no need to employ counsel from outside the area in most cases,” and refused to reimburse travel expenses for such counsel. Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir.1983). I do not award travel expenses, and I will not award fees for hours spent travelling either. The entry makes it impossible for me to determine how many of those 19 hours were spent in travel. Fees would not be awarded for any of the 19 hours.

Fourth, the hourly rates to be assessed should be comparable to the rates charged by private sector lawyers possessing skill and experience similar to that of the attorneys in this case. I am convinced that there are several skilled lawyers in Denver who could have handled plaintiff’s case for significantly lower rates than Mr. Scuro’s hourly fee of $150.00.

Fifth, although a number of Mr. Scuro’s entries do indicate to which tasks hours were allocated, the records do not enable me to separate the work done on the one issue on which plaintiff prevailed from other work. Therefore, I would have to deter? mine the amount of work I would expect this case or a comparable case to involve. Plaintiff’s counsel would have been required to confer with the plaintiff and discuss the facts of the case with him. Counsel then would have advised him that his case was especially weak in light of the fact that he did receive a hearing, albeit after termination, and that he had little to support his charges of procedural or substantive violations of his civil rights. It would probably have taken a reasonably skilled lawyer approximately two hours to draft a complaint and arrange for its filing, another couple of hours to answer interrogatories, and possibly another five hours to prepare for and attend plaintiff’s deposition. After attending the deposition and reading the transcript, it should have been clear that plaintiff’s assertions were unfounded except with regard to his right to a pretermination hearing. Long before April, 1984, this case would have been resolved. Being generous, I would estimate 20 hours of work would have resolved the matter.

I am aware of the Tenth Circuit’s intent that “[p]arties acting as private attorneys general should be reasonably compensated for their vindication of the public policy even if they themselves do not receive a large financial benefit.” Ramos v. Lamm, 713 F.2d 546, 557 (10th Cir.1983). Here I fail to see the vindication of public policy at work.

Therefore, assuming that plaintiff had been a prevailing party, I find that an appropriate award would have been for about 20 hours of work at the rate of $80.00 per hour, amounting to an award of $1,600. Defendants spent at least that amount defending themselves after the $2,000 settlement offer was made and rejected. Thus, I decline to award even $1,600 to plaintiff.

It is therefore ORDERED that plaintiff’s and defendants’ requests for attorney fees are denied. Each party is to bear his/their own costs.