author: RICHARD L. WILLIAMS, District Judge.

text:
    John T. CORRIGAN, as legal guardian for daughter Maura L. Corrigan, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. A. No. 84-787-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    May 20, 1985.

      John L. McGann, Arlington, Va., for plaintiff.
    Paula M. Potoczak, Asst. U.S. Atty., Alexandria, Va., for defendant.
   MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

I. INTRODUCTION

This action is brought by the guardian of an individual who is physically and mentally incapacitated as a result of an alcohol related automobile crash in Fairfax County, Virginia. The accident was caused by the reckless driving of a highly intoxicated off-duty serviceman, Patrick M. Patterson, who subsequently pled guilty to a manslaughter charge and was sentenced to a year in prison.

Plaintiff filed the instant action under the Federal Tort Claims Act against the United States in federal district court in Ohio, alleging that the United States was negligent in serving Patterson alcoholic beverages at various military facilities on the eve of the accident when the government knew or should have known that Patterson was underage and intoxicated. The government’s actions, plaintiff claims, violated both Virginia law and applicable military regulations. The Corrigan action was transferred to this court for consolidation with 84-675-A, a wrongful death action brought against the United States arising out of the same automobile crash.

On October 18, 1984, this Court denied the government’s motion to dismiss plaintiff’s claim, holding that, under Virginia law, tavern owners have an obligation to refrain from selling alcohol to intoxicated or underage patrons. Corrigan v. United States, 595 F.Supp. 1047 (E.D.Va.1984). In the course of discovery, plaintiff was granted leave to amend the complaint to allege further negligence by the government in failing to identify and treat Patterson’s alcohol problem prior to the accident.

II. FINDINGS OF FACT: LIABILITY

This matter comes before the Court on a trial to the bench on March 18, 1985. Pursuant to Rule 52(a), the Court makes the following findings of fact.

1. Patrick M. Patterson enlisted in the Army on June 19, 1980. After completing basic training, Patterson was sent to the Defense Language Institute (DLI) in Monterey, California, for training in the Korean language. (Testimony of Patterson)

2. Patterson had his first experiences with alcohol while at the DLL At first, Patterson would consume alcohol only on weekends. However, Patterson gradually started spending more and more time at the nearby Army NCO Club, which was open until 10 p.m. on weeknights and until 2 a.m. on weekends. By the end of 1980, Patterson was a regular at the NCO Club, arriving in the late afternoon or early evening and consuming large quantities of alcohol until the Club closed. At first, Patterson would drink about one 60 ounce pitcher of beer a night. Later, though, his drinking increased to three or four pitchers a night. (Testimony of Patrick Patterson)

3. When he drank at the Club, Patterson would become more relaxed, less inhibited, and a little rowdy. On one occasion, Patterson got angry with another Club patron, left the Club, and had a fight with that patron outside; Patterson was banned from the Club for ten days for this incident. On another occasion, Patterson left the Club in an intoxicated state, climbed a tree, and subsequently fell to the ground and injured himself. (Testimony of Patrick Patterson).

4. While Patterson’s academic performance was satisfactory during his first few months at DLI, it began to decline in the spring of 1981. This decline was due in part to Patterson’s drinking and “personal problems,” and in part to his poor academic attitude and his waning interest in learning the Korean language. (Testimony of Patrick Patterson)

5. In March 1981, Patterson bought his first car, a 1973 Torino. On May 19, 1981, the military police observed Patterson driving his vehicle in a reckless manner. Although the officers chased Patterson, Patterson managed to evade them. Within minutes, however, Patterson drove off of the road, hit a tree, and was knocked unconscious; his ear was destroyed. Patterson was taken to the emergency room at the Fort Ord base hospital, where his blood alcohol level was measured at .24. (Testimony of Patrick Patterson, plaintiff’s exhibits 14 and 49)

6. On June 16, 1981, Patterson pled guilty to a reckless driving charge for the events of May 19, 1981. (Testimony of Patrick Patterson, plaintiff’s exhibit 49)

7. Concerned about the deleterious effect that alcohol and drug abuse has upon service members, especially younger service personnel who have little or no experience with alcohol, Congress directed the armed services to establish alcohol rehabilitation programs. Pursuant to directives from Congress, the Army has commendably designed and established, through regulation AR 600-85, an Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). These regulations were in effect throughout Patterson’s tenure at DLI, and at the time of the fatal accident in December 1981. (Plaintiff’s exhibit 2)

8. The stated objectives of the ADAPCP program, according to both the plaintiff’s and defendant’s evidence, were to prevent alcohol and drug abuse in the Army, identify abusers as early as possible, and to restore such abusers as effectively functioning members of the Army. In short, these regulations were developed only to benefit the individual service member and the Army, not the general public. (Plaintiff’s exhibit 2, testimony of Dr. Wise)

9. The Army claimed a 70-75% success rate for those service personnel who entered the ADAPCP program. However, the Army claimed that its treatment was “successful” if it returned the affected person to his or her normal duties, and that person performed satisfactory work for 90 days. The program was actually far less successful in achieving long-term abstinence among alcohol abusers; the long-term success rate was especially low among young, enlisted personnel such as Patterson. (Testimony of Lt. Col. Kruzcich)

10. Army regulations indicate that Patterson’s alcohol-related crash on May 19 should have been reported to Patterson’s commanding officer, and to the installation’s Drug and Alcohol Center. These reports would have assured Patterson’s referral to the ADAPCP for evaluation and education. (AR 190-5, AR 600-85, plaintiff’s exhibit 2)

11. However, due either to procedural flaws which existed in the reporting process or to clerical error, Army records indicate that Patterson’s crash was never reported to his commanding officer as required by Army regulations. Furthermore, Patterson was never referred to the ADAPCP program as required by Army regulations. (Plaintiff’s exhibits 12 and 24, testimony of Patrick Patterson and Lt. Col. Allen)

12. Despite his heavy drinking and his obvious problems associated with that drinking, Patterson refused to admit that he had a problem with alcohol. (Testimony of Patrick Patterson)

. 13. On May 21, 1981, DLI initiated proceedings to dismiss Patterson from the school for “inadequate efforts,” and Patterson was officially dismissed from DLI on June 2, 1981. On June 12, 1981, Patterson received orders reassigning him to Fort Jackson, South Carolina. (Plaintiff’s exhibits 33 and 56)

14. After serving approximately two months at Fort Jackson, Patterson was reassigned to Fort Myer, Virginia, where he reported on August 30, 1981. While at Fort Myer, Patterson worked from 9 a.m. to 5 p.m. at the Pentagon in the Ballistic Missile Defense Office, and he lived in the barracks at Fort Myer. (Plaintiff’s exhibit 51, testimony of Patrick Patterson)

15. While at Fort Myer, Patterson became a regular at an Army Snack Bar which was located next to his barracks. Patterson would routinely go to the Snack Bar five to seven nights a week and stay until it closed at 10 p.m., drinking an average of three to four 60 ounce pitchers of beer a night. Even though Patterson was clearly accustomed to drinking large quantities of beer, he had little or no experience with drinking hard liquor. (Testimony of Patrick Patterson and George Devaney)

16. On weekends, Patterson would frequently drink and socialize at the NCO Club at Arlington Hall, a base located two or three miles from Fort Myer. On these occasions, Patterson would usually get very drunk. (Testimony of Patrick Patterson)

17. While at Fort Myer, Patterson did all of his drinking on military establishments because drinks were significantly cheaper there, and because military clubs did not have a “cover charge.” (Testimony of Patrick Patterson)

18. In late October of 1981, Patterson purchased another car, a 1965 Ford Mustang. Patterson would occasionally use the car to drive to Arlington Hall on weekends; on other occasions Patterson would take a cab to Arlington Hall with other servicemen. (Testimony of Patrick Patterson)

19. On the afternoon of December 19, 1981, Patterson went to the Snack Bar at Fort Myer and drank several beers. After leaving the Snack Bar, Patterson ran into John Crouch, a fellow serviceman, and asked Crouch if he wanted to go to Arlington Hall and “get blitzed.” Crouch declined the invitation. (Testimony of John Crouch)

20. Late that afternoon, Patterson met Jeffrey Charles, a serviceman who had recently been assigned to Fort Myer. Patterson informed Charles that he was going to the Arlington Hall NCO Club that evening, and Charles persuaded Patterson to give him a ride there that evening. Patterson then left and went back to his room. (Testimony of Jeffrey Charles)

21. At around 8 p.m. on the evening of December 19, Patterson and Charles met and went together to the Snack Bar at Fort Myer. While at the Snack Bar, Patterson consumed about three beers. Patterson and Charles left the Snack Bar at 10 p.m., and the two left for Arlington Hall in Patterson’s car. (Testimony of Jeffrey Charles)

22. Service personnel from the entire Washington, D.C. area frequent the Arlington Hall NCO Club. While some service persons simple walk to the club from their barracks, many others drive to the club. The bartenders at the Arlington Hall NCO Club have no way of knowing whether a customer is from Arlington Hall or from another base. (Testimony of Dorothy Brown)

23. Patterson and Charles arrived at the Arlington Hall NCO Club around 10:15 p.m. They showed their military identification cards at the door and were admitted. It was the clear policy of the NCO Club to admit any person with military identification who was 18 years of age or older. The club did not check identification cards inside of the club when patrons ordered drinks. (Testimony of Jeffrey Charles, Dorothy Brown, and Matthew Smith)

24. At that time, the NCO Club did not hire waitresses to serve drinks to patrons. All drinks were dispensed from the bar area by bartenders. On the night of December 19, 1981, there were two bartenders on duty. The bar area was very crowded that night, as ■ it was every Saturday night, and it was the customary practice for the bartenders to serve a number of drinks to one customer, who would then take the drinks back to a table where they would be consumed by other patrons. There were many patrons standing around the bar area all evening. A number of other customers were seated at one of the many tables in the bar, or were dancing on the dance floor. (Testimony of Jeffrey Charles, Dorothy Brown and Matthew Smith)

25. Drinks at Arlington Hall were very inexpensive. For example, most mixed drinks were only $1.05 each, and beers were -75<p each. (Testimony of Matthew Smith)

26. Upon their arrival, Patterson convinced Charles to buy him a drink, a double peppermint schnapps and Coke, to “pay him back” for the ride. The bartender at the Club served Patterson the drink, even though Patterson was only 19 years old at the time. (Testimony of Jeffrey Charles)

27. After buying Patterson a drink, Charles left Patterson and began to wander around the bar in search of companionship. Patterson began drinking with a small group seated at a table adjacent to the bar. Patterson spent the next two hours either drinking and talking with this group, or drinking alone at the bar. Patterson never strayed far from the bar area. (Testimony of Jeffrey Charles and Dorothy Brown)

28. After Patterson finished his peppermint schnapps and Coke, he drank Jack Daniels bourbon and Coke continuously until about 12 midnight. The bartender at the Club served Patterson Jack Daniels even though Patterson was only 19 years old at the time. (Testimony of Dorothy Brown and Jeffrey Charles)

29. Shortly after midnight, Patterson left the club alone, hopped into his car, and began to drive recklessly down the road. At around 12:15 a.m., approximately five miles from Arlington Hall, Patterson rammed his car into the car immediately in front of him on the road. Attempting to leave the scene of that accident, Patterson quickly put his car into reverse, slammed into the car behind him which was driven by John Wolfrey, and sped off. Mr. Wolfrey gave chase. (Testimony of John Wolfrey)

30. In his efforts to avoid Wolfrey, Patterson turned off his headlights and began to drive very erratically, running stop signs and driving at speeds in excess of 60 miles per hour. (Testimony of John Wolfrey, plaintiffs exhibit 76)

31. At approximately 12:40 a.m., Patterson ran a stop sign at the intersection of Greenway Blvd. and S. Washington St. and struck an automobile driven by Michael McDonnell. Mr. McDonnell was killed, and a passenger in the McDonnell’s car, Maura Corrigan, was knocked unconscious. At the present time, Maura Corrigan is still in a coma-like state as a result of the collision. (Plaintiff’s exhibits 66-69)

32. Patrick Patterson was also knocked unconscious by the accident, but he regained consciousness the following afternoon. Shortly after his admission into the hospital, Patterson’s blood alcohol level was measured at .26%. Even today, Patterson has almost no recollection of what happened that evening. (Testimony of Patrick Patterson, plaintiff’s exhibits 70 and 74)

33. No intoxicants were found in Patterson’s car. Based upon testimony regarding Patterson’s normal drinking habits, his activities that evening, and the location of the various accidents in relationship to the club, there is no doubt that Patterson did all of his drinking that evening at either the Fort Myer Snack Bar or the Arlington Hall NCO Club.

34. Immediately after the accident, Officer Charles Sherin of the Fairfax County Police Department was assigned to investigate the accident. In the course of his investigation, and within several days after the accident, Sherin interviewed Dorothy Brown, a bartender at the Arlington Hall NCO Club who was on duty the night of the accident. After being shown a photograph of Patterson, Brown recalled seeing him at the Club and serving him mixed drinks on the evening of December 19th. Brown stated that Patterson was drinking heavily, and that he became loud and boisterous as the evening wore on. By the time Patterson left, Brown said, he was extremely intoxicated. Even though Brown was aware of Patterson’s obvious intoxication, she never refused to serve Patterson any drinks, nor did she or any other Club employee take steps to see that Patterson was “cut off.” Finally, of course, no Club employee made any effort to see that Patterson did not drive home. (Testimony of Charles Sherin, plaintiffs exhibit 73)

35. The NCO Club at Arlington Hall, at least on the evening of December 19, 1981, was far too crowded for the two bartenders to pay much attention to the state of the patrons it was serving. This is especially true with regard to patrons who were being served “vicariously,” or those who were being served by their friends who would purchase several drinks from the bartender at once. (Testimony of Jeffrey Charles and Dorothy Brown)

36. Although the NCO Club, did have several assistant managers on duty that evening, those managers had a number of administrative responsibilities which occupied most of their time. Therefore, the managers would have noticed only those patrons who exhibited extreme signs of intoxication, such as fighting, becoming ill, sleeping, or arguing loudly. (Testimony of Matthew Smith)

37. The bartenders at Arlington Hall received no formal training on recognizing, an intoxicated patron. (Testimony of Matthew Smith)

38. In order for Patterson to have had a blood alcohol level of .26 at the hospital on the morning of the accident, he must have consumed approximately 17 ounces of 80 proof alcohol, or about 12 mixed drinks, while at the NCO Club between 10:15 and midnight. A person of Patterson’s general build would certainly have been visibly affected-in his manner, speech, motor coordination, and overall appearance by such a quantity of hard liquor prior to ordering his last drink. (Testimony of Dr. Harvey Cohen, Dorothy Brown)

39. In connection with the December 19, 1981 accident, Patterson pled guilty to manslaughter and was sentenced to one year in prison. He served three months of that sentence and was then paroled. (Plaintiff’s exhibits 74 and 75)

40. After the December accident, Patterson did receive alcohol counseling. However, Patterson still refused to admit that he had an alcohol problem. Patterson missed appointments with his counselors, generally considered the group therapy sessions he attended to be a waste of time, and continued to drink. (Testimony of Patterson, Dr. Wise, and plaintiff’s exhibit 59)

III. FINDINGS OF FACT: DAMAGES

This matter comes before the Court on a trial to the bench on the damages aspect of the case on May 16, 1985. Pursuant to Rule 52(a), the Court makes the following findings of fact.

41. As a result of the accident on December 20, 1981, Maura Corrigan suffered extensive brain injuries. More specifically, Maura Corrigan has a nonfunctioning cerebral cortex and a severe lesion in her high brain stem. As a result of these injuries, Maura Corrigan is in a coma-like state, known as the persistent vegetative state, in which her mind is incapable of receiving or projecting information. (Testimony of Dr. White and Dr. Victor)

42. While Maura Corrigan is generally incapable of moving or speaking in this state, family members and medical personnel have reported that parts of her body may sporadically make certain movements in response to external stimuli. While the plaintiffs expert, Dr. White, interpreted those movements to mean that Maura Corrigan is capable of perceiving pain, the Court accepts the testimony of the defendant’s expert neurologist, Dr. Victor. According to Dr. Victor, the movements described by the doctors and family members are purely primitive reflex movements; the neural mechanism necessary to perform these movements lies in the lower spinal cord, and not in the cerebral cortex. These movements are not unusual in patients who are in the persistent vegetative state. (Testimony of Dr. Victor)

43. Since the accident occurred on December 20, 1981, Maura Corrigan has had no mental or intellectual appreciation of any pain. (Testimony of Dr. Victor)

44. Maura Corrigan will never recover from the injuries suffered in the automobile crash. Based upon Maura Corrigan’s present condition and the length of time other patients with similar injuries have survived, the Court finds that Maura Corrigan’s life expectancy, with proper medical care, is 15 years from the date of the accident. (Testimony of Dr. White and Dr. Victor)

45. As a direct result of the injuries suffered by Maura Corrigan in the December 20, 1981 automobile crash, Maura Corrigan has incurred medical expenses to date in the amount of $256,846.79. (Plaintiff’s damage exhibits 1-4)

46. As a direct result of the injuries suffered by Maura Corrigan in the December 20, 1981 automobile crash, Maura Corrigan will incur medical expenses in the amount of $712,650.00 from now until she dies. (Plaintiff’s damage exhibit 5, testimony of Dr. White and economist H. Alan Rosenthal)

47. As a direct result of the injuries suffered by Maura Corrigan in the December 20, 1981 automobile crash, Maura Corrigan will lose wages, over the course of her lifetime, in the amount of $362,650.00. (Plaintiff’s damage exhibits 7-12, testimony of Mr. Rosenthal)

48. On December 29, 1983, John Corrigan, as the Guardian of Maura Corrigan, entered into a covenant not to sue with Patrick Patterson. In consideration for that covenant, Patterson paid John Corrigan the sum of $25,000. (Plaintiff’s damage exhibit 51)

IV. CONCLUSIONS OF LAW

Pursuant to Rule 52(a), the Court makes the following conclusions of law.

1. Under the Federal Tort Claims Act, which gives this Court jurisdiction over civil tort actions against the United States, the Court is obliged to determine the government’s liability in accordance with the law of the place where the act or omission occurred. 28 U.S.C. 1346(b). All of the government’s acts of negligence, the resulting accident, and the plaintiff’s injuries took place in Virginia, and therefore Virginia law controls the substantive elements of this litigation.

2. Under Virginia law, a tavern owner who sells alcohol to a person who is either, intoxicated or under the age of 21 may be found guilty of a misdemeanor. VA CODE § 4-62 (1983). Furthermore, such conduct by a tavern owner gives an injured third person a cause of action against that tavern owner, provided that the injured person can prove that (1) a patron was on the tavern owner’s premises; (2) that patron was served alcoholic beverages while on the premises even though that patron was intoxicated or underage; (3) the tavern owner knew or should have known, based upon industry standards, common experience, or actual knowledge, that the patron was intoxicated or under-aged; (4) it was reasonably foreseeable that the patron would operate a motor vehicle after leaving the tavern owner’s premises; (5) the patron did leave the premises and operate a motor vehicle; and (6) the patron’s drunken driving caused the third person’s death or injury. See Corrigan v. United States, 595 F.Supp. 1047 (E.D.Va.1984); see also Crowell v. Duncan, 145 Va. 489, 134 S.E. 576 (1926).

Sale of hard liquor to underage patron

3. Under both Virginia law and the Army’s own regulations, it is illegal to serve hard liquor to a patron under the age of 21. VA CODE § 4-62(l)(a) (1983), Army Regulations 210-65, para. 2. In spite of Virginia law and Army regulations, however, 19 year old Patrick Patterson was sold hard liquor at the NCO Club on the evening of December 19, 1981.

4. Laws prohibiting the sale of hard liquor to minors, such as § 4-62(l)(a), are clearly grounded in the belief that teenagers are not responsible enough to handle hard liquor and its deleterious effects upon the mind and body. See Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959). Concern over the disproportionately high number of alcohol-related accidents involving young drivers, and over the special dangers presented when persons lacking in maturity and responsibility consume alcohol, has led legislators across the nation to call for higher minimum drinking ages. See 23 U.S.C. § 408 (1982). Therefore, tavern owners should be keenly aware that the sale of hard liquor to an underage patron, in an era where traveling by car to and from drinking establishments is so common and where accidents resulting from drinking are so frequent, presents an unreasonable risk of harm to others using the public roads.

5. By holding tavern owners liable for their sale of hard liquor to underaged patrons, the common law places no undue burden upon purveyors of alcohol. So long as the patron presents identification indicating that he or she is old enough to purchase the drink, and the tavern owner reasonably believes the identification is valid, the patron may be served.

6. It was reasonably foreseeable that any patron in the NCO Club on the evening of December 19, 1981 would drive after leaving the tavern. While there are service barracks located within walking distance of the NCO Club, the Club’s popularity attracted service personnel throughout the area. The bartenders were aware that many patrons drove to the bar, and, short of asking the patrons themselves, had no way of distinguishing between patrons who drove and those who did not.

7. In spite of the clear and obvious dangers posed by the sale of inexpensive hard liquor to underage patrons, the Army freely sold hard liquor to all of its customers without any regard to the age of the customer. In the instant case, this grossly irresponsible policy allowed a young patron inexperienced with the effects of hard liquor to consume a large quantity of Jack Daniels bourbon, leave the club, and venture onto Virginia highways. Patterson’s reckless driving on the morning, of December 20, 1981, which culminated in the tragic accident, was a direct, predictable result of the Army’s failure to abide by Virginia law and its own drinking regulations. See Vance v. United States, 355 F.Supp. 756 (D.Alaska 1973) (United States could be held liable under common law to intoxicated patron of Air Force NCO Club for injuries sustained by that patron after an agent of the United States negligently served alcohol to him); see also Deeds v. United States, 306 F.Supp. 348 (D.Montana 1969) (United States held liable under common law to third party for negligently serving alcohol to a minor serviceman in an Air Force NCO Club where the serviceman, after leaving the club, injured the third party in a drunken driving incident).

Sale of liquor to an intoxicated patron

8. Under Virginia law and Army regulations, it is also illegal to serve alcohol to an intoxicated patron. VA CODE § 4-62 (1983), Army Regulation 210-65. However, on the evening of December 19, 1981, the bartenders at the Army NCO Club served Patrick Patterson alcoholic beverages while he was intoxicated. Therefore, in addition to finding the government liable for selling alcohol to an underage patron, the Court also finds the government liable for serving an intoxicated patron.

9. Under Virginia law, a person is “intoxicated” if he has consumed enough alcohol to “so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation.” VA CODE § 4-2(14) (1983). This definition has been accepted and used by Virginia courts in civil cases as well as criminal cases, and therefore it is binding upon this Court in determining whether Patrick Patterson was intoxicated in the NCO Club on the night of the accident. See Hill v. Lee, 209 Va. 569,166 S.E.2d 274 (1969).

10. In holding the government liable for serving alcohol to an intoxicated patron, the Court is aware that intoxication is something which can often be identified with absolute certainty only in hindsight. Alcohol affects different persons in different ways, depending upon the consumer’s physical characteristics and psychological state, the amount of food the person consumed prior to drinking, the individual’s past experience with alcohol, the rate at which the alcohol is consumed, and the person’s overall alcohol tolerance.

Nonetheless, the common law does not require a tavern owner to ascertain, with any great precision, the degree to which his customers are influenced by alcohol. . Clearly, bartenders need not count the drinks that a customer consumes, administer a blood alcohol test, nor require a customer to perform feats of physical or mental agility before serving alcohol to that customer. The law only imposes upon the tavern owner the duty to exercise reasonable care in looking for visible signs which would indicate that a patron is intoxicated, such as poor coordination and slurred speech, before serving alcohol to that patron. In order to prevail under a common law dram shop theory of liability in Virginia, thén, the plaintiff must not only show that the patron was intoxicated, but that the licensee knew or should have known that the patron was intoxicated at the time he or she was served. This standard does not place any undue burden upon the holders of liquor licenses in Virginia, especially since such licensees are in the daily business of selling alcoholic beverages and are presumed to have some expertise in recognizing signs of intoxication.

11. After carefully examining all of the evidence in this case, the Court has no trouble in concluding that employees of the NCO Club knew or should have known that Patterson was intoxicated before Patterson was served his last drink. One experienced NCO Club bartender, Dorothy Brown, noted that Patterson was “extremely intoxicated” on the evening of the accident. Her testimony is corroborated by expert testimony which convinces the Court that Patterson, after consuming such a large quantity of hard liquor, must have exhibited clear signs of intoxication well before being served his last drink.

12. The NCO Club’s failure to notice Patterson’s visible intoxication is hardly surprising. The club was dimly lit, music was blaring, and the club was packed with customers creating a noisy din. Moreover, at that time, all of the drinks at the club were being served by two bartenders; the club had no waitresses. Therefore, the bartenders were under a great deal of pressure to serve drinks quickly to a large number of customers. Invariably, the large crowds around the bar and the absence of waitresses encouraged patrons to go to the bar and buy drinks for friends, who would wait behind at a table or on the dance floor. In short, the bartenders had little or no meaningful opportunity to observe most of the patrons who were being served drinks that evening.

However, the circumstances which made it so difficult to detect intoxicated patrons were created by the NCO Club in its effort to create a desirable atmosphere and to increase profits. By keeping the bar dimly lit, playing loud music, and keeping hired help to a minimum, the NCO Club cannot escape the responsibility, imposed by law upon all tavern owners, to determine whether the purchasers of the alcoholic beverages are intoxicated.

For decades, the Virginia courts have recognized that recklessness, tragedy and death follow predictably when alcohol and automobiles are mixed. See Crowell v. Duncan, 145 Va. 489, 134 S.E. 576 (1926). By serving such a large quantity of hard liquor to an intoxicated, underage patron without regard to the potential consequences, the NCO club breached a duty it owes to the community — the duty to stop pouring alcohol down the throat of a patron who, because of alcohol, has lost control over his judgment, his reflexes, and his sense of responsibility to others.

Failure of Army to place Patterson in rehabilitation program

13. Finally, plaintiff also claims that the United States should be held liable because it failed to (a) send along records of Patterson’s May 1981 drunk driving incident to Patterson’s new duty station in Virginia and (b) place Patterson in an alcohol rehabilitation program as required by Army regulations. Under Army regulations GOO-85 and 190-5, Patterson’s first alcohol related accident, the May 1981 crash in California, should have been brought to the attention of Patterson’s commanding officer. Such a notification would have assured Patterson’s referral to the Army’s ADAPCP program for alcohol rehabilitation. There is no indication in Patterson’s Army records that the first drunk driving incident was ever brought tó the attention of Patterson’s commanding officer, nor is there any record that Patterson was referred to the ADAPCP program.

However, under Virginia law, failure to comply with the requirements of a legislative enactment or regulation constitutes actionable negligence only when the injured person is a member of the class for whose benefit the legislation or regulation was enacted. See Butler v. Frieden, 208 Va. 352,158 S.E.2d 121 (1967); see also Smith v. Virginia Transit Authority, 206 Va. 951, 147 S.E.2d 110 (1966). All of the evidence in 'this matter clearly shows that the Army regulations, which evidently were not complied with in Patterson’s case due to some clerical error, were created solely for the benefit of the Army and the service person with the alcohol problem, and not for the benefit of the general public. Therefore, plaintiff has not stated a cause of action under Virginia law.

14. Moreover, even if plaintiff could state a cause of action under Virginia law for the Army’s failure to abide by its own regulations, he would still have to prove that the Army’s negligence in this respect was the proximate cause of the injury. See Richardson v. Lovvom, 199 Va. 688, 101 S.E.2d 511 (1958). The evidence does not support such a finding here. First, the ADAPCP program which plaintiff claims that Patterson should have been placed in is not designed to promote long-term abstinence from alcohol; the central purpose of the program is to make its patients productive service members again. Moreover, the program had a low success rate among young, enlisted personnel such as Patterson. Patterson’s poor attitude toward his alcohol problem would have made rehabilitation even more difficult. In short, there is no reliable evidence that Patterson would not have been drinking on the evening of December 19, 1981 even if he had been enrolled in the Army’s rehabilitation program.

15. The common law places no duty upon quasi-parental institutions such as the military or colleges to establish any special procedure for monitoring and curbing the inclinations of its charges, many of whom are away from home for the first time, to consume alcohol. Programs such as the Army’s ADAPCP are socially commendable efforts to deal with the problem of alcohol abuse, and the law should not discourage such efforts by creating liability to third persons when the program fails in a particular case. See VA CODE § 8.01-225 (1984) (exempting persons who render emergency care to an injured person from civil damages for any act or omissions in course of assistance).

Damages

16. When awarding damages to a permanently incapacitated plaintiff under the Federal Tort Claims Act, the Court’s primary concern must be to set a sum which will adequately cover the medical expenses until the incapacitated dies. Plaintiff is clearly entitled to recover for past and future medical expenses under the FTCA, provided these items can be proved with reasonable certainty. See Hailes v. Gonzales, 207 Va. 612, 151 S.E.2d 388 (1966).

17. Plaintiff here, also claims damages for Maura Corrigan’s lost earnings from the date of the accident based upon her expected earning capacity. An award of lost earnings is generally made so that the injured party can pay for those necessities and amenities which he would have provided for himself out of his earned income had he not been injured. Such an award is usually proper under Virginia law, and therefore plaintiff would ordinarily expect to recover for these lost wages in this action. Gwaltney v. Reed, 196 Va. 505, 84 S.E.2d 501 (1954).

However, in cases such as this one, the incapacitated plaintiffs personal expenses, such as food and housing, are included in the award for future medical expenses, which are calculated to provide full-time care in a nursing facility. Because the Federal Tort Claims Act limits the government’s liability to compensation for injuries and expenses actually incurred, the Fourth Circuit has determined that in FTCA actions by incapacitated plaintiffs such as Maura Corrigan, any award for lost earnings must be reduced by the amount of the award for future medical expenses. Flannery v. United States, 718 F.2d 108 (4th Cir.1983). The Court has determined that Maura Corrigan’s future medical expenses will exceed her projected lost future wages; therefore, plaintiff here can not recover any damages for those lost wages.

18. Furthermore, plaintiff claims that Maura Corrigan is entitled to damages for her past and future pain and suffering. Bell v. Kirby, 226 Va. 641, 311 S.E.2d 799 (1984). However, because the Court has determined that Maura Corrigan cannot feel pain in her comatose condition, the plaintiff is not entitled to any award for pain and suffering. Therefore, the Court’s damage award is calculated only on the basis of past and projected future medical expenses.

. 19. Pursuant to the Federal Tort Claims Act, and in accordance with the above findings of fact and conclusions of law, the Court finds that the defendant is liable to the plaintiff in the amount of $969,496.79. 28 U.S.C. 1346(b).

20. From the sum of $969,496.79, the United States is entitled to an off-set in the amount of $25,000 in light of the covenant not to sue agreement between John Corrigan and Patrick Patterson. VA CODE § 8.01-35.1(A)(1) (1984).

21. As provided by the Federal Tort Claims Act, the Court awards 25% of the remaining $944,496.79, or $236,124.20, to the attorneys for Mr. Corrigan as attorney’s fees in this action. 28 U.S.C. § 2678.

22. Out of the remaining $708,372.59, plaintiff is required to remit the sum of $42,058.36 to the appropriate department of public welfare in the State of Ohio pursuant to the state’s statutory subrogation rights. OHIO REV.CODE ANN. § 5101.58 (1984). ’

      . Civil Action No. 84-675-A, Dimos v. United States, was settled by the parties out of court.

      . The Court expresses no opinion as to whether the service of a weird concoction such as a double peppermint schnapps and Coke, when consumed along with more conventional alcoholic beverages, is likely to exacerbate the normal effects of alcohol on the mind and body.

      . When testifying at trial, over three years after the accident, Dorothy Brown could not recall seeing Patterson on the evening of the accident or telling Officer Sherin the details of what she observed that evening. However, she does not in any way dispute Officer Sherin’s testimony or affidavit. Although the government objected to Officer Sherin’s testimony regarding his discussion with Mrs. Brown, the Court allowed the testimony to come into evidence since the testimony is not hearsay under Rule 801(d)(2)(D). The disputed statements were offered against the United States, and were made by an agent or servant of the United States, Mrs. Brown, concerning a matter within the scope of her employment. Mrs. Brown’s statements were made while she was still an employee of the United States. Therefore, each element of Rule 801(d)(2)(D) has been met.
      In any event, even if the disputed statements were hearsay, the Court believes that they would be admissible under Rule 804(b)(5). Mrs. Brown is clearly "unavailable” as defined in Rule 804(a)(3), and the statements are highly probative of a critical fact in the case. The Court finds that Officer Sherin was a very credible witness, and that his testimony is clearly consistent with expert testimony which indicates that Patterson was probably exhibiting clearly visible signs of intoxication while in the bar. In light of the time which has passed since the night of the events in question here, and since Mrs. Brown’s statements, made so soon after the night of the accident, are so probative in the case, this Court would have had no difficulty in admitting the statements under Rule 804(b)(5).

      . In its preliminary findings from the bench at the conclusion of the May 16, 1985 damages hearing, the Court announced that the plaintiff had an expected life expectancy of only ten years. However, in carefully reviewing the medical records and the testimony of the expert witnesses, the Court has concluded that the plaintiff has a life expectancy of 15 years. As a result, the Court has also modified its May 16, 1985 preliminary finding as to expected future medical expenses to reflect this longer life expectancy.

      . The Court expresses no opinion on whether, under Virginia common law, a social host may be held liable for serving alcohol to an intoxicated or underaged person whose subsequent drunken driving injures or kills a third person. For a further discussion of this point, see Kelly v. Gwinnett, 96 N.J. 538, 476 A.2d 1219 (N.J. 1984). See also Cole v. City of Spring Lake Park, 314 N.W.2d 836 (Minn.1982). We also do not address the question of whether a patron who injures himself while inebriated has a cause of action against a tavern owner who negligently sold him the alcohol. For a further discussion of this point, see Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900 (1965); see also Thrasher v. Leggett, 373 So.2d 494 (La.1979).

      . The vast majority of courts which have been faced with dram shop issues in the last 25 years have imposed civil liability upon tavern owners under the common law for the tavern owner’s negligence in serving alcohol to underaged or intoxicated patrons. See Nazareno v. Urie, 638 P.2d 671 (Alaska 1981); Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983); Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 (1971); Taylor v. Ruiz, 394 A.2d 765 (Del.Super. 1978); Marusa v. District of Columbia, 484 F.2d 828 (D.C.Cir.1973); Prevatt v. McClennan, 201 So.2d 780 (Fla.App.1967); Ono v. Applegate, 62 Haw. 131, 612 P.2d 533 (1980); Alegría v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980); Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292 (1963); Elsperman v. Plump, 446 N.E.2d 1027 (Ind.Ct.App.1983); Lewis v. State, 256 N.W.2d 181 (Iowa 1977); Pike v. George, 434 S.W.2d 626 (Ky.App.1968); Michnick-Zilberman v. Gordon’s Liquor Store, 390 Mass. 6, 453 N.E.2d 430 (Mass. 1983); Thaut v. Finley, 50 Mich.App. 611, 213 N.W.2d 820 (1973); Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973); Munford, Inc. v. Peterson, 368 So.2d 213 (Miss.1979); Deeds v. United States, 306 F.Supp. 348 (D.Mont.1969); Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900 (1965); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982); Berkeley v. Park, 47 Misc.2d 381, 262 N.Y.S.2d 290 (1965); Hutchens v. Hankins, 63 N.C.App. 1, 303 S.E.2d 584 (1983); Mason v. Roberts, 33 Ohio St.2d 29, 294 N.E.2d 884 (1973); Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977); Speicherv. Reda, 290 Pa.Super. 168, 434 A.2d 183 (1981); Walz v. City of Hudson, 327 N.W.2d 120 (S.Dakota 1982); Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755 (1969); Callan v. O'Neil, 20 Wash.App. 32, 578 P.2d 890 (1978); Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984); contra, Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965); Slicer v. Quigley, 180 Conn. 252, 429 A.2d 855 (Sup.Ct.1980); Keaton v. Kroger Co., 143 Ga. App. 23, 237 S.E.2d 443 (Ga.App.1977); Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981); Alsup v. Garvin-Weinke, Inc., 579 F.2d 461 (8th Cir. 1978) (applying Missouri law); Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 (1976); Hamm v. Carson City Nugett, Inc., 85 Nev. 99, 450 P.2d 358 (1969).
      Currently, 23 states have created dram shop liability through statutes or civil damage acts: Alabama, Alaska, California, Colorado, Connecticut, Florida, Georgia, Illinois, Iowa, Maine, Michigan, Minnesota, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, and Wyoming. In all, 38 states and the District of Columbia have some form of dram shop liability.
      Let the Clerk send a copy of this memorandum opinion to all counsel of record.


source: Caselaw Access Project

author: SWEET, District Judge.

license: Public Domain

text:
    Dr. Harry THERIAULT, a/k/a Shiloh, Petitioner, v. Warden Michael QUINLAN, FCI Otisville, New York, Respondent.
    No. 84 Civ. 6007 (RWS).
    United States District Court, S.D. New York.
    May 21, 1985.

      Harry Theriault, petitioner, pro se.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for respondent; Richard W. Mark, Asst. U.S. Atty., New York City, of counsel.
   OPINION

SWEET, District Judge.

Dr. Harry Theriault, also known as Shiloh, (“Theriault”) filed a petition for habeas corpus which was dismissed by order of this court on January 4, 1985, with leave granted to submit additional material based upon which the action might be reopened. Materials with respect to Theriault’s claims of procedural error in the parole revocation hearing merit further investigation. The order dismissing Theriault’s petition is modified in part, and the case is remanded to the United States Parole commission for review consistent with this order.

Facts

Theriault, a long-time prisoner, is presently incarcerated for parole violations. He alleges that the parole revocation proceeding violated 18 U.S.C. § 4214. On June 18, 1982 Theriault was released on parole from a twenty-eight year and one month term of imprisonment. He was paroled to the Western District of Arkansas and was to be under parole supervision pursuant to the conditions in 28 C.F.R. § 2.40 until December 25, 1984. On April 26, 1983 Theriault was arrested in New Hampshire on a parole violation warrant. Theriault was charged with violating the conditions of his parole by twice leaving the Western District of Arkansas without permission, failing to report a change in residence, failing to report a change in employment, and shoplifting. One week after his arrest, a preliminary interview was held pursuant to 18 U.S.C. § 4214(a)(1)(A). Although a revocation hearing was convened on July 25, 1983, Theriault objected to the composition of the panel and a continuance was ordered. The hearing was subsequently held on August 19,1983, one hundred-fifteen days after the arrest. During the course of the revocation hearing, Theriault admitted having left the district without permission but denied the other charges. Theriault also requested that he be allowed to confront and cross-examine adverse witnesses regarding the shoplifting charge. This request was denied without explanation. The panel found that Theriault had violated his parole with respect to each charge other than changing employment without notifying his parole officer and recommended that his parole be revoked. Theriault was returned to prison for twenty-eight months.

Discussion

Two of Theriault’s challenges to the propriety of the revocation hearing warrant discussion: the timeliness of the hearing, and the denial of his right to confront and cross-examine adverse witnesses with respect to the shoplifting charge.

Timeliness

Theriault was arrested on April 26, 1983 and his revocation hearing was held on July 25, 1983, one hundred-fifteen days later. The lag of one hundred-fifteen days exceeds either the ninety days authorized by § 4214(c), applicable when the defendant has admitted guilt, or the sixty days authorized by § 4214(b), applicable when the defendant does not admit guilt. Twenty-five days of the delay are attributable to Theriault’s own request for reconstitution of the panel. More importantly, the remedy for improper delay in the holding of a parole violation hearing is not the grant of habeas corpus. Rather, “the appropriate remedy is ... the compulsion of a prompt decision by the Commission.” Carmel v. United States Parole Commission, 489 F.Supp. 113, 115 (S.D.N.Y.1980). That remedy has already been effected. In addition, Theriault has not and could not demonstrate any prejudice resulting from the delay. Carmel, supra, at 115. Indeed, the delay was at Theriault’s behest and insured an unbiased hearing panel.

The Right to Cross-Examine

The statute establishing procedures for parole revocation hearings states that alleged parole violator shall be granted an:

opportunity ... to be apprised of the evidence against him and, if he so requests, to confront and cross examine adverse witnesses, unless the Commission specifically finds substantial reason for not so allowing.

18 U.S.C. § 4214(a)(2)(D). See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This right is limited by § 4214(e), which states that if an alleged parole violator either waives his right to a hearing under § 4214(a) or “admits violation at a preliminary hearing,” then the alleged parole violator “shall have notice of such hearing, be allowed to appear and testify on his own behalf, and, unless waived, shall have counsel or another representative ...” If the hearing falls within the § 4124(c) exception, the alleged violator does not have a right to call and cross-examine adverse witnesses.

At the August 19 hearing Theriault requested the right to call and cross-examine adverse witnesses on the shoplifting charge. His request was denied by the panel without any explanation or findings of substantial reasons not to permit the calling of witnesses. (Tape recording of hearing at foot 424). At the close of the hearing Theriault’s attorney objected to denial of this right. Id. at foot 666.

The government argues that because Theriault admitted the two violations dealing with leaving the district without permission, the entire hearing falls into the § 4214(c) exception. This is an improper reading of the statute. The § 4214(c) exception denies an alleged parole violator the right to call adverse witnesses only with respect to those charges to which there has been an admission. Where the paroled prisoner is charged with violations, one or several of which but not all are admitted, the § 4214(c) exception does not preclude the calling of adverse witnesses on those charges not admitted. The logic of the exception is to avoid the calling of witnesses where the witnesses will testify to an undisputed violation. This purpose is not served by precluding testimony and cross-examination with respect to violations in dispute. The reasoning of Morrissey, supra, requires that when the facts of an alleged violation are in dispute the defendant be permitted to cross-examine witnesses.

Although the government now presents reasons for the refusal to agree to Theriault’s request to call witnesses, these reasons were not stated on the record as required by the statute. Section 4214(a)(2)(D) states that the defendant will have the right to confront and cross-examine witnesses “unless the Commission specifically finds substantial reasons for not so allowing.” See Lawrence v. Smith, 451 F.Supp. 179, 187 (W.D.N.Y.1978) (requiring specific findings, stated in record, before denying request to cross-examine witnesses); Baker v. Wainwright, 527 F.2d 372, 378 (5th Cir.1976). The commission based the finding of a violation on an arrest warrant and supporting documents, without permitting Theriault meaningfully to test the accuracy of the allegations. This does not comport with due process.

Conclusion

The findings of the parole commission are affirmed except with respect to the charge of shoplifting. That finding is vacated. This matter is remanded to the United States Parole Commission for reconsideration of the length of the sentence, based upon the charges that were affirmed.

IT IS SO ORDERED.


author: EARL E. O’CONNOR, Chief Judge.

text:
    Georgia ARMSTRONG, Plaintiff, v. GOLDBLATT TOOL COMPANY, Defendant.
    Civ. A. No. 84-2201.
    United States District Court, D. Kansas.
    May 21, 1985.

      James M. Sheeley, Kansas City, Kan., for plaintiff.
    Ronald C. Newman, Larry G. Chipman, Kansas City, Kan., for defendant.
   MEMORANDUM AND ORDER

EARL E. O’CONNOR, Chief Judge.

This matter comes before the court on plaintiff’s motion to remand the case to the District Court of Wyandotte County, Kansas. Said motion is based on plaintiff’s assertion that defendant’s petition for removal incorrectly alleges diversity of citizenship between the parties. For the reasons stated below, we conclude that remand is appropriate.

This constitutes plaintiff’s second motion to remand. In her earlier motion, plaintiff alleged only that defendant is located and does business in Kansas. As we noted in our order of September 10, 1984, however, the mere doing of business is irrelevant to the question of citizenship. Rather, the pertinent jurisdictional statute provides that:

(c) For the purposes of this section and section 1441 of this title [concerning removal], a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.

28 U.S.C. § 1332(c). Plaintiff’s current motion is premised on the application of this correct legal standard.

The parties do not dispute that plaintiff is a citizen of Kansas, or that defendant is incorporated in the state of Delaware. The dispute arises over defendant’s principal place of business. Plaintiff asserts that defendant’s principal place of business is in Kansas, while defendant claims that Illinois is the state of its principal place of business.

The material facts are as follows. In a sworn document filed with the Kansas Secretary of State, defendant stated that it manufactures and distributes masonry tools and equipment and that its only “place or places of business (both within and without the state of Kansas)” is at 511 Osage, Kansas City, Kansas 66110. The document further indicates that defendant owns no property outside the state of Kansas, and that 100% of defendant’s payroll and gross sales are attributable to Kansas. At his deposition, defendant’s corporate controller testified that defendant is a subsidiary of AXIA, Incorporated. Deposition of Robert Shields at 5. Mr. Shields’ deposition statement that defendant has no corporate identity separate from AXIA is clearly contradicted both by his earlier statement that defendant is a subsidiary of AXIA, and by an April 12, 1985, certification by the Kansas Secretary of State that defendant is a “regularly and properly organized corporation under the laws of the State of Delaware.” While it is unclear where AXIA is incorporated, defendant alleges that AXIA’s principal place of business is in Illinois. Defendant further alleges that only its day-to-day manufacturing functions are performed in Kansas, while its tax returns, internal accounting, and insurance programs are handled by AXIA in Illinois.

The party seeking to invoke federal jurisdiction has the duty to establish that such jurisdiction is proper. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). Since the courts of the United States are courts of limited jurisdiction, there is a presumption against federal jurisdiction. Id. In this case, then, defendant bears the burden of showing why remand should not be ordered. Because a court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking,” id. (emphasis in original), our September 10, 1984, order denying plaintiff’s first motion for remand does not bar this second motion.

Where, as here, a corporate party is a subsidiary of another corporation, an additional complication arises. May a subsidiary corporation have a principal place of business other than that of its parent corporation? The answer is clearly yes. According to a leading treatise:

The general rule in this situation is that a subsidiary corporation has its own principal place of business for purposes of diversity jurisdiction, unless it is merely an “alter ego” or agent of the parent corporation.

Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3625. If defendant is a mere “alter ego” of its parent corporation (AXIA) then its principal place of business would be AXIA’s principal place of business (Illinois). As noted above, however, defendant bears the burden of proving that it is AXIA’s “alter ego.” This burden it has failed to meet. We must therefore conduct an independent inquiry into defendant's principal place of business.

In the period immediately after enactment of the present 28 U.S.C. § 1332(c), the courts developed two separate tests for locating a corporation’s principal place of business. In Scot Typewriter Co. v. Underwood Corp., 170 F.Supp. 862 (S.D.N.Y. 1959) , the court focused on the corporation’s “nerve center” (i.e., the place from which the corporation’s activities were directed and controlled). The major competing rule was stated in Kelly v. United States Steel Corp., 284 F.2d 850 (3d Cir. 1960) . The Kelly court focused on a corporation’s “center of activities” {i.e., operation of the corporation’s principal line of business). The facts as developed thus far indicate quite clearly that defendant’s “nerve center” was in Illinois, while its “center of activities” was in Kansas. Relying on the Scot “nerve center” test, defendant asserts that its principal place of business is in Illinois.

As Professor Wright has stated, however:

So long as the present statutory test is to be employed, reliance on the location of the home office simply on the ground that it is the “nerve center” gives too much weight to “a pleasant and alluring figure of speech.” [citing Kelly, 284 F.2d at 853.]
The courts have increasingly come to recognize that the earlier cases can be reconciled in the light of their particular facts, and that a single rule can be applied. This looks to the place where the bulk of the corporate activity takes place, if there is any one state in which this is true, while resorting to the location of the home office only if the corporation’s activities are dispersed among several states and no one state clearly predominates.

C. Wright, The Law of Federal Courts § 27 (4th ed. 1983). See also United Nuclear Corp. v. Moki Oil & Rare Metals Co., 364 F.2d 568, 570 (10th Cir.1966) (applying “nerve center” test to a corporation that carried on its business in a number of states).

This case presents the situation directly opposite of that in United Nuclear Corp. That is, nearly all the manufacturing activities of this defendant are located in the state of Kansas. It follows that we need not rely on the “nerve center” test. Rather, we may follow our prior holding in Fellers v. Atchison, Topeka and Santa Fe Railway Co., 330 F.Supp. 1334, 1338 (D.Kan.1971), that:

between a state where a corporation’s executive offices are located and a state where the bulk of the assets and where management of day-to-day affairs are located,' the latter state is the. principal place of business for diversity of citizenship purposes.

Since defendant’s manufacturing activities are located entirely in the state of Kansas, its principal place of business is also in Kansas. As noted above, plaintiff is a Kansan as well. Diversity of citizenship is therefore lacking, and plaintiff’s motion to remand the case to state court must be granted.

Plaintiff also seeks to recover her costs and attorney’s fees incurred as a result of defendant’s improper removal of this action. Because this action was removed “improvidently and without jurisdiction,” defendant will be ordered to pay plaintiff’s costs incurred in obtaining this remand order. 28 U.S.C. § 1447(c); Cornwall v. Robinson, 654 F.2d 685, 687 (10th Cir.1981). Plaintiff’s request for an award of attorney’s fees, however, will be denied. We fail to discern any “bad faith, vexatious, wanton, or oppressive” conduct on the part of defendant that would entitle plaintiff to recover such fees. See Cornwall, 654 F.2d at 687.

IT IS THEREFORE ORDERED that plaintiff’s motion to remand is granted. This case is hereby remanded to the District Court of Wyandotte County, Kansas.

IT IS FURTHER ORDERED that plaintiff’s request for recovery of her costs and attorney’s fees in obtaining this remand order is granted as to her costs and denied as to her attorney’s fees.


author: CAFFREY, Chief Judge.

text:
    LATINO POLITICAL ACTION COMMITTEE, INC., et al., Plaintiffs, v. CITY OF BOSTON, et al., Defendants.
    Civ. A. No. 83-2472-C.
    United States District Court, D. Massachusetts.
    May 22, 1985.

      Joseph L. Kociubes, Jonathan W. Fitch, Bingham, Dana and Gould, Alan Jay Rom, Lawyers’ Comm, for Civil Rights, Boston, Mass., Frank R. Parker, Lawyers’ Comm. for Civil Rights, Washington, D.C., for plaintiffs.
    City of Boston Law Dept., Steven Perl-mutter, Suzanne F. Sheats, Boston, Mass., for City of Boston, Mayor White, Michael Joyce & Boston Election Com’n.
    Stephen H. Oleskey, Jane D. Kaplan, Hale and Dorr, Paul F. Saba, Boston, Mass., for Members of Boston City Council.
   OPINION

CAFFREY, Chief Judge.

This is a civil action in which plaintiffs challenge the City of Boston’s plan for the election of City Council and School Committee members by district. Plaintiffs are four non-profit organizations which seek to increase minority participation and influence in politics, and twelve individuals who are residents and registered voters of Boston. Defendants are the City of Boston; its mayor, Raymond L. Flynn; the Boston Election Committee; and Michael A. Joyce, Commissioner of Elections of Boston and Chairman of the Boston Election Commission. After a bench trial, I find and rule as follows:

Plaintiffs contend that the geographical configuration of the nine electoral districts created by the City’s plan impermissably dilutes minority voting strength. The plan allegedly minimizes the political impact of minority votes in three specific ways: it consolidates or “packs” the Black population into only two districts; it divides or “fragments” the Hispanic population among several districts, and it places the racially and ethnically diverse population of Boston’s South End in a district which is politically dominated by South Boston, an area whose virtually all White population is reputed to be hostile toward minorities. Plaintiffs assert that, by denying minorities equal access to the political process, the plan violates Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, as amended; the Fourteenth and Fifteenth Amendments to the United States Constitution; and Articles 1 and 9 of the Declaration of Rights of the Massachusetts Constitution.

Size and Location of Boston’s Minority Populations

According to the 1980 census, minorities comprise approximately 31.5% of Boston’s population. 22.4% of the City’s residents are Black, 6.4% are Latino and 2.7% are Asian. Most of Boston’s predominantly Black precincts are located in the central part of the city, where they form an oblong running north to south. The City’s Latino population is concentrated in several discrete pockets along the southern, eastern and western perimeters of the Black population, while Boston’s Asians live primarily in three contiguous precincts located to the Northeast of the other minority concentrations.

History of the Present District Plan

From 1951 until January 1984, Boston’s City Council consisted of nine members elected at large, and the School Committee consisted of five members elected at large. In a referendum held on November 3,1981, Boston’s residents voted to adopt a new electoral structure for the two municipal bodies. The new plan provided that the City Council and the School Committee each would be composed of nine members elected on a one-member per district basis, with certain additional members elected at large. The number of at-large members was to be determined according to the City’s total population. In December, 1982, the state legislature amended the plan to provide that each body should have exactly four at-large members in addition to the nine members elected by district.

The state legislature also gave the City Council authority to establish the City’s nine new electoral districts. In mapping the new districts, the City Council was to be guided by the provisions of M.G.L. c. 43 § 131, which states, in relevant part:

Each such district shall be compact and shall contain, as nearly as may be, an equal number of inhabitants, shall be composed of contiguous existing precincts, and shall be drawn with a view toward preserving the integrity of existing neighborhoods.

In December, 1981, a Special Committee of the City Council was formed to draw the nine district plan. After holding public hearings and analyzing demographic data about the City, the Special Committee constructed a plan which it adopted by ordinance on February 24, 1982. On September 8, 1982, representatives of Boston’s minority residents, many of whom are plaintiffs in the present action, filed a lawsuit challenging the legality of that plan. Latino Political Action Committee v. City of Boston, 568 F.Supp. 1012 (D.Mass. 1983) (Latino I). The plaintiffs in that action charged that the district plan violated the constitutionally mandated apportionment standard of “one person, one vote”, Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 809, 9 L.Ed.2d 821 (1963), and that it impermissibly diluted minority .voting strength. Because this Court thereafter invalidated the plan on the basis of the one person, one vote principle, the Court did not reach the question of vote dilution. 568 F.Supp. 1012.

In response to this Court’s order in Latino I, the Special Committee endeavored to design a new district map. To aid it in its task, the Committee held public hearings on August 4 and 10, 1983, at which interested citizens, including representatives of Boston’s Black, Hispanic and Asian populations, stated their positions and offered various proposals for new district plans. At the hearings, the Committee was reminded that any plan which minimized the voting power of minority groups would be invalid and would be challenged in court.

On August 10, 1983, the City Council adopted the plan which is now in effect. Under this plan, Black voters control two of the City’s nine districts, Districts 4 and 7. Neither the Hispanic nor the Asian population, each of which is less than one-third the size of the Black population, controls any district. Although most of Boston’s Asians live in a compact geographical area within District 2, there are sizable Hispanic concentrations located in five of the nine districts. On August 28, 1983, plaintiffs filed the action now before the Court. Despite this legal challenge to the district plan, the plan was used as the basis for the City Council and School Committee elections held in November, 1983. The validity of those election results is not at issue in this case.

Amended Section 2 of the Voting Rights Act of 1965

In 1982, Congress amended Section 2 of the^ Voting Rights Act of 1965 in response to the Supreme Court’s decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Bolden held that proof of discriminatory intent is not only an essential element of a vote dilution claim brought under the Fourteenth and Fifteenth Amendments, but also a necessary part of a claim brought under Section 2. Under the amended Section 2 of the Voting Rights Act, discriminatory intent is no longer an essential element in a lawsuit claiming that an election plan violates minority voting rights. Section 2 now states:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973(f)(2) of this title, as provided in. subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is. one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

42 U.S.C. § 1973, as amended June 29, 1982.

The legislative history of the 1982 Amendment explains that, in evaluating the “totality of circumstances” under which a particular electoral mechanism operates, a court should be guided by the analytical framework established in the pre-Bolden cases of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973). The legislative history also sets forth a list of typical factors, derived from these two cases, which bear upon the issue of vote dilution. These factors include:

1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in the jurisdiction.
Additional factors that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are:
whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group, whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

Senate Report No. 417, 97th Cong., 2d Sess. 28-29 (footnotes omitted), reprinted in 1982 U.S.Code Cong. & Ad.News 177, 206-7.

Courts which have decided vote dilution cases brought under the revised Section 2 have recognized that the factors articulated in Zimmer v. McKeithen, and later incorporated in the statute’s legislative history, were designed primarily to help determine the validity of multimember districts rather than that of discrete electoral units. E.g., Ketchum v. Byrne, 740 F.2d 1398, 1405 (7th Cir.1984). When the placement of district lines is at issue, however, the factors of racial polarization and the extent to which minorities have been elected to office take on additional significance, because these two factors are tied particularly closely to plaintiffs’ claims of packing and fragmenting. The other factors nevertheless remain important as a means of assessing the historical, sociological, and political climate in which an electoral scheme functions. See Ketchum, 740 F.2d at 1405. Because the fairness of a voting plan cannot be determined without considering the nature of the population which the plan affects, the evaluation of Boston’s existing district plan must begin with an analysis of these “background” factors.

Factors affecting Minorities’ Ability to Participate In the Political Process

The record makes abundantly clear that Boston’s minorities continue to suffer socioeconomic disadvantages. Census data pertaining to Boston reveal, for example, that a much higher percentage of minority families than white families are below the poverty level; a lower percentage of minorities than Whites hold high school diplomas; and the median income of minorities is lower than that of Whites, even when the variables of age and education are taken into account. In addition to having both a shorter than average life expectancy and a higher infant mortality rate than Whites, Boston’s minorities, particularly its Blacks, are victims of residential isolation as well. Although the recent growth of the City’s Black population has been more than matched by the decline of its White population, Blacks nevertheless remain confined to the City’s geographic core.

Despite the evidence produced at trial that discrimination against minorities persists in Boston, the record further suggests, that such discrimination has not significantly impaired the ability of Blacks, Boston’s largest minority group, to participate in the City’s political life. Plaintiffs’ own witness, James Jennings, who is a political scientist and the current president'of the Black Political Task Force, testified at trial:

I have found that the extent of black political participation in the City of Boston is very high and very intense. I have also found that this very high degree of political participation and sophistication on the part of the black community is consistent with a long history of black political participation in the City of Boston dating back many, many decades.

Transcript at 4-83. When questioned about the variables which affect voter turnout, Dr. Jennings stated, “[political scientists found out that the higher one is on a socio-economic ladder, the more one tends to vote. That finding has been discarded as far as the black community is concerned.” Id. at 4-84. Dr. Jennings further testified that Black voter registration and turnout in Boston is “basically similar” to that of White voters, id., and that Black voters have been, and continue to be, “a crucial element in Boston politics.” Id. at 4-97.

This testimony is consistent with the fact that the City’s Black residents have been enfranchised for more than a century, Black Voters v. McDonough, 565 F.2d 1 (1st Cir.1977), and have never been subjected to poll taxes, literacy tests, or other such barriers to registration, whose lingering effects continue to inhibit political participation by minorities in other parts of the country. See e.g. Buskey v. Oliver, 565 F.Supp. 1473, 1475 (M.D.Ala.1983); Gingles v. Edmisten, 590 F.Supp. 345, 359-60 (E.D. N.C.1984) (three-judge panel), appeal docketed, 52 U.S.L.W. 3908 (U:S. June 2, 1984) (No. 83-1968).

Furthermore, the City’s present electoral scheme is devoid of any practices or procedures which can operate to minimize the impact of minority votes. In Boston there is no prohibition against “bullet voting,” the casting of fewer than the total number of votes allowed. In fact, the record suggests that minority voters are aware of the advantage of bullet voting and have used it extensively to maximize the impact of their votes. Moreover, the voting power of Boston’s minorities is enhanced by the use of a limited voting system in the preliminary elections for members of the City Council and School Committee. Under such a system, the number of votes each voter may cast is less than the number of candidates who qualify for the final election. In Boston’s at-large primaries, for example, each voter may cast no more than four votes, even though the top eight candidates earn a place on the final ballot. Such a system makes it difficult for majority voters to control the full slate of finalists.

Like the opportunity to vote, the opportunity to seek elective office is completely open to Boston’s minorities. Boston has no candidate slating process. Any person may run for office if he or she 1) is a registered voter of the City qualified to vote in the election for that office; 2) submits a nominating petition signed by a designated number of registered voters qualified to vote in that election; and, 3) for district seats, is a resident of the district which he or she seeks to represent. Boston also has no ballot “place” rule; the position of candidates’ names on the ballot is determined by lot. Furthermore, the City has no requirement that a candidate earn a majority of the votes in the primary in order to qualify for the final election.

The evidence reveals that, in the last twenty years, many minorities have taken advantage of Boston’s open nomination process and have run for seats on the City Council and School Committee. See Black Voters v. McDonough, 421 F.Supp. 165. Although these minority candidates may sometimes have encountered hostility from some segments of the City’s White population, there is no evidence that Boston’s campaigns have ever been characterized by the sort of insidious and recurring racial appeals which have pervaded state and local campaigns in other parts of the nation, particularly the South. See, e.g., Gingles v. Edmisten, 590 F.Supp. at 364. In Black Voters, Judge Tauro found that some of Boston’s White candidates had resorted to racial campaign tactics during the 1960’s and 1970’s, but he also determined that the use of such tactics had not been dominant in those elections. 421 F.Supp. at 190. Furthermore, the evidence suggests that the use of racial appeals may have abated in the period since Black Voters was decided. Other than an incident of verbal intimidation directed at a campaign worker in 1983, the record in this case contains no indication that the use of racial tactics has been a part of the City’s elections since 1977. There was, in fact, testimony that the theme of racial harmony played a major role in the campaigns of some candidates in the 1983 elections.

Despite the socioeconomic deprivations which Boston’s minorities continue to endure, the evidence produced in this case demonstrates that the impact of discrimination has not adversely affected minorities’ access to the political process. This conclusion alone, however, does not resolve the ultimate issue of whether Boston’s district plan operates to minimize minority voting strength. It is also necessary to examine the merits of plaintiffs’ specific allegations regarding the electoral effects of the City’s districting scheme.

Factors Affecting Minorities Ability to Influence The Political Process Under the Existing District Plan

The fairness of an electoral system based on discrete districts, like the one at issue in this case, cannot be determined without considering the extent to which the voting population is racially polarized. Plaintiffs’ expert witness, Dr. Gordon Henderson, defined racial polarization, or racial bloc voting, as “the tendency for voters among one racial group to vote for candidates of that same racial group and against candidates of another racial group.” Transcript at 2-148. Racially polarized voting, in and of itself, neither minimizes nor maximizes minority voting strength. Where bloc voting is shown to exist, however, its operation within the context of the particular districting scheme at issue is ordinarily the linchpin of a vote dilution claim. United States v. Marengo County Commission, 731 F.2d 1546, 1566 (11th Cir.1984); Cingles v. Edmisten, 590 F.Supp. at 355.

If a voting population casts its ballots without regard for race, the placement of district boundaries has no effect on minority voting strength as long as each district contains an equal number of voters. If an electorate is racially polarized, however, the placement of district lines may dilute minority voting power either by “packing” minority residents into a limited number of districts, or by “fragmenting” the minority population among several districts. Before reaching plaintiffs’ claims of packing and fragmenting, therefore, it is first necessary to determine whether Boston’s voting population is, in fact, racially polarized.

In Black Voters v. McDonough, 421 F.Supp. 165, Judge Tauro examined the results of Boston’s School Committee elections from 1960 through 1975 and concluded that racial bloc voting occurred in Boston to some degree. Nevertheless, he determined that such racial polarization was not extreme; in both Black and White areas of the City, he found that many voters did not cast their ballots along racial lines. 421 F.Supp. at 190.

The evidence produced at trial concerning the City’s 1983 elections reveals that a moderate degree of racial polarization continues to characterize Boston’s electorate. In the final election for at-large members of City Council, for example, minority candidates won only 5.6% of the total votes cast in precincts whose populations are 90% or more non-Black. By contrast, 40.9% of the votes cast in such precincts in the final election for at-large members of the School Committee went to minority candidates. It is noteworthy, however, that both of the minority candidates chosen for School Committee by these non-Black precincts were long-time incumbents. This evidence suggests that, although residents of Boston do not vote strictly along racial lines, racial polarization nevertheless continues to be a significant feature in the electoral profile of Boston’s population. Because such bloc voting can interact with the placement of district boundaries to reduce minority voting power, it is necessary to consider each of plaintiffs’ specific dilution claims.

Packing of Blacks in Districts 1+ and 7

Plaintiffs contend that Boston’s district plan minimizes the voting strength of the Black population by packing it into only two districts in the center of the City. Dilution by packing may occur when a segment of the population which votes cohesively is concentrated in a particular district in numbers significantly greater than those necessary for that group to control the outcome of the district’s elections. Courts and reapportionment experts have estimated that a minority population of at least 65% in a single member district is necessary to give minority voters a reasonable opportunity to elect the candidate of their choice. E.g. Rybicki v. State Board of Elections of Illinois, 574 F.Supp. 1147, 1149 n. 4 (N.D.Ill.1983).

The evidence produced at trial shows that Blacks constitute about 82% of the total population of District 4 and about 66% of the total population of District 7. Although the Black population of District 4 is clearly in excess of the “effective majority” guideline of 65%, there is no evidence that the packing of Blacks in this district has resulted in their having less opportunity than other voters to participate in the political process. In fact, the evidence reveals that, Whites are packed to an even greater extent than Blacks in the City’s seven remaining districts; the average White population in districts other than 4 and 7 is 83.8%.

Plaintiffs assert that the population percentages for Districts 4 and 7 set forth above significantly underestimate the extent to which packing occurs in these districts. They contend that when the Hispanic and Asian residents of these two districts are taken into account, the percentages of minorities in Districts 4 and 7 are 88% and 81%, respectively. Dilution by packing or fragmenting, however, can occur only in the context of a cohesive voting population, and plaintiffs produced no persuasive evidence at trial tending to show that either Latinos or Asians vote cohesively with Blacks. I therefore decline to combine Boston’s minority populations for the purpose of evaluating such claims of vote dilution.

Fragmentation of Latinos

Plaintiffs allege that the City’s electoral scheme fragments the Hispanic population by dividing it among five districts. Fragmentation is “the process by which a minority group which could form a sizeable majority in one district is split into two or more districts where the minorities constitute an ineffective political grouping in each district.” Ketchum v. Byrne, 740 F.2d 1398, 1408 n. 8 (7th Cir.1984).

Plaintiffs cannot and do not contend that the City’s Latino population is large enough to form a district majority. In fact, the evidence shows and I find that it would be impossible to create a district that was even one-quarter Latino, considering that Latinos constitute only about 6% of Boston’s total population and are dispersed throughout the City. Plaintiffs nevertheless maintain that Hispanics have the potential to become “a considerable voting bloc,” and that the existing district plan deprives Hispanics of the opportunity to engage in meaningful coalition building.

Plaintiffs cite no legal authority, and this Court has found none, which support the proposition that a minority which cannot form even a bare population majority in one district may nevertheless maintain a voting dilution claim based on a theory of fragmentation. In Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C.1984) (three-judge panel), appeal docketed, 52 U.S.L.W. 3908 (U.S. June 2, 1984) (No. 83-1968), the district court considered this question and found it doubtful that the concept of vote dilution could properly be applied to any minority population incapable of forming an effective voting majority in a single member district. In reaching this conclusion, the court declared:

[a]t the effective voting majority level it is possible to say with substantial assurance that to submerge or fracture such an aggregation in a racially polarized voting situation effectively deprives it of the presumptive capability to elect, solely by its group voting strength, representatives “of its choice.” [Citations omitted] The raw power of such an aggregation “to elect” provides a clear measure of its voting strength, hence a fair and workable standard by which to measure dilution of that strength. Short of that level, there is no such principled basis for gauging voting strength, hence dilution of that strength____
We are doubtful that either the Supreme Court in developing the dilution concept in constitutional voting rights litigation, or the congress in embodying it in amended section 2 of the Voting Rights Act intended an application open-ended as to voter group size. There must obviously be some size (as well as dispersion) limits on those aggregations by voters to whom the concept can properly be applied. We do not readily perceive the limit short of the effective voting majority level that can rationally be drawn and applied.

590 F.Supp. at 381.

This persuasive reasoning speaks directly to plaintiffs’ claim that the Latino population has been unlawfully fragmented. Because I find from the evidence that no district containing a Latino voting majority can be created, I rule that the City’s existing district plan does not impermissibly dilute Hispanic voting strength.

Plaintiffs also contend that the district plan fragments minorities by failing to combine into one district the concentrations of Blacks, Hispanics and Asians located on the peripheries of Districts 4 and 7. In the absence of any credible evidence that Boston’s various minority groups vote as a bloc, however, there is no reason to believe that the creation of a district whose majority consists of a plurality of minorities would, in fact, enhance the voting strength of any one minority group. More to the point, there is no reason to rule that the City’s failure to create such a district illegally denies minorities meaningful access to the political process. I therefore rule that this claim of minority fragmentation is without merit.

Submergence of the South End and Chinatown in District 2

Plaintiffs’ final objection to the existing district map is that it places the minority communities of the South End and Chinatown in the same district as South Boston, whose residents are almost all White and are reputed to harbor strong racial prejudices. Plaintiffs’ appear to contend that impermissible vote dilution results whenever a minority concentration is placed in a district dominated by a White population whose social values and political goals diverge markedly from those of the minority. At trial, plaintiff Alex Rodriguez testified that, in his opinion, placing any minority voters in a district with South Boston results in denying minorities access to the political process. Transcript at 4-31.

I find this opinion unsupported by facts or law. The Asian population of Boston is so numerically small that it would be politically submerged regardless of the district to which it was assigned. Furthermore, the Voting Rights Act neither entitles a minority group to be included in a single legislative district, Seamon v. Upham, 536 F.Supp. 931, 945 (E.D.Tex.1982) (three-judge panel), rev’d on other grounds, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982), nor requires the electoral segregation of any segment of the majority population whose views conflict sharply with those of the minority. If minority votes are not to be diluted by packing, some parts of the minority population will invariably be placed in districts politically dominated by Whites. Plaintiffs overlook the fact that the issue of vote dilution can properly be evaluated only with reference to the electorate as a whole.

Plaintiffs’ arguments are further undermined by evidence which suggests that the minority population of the South End and Chinatown is capable of exerting considerable political influence within the district. Statistics show that the portion of District 2 in which most minorities reside accounts for 48% of the district’s voting age population. The evidence further reveals that this segment of the district constituted a crucial swing vote in the 1983 elections. The ability to “swing” an election’s outcome is a significant form of political access. Seamon v. Upham, 536 F.Supp. at 948. For these reasons, I rule that the existing structure of District 2 does not impermissably dilute the voting strength of the City’s minorities.

Extent to Which Minorities’ Candidates of Choice Have Been Elected to Office

Although Section 2 of the Voting Rights Act provides specifically that no minority group is entitled to proportional representation, the extent to which either minority candidates or majority candidates whom minorities favor have been elected to office is probative of the presence or absence of vote dilution. In the 1983 elections, which are the only ones ever held under the present district plan, minority candidates won seats on both the City Council and the School Committee. Blacks were elected to City Council in Districts 4 and 7. In the School Committee elections, a Black was chosen in District 4 and a Hispanic was elected in District 7.

Moreover, the success of minority candidates and the influence of minority voters were not confined to the two districts having Black majorities. Two Blacks were chosen by the City as a whole to be at-large members of the School Committee. Electoral statistics also reveal that minority votes determined the outcome of the City Council election in both District 3 and District 8. I find that in each of these districts, the candidate who won the City Council seat was supported by the minority population, but received less than a majority of the White vote.

No definitive conclusions can be drawn from the results of one set of elections. The record proves and I find that Blacks controlled the outcome of the election in Districts 4 and 7 and that minorities also determined the winners in Districts 3 and 8. These results clearly show not only that the election process is freely accessible to minority candidates, but also that the structure of the City’s districts gives equal voting power to minorities and to Whites.

Marginal Factors

As noted previously, the responsiveness of elected officials to minority concerns and the tenuousness of the policy underlying the contested voting plan are factors which generally have only marginal significance in assessing the validity under Section 2 of the Voting Rights Act of 1965, as amended. See supra, note 2. In this case, neither factor is particularly helpful in determining whether Boston’s minorities have been denied access to the political process. With respect to the first factor, the parties offered conflicting evidence concerning the extent to which Boston’s government has attempted to alleviate minority problems. As for the second factor, plaintiffs stipulated that they actively supported the adoption of the present mixed district and at-large system for the election of members of the City Council and School Committee. They allege, however, that there is one aspect of the policy underlying the electoral plan which is tenuous. That aspect is the statutory mandate that the City’s districts “be drawn with a view toward preserving the integrity of existing neighborhoods.” M.G.L. c. 43 § 131. Plaintiffs demonstrated at trial that the Special Committee of the City Council, which designed the district plan, had some difficulty defining and applying this criterion. However, plaintiffs offered no credible evidence to show that the criterion itself was not a legitimate factor to consider in drawing a district map or that its use ultimately resulted in the dilution of minority voting power.

Having examined the “totality of circumstances” which affect minority voting strength under Boston’s present district plan, I find that the plan gives minorities an equal opportunity to participate in the City’s political life and to elect representatives of their choice. I therefore rule that the plan does not violate Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, as amended.

Plaintiffs Constitutional Claims

Plaintiffs also assert that Boston’s district plan violates the Fourteenth and Fifteenth Amendments of the United States Constitution and Articles 1 and 9 of the Declaration of Rights of the Massachusetts Constitution. To prove that an electoral scheme is prohibited by the Fourteenth and Fifteenth Amendments, a plaintiff must show not only that the challenged plan deprives him of equal access to the political system, but also that the governmental officials who formulated the plan did so with an intent to discriminate. E.g. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Because I rule that the Boston plan does not violate the Voting Rights Act, the plaintiffs’ case necessarily fails to satisfy the higher burden of proof required by the Fourteenth and Fifteenth Amendments.

I decline to exercise my discretion to reach plaintiffs’ pendant state claims, because no Massachusetts court has ever considered the issue of vote dilution under Articles 1 and 9 of the Declaration of Rights of the Massachusetts Constitution, and thus there is no clear Massachusetts authority on which this Court could rely to adjudicate plaintiffs’ claims.

Order accordingly.

      . These census figures for Boston’s Blacks and Hispanics are slightly inflated, because each figure includes approximately 4,000 individuals who are both Black and Hispanic. According to the testimony of defendants’ expert, Kimball Brace, elimination of the "double count” reduces the percentage of Blacks in Boston to 21.7%, the percentage of Hispanics to 5.7%, and the percentage of combined minorities to 30.8%.

      . This enumeration of factors is slightly different from that articulated in Zimmer. Unlike Zimmer, the congressional list establishes both polarized voting and as elements of primary importance, while it relegates two Zimmer factors — responsiveness of elected officials and tenuousness of the underlying policy — to the status of marginal significance. Jones v. City of Lubbock, 727 F.2d 364, 384 (5th Cir.1984).

      . Numerous decisions from the First Circuit also illustrate the existence of discrimination against Boston's minorities in the areas of employment, education and housing. See e.g., Black Voters v. McDonough, 421 F.Supp. 165, 175 (D.Mass.1976), aff’d, 565 F.2d 1 (1st Cir. 1977), and cases cited therein; Morgan v. McDonough, 689 F.2d 265 (1st Cir.1982); NAACP v. Harris, 567 F.Supp. 637 (D.Mass.1983).